Rafik Suleymanyan v. William Barr ( 2019 )

FILED
UNITED STATES COURT OF APPEALS
DEC 18 2019
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RAFIK SULEYMANYAN, No. 16-70354
Petitioner, Agency No. A075-671-142
v.
ORDER
WILLIAM P. BARR, Attorney General,
Respondent.
Before: RAWLINSON, BENNETT, and BADE, Circuit Judges.
The last sentence on page 3 of the memorandum disposition filed on
September 20, 2019, is amended to read as follows: We therefore vacate and
remand to the Board for further proceedings to determine whether, when crediting
Suleymanyan’s declaration as true, he has established a prima facie case and
materially changed country conditions. With this amendment, the panel has voted
to deny Respondent’s Petition for Panel Rehearing.
Respondent’s Petition for Panel Rehearing, filed November 1, 2019, is
DENIED.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
DEC 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RAFIK SULEYMANYAN, No. 16-70354
Petitioner, Agency No. A075-671-142
v.
AMENDED MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 9, 2019
Pasadena, California
Before: RAWLINSON, BENNETT, and BADE, Circuit Judges.
Rafik Suleymanyan (Suleymanyan), a native and citizen of Armenia, seeks
review of a decision of the Board of Immigration Appeals (Board) denying his
motion to reopen immigration proceedings. We have jurisdiction under 8 U.S.C. §
1252, and review the denial of a motion to reopen for abuse of discretion. See
Salim v. Lynch, 831 F.3d 1133, 1137 (9th Cir. 2016).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
The Board must “credit evidence supporting a motion to reopen unless that
evidence is inherently unbelievable.” Shouchen Yang v. Lynch, 822 F.3d 504, 508
(9th Cir. 2016) (citations and internal quotation marks omitted). Further, the Board
may not require submission of corroborative evidence while reviewing a motion to
reopen. See Malty v. Ashcroft, 381 F.3d 942, 946-47 (9th Cir. 2004). As the Board
made no determination that Suleymanyan’s declaration was “inherently
unbelievable,” the Board was required to credit the declaration as true.1 Shouchen
Yang, 822 F.3d at 508. By failing to credit Suleymanyan’s declaration as true, and
by requiring corroborative evidence, the Board abused its discretion. See id.; see
also Malty, 381 F.3d at 946-47.
An error resulting from the Board’s abuse of discretion is harmless if no
prejudice results from the error. See Kumar v. Gonzales, 439 F.3d 520, 523-24
(9th Cir. 2006). In other words, if Suleymanyan would not be entitled to relief
even if his declaration were credited as true, the Board’s error in failing to credit
the declaration as true would be rendered harmless. See id. However, in this case,
1
The prior adverse credibility determination was improperly used by
the Board to discredit Suleymanyan’s declaration, particularly as the adverse
credibility determination related to matters other than those toward which the
adverse credibility determination was directed. See Toufighi v. Mukasey, 538 F.3d
988, 995 n.13 (9th Cir. 2008) (“[A]n alien may use a motion to reopen to present
newly available material evidence that challenges the original factual conclusions
drawn by the IJ. . . .”) (citation omitted).
2
the Board failed to make an alternative finding that, even crediting the declaration
as true, Suleymanyan was unable to establish a prima facie case for relief. See
Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We therefore vacate and
remand to the Board for further proceedings to determine whether, when crediting
Suleymanyan’s declaration as true, he has established a prima facie case and
materially changed country conditions.2 See I.N.S. v. Ventura, 537 U.S. 12, 16
(2002) (requiring remand if additional inquiry is needed).
VACATED and REMANDED.
2
We express no opinion as to the outcome of the Board’s subsequent
review.
3