Zhirayr Lalayan v. Merrick Garland
4 F.4th 822
| 9th Cir. | 2021

Background:

  • Petitioners are an Armenian family (husband Lalayan, wife Yeghiazaryan, three children) who entered the U.S. at San Ysidro on November 28, 2015 and conceded removability; Lalayan applied for asylum, withholding, and CAT protection.
  • Lalayan worked for seven years at UMCOR’s Armenia mission and served as vice chairman of a local Yerkrapah Volunteer Union branch; shortly before emigrating he alleges he discovered the Union was embezzling UMCOR aid and filed a complaint with Armenia’s prosecutor general.
  • Lalayan alleges November 2015 assaults, threats (including at the Union chairman’s office), and police beatings aimed at forcing withdrawal of his complaint; the family departed Armenia and traveled through Russia, Cuba, and Mexico before arriving in the U.S.
  • At merits hearings the IJ and government extensively questioned Lalayan about three perceived implausibilities: (1) he complained to the prosecutor general but did not notify UMCOR; (2) despite his warehouse role he never reviewed the Union’s distribution lists until leaving; and (3) the family decided to go to the U.S. only during two days in Mexico.
  • The IJ found Lalayan and his wife partially not credible (including a finding that the wife was evasive/non‑responsive), denied asylum, withholding, and CAT relief; the BIA affirmed. The Ninth Circuit denied review, holding substantial evidence supported the Agency’s credibility and implausibility findings.

Issues:

Issue Plaintiff's Argument Defendant's Argument Held
1) Were the IJ/BIA’s implausibility findings that Lalayan filed a complaint with the prosecutor but did not notify UMCOR supported by substantial evidence? Lalayan: He had personal/Union reasons to pursue prosecution and did not notify UMCOR because of language/tech limits and fear of disrupting aid operations. Gov.: Testimony, documentary evidence, and inconsistent explanations made non‑notification implausible. Held: Substantial evidence supports the Agency’s implausibility finding.
2) Was it implausible that Lalayan, a seven‑year UMCOR warehouse officer, had never reviewed the Union’s distribution lists until leaving? Lalayan: He reviewed as needed and only did a full review when leaving to ensure proper handover. Gov.: Job duties, a UMCOR letter of recommendation, and his own testimony indicate routine accounting responsibilities, making his account implausible. Held: Substantial evidence supports the Agency’s finding of implausibility.
3) Was it plausible that the family decided to go to the U.S. only during two days in Mexico? Lalayan: Decision evolved after threats; prior visa attempts show uncertainty; he feared persecution in Mexico. Gov.: Multiple prior U.S. visa attempts and the travel route make a last‑minute U.S. plan implausible. Held: Substantial evidence supports the Agency’s finding that the travel‑decision timeline was implausible.
4) Could the IJ’s finding that Yeghiazaryan was evasive/non‑responsive support an adverse credibility determination? Petitioners: Cultural/household decision norms could explain wife’s limited participation in planning. Gov.: Transcripts show repeated vague, non‑responsive answers; IJ and BIA observed demeanor and verbal evasiveness. Held: Substantial evidence supports the Agency’s adverse credibility determination as to the wife.

Key Cases Cited

  • Jibril v. Gonzales, 423 F.3d 1129 (9th Cir. 2005) (discusses limits on implausibility findings and need for record support for speculation or conjecture)
  • Shrestha v. Holder, 590 F.3d 1034 (9th Cir. 2010) (IJs must give specific and cogent reasons for adverse credibility findings and discuss statutory factors)
  • Garcia v. Holder, 749 F.3d 785 (9th Cir. 2014) (standard of review: factual findings, including adverse credibility, reviewed for substantial evidence)
  • Ai Jun Zhi v. Holder, 751 F.3d 1088 (9th Cir. 2014) (an IJ must give a witness opportunity to address perceived implausibility; speculation is impermissible)
  • Lizhi Qiu v. Barr, 944 F.3d 837 (9th Cir. 2019) (criticizes implausibility findings based on speculation and unprobed assumptions)
  • Rodriguez v. Holder, 683 F.3d 1164 (9th Cir. 2012) (BIA may rely on common sense to find IJ’s factual findings illogical or implausible)
  • Wakkary v. Holder, 558 F.3d 1049 (9th Cir. 2009) (standard for well‑founded fear and withholding of removal)
  • Tamang v. Holder, 598 F.3d 1083 (9th Cir. 2010) (country reports insufficient to prove more‑likely‑than‑not persecution)
  • Dhital v. Mukasey, 532 F.3d 1044 (9th Cir. 2008) (elements for CAT: likelihood of torture and particularized risk with state involvement)
  • Almaghzar v. Gonzales, 457 F.3d 915 (9th Cir. 2006) (testimony credibility and reliance on country reports for CAT claims)
  • Yan Xia Zhu v. Mukasey, 537 F.3d 1034 (9th Cir. 2008) (warning against cultural‑bias assumptions in implausibility findings)
  • Bingxu Jin v. Holder, 748 F.3d 959 (9th Cir. 2014) (demeanor and responsiveness can be factors in credibility determinations)
  • Manes v. Sessions, 875 F.3d 1261 (9th Cir. 2017) (deference to IJ’s first‑hand credibility observations)
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