YESAYI INDIKUSHAYAN and ALBERT INDIKUSHYAN v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YESAYI INDIKUSHAYAN and ALBERT
INDIKUSHYAN,
Petitioners,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 11-73336
Agency Nos. A097-857-788
A097-665-876
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 4, 2015**
Pasadena, California
Before: SCHROEDER and FRIEDLAND, Circuit Judges, and CHHABRIA,***
District Judge.
Yesayi Indikushyan and his son, Albert, natives and citizens of Armenia,
petition for review of a Board of Immigration Appeals (BIA) decision affirming
the denial of Yesayi’s applications for asylum, withholding of removal, and
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Vince G. Chhabria, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
FILED
NOV 10 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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protection under the Convention Against Torture (CAT).1 We review for
substantial evidence the agency’s factual findings. Madrigal v. Holder, 716 F.3d
499, 503 (9th Cir. 2013). We deny the petition for review.2
Substantial evidence supports the agency’s adverse credibility
determination. See Rizk v. Holder, 629 F.3d 1083, 1087 (9th Cir. 2011) (in pre-
REAL ID Act cases, the court “must uphold the IJ’s adverse credibility
determination so long as one of the identified grounds is supported by substantial
evidence and goes to the heart of [petitioner’s] claim of persecution”) (alteration
omitted). Petitioner’s initial declaration discussed only one instance in which
soldiers allegedly arrived at his father’s store and perpetrated politically-motivated
violence therein. In a supplemental declaration, Petitioner for the first time
mentioned a home attack that took place on the same day as the store attack.
During his live testimony, Petitioner stated that the home attack actually took place
over two weeks after the store attack, after his return from the hospital for injuries
1 Albert Indikushyan is a derivative beneficiary of his father’s application.
He did not take substantive part in the immigration proceedings and did not file
any independent claims. References to “Petitioner” shall therefore refer to Yesayi.
2 Petitioner’s application was filed prior to the effective date of the REAL
ID Act. This court’s pre-REAL ID case law therefore controls.

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suffered during the store attack. He also offered vague and inconsistent testimony
regarding when various injuries were suffered by whom. These inconsistencies
regarding a “dramatic, pivotal event” that “precipitated [the petitioner’s] flight”
from his home country goes to the heart of his claim and provide substantial
evidence for discrediting his testimony. Alvarez-Santos v. INS, 332 F.3d 1245,
1254 (9th Cir. 2003).
When given the opportunity to explain these inconsistencies, Petitioner
stated that they were due to faulty memory and that his memory was worse when
he testified than when he submitted his declarations, but that his testimony
reflected the most accurate account. The agency reasonably rejected this
explanation and “properly rel[ied] on the inconsistenc[ies] as support for an
adverse credibility determination.” Rizk, 629 F.3d at 1088.
The BIA validly concluded that the adverse credibility determination was
dispositive of Petitioner’s asylum and withholding of removal claims. Without
credible testimony, Petitioner necessarily failed to carry his burden of proving past
persecution, a well-founded fear of future persecution, or a clear probability of
future persecution. See Madrigal, 716 F.3d at 503 (asylum requires establishing
either past persecution or a well-founded fear of future persecution); Viridiana v.

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Holder, 646 F.3d 1230, 1239 (9th Cir. 2011) (withholding of removal requires
establishing either past persecution or a clear probability of future persecution).
Although an “adverse credibility determination is not necessarily a death
knell to CAT protection,” Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010),
where, as here, the evidence supporting Petitioner’s claim “is his discredited
testimony and general [country] reports” regarding human rights in Armenia, “to
reverse the BIA’s decision [the court] would have to find that the reports alone
compelled the conclusion that [Petitioner] is more likely than not to be tortured.”
Almaghzar v. Gonzales, 457 F.3d 915, 922-23 (9th Cir. 2006). Here, while the
country reports submitted by Petitioner do generally confirm that torture has been
employed in Armenia against opponents of the government, there is no indication
in this record, apart from Petitioner’s discredited testimony, that Petitioner himself
or his son would be tortured if they returned. See id. Substantial evidence thus
supported denial of Petitioner’s CAT claim.
PETITION FOR REVIEW DENIED.

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