Martoyan v. Holder

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 10 2011

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

KAREN MARTOYAN; et al., No. 07-70227

Petitioners, Agency Nos. A077-849-717
A077-849-718
v. A077-849-719
A077-849-720
ERIC H. HOLDER, Jr., Attorney General,

Respondent. MEMORANDUM*

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted December 7, 2010
Pasadena, California

Before: NOONAN, BERZON, and CALLAHAN, Circuit Judges.

Karen Martoyan (“Martoyan”) and his family, natives and citizens of

Armenia, petition for review of the Board of Immigration Appeals’ (“BIA”) order

dismissing their appeal from the Immigration Judge’s (“IJ”) decision denying their

application for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. §

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1252. We evaluate the IJ’s adverse credibility determinations for substantial

evidence, Kin v. Holder, 595 F.3d 1050, 1054 (9th Cir. 2010), and have

jurisdiction to review the agency’s determination that Martoyan failed to establish

extraordinary circumstances excusing the untimely filing of his asylum application.

See Tamang v. Holder, 598 F.3d 1083, 1088-89 (9th Cir. 2010).

The transcript of Martoyan’s hearing is replete with both translation and

transcription problems. Inadequate translation made it difficult for Martoyan to

answer questions and clarify perceived inconsistencies. And transcription

problems make us question whether the record fairly represents the proceedings

before the agency. “It is long-settled that a competent translation is fundamental to

a full and fair hearing.” Perez-Lastor v. INS, 208 F.3d 773, 778 (9th Cir. 2000).

Deportation proceedings violate due process if the alien demonstrates that a better

translation would have made a difference in the outcome of the hearing. Acewicz

v. INS, 984 F.2d 1056, 1063 (9th Cir. 1993). Martoyan failed to exhaust his

translation-related due process claim before the BIA and he has failed to make any

claim based on inadequate transcription. See Abebe v. Mukasey, 554 F.3d 1203,

1207-08 (9th Cir. 2009) (en banc), cert. denied, 130 S. Ct. 3272 (2010). However,

“[e]ven where there is no due process violation, faulty or unreliable translations

can undermine the evidence on which an adverse credibility determination is

2
based.” He v. Ashcroft, 328 F.3d 593, 598 (9th Cir. 2003). Whether due to poor

translation or poor transcription, we are unable to meaningfully review the

transcript of the evidentiary hearing and cannot determine whether the IJ’s adverse

credibility determinations are supported by substantial evidence.

Accordingly, we grant the petition and remand to the agency to reassess

Martoyan’s credibility in the first instance after a new hearing and determine his

eligibility for asylum, withholding of removal, and CAT protection. See Hartooni

v. INS, 21 F.3d 336, 343 (9th Cir. 1994); Garrovillas v. INS, 156 F.3d 1010, 1017

(9th Cir. 1998).

PETITION GRANTED; REMANDED.