FILED
NOT FOR PUBLICATION JAN 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DAVIT MKRTCHYAN, No. 06-73986
Petitioner, Agency No. A097-105-585
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Davit Mkrtchyan, a native of the former Soviet Union and citizen of
Armenia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order
denying his motion to remand and dismissing his appeal from an immigration
*
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).
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judge’s (“IJ”) decision denying his application for asylum, withholding of removal,
and protection under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the IJ’s
adverse credibility determination, Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th
Cir. 2009), and for abuse of discretion the BIA’s denial of the motion to remand,
Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). We review de novo
claims of due process violations in removal proceedings. Sharma v. INS, 89 F.3d
545, 547 (9th Cir. 1996). We grant the petition for review, and we remand.
The IJ’s adverse credibility determination relied in part on a government
forensic report regarding the authenticity of Mkrtchyan’s political party
identification. The government did not disclose the forensic report to Mkrtchyan
in advance of the hearing or make the forensic report’s author available for cross-
examination at the hearing. Under these circumstances, the IJ’s consideration of
the forensic report denied Mkrtchyan a fair hearing. See Cinapian v. Holder, 567
F.3d 1067, 1075 (9th Cir. 2009) (government’s failure to disclose forensic reports
in advance of hearing or to make reports’ authors available for cross-examination
and IJ’s subsequent consideration of the reports denied petitioners a fair hearing).
The BIA also abused its discretion in denying the motion to remand because
the motion contains an alleged newly available document from Mkrtchyan’s
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political party in Armenia purportedly showing the party issued Mkrtchyan an
identification card bearing the same number as the disputed identification card in
the record. The motion therefore offers rebuttal evidence of the forensic report
upon which the IJ relied in part to determine that Mkrtchyan was not credible. In
light of our disposition, we do not address the merits of the IJ’s remaining reasons
for finding Mkrtchyan not credible.
We remand Mkrtchyan’s asylum, withholding of removal and CAT claims
for further proceedings. See Soto-Olarte, 555 F.3d at 1095-96.
PETITION FOR REVIEW GRANTED; REMANDED.
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