FILED
NOT FOR PUBLICATION APR 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
NORA NAROYAN, No. 06-72632
Petitioner, Agency No. A098-522-807
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 April 11, 2011
Pasadena, California
Before: D.W. NELSON, BYBEE, and M. SMITH, Circuit Judges.
Nora Naroyan (“Naroyan” or “petitioner”) petitions for review of the Board
of Immigration Appeals’ (“BIA”) denial of her applications for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
The BIA affirmed the Immigration Judge’s (“IJ”) denial of asylum and
withholding of removal on the basis of an adverse credibility determination and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
found that Naroyan did not dispute the IJ’s denial of her CAT claim. This Court
has jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We grant Naroyan’s petition as
to asylum and withholding of removal and dismiss the petition as to relief under
CAT.
This Court reviews adverse credibility determinations for substantial
evidence. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002) (citation omitted).
Under this standard, the BIA’s determinations are to be upheld if they are
supported by “reasonable, substantial and probative evidence” in the record.
Kumar v. Gonzales, 444 F.3d 1043, 1049 (9th Cir. 2006) (citations omitted).
Because the BIA “conducted its own review of the evidence and law rather than
simply adopting the immigration judge’s decision . . . our review is limited to the
BIA’s decision, except to the extent the IJ’s opinion is expressly adopted.”
Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (citation and internal
quotation marks omitted).
In this case, the BIA pointed to three supposed inconsistencies in the record
that supported its adverse credibility determination: (1) Naroyan testified that she
was beaten by three assailants on May 17, 2004, but the BIA found that she did not
mention this “important incident” in her written application; (2) Naroyan testified
that several people were arrested at a political rally on April 12, 2004, between the
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hours of 6pm and 7pm, but, when confronted with a news report indicating that
arrests took place at 2am on April 13, Naroyan told the asylum officer that the
news report was incorrect and then testified before the IJ that she had only assumed
arrests had taken place during the early evening hours; and (3) the medical records
regarding the injuries Naroyan sustained in the March 16, 2000 police beating
indicate that she suffered from a “thorax injury” and a “left hand injury,” but the
BIA claims that Naroyan also claimed to have sustained a concussion and an ear
injury. None of these grounds constitutes substantial evidence.
The BIA’s first finding is simply incorrect. Naroyan’s asylum application
did mention the attack on May 17, 2004. Even if the BIA found that Naroyan’s
written application did not mention that she recognized one of her assailants, this
still would not constitute substantial evidence, because it is well settled in the
Ninth Circuit that “an applicant’s testimony is not per se lacking in credibility
simply because it includes details that are not set forth in the asylum application.”
Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir. 1996) (citing Aguilera-Cota v. INS,
914 F.2d 1375, 1382 (9th Cir. 1990)).
The second and third grounds cited by the BIA are at most “[m]inor
inconsistencies in the record that do not relate to the basis of [Naroyan’s] alleged
fear of persecution, go to the heart of the asylum claim, or reveal anything about
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[her] fear for [her] safety.” Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660
(9th Cir. 2003) (citations omitted). Whether Naroyan witnessed arrests or minor
skirmishes between protestors and police on the evening of April 12, 2004, before
the mass arrests at around 2am on April 13, her testimony was not inconsistent on
this issue. Even assuming Naroyan’s testimony was inconsistent, we fail to see
how this inconsistency goes to the heart of Naroyan’s asylum claim given that
Naroyan was merely present for a short period of time at the rally, did not actively
participate in the rally, and did not suffer any repercussions because of her
presence there. Similarly, during her testimony before the IJ, Naroyan clarified
which injuries had been sustained during the March 2000 police beating and which
injuries were sustained in November 2003. Any omissions in her medical report
are not inconsistent with her testimony. See Singh v. Ashcroft, 301 F.3d 1109,
1112-13 (9th Cir. 2002).
Because the BIA’s three findings in support of its adverse credibility
determination were not supported by substantial evidence, we reverse that
determination and remand to the agency to consider whether Naroyan, now
considered credible, has established eligibility for asylum and withholding of
removal.
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We dismiss the petition for review with respect to Naroyan’s CAT claim
because this claim was not exhausted before the BIA.
Finally, Naroyan’s request for judicial notice of her pending I-130
application is granted.
Petition for review GRANTED in part, DISMISSED in part, and
REMANDED to the BIA for further proceedings.
Each party shall bear its own costs on appeal.
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