FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ZHIRAYR LALAYAN, AGHUNIK No. 18-73062 YEGHIAZARYAN, SERZH LALAYAN, SAMSON LALAYAN, and A.L., Agency Nos. Petitioners, A208-601-349 A208-601-286 v. A208-601-287 A208-601-288 MERRICK B. GARLAND, Attorney A208-601-289 General, Respondent. OPINION On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 11, 2021 San Francisco, California Filed July 13, 2021 Before: J. Clifford Wallace, Ronald M. Gould, and Michelle T. Friedland, Circuit Judges. Opinion by Judge Wallace 2 LALAYAN V. GARLAND SUMMARY * Immigration Denying Zhirayr Lalayan, his wife Aghunik Yeghiazaryan, and their children’s petition for review of the Board of Immigration Appeals’ decision affirming an immigration judge’s denial of asylum, withholding of removal, and protection under the Convention Against Torture, the panel held that substantial evidence supported the adverse credibility determination as to Lalayan, based on implausibilities in the record, and as to Yeghiazaruan, based on her evasive and non-responsive testimony, and that substantial evidence supported the denial of withholding and CAT relief. The panel first clarified the law concerning implausibility findings. The panel explained that inherent plausibility in the context of adverse credibility determinations refers to the inherent believability of testimony in light of background evidence. The panel wrote that an IJ must provide specific and cogent reasons, including citations to record evidence, in support of an implausibility finding, and may not base that finding on speculation or conjecture. In addition, the IJ must provide a witness an opportunity to explain a perceived implausibility during the merits hearing. The panel wrote that the cited evidence in the record, including a witness’s own testimony, need not conclusively establish that the witness’s testimony is false, and the IJ’s implausibility finding will ultimately * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. LALAYAN V. GARLAND 3 hinge on the application of a reasonable evaluation of the testimony and evidence based on common sense. The panel explained that this mix of constraints and flexibility enables an IJ to challenge a witness on a perceived implausibility and discredit unbelievable testimony, while guarding against unwarranted assumptions that are untethered from evidence in the record or based not on common sense but rather on cultural differences. Applying that framework to the agency’s implausibility determination, the panel concluded that the IJ reasonably applied common sense, gave specific and cogent reasons for finding Lalayan’s testimony implausible, and provided Lalayan ample opportunity to address the perceived implausiblities. The panel held that evidence therefore did not compel reversal of the adverse credibility determination as to Lalayan. The panel also held that substantial evidence supported the IJ’s adverse credibility determination as to Yeghiazaryan based on her evasive and non-responsive testimony. Observing that the Board characterized this finding as a demeanor finding, and that this circuit has similarly characterized evasiveness and non-responsiveness as demeanor findings, the panel recognized that the REAL ID Act differentiates between the demeanor and responsiveness of …
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