Gayane Martirosyan v. William Barr

Opinion

FILED UNITED STATES COURT OF APPEALS JUL 29 2019 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

GAYANE MARTIROSYAN, No. 17-70919

Petitioner, Agency No. A206-267-383

v. ORDER WILLIAM P. BARR, Attorney General,

Respondent.

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

The Memorandum Disposition, filed on March 20, 2019, and reported at 765

Fed.Appx. 196 (9th Cir. 2019), is amended as follows:

At 765 F. App’x at 197, the subsection heading and the first full paragraph

beginning with and ending with

1043.> are deleted. A citation to Soto-Olarte v. Holder, 555 F.3d 1089, 1094 (9th

Cir. 2009) is added to the next paragraph.

At 765 F. App’x at 197–98, the sentences beginning with

and ending with are amended to read as follows: “Both her oral

testimony and her written declaration compel a conclusion that two officers were

present. Further, Martirosyan adequately explained any possible inconsistency as

due to translation error.” At 765 F. App’x at 198, the subsection heading and the first full paragraph

beginning with and ending with

1090–93.> are deleted. The second full paragraph beginning with

and ending with is deleted

and replaced with the following sentence: “Third, the record compels the

conclusion that the corroborating evidence requested by the IJ was reasonably

unavailable and duplicative, so the failure to produce that evidence could not

support an adverse credibility finding.”

The following paragraph is added:

“[I]t is apparent” from this record “that the IJ and BIA have listed all possible reasons to support an adverse credibility determination, and they are inadequate in law or not supported by substantial evidence.” Soto-Olarte, 555 F.3d at 1095. In other words, “it is evident that the IJ and BIA have both strained to provide reasons properly supporting an adverse credibility finding, but despite their best efforts have been unable to do so.” Id. at 1094–95. Accordingly, we deem Martirosyan credible on remand.

Lastly, in the final sentence is amended to

.

A clean copy of the amended memorandum disposition is attached to this

order.

With these amendments, Judges McKeown, W. Fletcher, and Murguia have

voted to deny the petition for panel rehearing (Dkt. No. 38). The petition for

2 rehearing is DENIED. No further petitions for rehearing or rehearing en banc may

be filed.

3 FILED NOT FOR PUBLICATION JUL 29 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

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

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

Argued and Submitted February 12, 2019 San Francisco, California

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

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. determination based on what it found to be evasive and unresponsive testimony

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.

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); Soto-Olarte v.

Holder, 555 F.3d 1089, 1094 (9th Cir. 2009). First, substantial evidence does not

support the agency’s finding that Martirosyan was unresponsive and evasive

2 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 compel a conclusion that two officers were

present. Further, Martirosyan adequately explained any possible inconsistency as

due to translation error.

Third, the record compels the conclusion that the corroborating evidence

requested by the IJ was reasonably unavailable and duplicative, so the failure to

produce that evidence could not support an adverse credibility finding.

“[I]t is apparent” from this record “that the IJ and BIA have listed all

possible reasons to support an adverse credibility determination, and they are

inadequate in law or not supported by substantial evidence.” Soto-Olarte, 555 F.3d

at 1095. In other words, “it is evident that the IJ and BIA have both strained to

provide reasons properly supporting an adverse credibility finding, but despite

3 their best efforts have been unable to do so.” Id. at 1094–95. Accordingly, we

deem Martirosyan credible on remand.

We grant Martirosyan’s petition, deem her 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.