Halajanyan v. Holder

FILED
NOT FOR PUBLICATION MAY 26 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

HASMIK HALAJANYAN, No. 05-77205

Petitioner, Agency No. A095-875-359

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

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

Argued and Submitted May 3, 2010
Pasadena, California

Before: NOONAN, CLIFTON and BYBEE, Circuit Judges.

Hasmik Halajanyan, a native and citizen of Armenia, petitions for review of

a Board of Immigration Appeals order summarily affirming an immigration

judge’s denial of her applications for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). The IJ found that

Halajanyan had not testified credibly about her past persecution at the hands of

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Armenian authorities. Evaluating the IJ’s decision as we would that of the Board,

Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir. 2004), we conclude that substantial

evidence did not support the IJ’s adverse credibility determination. See Singh v.

Gonzales, 439 F.3d 1100, 1105 (9th Cir. 2006). We therefore grant the petition and

remand for further proceedings.

The IJ identified certain minor inconsistencies in the record, such as the date

of Halajanyan’s son’s arrest and the relative timing of the search of her home.

These discrepancies, which cannot be viewed as attempts to enhance Halajanyan’s

claims of persecution, are too insignificant to support an adverse finding regarding

Halajanyan’s credibility generally. See Singh v. Ashcroft, 362 F.3d 1164, 1171 (9th

Cir. 2004). Halajanyan’s insistence that her son was detained for only one week

suggests that she confused March 17th and February 17th when she recounted the

date of her son’s arrest. Allowing for this mistake, there was no inconsistency in

Halajanyan’s testimony about the length of her son’s detention. Similarly, there

were no inconsistencies—as the IJ thought there were—in Halajanyan’s testimony

about (1) where she was walking when she was hit by a military vehicle, (2) where

on her body officers struck her after her arrest, or (3) the fact that she spoke to her

son on the telephone but did not know where he was at the time. We cannot sustain

an adverse credibility determination based on perceived inconsistencies that the

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record does not support. See Quan v. Gonzales, 428 F.3d 883, 886 (9th Cir. 2005)

(vacating adverse credibility finding where “there was no true inconsistency” in the

record).

The coincidence that various incidents occurred on March 24th of different

years did not give the IJ a “legitimate articulable basis to question [Halajanyan’s]

credibility.” Guo v. Ashcroft, 361 F.3d 1194, 1199 (9th Cir. 2004). Neither did the

IJ “offer a specific, cogent reason,” id., for her finding that Halajanyan’s testimony

about her husband’s whereabouts was “inconsistent and vague.” The IJ did not

specifically identify instances of vague or inconsistent testimony, and Halajanyan

offered plausible responses when questioned about her husband’s location.

To the extent that Halajanyan’s testimony about whether she was in Armenia

or Russia in 1999 conflicts with her son’s asylum application, she was never given

an opportunity to explain the discrepancy. “[U]nclear testimony may not serve as

substantial evidence for an adverse credibility finding when an applicant is not

given the chance to attempt to clarify his or her testimony.” Id. at 1200.

Finally, because “the mere omission of details is insufficient to uphold an

adverse credibility finding,” Bandari v. INS, 227 F.3d 1160, 1167 (9th Cir. 2000),

Halajanyan’s omission of the details of her release from the hospital in her asylum

application cannot support the IJ’s determination that she was not credible. In her

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one-and-a-half page asylum application statement, prepared without the benefit of

counsel, Halajanyan stated that “[a]fter [her] release from the hospital [she]

continued [her] treatment at the clinic.” The statement reveals nothing about the

manner in which she was “release[d]” from the hospital. Halajanyan elaborated on

that point in her testimony before the IJ, describing how she “escape[d]” the

hospital by sneaking out when police monitoring her were not present. The record

confirms that Halajanyan viewed the circumstances of her departure from the

hospital as dispensable details, at least in the context of a one-and-a-half-page

written summary of her entire four-year saga. When asked, “Why didn’t you say

on your statement that you had escaped the hospital?,” Halajanyan replied “I don’t

know[,] maybe I thought [it was] not necessary.” Halajanyan’s written statement is

not fundamentally inconsistent with her oral testimony. The IJ’s scrutiny of the

details Halajanyan elected to omit from this portion of her application

statement—when other details were necessarily omitted throughout this short

written summary of events—cannot support an adverse credibility determination.

We grant the petition for review, vacate the IJ’s credibility finding, and

remand to the agency. Despite the inadequacy of the IJ’s reasons, “we cannot say

that no doubts have been raised” about Halajanyan’s credibility on the record

before us. Hartooni v. INS, 21 F.3d 336, 343 (9th Cir. 1994) (internal quotation

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marks omitted). We therefore remand to the agency to reassess Halajanyan’s

credibility in the first instance and determine her eligibility—if it finds her

credible—for asylum, withholding of removal, and CAT protection. See

Garrovillas v. INS, 156 F.3d 1010, 1017 (9th Cir. 1998).

GRANTED and REMANDED.