NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 20 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARIK GAMBARYAN, No. 16-73312
Petitioner, Agency No. A097-371-451
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 8, 2019
Pasadena, California
Before: MURGUIA and HURWITZ, Circuit Judges, and ZOUHARY,** District
Judge.
Garik Gambaryan, a citizen of Armenia, petitions for review of a decision of
the Board of Immigration Appeals (“BIA”) dismissing his appeal from the order of
an Immigration Judge (“IJ”) denying an application for asylum, withholding of
removal, and protection under the Convention Against Torture. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
jurisdiction under 8 U.S.C. § 1252(a)(1) and grant the petition.
In this pre-REAL ID Act case, an adverse credibility determination must be
supported by a specific and cogent reason that goes to the heart of the petitioner’s
claim. See Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir. 2004). We review only those
parts of the IJ’s credibility finding that were relied upon by the BIA. See Tekle v.
Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008). The adverse credibility finding must
be supported by substantial evidence. See Don v. Gonzales, 476 F.3d 738, 741 (9th
Cir. 2007).
1. The BIA and IJ both incorrectly found Gambaryan was not credible
because his asylum statement did not assert he was taken to an Armenian internal
affairs office and placed on a blacklist. The Government recognizes that error, and
now argues Gambaryan instead omitted this information from his testimony before
the IJ, rather than from his asylum statement. Our review, however, is confined to
the reasoning given by the BIA. See Becker v. Gonzales, 473 F.3d 1000, 1001 n.2
(9th Cir. 2007). In any event, Gambaryan did testify to the IJ about this incident.
Because the adverse credibility finding rests on an inconsistency that does not exist
in the record, it is not supported by substantial evidence. See Singh v. Gonzales, 403
F.3d 1081, 1090 (9th Cir. 2005) (granting petition where “[t]he purported
inconsistency identified by the IJ [did] not exist, and [did] not support the adverse
credibility determination.”).
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2. The adverse credibility finding is not supported by Gambaryan’s failure
to mention in his asylum application an incident in which he and others were
arrested, beaten, and tested for sexually transmitted diseases. Gambaryan’s asylum
application, which was not prepared by an attorney, stated he was not fluent in
English. Omissions in an asylum statement “are not given much significance
because applicants usually do not speak English and are not represented by counsel.”
Kin v. Holder, 595 F.3d 1050, 1056 (9th Cir. 2010). In addition, Gambaryan’s
omission did not alter or contradict his account of persecution. Therefore, his failure
to include this testimony in his asylum application does not support the adverse
credibility finding. See Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir. 1996)
(holding that petitioner’s failure to file an application that was “as complete as might
be desired, cannot, without more, serve as a basis for a finding of lack of credibility,”
and that “[i]t is well settled that an applicant’s testimony is not per se lacking in
credibility simply because it includes details that are not set forth in the asylum
application.”) (internal quotation marks omitted).
3. Gambaryan’s declaration stated he was fired from a job in April 2000,
but he testified before the IJ that the firing occurred in either February or March of
that year. Such small discrepancies in dates that do not bear on the fear of future
persecution are “‘minor inconsistencies’ that cannot form the basis of an adverse
credibility finding.” Bandari v. INS, 227 F.3d 1160, 1166 (9th Cir. 2000) (quoting
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Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir. 1988)).
4. Although Gambaryan initially failed to mention a 2001 walkathon and
his subsequent arrest in response to a question by the IJ during his asylum hearing,
Gambaryan testified consistently with the asylum statement when reminded of the
incident. Gambaryan explained that he originally failed to mention the incident
because he did not realize the IJ’s question was about his arrest. Neither the BIA
nor the IJ addressed this plausible explanation and, therefore, this testimony does
not support the adverse credibility finding. See Hakeem v. INS, 273 F.3d 812, 816
(9th Cir. 2001) (citing Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir. 1998))
(stating that an adverse credibility finding is not supported by substantial evidence
when the petitioner’s explanation for an alleged discrepancy was not addressed).
PETITION FOR REVIEW GRANTED; REMANDED.
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