FILED
NOT FOR PUBLICATION
MAY 05 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SPASKA STOIMENOVA NACHEVA; No. 14-70135
IVAN PANCHOV NACHEV;
DESISLAVA IVANOVA NACHEVA; Agency Nos. A200-991-950
PANCHO IVANOV NACHEV, A200-991-951
A200-991-952
Petitioners, A200-991-953
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 15, 2016**
San Francisco, California
Before: MELLOY,*** CLIFTON, and WATFORD, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Michael J. Melloy, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
Petitioners Spaska Nacheva, her husband, Ivan Panchov Nachev, and their
children, Desislava Ivanova Nacheva and Pancho Ivanov Nachev, are natives and
citizens of Bulgaria. Nacheva and her family petition for review of the Board of
Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”)
denial of their applications for asylum, withholding of removal, and relief under the
Convention Against Torture. We have jurisdiction under 8 U.S.C. § 1252, and grant
the petition.
Petitioners entered the United States on December 21, 2010. On June 20, 2011,
Nacheva filed her application for asylum, withholding of removal, and relief under the
Convention Against Torture. Nacheva sought relief due to her political opinion and
membership in a particular social group. In a supplemental declaration included with
Nacheva’s application, she stated she was afraid to return to Bulgaria because she and
her family would not be safe. Nacheva explained that the Bulgarian government
harmed her because government officials believed she had documents implicating the
prime minister and interior minister in corruption. Nacheva stated that on December
4, 2010, she was kidnapped and sexually assaulted and, during the attack, she passed
out after one of the kidnappers struck her head against a table. Finally, Nacheva stated
that her kidnappers showed her a picture of her daughter and told her, “I would hate
2
to see her and you end up working in a brothel in some God forsaken Middle Eastern
country.”
Nacheva testified before the IJ on March 29, 2012. Nacheva’s testimony was
consistent with her asylum application and supplemental declaration. In addition to
Nacheva’s testimony about the attack, Nacheva testified that she did not return to
work after the attack. Nacheva further testified that she did not leave her house at all
after the attack until she came to the United States on December 21, 2010. Nacheva
testified that she has told only her husband and psychiatrist about the attack; she has
not told her children or anyone else because it is too painful to talk about.
Nacheva testified that she and her family obtained tourist visas on November
22, 2010. Nacheva testified that their original plan was to visit relatives in the United
States. Nacheva further testified that she is afraid she will be killed, kidnapped, or
sent to be a prostitute with her daughter if she returns to Bulgaria.
Nacheva testified that she has not been able to work since coming to the United
States and that she does not do anything with her time; her husband takes care of the
children and her daughter cooks. On cross-examination, Nacheva testified that there
was a posting online for her to work as a nanny. Nacheva explained that her daughter
made the ad to try to get her out of the house and that she did not know what was
written and could not work as a nanny.
3
In addition to Nacheva’s testimony, Nacheva presented testimony from her
psychologist, Dr. Lynlee Woodard, and submitted a psychological report prepared by
Woodard based on her treatment sessions with Nacheva. Nacheva also submitted a
psychological report prepared by Dr. Ruth Ann Wright, though Wright did not testify.
The IJ denied Nacheva’s asylum application and other relief based on the IJ’s
adverse credibility determination. The IJ based his adverse credibility determination
on a number of findings. In dismissing Nacheva’s appeal, the BIA specifically relied
on five of the IJ’s findings: (1) that Nacheva testified she was unable to work but was
impeached by the online ad for work as a nanny; (2) that Nacheva did not seek
medical treatment after the sexual assault; (3) that the timing of Nacheva’s
psychological treatment was suspect; (4) that Nacheva’s demeanor and
non-responsiveness to questions supported an adverse credibility determination; and
(5) that Nacheva’s claim was implausible because of the timing of the attack and the
timing of Nacheva’s asylum application.
We review factual findings, including adverse credibility determinations, for
substantial evidence. Singh v. Holder, 638 F.3d 1264, 1268–69 (9th Cir. 2011).
“[O]nly the most extraordinary circumstances will justify overturning an adverse
credibility determination.” Jin v. Holder, 748 F.3d 959, 964 (9th Cir. 2014) (quoting
Shrestha v. Holder, 590 F.3d 1034, 1041 (9th Cir. 2010)). “Where the BIA does not
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independently review the record, or where the BIA relies upon the IJ’s opinion as a
statement of reasons, we look to the IJ’s oral decision as a guide to what lay behind
the BIA’s conclusion.” Kozulin v. INS, 218 F.3d 1112, 1115 (9th Cir. 2000). “[W]e
do not review those parts of the IJ’s adverse credibility finding that the BIA did not
identify as ‘most significant’ and did not otherwise mention.” Tekle v. Mukasey, 533
F.3d 1044, 1051 (9th Cir. 2008).
Substantial evidence does not support the first four of the IJ’s findings. First,
Nacheva testified on direct examination that she was unable to work but was
impeached on cross-examination by an online ad, purportedly posted by Nacheva,
looking for work as a nanny. Nacheva explained that her daughter posted the ad as
an attempt to get her out of the house. However, the IJ did not address this
explanation in his decision. As a result, this was not a proper basis for an adverse
credibility determination. Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011) (“If the
alien offers a ‘reasonable and plausible explanation’ for the apparent discrepancy, the
IJ must provide a specific and cogent reason for rejecting it.” (quoting Soto-Olarte v.
Holder, 555 F.3d 1089, 1091–92 (9th Cir. 2009))); see also Guo v. Ashcroft, 361 F.3d
1194, 1201 (9th Cir. 2004) (“An adverse credibility finding is not based on substantial
evidence when ‘[t]he BIA [or the IJ] did not comment on [an applicant’s] explanation,
5
nor suggest any reason that it found his explanation not credible.’” (alterations in
original) (quoting Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir. 1998))).
Second, Nacheva’s failure to seek medical treatment cannot serve as substantial
evidence for the adverse credibility determination because it requires improper
speculation. See Zhu v. Mukasey, 537 F.3d 1034, 1039 (9th Cir. 2008) (“[T]he IJ’s
finding that petitioner’s story was not plausible because, after being knocked
unconscious and raped, a person would necessarily have gone to a doctor, is mere
speculation and conjecture—not a proper basis for an adverse credibility finding.”).
That the IJ would have gone to a doctor after being raped has no bearing on Nacheva’s
credibility. Additionally, there are many reasons a rape victim may choose not to go
to a doctor, such as not wanting a police report filed because the rapist is a powerful
person, as in Nacheva’s case. This further supports the rejection of this type of
speculation in an adverse credibility determination. Accordingly, the fact that
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Nacheva did not seek medical treatment was not a proper basis for an adverse
credibility determination.1
Third, the finding that the timing of Nacheva’s psychological treatment is
suspect is not supported by substantial evidence. The IJ found it suspect that Nacheva
did not seek psychological treatment until October 2011, after her asylum application
was referred to the Immigration Court. However, in the psychologist report the IJ
cites in his opinion, by Dr. Ruth Ann Wright, Wright notes that Nacheva’s “symptoms
of depression have been present and increasing in severity over the last ten months
since the sexual assault and threats against her daughter were made.” The IJ failed to
acknowledge the increasing severity of Nacheva’s symptoms as an explanation for the
timing of Nacheva’s decision to seek psychological help.
Further, because the IJ found that the timing of Nacheva’s psychological
treatment was suspect, the IJ was required to provide Nacheva an opportunity to
1
See, e.g., Zhu, 537 F.3d at 1046 (Gould, J., concurring) (“[R]egrettably, in
many parts of the world, a young woman’s report of a rape is likely to bring shame
and discredit upon her and her family, as much as it is likely to result in any
prosecution of the wrongdoer. Because the victim may be blamed for a rape or in any
event subjected to some level of disgrace for it, it is understandable that a young
woman like Petitioner . . . might prefer to maintain silence about a rape. This is all the
more so where the rapist is a powerful person in the community. And where recourse
to medical treatment is likely to cast a spotlight on the rape with all attendant
consequences, it is no wonder that a young woman in such circumstances might not
only remain mum but also pass up the possibility of a doctor’s help.”).
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explain. See Soto-Olarte, 555 F.3d at 1092 (“In any event, the IJ could not properly
base her adverse credibility determination on the inconsistencies between
Soto-Olarte’s testimony and the police report that Soto-Olarte did not explain in his
declaration, when she did not ask Soto-Olarte about these discrepancies or give him
an opportunity to reconcile them.”); Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.
2007) (“[T]he IJ must provide a petitioner with a reasonable opportunity to offer an
explanation of any perceived inconsistencies that form the basis of a denial of
asylum.” (internal quotation marks and citation omitted)). Because the IJ failed to
give Nacheva an opportunity to address the timing of her psychological treatment, and
failed to consider the full information in the psychological reports, the timing of
Nacheva’s psychological treatment cannot support the IJ’s adverse credibility
determination. Shrestha, 590 F.3d at 1044 (“To ignore a petitioner’s explanation for
a perceived inconsistency and relevant record evidence would be to make a credibility
determination on less than the total circumstances in contravention of the REAL ID
Act’s text.”).
Fourth, the IJ’s finding that Nacheva’s demeanor and unresponsiveness
supported an adverse credibility determination is not supported by the record. “We
give ‘special deference’ to a credibility determination that is based on demeanor.”
Singh-Kaur v. INS, 183 F.3d 1147, 1151 (9th Cir. 1999). However, “while a general
8
finding based on ‘demeanor’ is accorded deference, under our case law, an IJ’s
determination that a petitioner’s testimony is ‘evasive’ or ‘unresponsive’ may be
insufficient to support an adverse credibility finding. While these judgments will
usually encompass extensive non-verbal behavior or patterns of speech, we have held
that they are, nevertheless, subject to review by comparison with the inert transcript.”
Jibril v. Gonzales, 423 F.3d 1129, 1137 (9th Cir. 2005). “Where the record does not
obviously show that the petitioner was evasive or unresponsive, our precedent
instructs us not to accord deference to the IJ’s demeanor finding, no matter how likely
it was to have been supported by non-verbal, and therefore non-textual, factors.” Id.
In this case, the IJ found that Nacheva did “not impress as someone with more
than 10 years of experience as a trial lawyer. She also did not impress as having the
thought process of a trained lawyer, or the ability to answer questions skillfully and
directly that one might expect from a trained lawyer.” The IJ did not make inferences
based solely on Nacheva’s demeanor and did not point to non-verbal cues in his
opinion. Cf. Paredes-Urrestarazu v. INS, 36 F.3d 801, 818 (9th Cir. 1994) (holding
that an IJ is entitled to special deference when “[t]he IJ’s factual premise . . . is based
solely on his purported eye-witness observation of Petitioner’s reactions, [and] rests
on inferences drawn exclusively from the petitioner’s demeanor” (emphasis in
original)). Rather, the IJ’s observations were based on the nature of Nacheva’s
9
responses to questions on cross-examination, and thus can be reviewed by comparison
to the hearing transcript. See Jibril, 423 F.3d at 1137.
The IJ stated that Nacheva’s “demeanor changed” on cross-examination,
without citing any non-verbal behavior on which he was relying. The IJ then stated
that Nacheva was unresponsive to three questions. A review of the transcript,
however, shows that Nacheva answered those questions. The IJ did not “identify
particular instances in the record where the petitioner refused to answer questions
asked of [her].” Singh v. Ashcroft, 301 F.3d 1109, 1114 (9th Cir. 2002). Because the
IJ’s finding regarding Nacheva’s demeanor was based on Nacheva’s responses to
questions rather than on non-verbal cues, a review of the hearing transcript shows that
the IJ’s determination does not warrant the special deference usually accorded to
demeanor determinations. As a result, this basis for the IJ’s adverse credibility
determination is not supported by substantial evidence.
Having found the first four bases for the IJ’s adverse credibility determination
to be either improper or unsupported by substantial evidence, we now address the
implausibility of Nacheva’s claim. The IJ found Nacheva’s claim inherently
implausible because (1) Nacheva waited several months to file her asylum application;
and (2) the attack did not occur until after Nacheva already had a non-immigrant visa
to come to the United States.
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First, the IJ found Nacheva’s claim implausible because “the severity and
recency of the allegations raised by [Nacheva] in her past prosecution claim would
suggest that her first priority upon arrival in the United States, in December 2010,
would be to request asylum.” The IJ noted that Nacheva’s application was timely, but,
nevertheless, drew a negative inference from the fact that Nacheva and her husband
started a family business in January 2011 but waited six months before applying for
asylum.
Under 8 U.S.C. § 1158(a)(2)(B), an asylum applicant has one year to file an
application. Nacheva filed her application on June 20, 2011, about six months after
she arrived in the United States and within the one year time limit set by the statute.
We have held that “an IJ may not speculate as to why an alien did not apply for
asylum immediately upon entry to the United States.” Karouni v. Gonzales, 399 F.3d
1163, 1177 (9th Cir. 2005). Further, if the IJ felt that the timing of Nacheva’s
application was implausible, he was required to give Nacheva the opportunity to
explain. Without affording Nacheva that opportunity, the IJ could not base the
adverse credibility determination on the timing of the application. See Soto-Olarte,
555 F.3d at 1092; see also Tekle, 533 F.3d at 1052 n.3 (“[T]he IJ speculated that
because Tekle applied prior to, but near, the one-year asylum filing deadline, her
asylum claim was not credible. The IJ’s finding is not supported by logic, much less
11
substantial evidence in the record.”). Finally, Nacheva retained an attorney to assist
in the application process. It is improper to speculate about what an attorney would
have advised; any filing delay may have been the result of advice from Nacheva’s
attorney or the attorney’s workload. Cf. Karouni, 399 F.3d at 1177. Accordingly, the
timing of Nacheva’s asylum application was an improper basis for the IJ’s adverse
credibility determination.
Because the bases discussed above were improper or unsupported by substantial
evidence, the only possible basis to support the IJ’s adverse credibility determination
is the IJ’s finding that the timing of the attack is implausible. Considering all the
evidence presented, including Nacheva’s consistent and detailed testimony, the IJ
could not permissibly infer that Nacheva’s claim that she was attacked is implausible,
even considering the timing. Nacheva consistently represented the timing of her
decision to apply for asylum in the United States. Nacheva also consistently testified
on direct examination, cross-examination, and redirect that she and her family were
planning a trip to the United States to visit relatives when they obtained their visas and
that they did not originally plan to remain in the United States. Nacheva testified in
detail about the attack and stated that she was attacked because, on November 30,
2010, eight days after she obtained her visa, she met with a man who opposed the
government. Further, the two psychological reports Nacheva submitted stated that
12
Nacheva presented symptoms consistent with someone who was attacked as Nacheva
claims she was. Finally, as the IJ noted, Nacheva testified consistently with her
written declaration.
“While the REAL ID Act’s ‘totality of the circumstances’ standard is
permissive as to the breadth of factors that may form the basis of an adverse
credibility determination, the totality of the circumstances approach also imposes the
requirement that an IJ not cherry pick solely facts favoring an adverse credibility
determination while ignoring facts that undermine that result.” Shrestha, 590 F.3d at
1040. The IJ did not explain why, in light of all the evidence, the timing of the attack
was still implausible. Further, the IJ did not address the psychological reports in his
implausibility finding. Rather than considering the timing of the attack in light of “the
totality of the circumstances, and all relevant factors,” 8 U.S.C. § 1158(b)(1)(B)(iii),
the IJ “cherry-pick[ed]” facts that supported an adverse credibility determination and
ignored other evidence that undermined that determination. See Shrestha, 590 F.3d
at 1040. Further, the IJ “speculated about [Nacheva’s] ‘real’ motives” when she and
her family applied for non-immigrant visas. Paramasamy v. Ashcroft, 295 F.3d 1047,
1052 (9th Cir. 2002). An IJ may not base a decision on personal conjecture or
speculation. Id.
13
To support the implausibility finding, the IJ also focused on the fact that
Nacheva’s husband and children did not testify to corroborate Nacheva’s claim that
the family lacked intent to permanently remain in the United States when they applied
for their visas. When an IJ finds that corroborative evidence is necessary, he “must
provide [the] applicant with notice and an opportunity to either produce the evidence
or explain why it is unavailable before ruling that the applicant has failed in his
obligation to provide corroborative evidence.” Ren v. Holder, 648 F.3d 1079, 1090
(9th Cir. 2011). When lack of corroboration is a basis for an adverse credibility
determination, Ren’s notice-and-opportunity requirement still applies. Bhattarai v.
Lynch, 835 F.3d 1037, 1043 (9th Cir. 2016). Specifically, “when the IJ or BIA ‘relied
on the lack of corroboration as part of [an] overall credibility determination[,] and, on
review, we reject[ ] each of the IJ’s other reasons—besides lack of corroboration—for
the adverse credibility finding,’ the denial of relief cannot stand unless the IJ satisfied
Ren’s requirements.” Id. (alterations in original) (quoting Lai v. Holder, 773 F.3d
966, 976 (9th Cir. 2014)).
In cases like Ren and Bhattarai, where the adverse credibility determination is
based, in part, on the lack of corroborating evidence, our review requires a two-step
analysis. Bhattarai, 835 F.3d at 1043.
14
First, we separate out the non-corroboration grounds for the
adverse credibility determination and evaluate whether the
IJ and BIA’s determination is supported by substantial
evidence. If it is, we defer to the IJ and BIA’s adverse
credibility determination. But if we overturn that
determination, and only issues regarding lack of
corroboration remain, we next ask whether the IJ satisfied
Ren’s notice requirement. If the IJ did not provide the
applicant notice of the specific corroborative evidence that
was required and an opportunity to provide it or explain
why he cannot reasonably obtain it, we remand for the IJ to
give the applicant that opportunity.
Id. at 1043–44.
As discussed above, the BIA adopted the IJ’s adverse credibility determination
based on five findings. We find that the first four bases either rest on impermissible
grounds for an adverse credibility determination or are unsupported by substantial
evidence. Thus, we do not defer to the IJ and BIA’s adverse credibility determination.
The only issue remaining is lack of corroborating evidence regarding Nacheva’s intent
when she applied for a non-immigrant visa. The IJ did not give Nacheva notice of
what corroborative evidence was necessary. Though the IJ asked Nacheva about the
online ad for her to work as a nanny and her career as a lawyer, the IJ did not ask
about Nacheva’s intent when she applied for her non-immigrant visa. Further, at the
end of the hearing, the IJ discussed what corroborative evidence was necessary but
mentioned only evidence regarding Nacheva’s career as a lawyer.
15
We agree that Nacheva’s husband and children may have corroborated
Nacheva’s claim regarding when she decided to permanently remain in the United
States. “However, the [IJ and] BIA’s reliance on the absence of testimony from
[Nacheva’s family] was error under Ren because the IJ did not give [Nacheva] notice
and an opportunity to present the corroborative testimony before denying [her] asylum
application.” Bhattarai, 835 F.3d at 1046. As a result, the IJ and BIA improperly
relied on the lack of corroborating evidence in denying relief.
Accordingly, all five bases for the IJ and BIA’s adverse credibility
determination are either unsupported by substantial evidence or rely upon
impermissible factors. Further, the IJ and BIA erred in relying on the absence of
corroborating evidence without giving Nacheva notice and an opportunity to present
that evidence.
PETITION FOR REVIEW GRANTED AND REMANDED.
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