FILED
NOT FOR PUBLICATION NOV 18 2011
MOLLY C. DWYER, CL
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE A
FOR THE NINTH CIRCUIT
ASHOT GRIGORYAN, No. 06-74835
Petitioner, Agency No. A097-371-378
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 December 10, 2010
Pasadena, California
Before: PREGERSON and M. SMITH, Circuit Judges, and HOLLAND, Senior
District Judge.**
Petitioner Ashot Grigoryan, a native and citizen of Armenia, appeals the
denial of his applications for asylum, withholding of removal, and protection under
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable H. Russel Holland, Senior District Judge for the U.S.
District Court for Alaska, Anchorage, sitting by designation.
the Convention Against Torture (CAT).1 Because the Immigration Judge’s (IJ) and
Board of Immigration Appeals’ (BIA) adverse credibility finding based upon
“inconsistencies” and “omissions” is not supported by substantial evidence, we
reverse and remand.
1. Where the BIA cites Matter of Burbano, 20 I. & N. Dec. 872, 874
(BIA 1994), and also provides its own review of the evidence and the law, the
court reviews both the IJ and the BIA’s decisions. See Joseph v. Holder, 600 F.3d
1235, 1239-40 (9th Cir. 2010).
The IJ incorrectly states that Grigoryan failed to mention in his declaration
that he was a shareholder at a factory. While Grigoryan’s asylum application does
not mention the government’s audits of the factory or the payments the factory was
forced to make, the application does state that “the government began its illegal
activities against our [factory],” that “the government is illegally harassing us and
stepping over the rights of the private sector,” and that “Internal Affairs continued
to come after us and an endless chain of court proceeding[s] began.” The fact that
the government was conducting audits, and that those audits resulted in what
1
Because Grigoryan filed his application for relief prior to May 11, 2005,
the new standards of the REAL ID Act of 2005’s, Pub. L. No. 109-13, 119 Stat.
231 (2005), governing credibility determinations and judicial review of such
determinations do not apply. See Sinha v. Holder, 564 F.3d 1015, 1021 n.3 (9th
Cir. 2009).
2
amounted to fines or extortion on the factory, are both details that help to flesh out
Grigoryan’s story, and are not inconsistent with it. Their omission is not
substantial evidence supporting a finding of adverse credibility. See Bandari v.
INS, 227 F.3d 1160, 1167 (9th Cir. 2000) (“[T]he mere omission of details is
insufficient to uphold an adverse credibility finding.”) (citations omitted).
The IJ also noted that Grigoryan did not mention in his application that, after
he left Armenia, police approached his parents and asked about Grigoryan’s
whereabouts. In the hearing, Grigoryan’s attorney pointed out that the
supplemental statement mentions that “[o]nce in the United States, through
contacts with [his] acquaintances, [Grigoryan] was advised not to return as the
situation has only gotten more serious, and that the authorities continue to look for
[him].” The IJ, however, responded that he “wouldn’t consider [Grigoryan’s]
parents to be acquaintances.” But the fact that Grigoryan neglected to say
“acquaintances and parents” cannot serve as the basis for an adverse credibility
determination. The fact is that Grigoryan mentioned being advised not to return to
Armenia because the authorities were looking for him. That he neglected to
mention this collateral incident involving relatives cannot support an adverse
credibility finding. See Aguilera-Cota v. INS, 914 F.2d 1375, 1382 (9th Cir. 1990).
3
The IJ also notes that Grigoryan testified that “even though he was arrested
and detained for 15 days [after transporting people to the demonstrations in
Yerevan], he suffered no physical punishment as a result of that arrest.” But
Grigoryan never claimed to have suffered any physical punishment at that time,
only stating that he was “interrogated, mistreated and threatened by the
government officials and held back from being able to participate in the March 5th
elections . . . clearly against our civil rights.” The IJ fails to explain how this is
inconsistent and instead assumes that Grigoryan must be lying. An adverse
credibility finding cannot be based on Grigoryan’s consistent statements and the IJ
“must offer a specific, cogent reason for any stated disbelief.” Shah v. INS, 220
F.3d 1062, 1067 (9th Cir. 2000) (citations and internal quotation marks omitted).
The IJ also failed to give a cogent reason for dismissing as inconsistent
Grigoryan’s testimony that government officials asked him to sign a statement
indicating that he was forced to give false information to the crowd. The IJ claims
this was present in his application “in the most obtuse manner,” but does not go on
to explain how this is inconsistent with Grigoryan’s statement that he was
“violently mistreated and threatened for pressing the public and spreading untrue
information in regards to the elections.” This does not contribute to the substantial
4
evidence necessary to uphold the IJ’s credibility determination. Soto-Olarte v.
Holder, 555 F.3d 1089, 1091-1092 (9th Cir. 2009).
In addition, the IJ also based his adverse credibility finding on a number of
frivolous “inconsistencies” and “omissions” in Grigoryan’s testimony and
application. These include the number of people present at Grigoryan’s speech;
the number of people arrested at the same demonstration; the name of his financial
partner; and the fact that Grigoryan supported the People’s Party of Armenia not
only financially and morally, but also by transporting people to demonstrations.
None of these minor discrepancies goes to the heart of the persecution claim and
thus cannot form the basis of an adverse credibility finding. See Mendoza
Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir. 2003).
“It 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.” Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir. 1996); see also
Akinmade v. INS, 196 F.3d 951, 956 (9th Cir. 1999) (“[A] concern that the affidavit
is not as complete as might be desired cannot, without more, properly serve as a
basis for a finding of lack of credibility.” (internal quotation marks omitted)).
5
2. The BIA’s adverse credibility determination is also not supported by
substantial evidence. In its decision adopting and affirming the IJ’s denial of
Grigoryan’s applications for relief, the BIA focused on what it believed to be
inconsistencies in Grigoryan’s testimony and omissions in his asylum application.
First, the BIA noted that Grigoryan stated in his application that he had been
“violently mistreated” when he was detained after giving a speech in front of the
opera house, and then stated at the hearing that his injuries “were not that much.”
But Grigoryan’s testimony was given in response to the IJ’s questions about his
mistreatment during his detention. In fact, Grigoryan had just finished testifying
that he was hit in the head and in the abdomen. That is consistent with violent
mistreatment. Whether Grigoryan thought his injuries were severe or not is
inconsequential and does not conflict with the account of his mistreatment.
Moreover, we have previously held that “where a petitioner initially gives one
account of persecution but then revises his story so as to ‘lessen the degree of
persecution he experienced, rather than to increase it,’ the discrepancy generally
does not support an adverse credibility finding.” Stoyanov v. INS, 172 F.3d 731,
736 (9th Cir. 1999) (quoting Garrovillas v. INS, 156 F.3d 1010, 1014 (9th Cir.
6
1998)). Thus, Grigoryan’s testimony that his injuries “were not that much” cannot
by itself support an adverse credibility finding.
According to the BIA,“[o]ne of the most flagrant inconsistencies and
omissions” is the altercation between Grigoryan and the new stockholder.
Conceding that Grigoryan listed the incident on his amended asylum application,
the BIA focuses on the alleged inconsistency between Grigoryan’s statement on
the amended application that he was “nearly rendered unconscious” after being
beaten, and his testimony that he was knocked unconscious and later required
medical treatment for a brain concussion. In fact, Grigoryan testified that he “lost
consciousness for awhile.” (emphasis added). This is consistent with being
“nearly rendered unconscious,” and, in any case, serves only as a minor
inconsistency that does not go to the heart of the asylum claim. See Mendoza
Manimbao, 329 F.3d at 660. Moreover, the fact that Grigoryan did not mention in
his amended application that he required medical treatment is an omission that is
not inconsistent with his testimony. It is simply more detail offered in response to
questioning. Thus, this purported inconsistency cannot support an adverse
credibility determination.
7
The BIA’s decision also mentioned other omissions that the IJ noted,
including the omission of the dates of various incidents in Grigoryan’s asylum
application. In Grigoryan’s case, there were no discrepancies in dates. Rather, in
his testimony, Grigoryan provided details, including dates, for incidents he had
already described in his asylum application. These dates were not provided to
enhance Grigoryan’s claims of persecution, and their omission in his asylum
application does not have a bearing on his credibility. Damaize-Job v. INS, 787
F.2d 1332, 1337 (9th Cir. 1986) (“minor discrepancies in dates that are attributable
to the applicant’s language problems or typographical errors and cannot be viewed
as attempts by the applicant to enhance his claims of persecution have no bearing
on credibility.”). The fact that Grigoryan later offered dates for the incidents of
persecution cannot serve as substantial evidence in favor of an adverse credibility
finding.
The BIA also focused on the alleged car bomb explosion, which Grigoryan
mentioned for the first time at the hearing. The BIA cites Alvarez-Santos v. INS,
332 F.3d 1245, 1254 (9th Cir. 2003), for its holding that a petitioner’s testimony
was discredited when he “failed to include in either of his two asylum applications
or his principle [sic] testimony the incident that precipitated his flight from
8
Guatemala.” (emphasis added). Grigoryan failed to mention the car explosion in
his asylum application and supplement. Yet, the petitioner in Alvarez-Santos only
raised the incident that precipitated his flight “at the conclusion of his testimony,
after taking a break, and, assertedly, because of an itch in his shoulder.” 332 F.3d
at 1254. In contrast, Grigoryan’s behavior cannot be interpreted as a sudden
afterthought to his principal testimony. Rather, Grigoryan testified about this
incident during regular questioning by his attorney. This testimony is consistent
with Grigoryan’s statement that he had been “threatened to be tortured and killed
by the Internal Affairs.” The omission of this detail from the asylum application
stands in stark contrast to the petitioner’s failure, in Alvarez-Santos, to mention
that he had been stabbed and fled to the mountains, which the IJ described as
“pivotal” in that case. 332 F.3d at 1254. In Grigoryan’s case, the IJ mentions this
omission in passing, among his list of details omitted in the application but to
which Grigoryan later testified. Thus, this omission is not substantial evidence in
favor of an adverse credibility finding.
3. Finally, Grigoryan’s asylum application was filled out by his cousin,
Marianna Manukyan. We have previously stated that “asylum forms filled out by
people who are unable to retain counsel should be read charitably, especially when
9
it comes to the absence of a comprehensive and thorough account of all past
instances of persecution.” Smolniakova v. Gonzales, 422 F.3d 1037, 1045 (9th Cir.
2005) (internal quotation marks omitted). There is no indication in the record that
Manukyan is trained in immigration or asylum law, or even that she has filled out
an asylum application before.
A charitable reading of Grigoryan’s asylum application suggests that neither
Grigoryan nor Manukyan understood that they might not be providing the level of
detail the IJ would require of Grigoryan. Nothing that Grigoryan later testified to
contradicted what he wrote in his asylum application or in the supplement to the
application. Grigoryan’s and Manukyan’s lack of sophistication in filling out an
asylum application adequately explains the lack of comprehensiveness in
accounting for every single instance of persecution in the application. Therefore,
the omission of particular details on the application, to which Grigoryan later
testified, cannot serve as substantial support for an adverse credibility
determination.
4. Because the inconsistencies and omissions noted by both the IJ and
the BIA are reconcilable or nonmaterial, substantial evidence does not support the
IJ and the BIA’s adverse credibility determination. Gui v. INS, 280 F.3d 1217,
10
1225 (9th Cir. 2002); Zhao v. Mukasey, 540 F.3d 1027, 1029 (9th Cir. 2008). We
reverse the adverse credibility finding and remand to the BIA for a redetermination
of Grigoryan’s eligibility for asylum and entitlement to withholding of removal.
See He v. Ashcroft, 328 F.3d 593, 603-04 (9th Cir. 2003) (citing INS v. Ventura,
537 U.S. 12, 16-17 (2002) (per curiam)). 2
PETITION GRANTED; REVERSED and REMANDED.
2
Because we reverse the BIA and the IJ’s adverse credibility determination
and remand, we need not reach Grigoryan’s arguments that the IJ prejudged his
case, speculated that Grigoryan intentionally left out details from his asylum
application in order to avoid potential inconsistencies, and decided to deny
Grigoryan relief from the outset of the hearing.
11