FILED
NOT FOR PUBLICATION NOV 20 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ZINAIDA AVDALYAN, No. 06-74894
Petitioner, Agency No. A078-442-910
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 November 5, 2009
Pasadena, California
Before: GOULD and BEA, Circuit Judges, and HART, District Judge.**
Zinaida Avdalyan (“Avdalyan”) petitions for review of the Board of
Immigration Appeals’s (BIA’s) denial of her motion to remand her case to the
Immigration Judge (IJ), so that she may apply for adjustment of status. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable William T. Hart, Senior District Judge for the
Northern District of Illinois, sitting by designation.
jurisdiction under 8 U.S.C. § 1252(a). We grant Avdalyan’s petition for review,
vacate the BIA’s order, and remand for further proceedings.
Avdalyan, a then-seventy-four-year-old citizen of Armenia and native of
Ukraine, traveled to Los Angeles International Airport with her grandson on
February 3, 2003. Airport officials detained the travelers because the grandson’s
visa was a counterfeit. Avdalyan denied that she was aware that the visa was
invalid, but officials charged her with removability for having “knowingly . . .
encouraged, induced, assisted, abetted, or aided” another alien’s attempt to enter
the United States unlawfully. See 8 U.S.C. § 1182(a)(6)(E)(i). In addition to
denying the alien-smuggling charge, Avdalyan sought asylum, withholding of
removal, and protection under the Convention Against Torture.
Relying substantially on statements that Avdalyan made while detained at
the airport, the IJ found that Avdalyan’s testimony was not credible, found that
Avdalyan was inadmissible for knowingly assisting her grandson’s attempt to enter
the United States illegally, and denied Avdalyan’s requested asylum-related relief.
The BIA reversed the IJ’s adverse-credibility finding related to Avdalyan’s
asylum-related claims but nonetheless denied relief to Avdalyan because she did
not prove that she was a refugee. The BIA also denied Avdalyan’s motion to
remand to permit her to seek to adjust her status, because the IJ’s alien-smuggling
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finding made her inadmissible. In an unpublished disposition, we remanded to the
BIA. We stated, “On the one hand, the BIA determined the IJ’s adverse credibility
finding was not supported. On the other hand, the BIA upheld the IJ’s
inadmissibility finding. We remand for clarification of the basis upon which the
BIA based its inadmissibility determination.” Avdalyan v. Gonzales, 167 F. App’x
685, 685 (9th Cir. 2006).
On remand, the BIA held that even though Avdalyan was credible regarding
her asylum-related claims, she did not appeal the IJ’s finding that she was
inadmissible for knowingly engaging in alien smuggling. The BIA also detailed
the manner in which the IJ made its alien-smuggling finding, mentioned that the IJ
considered “that the respondent had previously traveled to the United States and
therefore should have known that the proper procedure for obtaining a visa for her
grandson did not take place,” and described the IJ’s finding on alien smuggling as
a “thorough and well-reasoned inadmissibility finding.” Avdalyan timely
petitioned for review.
We disagree with the government’s analysis and contention that we should
dismiss Avdalyan’s petition because Avdalyan did not exhaust her claim before the
BIA. See 8 U.S.C. § 1252(d)(1). Avdalyan satisfied the exhaustion requirement
because the BIA addressed the merits of the issue on remand. See Vizcarra-Ayala
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v. Mukasey, 514 F.3d 870, 874 (9th Cir. 2008) (“[O]ur precedent is quite clear that
claims addressed on the merits by the BIA are exhausted.”) (citing Abebe v.
Gonzales, 432 F.3d 1037, 1040–41 (9th Cir. 2005) (en banc)). In its clarification
order, the BIA explained that it did not review Avdalyan’s claim because she did
not raise it on appeal. But the BIA then went on to analyze the IJ’s finding in some
detail, describing how the IJ considered the testimony of the immigration officers
and interpreters, the testimony of Avdalyan, and the testimony of Avdalyan’s son-
in-law. The BIA further discussed how the IJ considered Avdalyan’s previous
travels to the United States as evidence that Avdalyan knew her grandson’s visa
must have been obtained improperly. This particular point had no pertinence on
the asylum claim and quite obviously bears on the determination of inadmissibility
for alien smuggling. Also, the BIA described the IJ’s findings as “a thorough and
well-reasoned inadmissibility finding.” On this record we cannot but conclude that
the issue of the inadmissibility finding was explicitly reviewed on the merits by the
BIA and was, thus, exhausted. We now address the merits of the BIA’s review.
We agree with Avdalyan that substantial evidence does not support the IJ’s
finding that she knew her grandson’s visa was a counterfeit. See INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992). The IJ must have a legitimate, articulable
basis to question an alien’s credibility and must offer a specific, cogent reason for
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any stated disbelief. Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir. 1998).
Mere speculation and conjecture cannot serve as a legitimate basis to make an
adverse-credibility finding. Salaam v. INS, 229 F.3d 1234, 1238 (9th Cir. 2000)
(per curiam).
Here, the IJ relied almost exclusively on Avdalyan’s statements and alleged
evasiveness during her airport detention to find that Avdalyan knew her grandson’s
visa was a counterfeit. Yet the BIA determined that Avdalyan’s airport statements
and conduct did not support an adverse-credibility finding and found Avdalyan to
be credible. The IJ also did not cite any specific examples of inconsistencies or
evasiveness in Avdalyan’s testimony regarding how Avdalyan’s relatives obtained
the grandson’s passport. See Osorio v. INS, 99 F.3d 928, 931 (9th Cir. 1996).
The government argues that Avdalyan’s testimony that she did not want to
ask her son-in-law how he obtained the grandson’s visa sufficiently supports the
conclusion that Avdalyan knew the visa was a counterfeit. But the IJ did not
identify this testimony as supporting that conclusion. Moreover, even if the IJ had
identified and explicitly relied upon that testimony, the inference that Avdalyan
must have known the visa was a counterfeit is remote and speculative; Zinaida
Avdalyan’s decision to ask or not ask questions of her son-in-law could arise from
many circumstances, as, for example, if she was concerned about the possibility
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that her son-in-law paid a gratuity to an official to induce conduct that was lawfully
due, or if culturally it was not correct for her to ask pointed questions of her son-in-
law. In our view, it cannot be said that Avdalyan’s failure to ask her son-in-law
questions rationally supports the IJ’s inference that she knew the visa he obtained
for the grandson was a counterfeit.
Finally, the only remaining evidence on which the IJ relied—that Avdalyan
had previously traveled to the United States and therefore must have known the
proper procedures for obtaining a passport—is insufficient to find that Avdalyan
knew her grandson’s visa was obtained improperly, particularly since no one
explained to Avdalyan how he obtained it. Substantial evidence does not support
the IJ’s finding that Avdalyan knowingly engaged in alien smuggling, which was
based on impermissible speculation.
Because the evidence is insufficient to support a conclusion that petitioner
had engaged in alien smuggling, we remand to the BIA with direction that it
conclude that petitioner has not so engaged in alien smuggling, and that her request
to adjust her status should be considered on the merits by the Immigration Judge
and the BIA.
The petition for review is GRANTED, the BIA’s order is VACATED, and
the matter is REMANDED for further proceedings consistent with this disposition.
6