FILED
NOT FOR PUBLICATION
MAY 17 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ILYA KUDRYASHOV, No. 15-71381
Petitioner, Agency No. A088-558-590
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 11, 2018
Pasadena, California
Before: BEA and MURGUIA, Circuit Judges, and MOLLOY,** District Judge.
Ilya Kudryashov, a native and citizen of Armenia, entered the United States
in September 2006, without inspection or parole. He petitions for review of the
Board of Immigration Appeals’ (“Agency”) denial of asylum, withholding of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
removal, and protection under the Convention Against Torture (“CAT”).
Kudryashov challenges the Agency’s denial of asylum1 based on an adverse
credibility determination as to several events that took place in 2006. We have
jurisdiction under 8 U.S.C. § 1252. We grant the petition for review, and remand.
Under the REAL ID Act, the Agency need provide only “specific and
cogent reasons in support of an adverse credibility determination,” and should
consider the totality of the circumstances, statutory factors, and other relevant
evidence. Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010) (internal
quotation marks omitted); see 8 U.S.C. § 1158(b)(1)(B)(iii) (statutory factors
include demeanor, candor, responsiveness, inherent plausibility of testimony,
consistency between testimony and written statements, consistency between
testimony and written statements and other evidence in the record, and the internal
consistency of testimony and written statements). Inconsistencies need not “‘go to
the heart’ of the petitioner’s claim to form the basis of an adverse credibility
determination.” Shrestha, 590 F.3d at 1043 (citing 8 U.S.C. § 1158(b)(1)(B)(iii)).
1
Because Kudryashov failed to develop his arguments regarding
withholding and CAT, we deem these issues abandoned. See Martinez-Serrano v.
INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (“Issues raised in a brief that are not
supported by argument are deemed abandoned.”).
2
We review an adverse credibility determination for substantial evidence. Id. at
1039.
Many of the reasons the Agency gave for finding Kudryashov not credible
were based on trivial differences between his testimony and other evidence in the
record, and are not sufficient to support an adverse credibility finding.
In his statement, Kudryashov asserted that he was arrested during a meeting
in the park on April 29, 2006. At his removal hearing, however, Kudryashov
testified that this event took place in early April, eventually stating it took place on
April 7. Such “minor discrepancies in dates that cannot be viewed as attempts by
the applicant to enhance his claims of persecution have no bearing on credibility.”
Ren v. Holder, 648 F.3d 1079, 1086 (9th Cir. 2011) (internal quotation marks and
alteration omitted).
When asked how long he was in the hospital after being interrogated and
beaten by the police, Kudryashov responded, “About a week [indiscernible]. I
don’t remember for certain.” The Medical Evaluation indicates he was
hospitalized for about two weeks. Even assuming this testimony was inconsistent
with the medical record, this inconsistency helps Kudryashov—a hospital stay of
two weeks rather than one week indicates more serious injuries, which bolsters his
3
asylum claim. It is unlikely that Kudryashov would have testified falsely in a
manner adverse to himself.
In addition, Kudryashov said the hospital performed “electrotherapy” and
some treatment with needles. The Medical Evaluation lists his treatment as
“[c]ompress and electrode treatment of lumbar.” It is unclear from the record what
“electrode treatment” entails (i.e., whether “electrode treatment” may be
accomplished using needles), and therefore whether his testimony is inconsistent
with the medical record.
Kudryashov also was unable to name the medication he took. But the name
of the medication was “Nootropil,” and it is not unreasonable that Kudryashov
could not remember that unusual name six years later.
Moreover, Kudryashov testified that he sent a complaint to the “Prosecutor’s
Office” regarding extortion by the police, but could not provide the name of the
prosecutor or the complete address where he sent a complaint. Kudryashov was
able to recall the street name (Isaakian Street), and it was unreasonable to expect
him to remember the complete address or name of the prosecutor.
In regards to a house meeting of Molokans he attended on February 25,
2006, when asked what day of the week Molokans “usually” meet, Kudryashov
answered “Sundays.” When told that February 25, 2006 was a Saturday,
4
Kudryashov said, “Quite often we get together on Saturday nights as well.”
Significantly, Kudryashov was asked what day of the week the group “usually”
meets; he was not asked what day of the week it “always” meets. Moreover,
“usually” was not a term that he chose, but rather that term was part of the
government’s question.
The Agency pointed to Kudryashov’s “non-responsive” answers about the
length of his hospital stay and the date of his arrest during the park meeting in
support of the adverse credibility finding. However, Kudryashov testified using an
interpreter, and his “non-responsive” answers may be explained by confusion.
The immigration judge acknowledged that “[h]ad the events been credible in
February, March, April and into May of 2006, they would have risen to the level of
persecut[ion] on a protected basis of religion and imputed political opinion.”
Because the record compels a finding of past persecution, Kudryashov is entitled to
a rebuttable presumption of future persecution. See 8 C.F.R. § 1208.13(b)(1).
Because the Agency did not address the reasonableness of relocation when the
persecutor is, in part, the government, we remand to the Agency to address
relocation. See Kaiser v. Ashcroft, 390 F.3d 653, 659 (9th Cir. 2004).
PETITION FOR REVIEW GRANTED; REMANDED.
5