NOT FOR PUBLICATION FILED
JAN 3 2018
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID SARKISIAN, et al., No. 14-73058
Petitioners, Agency No. A087-603-205
A087-603-206
v. A087-603-207
A087-603-208
JEFFERSON B. SESSIONS III, Attorney
General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 4, 2017
Pasadena, California
Before: D.W. NELSON and REINHARDT, Circuit Judges, and STEEH,** District
Judge.
David Sarkisian, with his wife Armine Aleksanyan and their two children as
derivative applicants, petitions for review of the Board of Immigration Appeals’
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable George Caram Steeh III, United States District Judge for the
Eastern District of Michigan, sitting by designation.
(“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of his application
for asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). We GRANT the petition for review in part, DENY in part, and
REMAND.
1. We reverse the agency’s adverse credibility determination as to Sarkisian.
The BIA has provided no “specific and cogent reason[] to support” the
determination: specifically, “inconsistent testimony [as] to the number of days that
he claims he was held captive" and failure to "identify in his affidavit the
prominent politician, Avigdor Lieberman, who he claimed . . . was involved in his
kidnapping." Sarkisian's testimony calculating the time he spent in captivity
varied, but the dates he provided for his kidnapping and his return covered two
nights, which can accurately be described in a number of different ways. At most,
Sarkisian's response reflects uncertainty as to the best characterization of a time
frame spanning two nights – not an inconsistency. See Lai v. Holder, 773 F.3d
966, 971 (9th Cir. 2014) (contrasting the probative value of omissions with that of
"inconsistencies created by direct contradictions in evidence and testimony").
Sarkisian's omission of the name "Avigdor Lieberman" from his asylum
application also is not a ground for an adverse credibility determination. "It is well
established that ‘the mere omission of details is insufficient to uphold an adverse
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credibility finding.’" Id. (citations omitted). Sarkisian's asylum application stated,
"During this incident [the kidnapping] I heard names of people, whom I believe
were behind all of this." Sarkisian testified that he gave Lieberman's name during
his asylum interview. While there is no record of this interview, the DHS failed to
offer any evidence to the contrary or to dispute this testimony. In the removal
proceedings, Sarkisian elaborated: "I heard a few times the name of Lieberman."
Finally, Sarkisian's application included articles specifically about Lieberman,
which would have served no purpose had he not thought Lieberman had some
connection to the kidnapping.
While we may question the plausibility of Sarkisian’s account or believe
there may have been other grounds on which the IJ or BIA could have made an
adverse credibility determination, we are constrained to review the grounds
selected by the BIA. In this case, each of the BIA’s reasons given for the adverse
credibility determination fails.
The IJ and BIA additionally faulted Sarkisian for failure to provide
corroborative evidence, but did not give notice of the evidence required. On
remand the agency should provide Sarkisian fair notice of any specific
corroborative evidence it may desire. See Bhattarai v. Lynch, 835 F.3d 1037,
1043-44 (9th Cir. 2016).
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2. We also reverse the BIA's finding that Sarkisian's alleged injuries would
not rise to the level of persecution given the combination of the beating, detention
and death threats. Sarkisian's account of beatings resulting in severe bruising is
supported by Aleksanyan’s testimony as well as by Dr. Khati’s letter. "Physical
harm has consistently been treated as persecution." Ahmed v. Keisler, 504 F.3d
1183, 1194 (9th Cir. 2007). Additionally, "we have consistently held that death
threats alone can constitute persecution." Navas v. I.N.S., 217 F.3d 646, 658 (9th
Cir. 2000) (citations omitted). Sarkisian states that his abductors threatened to kill
not just him but his entire family if he did not cooperate with their demands.
Together, these harms, if suffered, rise to the level of persecution. See Guo v.
Ashcroft, 361 F.3d 1194, 1202 (9th Cir. 2004).
"[P]roof of past persecution gives rise to a presumption of a well-founded
fear of future persecution and shifts the burden to the government to rebut that
presumption." Ahmed, 504 F.3d at 1197. If Sarkisian’s testimony is deemed
credible, then he will have established past persecution. He would then be entitled
to a presumption of a well-founded fear of future persecution and a presumption
that his life or freedom would be threatened in the future in Israel on the basis of
his claim. 8 C.F.R. §§ 208.13(b)(1), 208.16(b)(1)(i).
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3. Because the IJ and BIA based the denial of CAT relief in part on the
adverse credibility determination, the agency must reconsider his entitlement to
CAT relief.
4. We DENY the petition for review as to Aleksanyan’s separate claim,
seeking relief based on her status as a Jehovah’s Witness. Aleksanyan has not
established a well-founded fear of future persecution on that ground.
5. We GRANT the petition and REMAND for the agency’s determination
of Sarkisian’s eligibility for asylum and its exercise of discretion, as well as its
determination of his entitlement to withholding and CAT relief.
GRANTED in part, DENIED in part, and REMANDED.
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