Unreported / Non-Citable
Background
Vazgen Zohrabyan, a native and citizen of Armenia, petitioned for review of a Board of Immigration Appeals (BIA) order dismissing his appeal of an Immigration Judge's (IJ) denial of deferral of removal under the Convention Against Torture (CAT). The BIA affirmed the IJ's decision and cited Matter of Burbano, prompting the Ninth Circuit to review both the IJ's and BIA's decisions. Zohrabyan did not challenge the agency's prior adverse credibility and persecutor-bar findings or its denials of asylum, statutory withholding of removal, and withholding of removal under CAT, forfeiting those issues. The court had jurisdiction under 8 U.S.C. § 1252 and reviewed the agency's adverse credibility finding and denial of CAT relief for substantial evidence.
To obtain CAT relief, Zohrabyan was required to show it is more likely than not that he would be tortured upon removal to Armenia and that he faced a particularized threat of torture. Zohrabyan's theory of particularized risk relied on continued government interest in him stemming from his 2002 whistleblower activities. As proof, he testified for the first time during his 2023 hearing—after the agency had denied asylum and withholding and remanded for CAT proceedings in 2021—that police pursued his family to reach him, including the beating, harassment, and death of his father in 2003 and 2004. Zohrabyan had opportunities to raise these events during his 2005 hearing and in his amended 2023 I-589 form but did not do so.
The Court’s Holding
The Ninth Circuit held that substantial evidence supported the agency's adverse credibility finding. The omissions of his father's beating and death were significant because they went to the heart of Zohrabyan's claim of continued government interest. The court noted that omissions that strengthen a claim, revealed only after an applicant is unsuccessful before the agency, are probative of credibility under Zamanov v. Holder. The agency considered but reasonably rejected Zohrabyan's explanations for the omissions, and the record did not compel a contrary conclusion. Because Zohrabyan's 2002 application predated the REAL ID Act, the court was bound to accept the credibility finding so long as one identified ground was supported by substantial evidence and went to the heart of the claim.
The court further held that the adverse credibility finding did not automatically defeat the CAT claim, which must be assessed independently on all record evidence. The agency considered all relevant evidence, including Zohrabyan's past torture in 2002, country conditions reports reflecting police brutality in Armenia, and the passage of more than 14 years since the events. The agency determined that while the evidence reflected general human rights violations, it did not establish that Zohrabyan himself faced a particularized risk of torture. The record did not compel a contrary conclusion, as generalized evidence is insufficient to meet the particularized risk standard, and when testimony is found not credible, country reports alone must compel the conclusion that a petitioner faces a particularized risk of torture. The petition for review was denied, and Zohrabyan's opposed motion for stay of removal was also denied.
Key Takeaways
- Substantial evidence supported the agency's adverse credibility determination based on Zohrabyan's omission of critical events—his father's beating and death—from prior proceedings, which he disclosed only after prior relief was denied.
- Omissions that strengthen a claim and are revealed after an applicant has been unsuccessful before the agency are probative of credibility and can support an adverse credibility finding.
- An adverse credibility finding does not automatically defeat a CAT claim; the agency must independently assess all record evidence, including country conditions, to determine if a particularized risk of torture exists.
- Generalized evidence of human rights abuses or police brutality in a country is insufficient to establish a particularized risk of torture for a specific petitioner.
- When an applicant's testimony is found not credible, country condition reports alone must compel the conclusion that the applicant faces a particularized risk of torture to warrant CAT relief.
Why It Matters
This memorandum disposition reinforces the Ninth Circuit's deferential substantial evidence standard of review for agency credibility determinations and CAT eligibility findings. It clarifies that late-disclosed, claim-enhancing omissions—especially those central to the petitioner's theory of particularized risk—can sustain an adverse credibility finding even under the pre-REAL ID Act 'heart of the claim' standard. The decision also underscores the independent nature of CAT analysis: even with a credible past torture claim, a petitioner must present particularized, non-speculative evidence of future risk, and generalized country conditions cannot substitute for individualized proof.