Rafik Suleymanyan v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 20, 2019
• Docket: 16-70354
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION SEP 20 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAFIK SULEYMANYAN, No. 16-70354

Petitioner, Agency No. A075-671-142

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

Respondent.

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

Argued and Submitted September 9, 2019 Pasadena, California

Before: RAWLINSON, BENNETT, and BADE, Circuit Judges.

Rafik Suleymanyan (Suleymanyan), a native and citizen of Armenia, seeks

review of a decision of the Board of Immigration Appeals (Board) denying his

motion to reopen immigration proceedings. We have jurisdiction under 8 U.S.C. §

1252, and review the denial of a motion to reopen for abuse of discretion. See

Salim v. Lynch, 831 F.3d 1133, 1137 (9th Cir. 2016).

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. The Board must “credit evidence supporting a motion to reopen unless that

evidence is inherently unbelievable.” Shouchen Yang v. Lynch, 822 F.3d 504, 508

(9th Cir. 2016) (citations and internal quotation marks omitted). Further, the Board

may not require submission of corroborative evidence while reviewing a motion to

reopen. See Malty v. Ashcroft, 381 F.3d 942, 946-47 (9th Cir. 2004). As the Board

made no determination that Suleymanyan’s declaration was “inherently

unbelievable,” the Board was required to credit the declaration as true.1 Shouchen

Yang, 822 F.3d at 508. By failing to credit Suleymanyan’s declaration as true, and

by requiring corroborative evidence, the Board abused its discretion. See id.; see

also Malty, 381 F.3d at 946-47.

An error resulting from the Board’s abuse of discretion is harmless if no

prejudice results from the error. See Kumar v. Gonzales, 439 F.3d 520, 523-24

(9th Cir. 2006). In other words, if Suleymanyan would not be entitled to relief

even if his declaration were credited as true, the Board’s error in failing to credit

the declaration as true would be rendered harmless. See id. However, in this case,

1 The prior adverse credibility determination was improperly used by the Board to discredit Suleymanyan’s declaration, particularly as the adverse credibility determination related to matters other than those toward which the adverse credibility determination was directed. See Toufighi v. Mukasey, 538 F.3d 988, 995 n.13 (9th Cir. 2008) (“[A]n alien may use a motion to reopen to present newly available material evidence that challenges the original factual conclusions drawn by the IJ. . . .”) (citation omitted). 2 the Board failed to make an alternative finding that, even crediting the declaration

as true, Suleymanyan was unable to establish a prima facie case for relief. See

Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We therefore vacate and

remand to the Board for further proceedings to determine whether, when crediting

Suleymanyan’s declaration as true, he has established a prima facie case.2 See

I.N.S. v. Ventura, 537 U.S. 12, 16 (2002) (requiring remand if additional inquiry is

needed).

VACATED and REMANDED.

2 We express no opinion as to the outcome of the Board’s subsequent review. 3