Barnut v. Ashcroft

113 F. App'x 229

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 28, 2004
• Docket: Nos. 03-71191, A77-393-321
• Status: Published

Opinions

MEMORANDUM

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Dorel-Marcel Barnut, a native and citizen of Romania, petitions for review of the Board of Immigration Appeals’¹ denial of his application for asylum, withholding of removal, and withholding pursuant to the Convention Against Torture.² We grant the petition and remand.

Credibility determinations are upheld “if supported by ‘reasonable, substantial and probative evidence’ in the record.” See Kaur v. Ashcroft, 379 F.3d 876, 884 (9th Cir.2004); Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002); Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir.2000); de Leon-Barrios v. INS, 116 F.3d 391, 393 (9th Cir.1997); see also INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992). However, we have added that the determination “ ‘must be supported by a specific, cogent reason.’ ” de Leon-Barrios, 116 F.3d at 393; see also Gui, 280 F.3d at 1225.

As we read the IJ’s decision, he found that Barnut was not credible and denied asylum on that basis. However, our review of the record convinces us that the IJ’s reasons were not both specific and cogent. Thus, we must reject them and determine that Barnut should be deemed credible. However, we will not undertake to decide whether the credible evidence dictates that he is or is not a refugee within the meaning of 8 U.S.C. § 1101(a)(42)(A). We leave that for the BIA (or IJ) in the first instance. See INS v. Orlando Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 355, 154 L.Ed.2d 272 (2002).

Moreover, because the IJ did not separately discuss withholding of deportation or relief under CAT, we remand those issues along with the asylum issue for determination by the BIA in the first instance. Id.

Petition GRANTED, and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . The BIA issued no separate opinion and declared the immigration judge’s decision to be the final agency determination. Thus, we review the IJ's opinion. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 851 (9th Cir.2003).

2 . United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/RES/39/46 (1984).