FILED
MAY 27 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAREN MALKHASYAN, LUSINE No. 07-70746
MALKHASYAN, ANI MALKHASYAN,
ASHOT MALKHASYAN, B.I.A. No. A096-345
957/958/959/960
Petitioners,
v. MEMORANDUM *
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals *
Submitted May 6, 2011 **
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
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Before: NOONAN, PAEZ, Circuit Judges, and KORMAN,*** District Judge.
Petitioner Karen Malkhasyan (“Malkhasyan”), his wife Lusina Malkhasyan, and
two children Ani and Ashot Malkhasyan, citizens of Armenia, seek review of a final
order of removal issued January 30, 2007 by the Board of Immigration Appeals
(“BIA”) adopting and affirming the Immigration Judge’s (“IJ”) denial of their
application for asylum, withholding of removal, and protection under the Convention
Against Torture (“CAT”).
The IJ “conclude[d] that the lead respondent and his spouse were not credible
witnesses . . . based . . . on the inconsistencies between their testimony” and
inconsistences with Malkhasyan’s written declaration that the IJ deemed to be
“material” because they “go to the heart of the respondent’s request for asylum and
withholding of removal in the United States.” Finding that “respondents [did] not
offer[] a persuasive explanation as to the many inconsistencies,” the IJ denied all
requested relief and ordered removal.
The BIA adopted and affirmed the IJ’s adverse credibility determination citing
Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994). The BIA cited some of the
discrepancies noted by the IJ and held that, because petitioners did not provide
***
The Honorable Edward R. Korman, Senior United States District Judge,
Eastern District of New York, sitting by designation.
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persuasive explanations for these material inconsistences and omissions, the evidence
was insufficient to sustain the burden of proof required to grant petitioners the relief
and protection requested.
When “the BIA cites Burbano and also provides its own review of the evidence
and law, we review both the IJ’s and the BIA’s decisions . . . We review de novo the
BIA’s and IJ’s determinations of purely legal questions . . . We review factual findings
on the other hand for substantial evidence.” Ali v. Holder, Nos. 07-71195, 07-73559,
__F.3d__, 2011 WL 923412, at *3 (9th Cir. March 18, 2011) (internal citations
omitted). We must “uphold the factual findings of the [agency] if those findings are
supported by reasonable, substantial, and probative evidence.” Valderrama v. INS,
260 F.3d 1083, 1085 (9th Cir. 2001) (internal quotation marks omitted). The
deference accorded under the substantial evidence test extends to an IJ’s credibility
findings. See id. The IJ must express “a legitimate articulable basis to question the
petitioner's credibility, [however,] and must offer a specific, cogent reason for any
stated disbelief.” Shah v. INS, 220 F.3d 1062, 1067 (9th Cir. 2000) (internal quotation
marks omitted). Moreover, “the IJ’s adverse credibility determination may not rest
on incidental misstatements that do not go to the heart of [petitioner’s] asylum claim.”
Wang v. INS, 352 F.3d 1250, 1253 (9th Cir. 2003) (internal quotation marks omitted).
Nevertheless, “[s]o long as one of the identified grounds is supported by substantial
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evidence, and goes to the heart of [petitioner’s] claim of persecution, [the Court is]
bound to accept the [agency’s] adverse credibility finding.” Id. at 1259; accord, Li
v. Ashcroft, 378 F.3d 959, 964 (9th Cir. 2004).
We conclude that all but one of the alleged inconsistences, omissions and
discrepancies identified by the IJ are not supported by “substantial evidence” or do not
go to the “heart of [petitioner’s] claim of persecution.” Wang, 352 F.3d at 1259. The
one remaining inconsistency involves Malkhasyan’s description of his medical care
after a December 2000 car accident that Malkhasyan alleges was part of an attempt
by the Yerkrapah group to kill him and his family. Specifically, the IJ and BIA found
that Malkhasyan did not adequately explain why he testified that he did not receive
any medical attention following the December 2000 car accident, but submitted
documentation that he had been treated in the hospital for over a month. Malkhasyan
argues on appeal that the inconsistency in his testimony resulted from translation
difficulties. See, e.g., Iao v. Gonzales, 400 F.3d 530, 534 (7th Cir. 2005) (noting,
among the numerous “disturbing features” that “bulk large” in immigration cases,
there is an “[i]nsensitivity to the possibility of misunderstandings caused by the use
of translators of difficult languages.”) (Posner, J.). When asked by the IJ to explain
this inconsistency, Malkhasyan stated that he was in the hospital for “a month and a
half,” but that he didn’t have “any operation or surgery.” The IJ refused to accept this
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explanation as clarifying Malkhasyan’s prior testimony on this issue. Moreover, when
asked if he was injured in the accident, Malkhasyan responded “[y]es. But not
registered.” Although this nonresponsive answer clearly indicated a problem in
translation and communication, the IJ did not seek further clarification. Because
Malkhasyan did not have the opportunity to fully explain the inconsistency in his
testimony regarding this incident, Wang , 352 F.3d at 1253, and neither the IJ nor the
BIA offered “a specific, cogent reason for [their] stated disbelief,” Shah, 220 F.3d at
1067 (internal quotation marks omitted), or explained its relevance to Malkhasyan’s
asylum claim, we conclude that the IJ’s adverse credibility determination was not
supported by substantial evidence. Because of the communication difficulties and the
resulting ambiguity in Malkhasyan’s testimony, we remand to the agency for
clarification of the record. The agency shall afford petitioner the opportunity to
explain fully the inconsistencies in his testimony. The agency shall consider this
explanation and the explanation that Malkhasyan has already provided in determining
the limited question of whether petitioner is credible despite the inconsistencies in his
testimony regarding medical treatment after the car accident. Because the BIA has not
evaluated Malkhasyan’s eligibility for asylum, withholding of removal and protection
under CAT independently from its adverse credibility finding, the agency shall
consider the merits of those claims based on the expanded record on remand. The
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panel retains jurisdiction of any further appeal.
REMANDED.
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