Safarian v. Gonzales

139 F. App'x 875

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 18, 2005
• Docket: No. 03-70151
• Status: Published

Opinions

MEMORANDUM

*

Lena Safarían, a 76-year old native and citizen of Armenia, petitions for review of the Board of Immigration Appeals’ (“BIA”) summary affirmance of the immigration judge’s (“IJ”) denial of her application for asylum and withholding of deportation. We grant the petition and remand.

We are compelled to conclude that the IJ’s reasoning is not supported by substantial evidence. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002). Safarian’s testimony and the corroborating evidence in the record support her contention that she was repeatedly interrogated, threatened, humiliated, and eventually arrested on account of her political opinion.

The IJ relied on three reasons to find Safarían not credible: (A) the IJ found her testimony and asylum application to be inconsistent regarding the number of times she was arrested; (B) the IJ found inconsistencies between Safarian’s testimony and that of her son, Vartanian, regarding the number of days that Safarían was detained; and (C) the IJ faulted Safarían for not providing corroborative documentation establishing her involvement in the Dashnak Party and her work for the Party’s print shop.

We find that the so-called inconsistency between the asylum application and Safarian’s testimony is non-existent, as it merely reflects confusion of the terms “detained” and “arrested.” Moreover, because Safarian testified that fewer arrests occurred than indicated in her asylum application, “any discrepancy cannot be viewed as an attempt by the applicant to enhance [her] claims of persecution, and thus has no bearing on credibility.” Singh v. Ashcroft, 362 F.3d 1164, 1171 (9th Cir. 2004) (internal quotation marks and citation omitted).

Similarly, we find that Vartanian’s testimony is substantially consistent with Safarian’s testimony, and his vagueness regarding the duration of his mother’s incarceration does not support the IJ’s finding that she is not credible. Cf. Singh v. Gonzales, 403 F.3d 1081, 1090-91 (9th Cir. 2005) (father stated that son was arrested in January, 1994, while son testified that he was arrested at the end of December, 1993); see also Wang v. Ashcroft, 341 F.3d 1015, 1021-22 (9th Cir.2003) (husband’s failure to remember exact dates of applicant’s forced abortions reveals nothing about the applicant’s fear of persecution and does not undermine her credibility). Vartanian also explained that he had some difficulty remembering the exact duration of his mother’s time in custody due to the passage of time. Although the IJ dismissed this explanation out of hand, it is reasonable considering that the merits hearing took place over five years after the events in question. The IJ also failed to take into account the fact that the rest of Vartanian’s testimony fully corroborates his mother’s testimony regarding her political work, the harassment she faced while teaching, and the events that caused her to flee Armenia. That the two reports are substantially consistent, even though both were given several years later, supports rather than detracts from Safarian’s credibility. Singh, 403 F.3d at 1090.

Finally, the IJ erred in asserting that Safarían provided no corroborating evidence of her affiliation with Dashnak or SPURK, as the record does include some corroborating evidence. Moreover, the IJ failed to explain why he doubted Safarian’s testimony regarding her membership in and work for the Dashnak Party. Cf. Salaam v. INS, 229 F.3d 1234, 1239 (9th Cir.2000) (concluding that petitioner should not have been required to produce evidence of organizational membership, political fliers, or medical records). Where, as here, “each of the IJ’s or BIA’s proffered reasons for an adverse credibility finding fails, [this court] must accept a petitioner’s testimony as credible,” and further corroboration is not required. Kaur v. Ashcroft, 379 F.3d 876, 890 (9th Cir.2004).¹

Because the IJ did not make additional findings on the merits of Safarian’s claims for asylum and -withholding of removal, we remand to the BIA so that the agency can determine in the first instance whether, accepting her testimony as true, she is eligible for relief. See INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

PETITION FOR REVIEW GRANTED; 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 IJ concluded that Safarían should have been able to obtain documents that establish her long-time active involvement in the Dashnak party or SPURK print shop. The REAL ID Act of 2005 provides that this court may not reverse a trier of fact’s determination "with respect to the availability of corroborating evidence ... unless the court finds ... that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.” Pub.L. No. 109-13 § 101(e), 119 Stat. 231, 305 (May 11, 2005). Although this provision applies to "all cases in which the final administrative removal order is or was issued before, on, or after” the date of enactment, id. at § 101(h)(3), 119 Stat. at 305-06, this case is unaffected because the question of whether corroborating evidence is "available” is distinct from the threshold question presented here, i.e., whether the IJ properly required Safarían to provide corroborating evidence. Although the REAL ID Act of 2005 also contains provisions that change the conditions under which an IJ may require an applicant to provide corroborating evidence, those provisions do not apply retroactively. Id. at § 101(h)(2), 119 Stat. at 305.