FILED
NOT FOR PUBLICATION APR 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KARIN BABAYAN, a.k.a. KAREN No. 10-70246
BABAYAN; TATEVIK MKHITARYAN,
Agency Nos. A077-994-540
Petitioners, A077-994-536
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2012 **
Before: LEAVY, PAEZ, and BEA, Circuit Judges.
Karin Babayan and Tatevik Mkhitaryan, natives and citizens of Armenia,
petition for review of the Board of Immigration Appeals’ order dismissing their
appeal from an immigration judge’s (“IJ”) decision denying their application for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial
evidence. Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir. 2009). We grant
the petition for review, and we remand.
Substantial evidence does not support the IJ’s adverse credibility
determination based on the perceived inconsistencies between Babayan’s
testimony and the airport interview statement or the credible fear worksheet in the
record. See Singh v. INS, 292 F.3d 1017, 1023-24 (9th Cir. 2002) (discussing
factors and circumstances that make an airport interview statement lack sufficient
reliability); Singh v. Gonzales, 403 F.3d 1081, 1087-90 (9th Cir. 2005) (discussing
nature of an asylum interview and concluding discrepancies between Assessment
To Refer and applicant’s testimony did not support an adverse credibility
determination). Substantial evidence also does not support the IJ’s adverse
credibility determination based on the identified omissions from Babayan’s
testimony, or on the inconsistencies between Babayan’s testimony and his asylum
application and the ambulatory record cards, because Babayan was not given an
opportunity to explain the perceived discrepancies. See Tekle v. Mukasey, 533
F.3d 1044, 1053 (9th Cir. 2008); see also Akinmade v. INS, 196 F.3d 951, 957 (9th
Cir. 1999) (IJ erroneously faulted petitioner for not providing further details,
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“especially when [petitioner] was not given notice that he should provide such
information, nor asked at the hearing to do so”). Further, substantial evidence does
not support the IJ’s finding that Babayan was evasive or unresponsive, see Turcios
v. INS, 821 F.2d 1396, 1400 (9th Cir. 1987), or that his fear of returning is
implausible because he no longer owns a business in Armenia, see Ge v. Ashcroft,
367 F.3d 1121, 1125-27 (9th Cir. 2004). Finally, because none of the IJ’s adverse
credibility findings are supported, Babayan was not required to provide
corroboration. See Joseph v. Holder, 600 F.3d 1235, 1246 (9th Cir. 2010).
Accordingly, we grant the petition with respect to petitioners’ asylum, withholding
of removal, and CAT claims, and we remand to the agency, on an open record, for
further proceedings consistent with this disposition. See Soto-Olarte, 555 F.3d at
1095-96; INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
In light of the above conclusions, we do not reach petitioners’ due process
contention.
PETITION FOR REVIEW GRANTED; REMANDED.
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