Pavel Miadziukha v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 13, 2021
• Docket: 17-70443
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 13 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PAVEL MIADZIUKHA, No. 17-70443

Petitioner, Agency No. A087-877-900

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted March 5, 2021 San Francisco, California

Before: WARDLAW and BERZON, Circuit Judges, and PREGERSON,** District Judge.

Pavel Miadziukha, a native and citizen of Belarus, petitions for review of a

Board of Immigration Appeals (“BIA”) decision to affirm the Immigration Judge’s

(“IJ”) denial of his application for asylum, withholding of removal, and protection

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. under the Convention Against Torture (“CAT”). We have jurisdiction under 8

U.S.C. § 1252, and we grant Miadziukha’s petition and remand for further

proceedings.

1. The BIA affirmed the IJ’s adverse credibility determination based on

the following grounds: (1) Miadziukha’s non-responsiveness and evasive

testimony regarding his alleged mistreatment by Cossacks, harm he suffered for

expressing his political opinion, and problems his family suffered as practicing

Pentecostals in Belarus, (2) lack of detail and specificity in Miadziukha’s

testimony regarding his own personal experiences in Belarus, and (3)

Miadziukha’s numerous voluntary returns to Belarus despite the alleged

persecution he suffered. These grounds are not supported by substantial evidence.1

The record of Miadziukha’s merits hearings indicates that his ability to

testify and respond fully was considerably challenged. Miadziukha primarily

communicates in Russian and required an interpreter to testify at his merit

hearings. However, the provided interpreter struggled to translate words and

phrases and admitted as much on the record. See He v. Ashcroft, 328 F.3d 593,

596–97 (9th Cir. 2003). Moreover, the IJ expressed cultural illiteracy pertaining to

Miadziukha’s background and culture, and frequently interrupted Miadziukha’s

1 Though the IJ concluded that Miadziukha had not suffered past persecution even considering his testimony as credible, the BIA did not adopt this portion of the IJ’s decision.

2 testimony, even if she only intended to elicit particular answers. Arulampalam v.

Ashcroft, 353 F.3d 680, 687 (9th Cir. 2003). We must consider the agency’s

adverse credibility determination in light of the disruptive circumstances

surrounding Miadziukha’s merit hearings.

First, Miadziukha’s purportedly non-responsive and evasive testimony likely

stemmed in part from a “language barrier[ and] interpreter problems” rather than

any intentional “evasiveness on the part of [Miadziukha].” Garrovillas v. INS, 156

F.3d 1010, 1014–15 (9th Cir. 1998). For example, the IJ supported her adverse

credibility finding based on Miadziukha’s assertedly non-responsive and evasive

answers to his attorney’s questions regarding Miadziukha’s and his family’s

personal experience with the Cossacks and about the harm he experienced in

Belarus because of his political belief in religious freedom. Cf. Shrestha v. Holder,

590 F.3d 1034, 1045 (9th Cir. 2010) (concluding that petitioner’s “blatant and

unexplained unresponsiveness supports the IJ’s adverse credibility

determination”). However, Miadziukha frequently attempted to clarify his answers

and provide further detail when given the opportunity, and any perceived non-

responsiveness or evasiveness is better explained by language or cultural barriers

than any intent to deceive the Government. See Joseph v. Holder, 600 F.3d 1235,

1244 (9th Cir. 2010) (“[A] general response to questioning, followed by a more

specific, consistent response to further questioning is not a cogent reason for

3 supporting a negative credibility finding.”).

Second, the IJ’s adverse credibility determination based on Miadziukha’s

apparent lack of detail or specificity is similarly plagued by the aforementioned

language and cultural barriers. Specifically, the IJ was concerned by Miadziukha’s

failure to give specific examples of the Belarusian government’s interference in

expressing his political opinion or how the Belarusian government prevented his

father from practicing his Pentecostal faith, and the lack of “even approximate

dates for specific events even when these events formed the basis for his claim for

relief.” However, the record demonstrates that Miadziukha reasonably attempted

to respond to the IJ’s questions with more specific information, such as testifying

that the Belarusian government’s 2002 law targeted Pentecostal churches, which

forced several to close, and supplying the years in which he attended his church,

albeit with some difficulty. That he provided the level of detail he did in spite of

the IJ’s “repeated interruption[s],” Miadziukha’s apparent misunderstandings, and

the interpreter’s conceded difficulties translating basic phrases significantly

undermines the IJ’s adverse credibility determination on this ground. See

Arulampalam, 353 F.3d at 687.

Overall, the examples from Miadziukha’s testimony relied upon by the BIA

and IJ “are not significant and relevant and do not support an adverse credibility

determination” in light of Miadziukha’s wide-ranging, consistent testimony

4 regarding his alleged mistreatment in the Belarusian army and the alleged

discrimination he faced in Belarus as a Pentecostal. See, e.g., Kebede v. Ashcroft,

366 F.3d 808, 811 (9th Cir. 2004) (cleaned up).

Lastly, Miadziukha’s voluntary returns to Belarus took place as a required

part of his job as a delivery driver, his sole source of income. There is no basis in

the record for supposing that he had the opportunity to remain in the places to

which he traveled. Accordingly, the voluntary returns do not support the IJ’s

adverse credibility finding. See Boer-Sedano v. Gonzales, 418 F.3d 1082, 1091

(9th Cir. 2005).

Notably, the BIA also failed to fully consider and credit Miadziukha’s

corroborating documentation, including letters of support and country condition

reports, after adopting the IJ’s adverse credibility finding. Based on the foregoing,

the BIA’s affirmance of the IJ’s decision denying Miadziukha asylum or

withholding of removal based solely on the IJ’s adverse credibility finding is not

supported by substantial evidence.

2. The BIA did not err in affirming the IJ’s holding that Miadziukha was

not entitled to relief under the CAT. The BIA adopted the IJ’s finding that

Miadziukha failed to demonstrate any “particularized threat of torture” and

therefore failed to meet his burden for relief under CAT. However, on appeal,

Miadziukha does not challenge this finding or argue that he faces a particularized

5 threat of torture in Belarus.

GRANTED in part, DENIED in part, and REMANDED.