Khachatryan v. Holder , 489 F. App'x 207 ( 2012 )

FILED
NOT FOR PUBLICATION DEC 26 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
VLADIMIR KHACHATRYAN, No. 08-70198
Petitioner, Agency No. A075-640-213
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 3, 2012
Pasadena, California
Before: PREGERSON, PAEZ, and HURWITZ, Circuit Judges.
Vladimir Khachatryan, a native and citizen of Armenia, petitions for review
of the decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal
from the Immigration Judge’s (“IJ”) denial of his applications for asylum,
withholding of removal, and protection under the Convention Against Torture
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(“CAT”). Khachatryan claims he suffered past persecution on account of his
religious affiliation and also feared future persecution as a member of a particular
social group.
Under our case law, unless the IJ makes an explicit adverse credibility
finding, an applicant’s testimony must be accepted as true. Kalubi v. Ashcroft, 364
F.3d 1134, 1137 (9th Cir. 2004). Here, because the IJ made no express adverse
credibility finding and the BIA did not address credibility, Khachatryan’s credible
and uncontroverted testimony as to his attacker’s motivation compels the
conclusion that he established the requisite nexus to be eligible for asylum on the
basis of past persecution. See Antonyan v. Holder, 642 F.3d 1250, 1254 (9th Cir.
2011). We remand to allow the BIA to consider in the first instance the issue of
future persecution on account of membership in a religious group.
Neither the BIA nor the IJ considered Khachatryan’s claim of asylum on the
basis of his membership in a particular social group. This claim is properly
exhausted because Khachatryan specifically raised it in both appeals to the BIA.
Vargas v. INS, 831 F.2d 906, 907-08 (9th Cir. 1987). We remand to allow the BIA
to consider the issue in the first instance. INS v. Orlando Ventura, 537 U.S. 12, 16
(2002).
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We GRANT the petition for review and REMAND to the BIA for further
proceedings consistent with this disposition.
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