Gayane Martirosyan v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 20, 2019
• Docket: 17-70919
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 20 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GAYANE MARTIROSYAN, No. 17-70919

Petitioner, Agency No. A206-267-383

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted February 12, 2019 San Francisco, California

Before: McKEOWN, W. FLETCHER, and MURGUIA, Circuit Judges.

Gayane Martirosyan petitions for review of the Board of Immigration

Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of her

application for asylum, withholding of removal, and protection under the

Convention Against Torture. The BIA upheld the IJ’s adverse credibility

determination based on what it found to be evasive and unresponsive testimony

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. regarding the organization bylaws and the photographs she submitted with her

application, a supposed inconsistency in the record regarding the number of police

officers present, and a failure to provide sufficient corroborating evidence. We

have jurisdiction under 8 U.S.C. § 1252. We grant the petition and remand for

further proceedings.

We review factual findings, including adverse credibility determinations and

determinations regarding the availability of corroborating evidence, for substantial

evidence. Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014); see 8 U.S.C.

§ 1252(b)(4). We will uphold factual findings “unless any reasonable adjudicator

would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B);

Bhattarai v. Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016) (quoting Garcia, 749 F.3d

at 789). Because Martirosyan filed her application after May 11, 2005, we apply

the credibility and corroboration standards set forth in the REAL ID Act.

1. Adverse Credibility Determination

When we review an “adverse credibility determination in which lack of

corroboration is one of several stated grounds for the IJ or BIA’s decision,” we

“separate out the non-corroboration grounds for the adverse credibility

determination and evaluate whether the IJ and BIA’s determination is supported by

2 substantial evidence” based on those non-corroboration grounds alone. Bhattarai,

835 F.3d at 1043.

We hold that the BIA’s adverse credibility determination is not supported by

substantial evidence, reverse the determination, and deem Martirosyan’s testimony

credible. See Ren v. Holder, 648 F.3d 1079, 1089 (9th Cir. 2011). First,

substantial evidence does not support the agency’s finding that Martirosyan was

unresponsive and evasive regarding the photographs she submitted with her

application and regarding her testimony about the organization bylaws.

Martirosyan provided responsive, detailed, and consistent testimony throughout the

two days of hearings, and the IJ’s findings to the contrary lack a basis in the

record. Second, substantial evidence does not support the agency’s finding that

Martirosyan’s oral testimony that two police officers were present in the basement

was inconsistent with her translated written declaration, which implied through use

of the English word “another” that three officers were involved. Both her oral

testimony and her written declaration support a consistent story that two officers

were present. Martirosyan adequately explained any possible inconsistency,

including by submitting, at the IJ’s request, her original, Armenian-language

declaration. Notably, the IJ rejected Martirosyan’s explanation of a translation

error without translating or otherwise addressing the declaration.

3 2. Corroborating Evidence

An applicant for asylum may establish her eligibility based on her credible

testimony alone, without corroboration. 8 U.S.C. § 1158(b)(1)(B)(ii). In

evaluating a claim, the agency must first determine whether the applicant’s

credible testimony alone is “sufficient to sustain” the applicant’s burden of proof.

Id.; see Ren, 648 F.3d at 1090–93. “In determining whether the applicant has met

the applicant’s burden, the trier of fact may weigh the credible testimony along

with other evidence of record.” 8 U.S.C. § 1158(b)(1)(B)(ii). Only after having

determined that an applicant’s “credible testimony along with other evidence of

record” is insufficient to meet the applicant’s burden of proof, can an IJ request

that applicant provide additional corroborating evidence. Id.; Ren, 648 F.3d at

1090–93. If an IJ determines corroborating evidence is necessary, an applicant

“must” provide the evidence “unless the applicant does not have the evidence or

cannot reasonably obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii); Ren, 648

F.3d at 1090–93.

Here, the IJ requested additional corroborating evidence. However, because

Martirosyan’s testimony, if credible, was sufficient to meet her burden of proof,

compliance with the request was not necessary. The extensive evidence

Martirosyan submitted with her initial application, including photographs, medical

4 records, five letters of support, and a country conditions report, compels the

conclusion that she satisfied the burden of proof. Alternatively, the evidence

requested by the IJ was reasonably unavailable and duplicative. See Shrestha v.

Holder, 590 F.3d 1034, 1047 (9th Cir. 2010); Sidhu v. INS, 220 F.3d 1085, 1091

(9th Cir. 2000).

We grant Martirosyan’s petition, hold that she was credible, and remand to

the BIA to determine whether Martirosyan is eligible for asylum, withholding of

removal, and protection under the Convention Against Torture. See INS v.

Ventura, 537 U.S. 12 (2002) (per curiam).

PETITION GRANTED AND REMANDED.