Tarlanian v. Ashcroft

109 F. App'x 899

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 22, 2004
• Docket: No. 03-70112
• Status: Published

Opinion

MEMORANDUM

**

Artour Tarlanian and his wife Margarita, natives and citizens of Armenia, petition for review of an order of the Board of Immigration Appeals (“BIA”) summarily affirming the order of an immigration judge (“IJ”) denying their application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review the IJ’s decision as the final agency determination, Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003), and we review for substantial evidence an adverse credibility determination, Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002). We grant the petition for review.

Substantial evidence does not support the IJ’s finding that there were inconsistencies in Tarlanian’s written and oral accounts of the incidents that formed the basis of his application for relief. At his hearing, Tarlanian described more fully how he came to be shot by police, but the omission of details from an applicant’s earlier testimony cannot serve as the basis for an adverse credibility finding. See Osorio v. INS, 99 F.3d 928, 931 (9th Cir.1996). To the extent there appeared to be inconsistencies in Tarlanian’s testimony, he explained them, and the IJ’s reasons for rejecting those explanations were based on misunderstanding and improper speculation. See Gui, 280 F.3d at 1225-27 (rejecting adverse credibility finding based on assumptions about how dissidents would be treated).

We therefore remand this matter to the BIA for a determination, accepting Tarlanian’s testimony as credible, whether Tarlanian is eligible for asylum or -withholding of removal, and, if he is eligible, for the exercise of discretion whether to grant his asylum application. 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.