Abovian v. Immigration & Naturalization Serv.

• Decision Date: 05 July 2001
• Docket Number: No. 98-70934,98-70934
• Citation: 257 F.3d 971
• Parties: (9th Cir. 2001) SOGHOMON ABOVIAN; LOUSINE ABOVIAN; ISKOUI ABOVIAN, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Order Filed
• Court: U.S. Court of Appeals — Ninth Circuit

Page 971

257 F.3d 971 (9th Cir. 2001)

SOGHOMON ABOVIAN; LOUSINE ABOVIAN; ISKOUI ABOVIAN, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 98-70934

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Order Filed July 5, 2001

Order Filed July 20, 2001

INS Nos. A70-918-599, A70-918-600, A70-955-211

Before: J. Clifford Wallace, Harry Pregerson and Sidney R. Thomas, Circuit Judges.

ORDER

The order denying rehearing filed July 5, 2001 and the dissent are designated for publication.

ORDER

A sua sponte call for en banc was made by a member of the Court.

The full court was advised of the call on whether to rehearthe matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35(b).

The brief filed by respondent urging en banc is denied and the petition for rehearing en banc is rejected.

KOZINSKI, Circuit Judge, with whom Circuit Judges O'SCANNLAIN, TROTT, T.G. NELSON, KLEINFELD, GRABER, TALLMAN and RAWLINSON join, dissenting from the order denying the petition for rehearing en banc:

The majority overthrows a perfectly reasonable BIA decision by invoking novel rules divorced from administrative law, Supreme Court precedent and common sense. While this is a particularly egregious case, it is not the first one where we have whittled away the authority and discretion of immigration judges and the BIA, imposing ever more stringent standards on how these adjudicatory officers must perform their functions. What the majority does here is the antithesis of administrative deference.

The majority doesn't defer to the Supreme Court either. While reciting that we may only reverse the BIA if petitioner has presented evidence "so compelling that no reasonable factfinder could fail to find the requisite fear of persecution," the majority reverses based on a story so wild, implausible and uncorroborated that no reasonable factfinder could believe it.¹ Abovian v. INS, 219 F.3d 972, 977-78 (9th Cir. 2000) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992)). The majority effectively inverts the standard by saddling the BIA with the burden of proving that petitioner is not entitled to relief.

Abovian testified that Levon Ter-Petrosyan, who then was the President of Armenia, had met with him in a hotel more than fifteen times to recruit him for service in the KGB. He made no mention of such extraordinary interviews in his written asylum application. Nor did he try to reconcile his story with our State Department's Country Report for Armenia, which observes that Ter-Petrosyan led his country to independence from the Soviet Union and is a political adversary of the Communists. See U.S. Dep't of State, Bureau of Democracy, Human Rights & Labor, Armenia--Profile of Asylum Claims & Country Conditions 6 (May 1996) ("Country Report"). Although Abovian testified that "everybody knows" that independence is a fiction and that Ter-Petrosyan works for the Russians, he presented no affidavits, letters or articles in support. A.R. 160. In fact, Abovian presented nothing but his own testimony to document this fantastic claim. His wife and daughter testified, yet neither corroborated his story.

Abovian's testimony was marked by internal inconsistencies and material departures from his asylum application. He testified he was beaten when he went to Cuba, then said that he was jailed as a traitor because he refused to go there. He wrote that the KGB tried to coerce his assistance by placing him in a small hole in the ground filled with water and snakes, but later admitted he couldn't be sure it was the KGB that had abused him. He wrote that the KGB restricted him to menial labor jobs, but later said he had been in demand for his expertise in the air conditioning business. He wrote that his daughter had been struck by a car and could not identify the driver until twelve days after the accident, but later testified that she did so after only two days. While Abovian described his daughter as completely paralyzed in his application, she testified that only half her body had been paralyzed. He testified that the KGB kidnapped his daughter and warned him not to tell the police, even though he also testified that the KGB ran the country. See n. 5 infra.

The BIA found Abovian's testimony "disjointed, incoherent, and implausible." It faulted him for his inconsistencies; his failure to produce any supporting documents or explain why he couldn't; his failure to mention the Armenian President in his application; and the general implausibility of the whole tale. Despite these problems with Abovian's story, the majority sets aside the BIA ruling for four reasons, none of which can be found in the immigration laws or regulations, or for that matter in any caselaw outside this circuit: the BIA violated Abovian's due process rights by failing to give him a chance to clean up his story; the BIA erred by holding Abovian's failure to provide corroborating evidence against him; the BIA erred by concluding that Abovian's numerous inconsistencies cast doubt on his credibility; and the BIA erred by taking into account the general implausibility of his tale.

As Judge Wallace notes in his lucid dissent, the majority's due process ruling is especially curious because Abovian himself never raised it. The majority could have avoided this constitutional issue because Abovian waived it, or because the majority throws out the BIA's decision on another ground. But the majority instead chooses to ignore well-established principles of judicial restraint and holds that Abovian's hearing was fundamentally unfair, because the BIA decided to disbelieve his testimony, without first giving him a chance to explain away inconsistencies and supplement the record. See Abovian, 219 F.3d at 980 (BIA must give Abovian"a reasonable opportunity to explain the perceived deficiencies in his testimony" and remand the case to the IJ "[i]f further factual development of [the] record is required.").

This constitutional rule exists nowhere outside the Ninth Circuit. The majority contends that the BIA violated Abovian's right to a fair hearing, but what kind of unfairness can there be when the BIA uses the petitioner's own words against him? A petitioner who testifies, like any other witness, puts his credibility at issue. See, e.g., Stewart v. United States, 366 U.S. 1, 6 n.13 (1961) ("[T]he defendant's credibility is in issue whenever he testifies."); United States v. West, 826 F.2d 9138.909, 912 (9th Cir. 1987) (same). Abovian and his lawyer knew that, by taking the stand, petitioner would risk being faulted for inconsistencies in his testimony, implausible failures of memory, hesitations and omissions. Counsel for the INS was entitled to probe for such weaknesses through cross-examination, and petitioner's counsel could try to rehabilitate him on redirect. If the IJ had then chosen to disbelieve petitioner, he would have had no constitutional right to get back on the stand and patch up his story.

The result should be no different when it is the BIA that makes the adverse credibility determination. Congress gave the BIA authority to "conduct a de novo review of the record, to make its own findings, and to determine independently the sufficiency of the evidence." Castillo v. INS, 951 F.2d 1117, 1120-21 (9th Cir. 1991) (emphasis omitted). The BIA may disregard the IJ's credibility judgment and, should it do so, we review only the BIA's decision, not that of the IJ. See Pal v. INS, 204 F.3d 935, 937 n.2 (9th Cir. 2000). Petitioner had ample notice of the BIA's authority, and he had a full opportunity to develop the record. Moreover, he was well aware that his credibility was in doubt because counsel for the INS echallenged his story on cross-examination before the IJ. See A.R. 158-61.² How then can Abovian complain that the BIA deprived him of his right to a fair hearing by faulting him for inconsistencies in the record? He can't and he didn't; the majority does it for him.

The majority's second reason for reversing the BIA also has no support in the immigration laws and pushes our court even further adrift from the law of other circuits. The majority holds that the BIA cannot fault a petitioner for inexplicably failing to corroborate his story with documents or other evidence one might expect him to have available. Because asylum petitioners have the burden of proving they are entitled to relief, see Meza-Manay v. INS, 139 F.3d 759, 763 (9th Cir. 1998), it's entirely appropriate for the trier of fact to expect the petitioner to gather such proof as is available, or explain why it's not. A petitioner's failure to do one or the other strikes me as a perfectly legitimate (and sensible) reason for rejecting his story.

The BIA has endorsed this approach and held that corroborating evidence will not be necessary where impossible to provide, but "where it is reasonable to expect corroborating evidence for certain alleged facts pertaining to the specifics of an applicant's claim, such evidence should be provided." In re S-M-J, Int. Dec. 3303, 1997 WL 80984, at 5 (BIA Jan. 31, 1997) (en banc). Because federal courts must defer to the BIA's reasonable interpretation of immigration law, the two other circuits that have passed on this issue have endorsed this rule and held that the BIA might reasonably question why a petitioner giving apparently credible testimony would fail to produce evidence that should have been available. See Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001) ("[T]he BIA may sometimes require otherwise-credible applicants to supply corroborating evidence in order to meet their burden of proof."); Diallo v. INS, 232 F.3d 279, 285 (2d Cir. 2000) ("[E]vidence corroborating his story, or an explanation for its absence, may be required where it would be reasonably expected.").

In conflict with these circuits, we have rejected the BIA's interpretation of the...