FILED
NOT FOR PUBLICATION APR 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GOHAR ABRAHAMYAN, No. 10-70274
Petitioner, Agency No. A095-576-188
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 December 6, 2013
Pasadena, California
Before: PREGERSON, BERZON, and CHRISTEN, Circuit Judges.
Gohar Abrahamyan is an Azerbaijani of Armenian ethnicity. She petitions
for review of a Board of Immigration Appeals’s (“BIA”) decision affirming an
immigration judge’s (“IJ”) denial of asylum and withholding of removal.1 We
have jurisdiction under 8 U.S.C. § 1252. We review adverse credibility
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
Because Abrahamyan’s asylum application was filed before May 11, 2005,
this appeal is not governed by the REAL ID Act. See REAL ID Act, § 101(h),
Pub. L. No. 109-13, 119 Stat. 231 (2005).
determinations for substantial evidence. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.
2002). We grant the petition and remand.
1. To the extent that the BIA’s adverse credibility determination was based
on the number of Narodni Front soldiers who wore uniforms, that determination is
not supported by substantial evidence. Abrahamyan consistently testified that
about fifteen Azerbaijani men beat her and her husband at a grocery store. Further,
the exact number of men who wore Narodni Front uniforms while they beat
Abrahamyan is minor, it does not reveal anything about the basis of Abrahamyan’s
fear for her safety, and it is therefore insufficient to support an adverse credibility
finding. See Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir. 2002).
2. To the extent that the BIA’s adverse credibility determination was based
on perceived inconsistencies regarding the specific instrument with which the
Narodni Front soldiers beat Abrahamyan at the airport, that determination is not
supported by substantial evidence. In her asylum declaration, Abrahamyan stated
that she was beaten with clubs and whipped with a metal cable, but she testified at
her hearing that she was beaten with rubber sticks. At the hearing, Abrahamyan
explained this discrepancy: she testified that the person who translated her
declaration either misunderstood or misinterpreted her, and she clarified that she
was beaten with rubber sticks, not clubs or metal cables as stated in her asylum
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declaration. Indeed, even the interpreter at the hearing was confused by the word
“club” and had to refer to a dictionary to translate it. Faulty translations should not
be used to hold a petitioner incredible. See He v. Ashcroft, 328 F.3d 593, 598 (9th
Cir. 2003) (“[F]aulty or unreliable translations can undermine the evidence on
which an adverse credibility determination is based.”). Neither the BIA nor the IJ
addressed Abrahamyan’s reasonable explanation for the inconsistency. Kaur v.
Ashcroft, 379 F.3d 876, 887 (9th Cir. 2004) (superseded by statute on other
grounds) (“An adverse credibility finding is improper when an IJ fails to address a
petitioner’s explanation for a discrepancy or inconsistency.”).
3. To the extent that the BIA’s adverse credibility determination was based
on Abrahamyan’s submission of a fraudulent birth certificate, that determination
also is not supported by substantial evidence. The record does not support a
finding that Abrahamyan knew or should have known that her birth certificate was
inauthentic. See Yeimane-Berhe v. Ashcroft, 393 F.3d 907, 913 (9th Cir. 2004)
(holding that an adverse credibility finding based on the submission of a fraudulent
document cannot be sustained where the asylum applicant did not know that the
document was fraudulent).
Abrahamyan testified that her birth certificate was left in Baku, Azerbaijan
in 1990 when she and her family were forcibly removed from their home because
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of their Armenian ethnicity. Because of the violence against Armenians in
Azerbaijan, Abrahamyan testified that she could not return home to retrieve any of
her identification documents. She testified that her husband paid a man $500 to
retrieve a copy of her birth certificate from Azerbaijan. It turned out that the birth
certificate was fake. Abrahamyan testified that she believed the birth certificate
was real, and she would not have submitted the birth certificate to the court had she
known it was counterfeit. She testified that she did not know if that man lied about
going to Azerbaijan, but Abrahamyan believed the birth certificate was real
because the man was “so confident, he assured [her] husband that he had . . .
help[ed] other people . . . , [so her] husband believed him.”
Although Abrahamyan testified that she would not be surprised to learn that
the birth certificate was fake, this uncertainty likely reflects that neither she nor her
husband personally obtained the copy of her birth certificate from Azerbaijan. But
neither she nor her husband could have been expected to personally obtain her
birth certificate: according to her testimony, Abrahamyan believed it was too
dangerous to go back to Azerbaijan to retrieve her birth certificate because
Armenians were not allowed to go to “Azerbaijan to get any kind of assistance for
any kind of document.”
Indeed, evidence from the 2005 Country Report on Azerbaijan supports
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Abrahamyan’s testimony that Armenians faced many problems obtaining
identification documents from Azerbaijani officials and that paying bribes for
official documents was not abnormal. 2005 U.S. State Department Country Report
on Human Rights Practices in Azerbaijan (stating that “officials often extracted
bribes or harassed Armenians who applied for passports,” and even Armenians of
mixed Armenian-Azerbaijani descent “had problems . . . when applying for
identification cards”). Thus, the record shows only that Abrahamyan
believed—but could not be sure—that her birth certificate was authentic. The IJ’s
conclusion that Abrahamyan was willfully blind is not supported by the record.
Further, that Abrahamyan submitted an allegedly fake birth certificate
cannot by itself provide substantial evidence to support a finding that she lacks
credibility, where the record indicates that she did not know that the certificate was
fraudulent and nothing else in the record suggests that she is not credible. See
Yeimane-Berhe, 393 F.3d at 911.
Finally, Abrahamyan was not required to corroborate her claims with an
affidavit from her husband in Russia, as stated by the BIA and IJ. “In a pre-REAL
ID Act case, absent other substantial evidence of adverse credibility, the
production of corroborating evidence cannot be required.” Li v. Holder, 629 F.3d
1154, 1160 (9th Cir. 2011). Here, because “each of the IJ’s or BIA’s proffered
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reasons for an adverse credibility finding” has “fail[ed], we must accept
[Abrahamyan’s] testimony as credible,” and no further corroboration is required to
establish the facts to which she testified. Kaur, 379 F.3d at 890. Furthermore,
even if corroboration were required, neither the BIA nor the IJ addressed
Abrahamyan’s explanation that she did not know that she was permitted to submit
a statement from her husband explaining how he obtained the birth certificate. See
Sidu v. INS, 220 F.3d 1085, 1092 (9th Cir. 2000) (the petitioner must be given an
opportunity to explain the failure to provide corroboration if corroboration is
required). Finally, “[i]t is generally inappropriate . . . to base an adverse credibility
finding on an applicant’s inability to obtain corroborating affidavits from relatives
or acquaintances living outside of the United States,” because “such corroboration
is almost never easily available.” Kaur, 379 F.3d at 890 (internal quotation marks
and citation omitted). Any reliance on Abrahamyan’s failure to obtain
corroboration from her husband, therefore, was made in error.
Petition GRANTED and REMANDED.
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