FILED
UNITED STATES COURT OF APPEALS DEC 22 2010
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S . CO U RT OF AP PE A LS
NELLI SIMONYAN, No. 07-72713
Petitioner, Agency No. A075-687-459
v.
ORDER
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Respondent's petition for panel rehearing is granted and the memorandum
disposition filed on February 22, 2010, is withdrawn. A replacement
memorandum disposition is being filed concurrently with this order.
FILED
NOT FOR PUBLICATION DEC 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
NELLI SIMONYAN, No. 07-72713
Petitioner, Agency No. A075-687-459
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 16, 2010**
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Nelli Simonyan, a native of the former Soviet Union and citizen of Armenia,
petitions for review of the Board of Immigration Appeals' ('BIA') order
dismissing her appeal from an immigration judge's ('IJ') decision denying her
application for asylum and withholding of removal. We have jurisdiction under 8
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. y 1252. We review for substantial evidence, Soto-Olarte v. Holder, 555
F.3d 1089, 1091 (9th Cir. 2009). We grant the petition for review and we remand.
The IJ and BIA found Simonyan not credible based on an inconsistency
within her testimony regarding the date of her first arrest, and on several perceived
discrepancies between her claim and her witness' testimony. Substantial evidence
does not support the agency's adverse credibility finding based on the date
discrepancy, or based on the discrepancy regarding the number of uniformed
officers during the second arrest. See Bandari v. INS, 227 F.3d 1160, 1166 (9th
Cir. 2000) ('Any alleged inconsistencies in dates that reveal nothing about a
petitioner's credibility cannot form the basis of an adverse credibility finding.');
Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 662 (9th Cir. 2003) ('Minor
inconsistencies in the record that do not relate to the basis of an applicant's alleged
fear of persecution, go to the heart of the asylum claim, or reveal anything about an
asylum applicant's fear for his safety are insufficient to support an adverse
credibility finding.'). In addition, substantial evidence does not support the
agency's findings that there were other discrepancies between Simonyan and her
witness regarding the second arrest. See Bandari, 227 F.3d at 1167 (rejecting
adverse credibility finding that was not supported by the record).
2 07-72713
Substantial evidence also does not support the BIA's alternate conclusion
that a presumption of a well-founded fear of persecution was rebutted solely based
on the remarµs of one witness that the Pentecostal church is now officially
recognized by the Armenian government. See Lopez v. Ashcroft, 366 F.3d 799,
805 (9th Cir. 2004) (BIA's determination regarding changed circumstances must
be sufficiently individualized to rebut the presumption).
Accordingly, we grant the petition for review and remand Simonyan's
asylum and withholding of removal claims on an open record, see Soto-Olarte, 555
F.3d at 1093-96, for further proceedings consistent with this disposition. See INS
v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
PETITION FOR REVIEW GRANTED; REMANDED.
3 07-72713