FILED
NOT FOR PUBLICATION APR 05 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
LOUSIK MANASIAN, No. 05-77124
Petitioner, Agency No. A072-529-582
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 March 2, 2010
Pasadena, California
Before: CANBY, GOULD and IKUTA, Circuit Judges.
Lousiµ Manasian, a native and citizen of Armenia, petitions for review of an
order of the Board of Immigration Appeals ('BIA') dismissing her appeal from an
immigration judge's ('IJ') denial of her application for asylum, withholding of
removal, and relief under the Convention Against Torture ('CAT'). We have
jurisdiction pursuant to 8 U.S.C. y 1252, and we grant the petition for review.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
I
The IJ and the BIA denied Manasian's claims for asylum and withholding of
removal on the ground that she lacµed credibility. We conclude that the IJ's and
the BIA's adverse credibility findings were not supported by substantial evidence.
See, e.g., Singh v. Ashcroft, 362 F.3d 1164, 1168 (9th Cir. 2004) (requiring this
court to review adverse credibility determinations for substantial evidence).
In maµing the adverse credibility findings, the IJ and the BIA relied in
substantial part on inconsistencies in Manasian's accounts of a robbery,
µidnapping, and rape she allegedly suffered before fleeing Armenia. First, the IJ
and the BIA cited the fact that the affidavit accompanying Manasian's asylum
application did not clearly identify the individuals responsible for the µidnapping
and rape, while her later written declaration and her hearing testimony indicated
that one of the perpetrators was a police officer. Although we agree that this issue
goes to the heart of Manasian's claim, neither the IJ nor the BIA provided reasons
for rejecting Manasian's plausible explanation for this inconsistency, namely, that
another individual had prepared the affidavit for her and that it had not been read
bacµ to her. See Garrovillas v. INS, 156 F.3d 1010, 1013-14 (9th Cir. 1998)
(requiring the BIA to consider the petitioner's explanation that inconsistencies
between his asylum application and his testimony were due to the fact that 'his
2
former attorney prepared [the application] and that [the petitioner] had signed it
without reading it'). Accordingly, absent a statement of reasons for rejecting
Manasian's explanation, this inconsistency cannot provide substantial evidence for
the adverse credibility findings. See Soto-Olarte v. Holder, 555 F.3d 1089, 1091
(9th Cir. 2009) (concluding that an inconsistency going to the heart of the
petitioner's claim could not provide substantial evidence for the adverse credibility
finding because the BIA '[did] not refer to the explanation that [the petitioner]
gave' and '[did] not give [its] reasons for considering that explanation
unpersuasive'); see also Chawla v. Holder, No. 05-74823, 2010 WL 1135766, *4
(9th Cir. Mar. 26, 2010).
The IJ and the BIA also cited discrepancies in the location where the
attacµers left Manasian after the rape. However, because the specific location
where Manasian was left does not go to the heart of her claim, this inconsistency
cannot provide substantial evidence for the adverse credibility findings. See Singh
v. Ashcroft, 301 F.3d 1109, 1113 (9th Cir. 2002).
The IJ and the BIA further emphasized that, while the affidavit and
Manasian's testimony described the robbery preceding the µidnapping and rape,
Manasian's second written submission omitted any reference to the robbery.
Because Manasian was not given an opportunity to explain this omission, it does
3
not provide substantial evidence for the adverse credibility findings. See, e.g.,
Soto-Olarte, 555 F.3d at 1092.
Finally, the IJ and the BIA cited the fact that Manasian's original affidavit
contained no reference to the abuse she allegedly experienced at three prayer
meetings, which she described in her later declaration and her hearing testimony.
The omission of these details does not provide substantial evidence for the adverse
credibility findings. Although Manasian's original affidavit focused on the alleged
robbery, µidnapping, and rape, it also indicated that Manasian and her family had
been subjected to other unspecified incidents of persecution. Manasian's 'failure
to file an application that was 'not as complete as might be desired cannot, without
more, serve as a basis for a finding of lacµ of credibility.'' Lopez-Reyes v. INS, 79
F.3d 908, 911 (9th Cir. 1996); see also Smolniaµova v. Gonzales, 422 F.3d 1037,
1045 (9th Cir. 2005).
II
The IJ's and the BIA's adverse credibility findings were not supported by
substantial evidence. We vacate the BIA's decision and remand this case on an
open record for the agency to evaluate Manasian's credibility, permitting Manasian
to explain why her second written submission made no reference to the alleged
robbery, and to explain any other inconsistencies upon which the BIA chooses to
4
rely. On remand, the agency must consider 'in a reasoned manner' any such
explanations, as well as Manasian's earlier explanation for the inconsistency in her
identification of the individuals responsible for the µidnapping and rape. See Soto-
Olarte, 555 F.3d at 1092. If the agency finds Manasian credible, it should consider
in the first instance whether Manasian is eligible for asylum, withholding of
removal, or CAT relief.1
PETITION FOR REVIEW GRANTED; VACATED AND
REMANDED.
1
The IJ and the BIA, in denying Manasian CAT relief, cited both
Manasian's lacµ of credibility, as well as other record evidence. See Kamalthas v.
INS, 251 F.3d 1279, 1280 (9th Cir. 2001) (holding that defeat of asylum claim on
credibility grounds does not necessarily preclude relief on a CAT claim). Because
we conclude that the adverse credibility findings were not supported by substantial
evidence, the agency is instructed to reconsider Manasian's CAT claim on remand,
in addition to her claims for asylum and withholding of removal. We reject the
government's argument that, because Manasian previously failed to raise the CAT
claim before the BIA, we lacµ jurisdiction to deal with it here. See Abede v.
Gonzales, 432 F.3d 1037, 1041 (9th Cir. 2005) (en banc) ('When the BIA has
ignored a procedural defect and elected to consider an issue on its substantive
merits, we cannot then decline to consider the issue based upon this procedural
defect.').
5
FILED
Manasian v. Holder, No. 05-77124 APR 05 2010
MOLLY C. DWYER, CLERK
Judge Iµuta, dissenting. U.S . CO U RT OF AP PE A LS
The Supreme Court held in INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)
that determinations by the Board of Immigration Appeals (BIA) 'must be upheld if
'supported by reasonable, substantial, and probative evidence on the record
considered as a whole.'' For the court '[t]o reverse the BIA finding we must find
that the evidence not only supports' petitioner's conclusion, 'but compels it.' Id.
at 481 n.1 (emphasis in original). Indeed, to overturn the BIA's judgment, the
petitioner must show that the evidence is 'so compelling that no reasonable
factfinder could fail to find' that relief should have been granted. Id. at 484.
Here, the Immigration Judge (IJ) noted significant discrepancies between
Manasian's 1994 and 2000 declarations. Specifically, in her 1994 declaration,
Manasian stated that she was abused by criminals and helped by the police, while
the 2000 declaration re-characterized these incidents to portray the police as the
abusers. Similarly, the 1994 declaration made a single offhand reference to
'unspecified incidents of persecution,' see Maj. Op. at 4, while the 2000
declaration described in detail previously unmentioned incidents of abuse on
account of her religion. These alleged incidents of governmental discrimination
and abuse on account of her religion went to the heart of Manasian's asylum claim.
See Singh v. Ashcroft, 301 F.3d 1109, 1111-12 (9th Cir. 2002).
In response to the IJ's question why these multiple dramatic incidents of
abuse were omitted, Manasian explained that she 'thought [she] would answer
those when' asµed at some future date. When asµed why she failed to identify the
police as her attacµers in her initial declaration, Manasian's excuse was that,
although she signed the declaration under penalty of perjury, she actually had
never reviewed it. The IJ rejected these explanations as unpersuasive, and the BIA
determined that the IJ was reasonable in so finding. We are not compelled to
overturn this conclusion. See Garrovillas v. INS, 156 F.3d 1010, 1014 (9th Cir.
1998) (stating that, where a petitioner blamed the discrepancy between his asylum
application and his in-court testimony on his former attorney's preparation of the
application, we may deem the BIA's adverse credibility determination justified if
'the inconsistency [is] accompanied by other indications of dishonesty,' and the
BIA addressed the petitioner's explanation); see also Kin v. Holder, 595 F.3d
1050, 1057 (9th Cir. 2010) ('When confronted with the omission at the asylum
hearing, Kin stated that he felt inclusion in the asylum applications was not
necessary because the demonstration would be discussed at the hearing. This
explanation is not persuasive enough to compel the conclusion that the omissions
were immaterial.'). Given the IJ's reasonable rejection of Manasian's explanation
for the discrepancies and omissions in her declarations, the IJ and BIA's adverse
credibility determination was supported by substantial evidence.
The majority brushes aside this substantial evidence. The majority relies on
Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir. 2009), for the principle that
we need not consider discrepancies in the record that support the IJ's adverse
credibility determination if the IJ failed to provide reasons for rejecting a
petitioner's explanation of those discrepancies. Aside from the fact that in this
case the IJ did account for Manasian's explanations as being insufficient, this
reading of Soto-Alarte cannot be correct. Because we are bound by Elias-
Zacarias, we cannot reverse the BIA unless the evidence in the record compels
such a conclusion, regardless of whether the IJ failed to give a detailed analysis of
the reasons for rejecting the petitioner's explanation. See 502 U.S. at 481 & n.1. If
we carry the majority's reading of Soto-Alarte to its logical conclusion, the next
step will be to require that the petitioner be given an opportunity to rebut the IJ's
analysis, and the step after will be to require the IJ to sur-rebut the petitioner's
rebuttal. Neither the statute nor the Supreme Court allows us to go this far. We
must not read Soto-Olarte as changing the standard of review for BIA decisions,
but merely as holding that the evidence in that case compelled a reversal of the
BIA's conclusion, notwithstanding a discrepancy in the record for which the
petitioner gave a plausible explanation. See 555 F.3d at 1091.
Because nothing in the record in this case compels reversal, I would uphold
the IJ's decision. I respectfully dissent.