Arman Dobroyan; v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMAN DOBROYAN; et al.,
Petitioners,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 12-72269
Agency Nos. A099-970-715
A099-970-716
A099-970-717
MEMORANDUM*
ARMAN DOBROYAN; et al.,
Petitioners,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 13-71711
Agency Nos. A099-970-715
A099-970-716
A099-970-717
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 12, 2016
Pasadena, California
FILED
MAR 07 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Before: FARRIS, CLIFTON, and BEA, Circuit Judges.
Arman Dobroyan, a citizen of Armenia, petitions for review of the order of
the Board of Immigration Appeals denying his applications, and those of his wife
and daughter as derivative petitioners, for asylum, withholding of removal, and
protection under the Convention Against Torture based on an adverse credibility
finding. Dobroyan also petitions for review of the BIA’s decision denying his
motion to reopen based on ineffective assistance of counsel. We have jurisdiction
over this appeal under 8 U.S.C. § 1252, and we deny the petitions.
We review a finding of adverse credibility for substantial evidence, and
accept that finding “unless any reasonable adjudicator would be compelled to
conclude to the contrary.” Bassene v. Holder, 737 F.3d 530, 536 (9th Cir. 2013).
Pursuant to the REAL ID Act, which applies in this case as Dobroyan filed his
applications after May 11, 2005, see Zhiqiang Hu v. Holder, 652 F.3d 1011, 1017
n.5 (9th Cir. 2011), the BIA was permitted to base an adverse credibility
determination on the inherent implausibility of the applicant’s account, on
inconsistencies between the applicant’s written and oral statements, or on any
stated inaccuracies or falsehoods. 8 U.S.C. §§ 1158(b)(1)(B)(iii); 1231(b)(3)(C).
An inconsistency or inaccuracy that goes to the heart of the applicant’s claim
carries great weight. Shrestha v. Holder, 590 F.3d 1034, 1046–47 (9th Cir. 2010).
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The BIA identified several inconsistencies within Dobroyan’s testimony and
between his oral and written declarations. Dobroyan offered multiple conflicting
dates for when events relating to the heart of his asylum claim occurred. For
example, the immigration judge found Dobroyan’s testimony regarding
Aghabegyan’s alleged demand for $2,000 confusing and inconsistent. On cross-
examination, Dobroyan also gave an account of threats and a beating he claimed he
suffered in Russia that he had omitted from his written testimony. He also included
a claim that he was detained and interrogated in May 2001 in his written
declaration that he omitted from his oral testimony. Finally, Dobroyan testified
inconsistently as to when he worked for the Ministry of Archives—the job from
which he was supposedly forced to resign as part of the persecution against him in
Armenia.
Moreover, many of the statements about these events were vague, confusing,
and lacking in specific detail. See Singh-Kaur v. INS, 183 F.3d 1147, 1149 (9th
Cir. 1999). When asked to explain these infirmities in his testimony, Dobroyan
stated that he had lost his memory and that the trauma of the attempt on his life had
made him forget unimportant details such as dates. We defer to the IJ’s conclusion
that these explanations were “not satisfactory to explain the inconsistencies” in his
testimony. See Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011). Dobroyan also
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failed to corroborate his story with affidavits or testimony from his parents and
brother, who lived nearby and were available. In short, the IJ’s adverse credibility
determination was supported by substantial evidence, and the BIA therefore did not
err in denying Dobroyan’s appeal of the IJ’s denial of his application for asylum.
The BIA’s determination that Dobroyan had failed to establish eligibility for
asylum based on the IJ’s adverse credibility finding is also determinative of
Dobroyan’s claim for withholding of removal. The burden of proof required to
show eligibility for withholding of removal (a clear probability of persecution) is
greater than the burden of proof necessary to show eligibility for asylum (well-
founded fear of persecution). INS v. Stevic, 467 U.S. 407, 413 (1984). As
Dobroyan failed to meet the lesser burden, he necessarily did not meet the more
stringent burden of establishing a clear probability of persecution.
This Court reviews the BIA’s denial of a motion to reopen for abuse of
discretion and may reverse the BIA’s decision only if it is “arbitrary, irrational, or
contrary to law.” Go v. Holder, 744 F.3d 604, 609 (9th Cir. 2014). A motion to
reopen must be filed within 90 days of a final order of removal and a party may
make only one motion to reopen. 8 U.S.C. §§ 1229a(c)(7)(C)(i), 1229a(c)(7)(A).
Equitable tolling or waiver of these limitations may be available when a petitioner
is prejudiced by the ineffective assistance of counsel, but only up until the time a
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petitioner exercising due diligence discovers or should have discovered counsel’s
misconduct. Iturribarria v. I.N.S., 321 F.3d 889, 897–99 (9th Cir. 2003). Dobroyan
filed a second motion to reopen over 90 days after the BIA issued a final order of
removal, asserting that his first counsel was deficient for failing to address the
credibility issues in his case and that his second counsel was deficient for failing to
inform him of his first counsel’s errors. Dobroyan did not exercise due diligence in
discovering and remedying this alleged misconduct, however. Dobroyan should
have discovered his first counsel’s ineffective assistance when his credibility was
challenged at the asylum hearing and certainly when the IJ issued her decision
denying Dobroyan’s applications based on an adverse credibility finding.
Of course, Dobroyan, as a native Armenian speaker with no legal training,
should not be expected to recognize non-obvious legal errors made by prior
counsel without the assistance of new counsel. But his first counsel’s supposed
mistake in not offering corroborating testimony was obvious. Dobroyan was asked
repeatedly at the IJ hearing why his sister, parents, and brother did not testify or
submit declarations on his behalf. The IJ’s January 12, 2011 ruling specifically
underscored the lack of corroborating testimony. Finally, Dobroyan’s April 5, 2011
(his first) motion to reopen specifically indicated that his brother and parents were
now available to testify, thus further undercutting his claim that he was unaware
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prior to November 7, 2012 that the lack of corroborating testimony had been a
critical factor in the IJ’s adverse credibility determination.
This Court reviews de novo a claimed due process violation on the basis of
ineffective assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791–92
(9th Cir. 2005). The ineffective assistance of counsel in a deportation hearing
amounts to a denial of due process under the Fifth Amendment when counsel’s
performance is so inadequate it prevents the petitioner from presenting his case and
prejudices the outcome. Rodriguez-Lariz v. INS, 282 F.3d 1218, 1226 (9th Cir.
2002). Dobroyan had ample opportunity to present corroborating testimony, clarify
his statements, and account for any inconsistencies and omissions. The alleged
failure of his first counsel to do so for him or of his second counsel to inform him
of the problem was not prejudicial as the IJ brought these credibility issues to
Dobroyan’s attention and he chose not to take further action.
Petitions for review DENIED.
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