Smolniakova v. Gonzales ( 2005 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    GALINA IVANOVNA SMOLNIAKOVA,                
    Petitioner,                   No. 03-71600
    v.
            Agency No.
    A72-401-421
    ALBERTO R. GONZALES,* Attorney
    General,                                              OPINION
    Respondent.
    
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted
    October 6, 2004—Seattle, Washington
    Filed September 7, 2005
    Before: Dorothy W. Nelson, Stephen Reinhardt, and
    Sidney R. Thomas, Circuit Judges.
    Opinion by Judge D.W. Nelson
    *Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
    as Attorney General of the United States, pursuant to Fed. R. App. P.
    43(c)(2).
    12517
    SMOLNIAKOVA v. GONZALES                 12521
    COUNSEL
    Robert O. Wells, Jr., Mikkelborg, Broz, Wells & Fryer,
    PLLC, Seattle, Washington, for the petitioner.
    Peter D. Keisler, Mark C. Walters, and Margaret Perry (on the
    briefs) and Jeffrey Bernstein (argued), United States Depart-
    ment of Justice, Civil Division, Office of Immigration Litiga-
    tion, Washington, D.C., for the respondent.
    OPINION
    D.W. NELSON, Circuit Judge:
    Petitioner Galina Smolniakova, a native and citizen of Rus-
    sia, seeks review of the order of the Board of Immigration
    Appeals (“BIA”), denying her requests for asylum, withhold-
    ing of removal, and review of the termination of her condi-
    tional permanent resident status. The Immigration Judge
    (“IJ”) dismissed Smolniakova’s asylum claim based on find-
    ings that she lacked credibility, failed to establish past perse-
    cution on account of an enumerated ground, and did not have
    a well-founded fear of future persecution. The IJ denied
    Smolniakova’s request to review the termination of her condi-
    tional resident status on the ground that Smolniakova had not
    met her “heavy burden” of proving that her marriage in 1993
    to a United States citizen was genuine, and found her deport-
    able. The IJ granted Smolniakova voluntary departure in lieu
    of removal. The BIA affirmed the decision without opinion.
    We hold that substantial evidence does not support the IJ’s
    adverse credibility finding in the asylum context and that
    Smolniakova is statutorily eligible for asylum. We remand for
    an exercise of discretion on Smolniakova’s asylum claim and
    for a review of her claim of withholding of removal. We also
    reverse and remand the IJ’s denial of Smolniakova’s petition
    12522             SMOLNIAKOVA v. GONZALES
    for review of the termination of her conditional resident sta-
    tus. Accordingly, we reverse the IJ’s holding that because
    Smolniakova’s conditional resident status was validly termi-
    nated, she was deportable. The BIA is instructed to grant
    Smolniakova a new hearing in which she has a full and fair
    opportunity to establish her credibility in the qualifying mar-
    riage context. On remand, the IJ shall also determine whether
    the government has met its burden of establishing by a pre-
    ponderance of the evidence that Smolniakova did not intend
    to establish a life together with Roberto Quitevis at the time
    of their marriage.
    I.   Factual and Procedural Background
    A.   Smolniakova’s Experiences in Russia
    Smolniakova, a 39-year-old woman, was born in Kalinin-
    grad, formerly Konigsberg, a city on the Baltic coast. She is
    the daughter of a Jewish mother and a non-Jewish father.
    In her asylum application, Smolniakova recounted numer-
    ous instances of harassment and discrimination on account of
    her Jewish identity, including anti-Semitic profanities scrib-
    bled on the walls of her apartment entryway, human feces
    smeared on her mailbox, fires set in her mailbox, and repeated
    slashings of her front door. While instances of harassment and
    discrimination do not themselves rise to the level of persecu-
    tion for purposes of asylum, Nagoulko v. INS, 
    333 F.3d 1012
    ,
    1016-17 (9th Cir. 2003), in Smolniakova’s case they were
    foreboding harbingers of things to come.
    Before the IJ, Smolniakova testified that she lived in an
    environment that was not only inhospitable to Jews, but one
    in which practicing Judaism openly was very difficult. From
    1988 to 1991, Smolniakova participated in a Jewish commu-
    nity organization that met secretly. Smolniakova testified that
    the Berenshteyns, close family friends of Smolniakova, were
    very active in the group. Smolniakova testified that one sum-
    SMOLNIAKOVA v. GONZALES                 12523
    mer night in 1990 she received a call while with her sister,
    Regina, in their parents’ apartment, where they both lived.
    The caller announced that Mr. and Mrs. Berenstheyn had been
    killed and warned that the same fate lay in store for the rest
    of the Jews in Kaliningrad. Smolniakova was horrified to
    learn the following morning, when the news first became pub-
    lic, that the Berenstheyns had indeed been brutally murdered.
    They were discovered bound in their home with numerous
    stab wounds. See A Crime on Bankovsky Street (translated
    Russian newspaper article reporting the murder), reprinted in
    the Administrative Record (“AR”) at 1453. Smolniakova tes-
    tified that while the authorities claimed to make solving the
    case a top priority, the case was never resolved. She also testi-
    fied that the lead investigator in the case mysteriously disap-
    peared a month after the murders. Yuliya Berenshteyn, the
    surviving daughter of the slain Berenshteyns, testified that
    since the murder of her parents, Tolik Payrkov, another mem-
    ber of their Jewish organization, had also been killed.
    Smolniakova testified that in May 1991, after the Beren-
    shteyns’ murder, she was attacked by two men while walking
    home from a town celebration. The men grabbed her from the
    street and began to strangle her behind some bushes along the
    side of the road. She testified that one of the assailants whis-
    pered in her ear, “Jewish Bitch.” The attackers dispersed
    when a witness, who heard the scuffle, yelled out and threat-
    ened to call the police. Smolniakova testified that the men
    slowly walked away, promising that they would be back and
    that she would not get away alive next time. Regina, who
    cared for Smolniakova after the attack and to whom both
    Smolniakova and the good Samaritan stranger recounted the
    assault, substantially corroborated her sister’s testimony.
    Smolniakova testified that one evening, six months after
    the attack, two men began pounding on her door, threatening
    to kill her if she did not let them in and referring to her home
    as a “Jewish snake nest.” Smolniakova and Regina called the
    police, but they refused to help. Smolniakova and Regina
    12524                 SMOLNIAKOVA v. GONZALES
    explained that when they called to report this and other inci-
    dents, the police were unresponsive and dismissive, even to
    the point of laughing at them.
    In September 1991, Smolniakova married her Russian boy-
    friend of several years, Alexey. As soon as they were married,
    she moved in with him and his family in order to change her
    address. After a few weeks, Alexey, a seaman, left for a five-
    month assignment abroad. Shortly thereafter, Smolniakova
    was forced to return to live with her parents because she was
    no longer welcome in her in-laws’ home. Smolniakova testi-
    fied that Alexey’s mother unabashedly expressed her displea-
    sure at her son’s choice of a wife, who she feared would taint
    her grandchildren with “Jewish blood.” Soon after leaving her
    in-laws, Smolniakova obtained a six-month visitor’s visa to
    the United States. She and her husband agreed that she would
    be safe there until Alexey returned and she could rejoin him,
    hopefully in Germany, where he had the prospect of perma-
    nent employment.
    Smolniakova left Russia in early December 1991. She testi-
    fied that her husband had still not called for her after four
    months, that her mother told her of rumors that he was seeing
    other women, and that she believed his disapproving mother
    had been “working on him.” At this point, Smolniakova
    decided to seek political asylum in the United States.
    Without the benefit of counsel, Smolniakova filled out an
    asylum application, which was filed with the Immigration and
    Naturalization Service (“INS”)1 on April 17, 1992. While the
    INS officer who interviewed Smolniakova deemed her credi-
    ble, the Service sent her a letter of intent to deny asylum on
    October 15, 1992 for failure to meet the requirement of a
    well-founded fear of persecution on account of one of the five
    1
    On March 1, 2003, the INS was abolished as an agency within the
    Department of Justice and its functions were transferred to the newly cre-
    ated Department of Homeland Security.
    SMOLNIAKOVA v. GONZALES                12525
    enumerated grounds. Her application was subsequently
    denied on March 11, 1993.
    B.   Smolniakova’s Marriage to an American Citizen
    Around November 1992, Smolniakova enlisted Regina’s
    help in divorcing Alexey. The divorce was finalized in Febru-
    ary 1993. Smolniakova testified that she met her second hus-
    band, Roberto Quitevis, through a mutual friend, Richard
    White, at a New Year’s party in December 1992. She testified
    that they dated for a few months until she confided in him
    about the denial of her asylum application and her pending
    appeal, and he, in turn, proposed because, according to Smol-
    niakova, he expressed strong feelings for her and could not
    bear the thought of losing her. She testified that they began
    having sexual relations that evening and continued to do so
    over the course of their marriage, which began in June 1993.
    Quitevis filed an immediate relative visa on Smolniakova’s
    behalf, which the INS approved, and on January 24, 1994, the
    INS granted Smolniakova two-year conditional permanent
    resident status as the spouse of a United States citizen.
    Smolniakova returned to Russia in July 1994 for three
    months to tend to her gravely ill mother. This was the first of
    three such trips. Smolniakova testified that Quitevis came to
    resent her prolonged absence and was sullen and detached
    when she returned home. She testified that while they contin-
    ued to have conjugal relations, he became emotionally with-
    drawn, “like a stranger to [her].” By the time of her next trip
    to Russia in December 1994, the marriage had deteriorated
    significantly. Regina testified that when her sister came home
    to Russia the second time, she was “blue,” “very nervous,”
    and had lost a lot of weight, and confided in her that Quitevis
    had begun to sleep elsewhere.
    On June 1, 1995, the INS revoked Smolniakova’s condi-
    tional resident status pursuant to Immigration and Nationality
    Act (“INA”) § 216(b), 8 U.S.C. § 1186a(b), based on a find-
    12526              SMOLNIAKOVA v. GONZALES
    ing — the culmination of an investigation precipitated by an
    anonymous tip — that her marriage to Quitevis was a sham.
    Deportation proceedings commenced in December 1995.
    In the deportation proceedings, Smolniakova introduced
    various pieces of documentary evidence, including wedding
    pictures, a joint tax return, a marriage certificate, checks from
    a joint checking account, joint phone bills, and a lease in both
    her and Quitevis’ names. Sixteen witnesses submitted affida-
    vits, declarations, letters, and testimony stating generally that
    Smolniakova and Quitevis had been married since the sum-
    mer of 1993, that they had lived together as husband and wife,
    and that they had suffered some marital problems during the
    course of their relationship, culminating in their divorce in
    November 1995. The affidavits and testimony substantiate her
    claims that she and Quitevis cohabited, shopped together, had
    conjugal relations, entertained together, bought furniture
    together, commingled assets, and generally lived as husband
    and wife. See 8 C.F.R. § 216.4(a)(5) (enumerating these and
    other indicia of a good faith marriage).
    Quitevis presented a markedly different story. He testified
    that Smolniakova had approached him through their mutual
    friend, Richard White, about a business proposition, offering
    to pay him $5,000 to marry her and help her secure permanent
    resident status. He explained that Smolniakova paid him
    between $500 and $1,000 up front in cash and then another
    $1,500 to $2,500 in subsequent installments. He testified that
    he had been at Smolniakova’s apartment a few times in order
    to further the illusion that they were married, and even spent
    the night at her place on at least one occasion, although he
    denied that they ever had sexual relations. Richard White cor-
    roborated Quitevis’ testimony.
    Quitevis also introduced various pieces of documentary
    evidence, including copies of checks made out to his aunt,
    whose house he claimed to rent with a few friends, along with
    various bill payments written from checks with the same
    SMOLNIAKOVA v. GONZALES               12527
    address, ranging in dates from March to August 1994.
    Quitevis’ close friend, Edgar Franada, testified that Quitevis
    had confided in him that he had entered into a “paper mar-
    riage” with a Russian woman named Galina. Franada never
    responded to INS counsel’s question about when Quitevis
    actually confided this to him. Franada also testified that he
    lived with Quitevis, along with another roommate, in
    Quitevis’ aunt’s house from June 1993 to the end of 1994, a
    time period that spans the duration of Smolniakova’s marriage
    to Quitevis.
    At the time of her separation from Quitevis, Smolniakova
    began a relationship with Tony Roland, who accompanied her
    on her final visit to Russia in the summer of 1995. Roland and
    Smolniakova were wed in December 1995 and profess to be
    happily married.
    On March 4, 1996, Roland filed a Form I-130 Petition for
    an Alien Relative visa on behalf of Smolniakova, which was
    denied based on the marriage-fraud bar for such petitions. See
    INA § 204(c)(1), 8 U.S.C. § 1154(c)(1). Smolniakova sought
    review of the INS’s determination that her marriage to
    Quitevis was a sham pursuant to INA § 216(b)(2), 8 U.S.C.
    § 1186a(b)(2), and review of her asylum and withholding of
    removal claims. The IJ found Smolniakova incredible as to all
    claims and denied her petition in its entirety. On March 19,
    2003, the BIA affirmed the decision without opinion pursuant
    to 8 C.F.R. § 1003.1(e)(4). Smolniakova timely appealed.
    II.   Standard of Review
    Whether Smolniakova married Quitevis in good faith is an
    intrinsically fact-specific question reviewed under the highly
    deferential substantial evidence standard. “Under this stan-
    dard, we must affirm unless the evidence is so compelling that
    no reasonable fact-finder could fail to find the facts were as
    [Smolniakova] alleged.” Damon v. Ashcroft, 
    360 F.3d 1084
    ,
    1088 (9th Cir. 2004). We also review the BIA’s decision as
    12528                 SMOLNIAKOVA v. GONZALES
    to whether Smolniakova has established eligibility for asylum
    under the substantial evidence standard. Cordon-Garcia v.
    INS, 
    204 F.3d 985
    , 990 (9th Cir. 2000).
    Where, as here, the BIA adopts the decision of the IJ and
    affirms without opinion, we review the decision of the IJ as
    the final agency determination under the substantial evidence
    standard set forth above. 8 C.F.R. § 1003.1(e)(4); see also
    Falcon Carriche v. Ashcroft, 
    350 F.3d 845
    , 849 (9th Cir.
    2003).
    Because Smolniakova was first placed in deportation pro-
    ceedings before the effective date of the Illegal Immigration
    Reform and Immigrant Responsibility Act of 1996
    (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009, and a final
    order of deportation was entered after October 30, 1996, her
    appeal is governed by the transitional rules of IIRIRA. See
    Kalaw v. INS, 
    133 F.3d 1147
    , 1150 (9th Cir. 1997).
    III.   Discussion
    A.        Asylum
    1.    The Adverse Credibility Determination
    [1] Adverse credibility determinations must be “based on
    specific, cogent reasons that bear a legitimate nexus to the
    finding.” Zahedi v. INS, 
    222 F.3d 1157
    , 1165 (9th Cir. 2000);
    see also de Leon-Barrios v. INS, 
    116 F.3d 391
    , 393 (9th Cir.
    1997). The inconsistencies that an IJ adduces to establish a
    lack of credibility must therefore be specific and concrete, and
    “must go to the heart of [the] asylum claim.” Singh v. Ash-
    croft, 
    301 F.3d 1109
    , 1111 (9th Cir. 2002) (internal quotation
    omitted).
    [2] The perceived contradictions that the IJ attributed to
    Smolniakova in support of her adverse credibility finding are
    based on a misconstruction of the record, insufficient evi-
    SMOLNIAKOVA v. GONZALES                 12529
    dence and improper speculation and conjecture. See Ge v.
    Ashcroft, 
    367 F.3d 1121
    , 1124 (9th Cir. 2004) (stating that
    adverse credibility determinations cannot be justified by spec-
    ulation or conjecture). Moreover, many of the putative incon-
    sistencies fail to “go to the heart” of the asylum claim.
    [3] In support of her adverse credibility finding, the IJ first
    pointed to discrepancies between Smolniakova’s asylum
    application, completed without the assistance of counsel, and
    her testimony at the merits hearing. The IJ noted that
    “[r]espondent testified at the merits hearing that her wrist was
    slashed by a man, but yet respondent did not mention this in
    her asylum application.” In her first asylum application,
    Smolniakova explained that she had been “mistreated and
    threatened a lot of times” and that she “want[ed] to specify
    one of the terrible incidents.” This court has recognized that
    “an applicant’s testimony is not per se lacking in credibility
    simply because it includes details that are not set forth in the
    asylum application.” Lopez-Reyes v. INS, 
    79 F.3d 908
    , 911
    (9th Cir. 1996) (citing Aguilera-Cota v. INS, 
    914 F.2d 1375
    ,
    1382 (9th Cir. 1990)). This court has also found that asylum
    forms “filled out by . . . people who . . . are unable to retain
    counsel” should be read charitably, especially when it comes
    to the absence of a comprehensive and thorough account of all
    past instances of persecution. 
    Aguilera-Cota, 914 F.2d at 1382
    (“Under these circumstances, the IJs cannot expect the
    answers provided in the applications to be as comprehensive
    or as thorough as they would be if set forth in a legal brief.”).
    Smolniakova’s asylum application is not inconsistent with her
    later, more detailed descriptions of persecution in Russia sim-
    ply because she failed to describe all prior incidents of mis-
    treatment and persecution in the early stages of her
    application process. Smolniakova’s failure to file an applica-
    tion that was “not as complete as might be desired cannot,
    without more, serve as a basis for a finding of lack of credibil-
    ity.” 
    Lopez-Reyes, 79 F.3d at 911
    (internal quotation omitted).
    Second, the IJ made much over what she claimed was an
    inconsistency between Smolniakova’s and Regina’s accounts
    12530              SMOLNIAKOVA v. GONZALES
    of the attempt on Smolniakova’s life in May 1991. The IJ
    pointed out that Smolniakova testified her assailants simply
    walked away after a witness to the assault threatened to call
    the police, whereas her sister testified they ran away. The IJ
    failed to consider, however, that Regina, or perhaps the trans-
    lator through whom she was speaking, immediately corrected
    her testimony about the manner in which the attackers dis-
    persed — “[they did] not exactly run away, just start to walk
    away.” Both Smolniakova and Regina, whose testimony the
    IJ found “believable as a whole,” testified, then, that the
    attackers “walked away.” The IJ found an inconsistency
    where none exists. Moreover, this kind of judicial hair-
    splitting does not go to the heart of the asylum claim. See
    
    Singh, 301 F.3d at 1111-12
    . In contrast, the IJ did not cite any
    material inconsistencies with respect to the various accounts
    of the actual assault, or with respect to the repeated testimony
    about anti-Semitic threats, including death threats and ethnic
    slurs that others made to Smolniakova.
    [4] Third, the IJ questioned the veracity of Smolniakova’s
    claim that she came to the United States seeking a safe haven
    from the menacing conditions for Jews in Russia. The IJ’s
    efforts to discredit Smolniakova’s stated reason for leaving
    her homeland betray, at best, inattention to the record and, at
    worst, outright bias against Smolniakova.
    The IJ opined, “If respondent was afraid in Russia, she
    could have gone with her husband, Alexey, to Germany.”
    Aside from being impermissibly speculative, the IJ’s pro-
    nouncement demonstrates a willful disregard of the facts in
    the record. Smolniakova explained that Alexey was away at
    sea for five months and that they both believed she should
    leave Russia during that period to ensure her safety. Smol-
    niakova testified that Alexey’s permanent assignment in Ger-
    many was only a “possibility” and that she planned to move
    to Germany if Alexey received a permanent assignment there.
    The IJ’s opinion that Smolniakova would have gone to Ger-
    many had she truly left Russia out of concern for her safety
    SMOLNIAKOVA v. GONZALES                 12531
    is at best mere conjecture. “Because conjecture is not a substi-
    tute for substantial evidence, we cannot uphold this finding.”
    
    Lopez-Reyes, 79 F.3d at 912
    ; see also Paramasamy v. Ash-
    croft, 
    295 F.3d 1047
    , 1052 (9th Cir. 2002).
    The IJ, by again grossly misconstruing the record, found
    incredible Smolniakova’s claim that she intended to leave the
    United States and rejoin her husband when he returned from
    his deployment at sea. The IJ stated:
    Respondent also testified that she asked her sister to
    help her get a divorce in February, 1992, 2 months
    after her arrival to the United States. This fact further
    proves that respondent is not only not credible,
    respondent is lying to this Court as to her intention
    when she arrived in the United States. Respondent
    had no intention of returning to her Russian husband.
    The record is plain; Smolniakova did not seek help from her
    sister in divorcing Alexey in February 1992, but rather in
    November 1992. She did not in fact divorce him until Febru-
    ary 1993, a full 14 months after her arrival in this country.
    The IJ culled her damning “fact” about Smolniakova — viz.,
    that she sought a divorce only two months after her arrival in
    this country — from the early part of a colloquy between
    Smolniakova and her lawyer, wherein they try to establish the
    date of Smolniakova’s divorce from Alexey. Smolniakova
    tries to reconstruct the timeline based upon a mistaken recol-
    lection, and it becomes clear that the timeline is off by a year
    because of the mistake. When corrected on this point, Smol-
    niakova clarifies that the divorce happened in February 1993,
    not February 1992. Even a cursory reading of the transcript
    makes this clear, and yet the IJ seized upon the obviously mis-
    taken timeline initially proffered, and later corrected, by
    Smolniakova as fact to impugn her credibility.
    The IJ also found that Regina’s testimony that Smolniakova
    left Russia shortly after her marriage to Alexey in order to
    12532              SMOLNIAKOVA v. GONZALES
    escape persecution contradicts Smolniakova’s own testimony
    that, according to the IJ, “she left Russia for a visit to the
    United States.” The IJ again found a contradiction where none
    exists. Smolniakova testified that in order to obtain a visa for
    the United States she needed an invitation from people
    already in the country. That she was going to visit friends in
    the United States was thus the official reason for her trip, the
    true purpose of which, she testified, was to seek a safe haven
    for the five months in which Alexey was away at sea.
    [5] The IJ concluded that this “entire scenario does not
    make any sense.” She explained as follows:
    Respondent left Russia for the United States in
    December, 1991, three months after her marriage to
    her boyfriend of many years. Respondent got mar-
    ried 4 months after her purported incident of attack
    and rape. If respondent’s reason for leaving Russia
    was fear, why did she get married within 4 months,
    and then leave 3 months later when her husband was
    out of town.
    Far from “making no sense,” it is perfectly reasonable that,
    faced with the prospect of living for an extended period with
    her parents — where she had been threatened and attacked
    several times before — and without the protection of her hus-
    band, Smolniakova would decide to seek safe haven in the
    United States. And, in fact, this is exactly what Smolniakova
    testified that she and Alexey agreed she would do for the five
    months he was away at sea. The IJ erred by not considering
    in a reasoned manner Smolniakova’s explanation for what the
    IJ thought to be a nonsensical course of events. Osorio v. INS,
    
    99 F.3d 928
    , 933 (9th Cir. 1996) (holding that the IJ “must
    address in a reasoned manner the explanations that [peti-
    tioner] offers for [any] perceived inconsistencies”). In sum,
    the IJ had no reason to find Smolniakova’s explanation of
    why she came to the United States incredible.
    SMOLNIAKOVA v. GONZALES                 12533
    Fourth, the IJ faulted Smolniakova for failing to provide
    corroborating evidence in support of her testimony. The IJ
    found that Smolniakova’s credibility was undermined by her
    failure to corroborate her testimony about the May 1991
    attack with a letter from the stranger who witnessed the
    assault. The IJ committed legal error in so finding. This court
    has held that “[s]upplying corroborating affidavits . . . has
    never been required to establish an applicant’s credibility.”
    
    Lopez-Reyes, 79 F.3d at 912
    (citing Bolanos-Hernandez v.
    INS, 
    767 F.2d 1277
    , 1285 (9th Cir. 1984)). Furthermore, it is
    unreasonable to expect Smolniakova to have obtained a cor-
    roborating letter from an unidentified stranger.
    The IJ also claimed that “respondent never offered any cor-
    roborating evidence to verify the death of the Berenshteyns.”
    To the contrary, Smolniakova provided a copy of a newspaper
    article describing the incident, along with a translation, in her
    amended asylum application. This court has found that a
    newspaper article reporting an alleged incident of persecution
    offered in support of oral testimony is sufficient documentary
    evidence of such an incident. See 
    Aguilera-Cota, 914 F.2d at 1382
    -83. The IJ clearly erred by finding that Smolniakova
    never offered corroborating evidence of the Berenstheyns’
    murder and by using this finding to impugn her credibility.
    [6] In light of the foregoing, it is appropriate to echo the
    words of this court in Paramasamy and express a similar
    worry that “these passages demonstrate the IJ’s ‘predisposi-
    tion to discredit’ the testimony, rather than any lack of credi-
    bility on the part of the 
    witnesses.” 295 F.3d at 1051
    (quoting
    Garrovillas v. INS, 
    156 F.3d 1010
    , 1015 (9th Cir. 1998)). In
    Paramasamy, this court found that the IJ’s adverse credibility
    finding was not supported by substantial evidence because,
    among other things, it relied upon “perceived inconsistencies
    not based on the evidence.” 
    Paramasamy, 295 F.3d at 1052
    .
    In this case, as in Paramasamy, “the facts as they appear in
    the record do not support the [IJ’s] articulated basis for an
    adverse credibility determination.” 
    Id. That the
    IJ rebuked in
    12534                  SMOLNIAKOVA v. GONZALES
    Paramasamy is the same IJ who presided over Smolniakova’s
    asylum hearing is a fact not lost on this court.2
    Because of the IJ’s reliance on contradictions with no fac-
    tual basis in the record, and in light of the many inconsisten-
    cies she unfairly imputes to Smolniakova, we reverse the IJ’s
    adverse credibility finding with respect to the asylum claim,
    and accordingly “deem [Smolniakova’s] testimony credible.”
    Akinmade v. INS, 
    196 F.3d 951
    , 958 (9th Cir. 1999);
    
    Aguilera-Cota, 914 F.2d at 1383
    (internal quotation marks
    omitted) (reversing the IJ’s adverse credibility finding and
    holding that when, with the exception of minor omissions and
    other insignificant inconsistencies, there is an absence of evi-
    dence that undermines the petitioner’s credibility, “we accept
    the testimony as true”).
    2.    Past Persecution on Account of Religion
    In addition to finding that Smolniakova was not credible,
    the IJ held, in the alternative, that Smolniakova was ineligible
    for asylum because she failed to establish either past persecu-
    tion or a well-founded fear of future persecution on account
    2
    In fact, the IJ in this case, Anna Ho, has been reversed by this court
    at least three times in the last year for reasons similar to those that compel
    our reversal here. Most recently, in Zolotukhin v. Gonzales, No. 04-70945,
    slip op. at 10004 (9th Cir. Aug. 3, 2005), we held that IJ Ho violated a
    Russian asylum applicant’s due process right to a full and fair hearing
    because she “improperly prejudged the petitioner’s case” and “excluded
    the testimony of several key witnesses.” Just one year earlier, in Rivera v.
    Ashcroft, 
    387 F.3d 835
    , 1135 (9th Cir. 2004), amended by 
    394 F.3d 1129
    (9th Cir. 2005), we held that IJ Ho failed “to conduct herself as an impar-
    tial judge but rather as a prosecutor anxious to pick holes in the petition-
    er’s story.” Moreover, in Singh v. Gonzales, 
    403 F.3d 1081
    , 1090 (9th Cir.
    2005), this court reversed IJ Ho’s adverse credibility finding in part
    because her “focus on minutely disparate dates” in the asylum applicants’
    testimony regarding seven-year-old events reflected “a flawed approach to
    credibility determination.” Given this line of cases, we cannot help but
    question whether this IJ has, at least in some instances, improper hostility
    towards asylum applicants who appear before her.
    SMOLNIAKOVA v. GONZALES                 12535
    of a qualifying ground. As a result, we need not remand to the
    BIA for a determination of these issues and we consider each
    in turn.
    To establish eligibility for asylum, Smolniakova must qual-
    ify as a refugee. INA § 208(b), 8 U.S.C. § 1158(b). A refugee
    is one “who is unable or unwilling to return to . . . [her native]
    country because of persecution or a well-founded fear of per-
    secution on account of race, religion, nationality, membership
    in a particular social group, or political opinion.” INA
    § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). We hold that
    Smolniakova qualifies as a refugee and is statutorily eligible
    for asylum.
    a) Past Persecution
    Asylum is not restricted to petitioners who have suffered
    persecution at the hands of state actors. See Singh v. INS, 
    134 F.3d 962
    , 967 n.9 (9th Cir. 1998); see also Sangha v. INS, 
    103 F.3d 1482
    , 1487 (9th Cir. 1997) (“ ‘Persecution’ may be
    inflicted either by the government or by persons or organiza-
    tions which the government is unable or unwilling to con-
    trol.”) (citation omitted). Taken as true, as it must be for
    purposes of this appeal, Smolniakova’s testimony compels the
    conclusion that the government turned a blind eye to her per-
    secution, refusing to intervene in any meaningful way to stop
    it. That her assailants who attacked her in May 1991 “slowly
    walked away” when a witness threatened to alert the police is
    consistent with this testimony; it suggests that Smolniakova’s
    assailants recognized the acquiescence of the local authorities
    in this type of conduct and that the witness’s threat was thus
    a hollow one. See Krotova v. Gonzales, No. 04-70806, slip op.
    10085, 10098 (9th Cir. Aug. 4, 2005) (holding that the Rus-
    sian government was “unwilling or unable to control the anti-
    Semitic groups responsible for [Jewish] Petitioner’s mistreat-
    ment”).
    Smolniakova’s account of the May 1991 assault alone com-
    pels a finding of past persecution. See Montoya-Ulloa v. INS,
    12536              SMOLNIAKOVA v. GONZALES
    
    79 F.3d 930
    , 931 (9th Cir. 1996) (holding that persecution for
    asylum purposes means “infliction of suffering or harm upon
    those who differ . . . in a way regarded as offensive”). The
    death threats she received immediately following the murder
    of the Berenshteyns, during the May 1991 assault, and at her
    apartment where her would-be attackers called her home a
    “Jewish snake nest,” also amount to past persecution.
    Repeated death threats, especially when those threats occurred
    in conjunction with other forms of abuse, require a finding of
    past persecution. See Mamouzian v. Ashcroft, 
    390 F.3d 1129
    ,
    1134 (9th Cir. 2004) (finding past persecution when harm was
    “inflicted [on petitioner] on more than one occasion . . . , and
    where the physical abuse was combined with other incidents,
    such as detention and threats”); see also Navas v. INS, 
    217 F.3d 646
    , 658 (9th Cir. 2000) (“[W]e have consistently held
    that death threats alone can constitute persecution.”); contrast
    Lim v. INS, 
    224 F.3d 929
    , 933, 936 (9th Cir. 2000) (holding
    that death threats may be deemed hollow and bereft of “sig-
    nificant actual suffering or harm” and thus do not constitute
    past persecution where they are unaccompanied by infliction
    of actual abuse or harm upon petitioner or petitioner’s fam-
    ily). Even if a single incident does not rise to the level of per-
    secution, the cumulative effect of these several incidents
    constitutes persecution. See Krotova, slip op. at 10093 (hold-
    ing that a “background of anti-Semitic harassment and eco-
    nomic and social discrimination against [Jewish Petitioner],
    and in Russia generally” combined with three violent assaults,
    the murder of a close family friend, and the beating of Peti-
    tioner’s brother, all compelled a finding of past persecution).
    b) On Account of Religion
    [7] The facts in the record compel the finding that Smol-
    niakova was persecuted on account of her religion. The IJ’s
    finding that there was no nexus between the asserted persecu-
    tion and Smolniakova’s religion is not supported by substan-
    tial evidence.
    SMOLNIAKOVA v. GONZALES                 12537
    The IJ found that the May 1991 attempt on Smolniakova’s
    life was not motivated by anti-Semitism. Given Smol-
    niakova’s and Regina’s repeated testimony that Smol-
    niakova’s assailants called her a “Jewish bitch,” it is difficult
    to understand how the IJ could assert that “[n]othing said by
    the young men would indicate that this attack had anything to
    do with respondent’s ethnicity.”
    The IJ also extended this dismissive, and seemingly biased,
    attitude to her analysis of another incident described by Smol-
    niakova. Smolniakova testified that one evening in November
    1991 two men banged on her door and threatened to kill her.
    She described the incident thus: “[T]hey were saying some-
    thing like you better open the door, otherwise we’ll kill you.
    Which, you know, doesn’t make much sense, but I remember
    that that’s exactly how they were saying it . . . And, uh, and
    calling us . . . Jewish, uh, snake nest or something like that.”
    The IJ interpreted this testimony as follows. “Respondent
    described an incident in November, 1991, wherein men
    threatened to have her open the door of the apartment.
    Respondent refused, and thus the men just left. Again, even
    if the men yelled, “Jewish snakes”, this is not evidence that
    any harm would come to respondent.” We cannot agree with
    the IJ’s interpretation; indeed, one would expect that the reac-
    tion of any reasonable person who was the victim of such an
    episode would include a well-founded fear of future persecu-
    tion on account of her religious identity.
    Smolniakova’s consistent and corroborated testimony that
    she was called a “Jewish bitch” by one of the assailants who
    attacked her in May 1991, that she was warned that she and
    all Jews in Kaliningrad would be murdered as the Beren-
    stheyns were, and that her home was called a “Jewish snake
    nest” by those who threatened to kill her if she would not let
    them enter her apartment compels the conclusion that Smol-
    niakova was persecuted on account of her religion. The IJ’s
    finding to the contrary was not supported by substantial evi-
    dence.
    12538              SMOLNIAKOVA v. GONZALES
    3.    Fear of Future Persecution
    In addition to finding that Smolniakova failed to show past
    persecution, the IJ concluded separately that Smolniakova
    failed to demonstrate a well-founded fear of future persecu-
    tion. We review the decision to determine whether it was sup-
    ported by substantial evidence. Mamouzian v. Ashcroft, 
    390 F.3d 1129
    , 1135 (9th Cir. 2004). Because the IJ made a deter-
    mination on the question of well-founded fear, we do not
    remand for further consideration. Id.; see also Khup v. Ash-
    croft, 
    376 F.3d 898
    , 904 (9th Cir. 2004) (declining to remand
    for an analysis of changed country conditions because appli-
    cant established a well-founded fear without the benefit of the
    presumption).
    [8] In order to demonstrate a fear of future persecution,
    Smolniakova’s fear “must be both subjectively [genuine] and
    objectively reasonable.” Hoxha v. Ashcroft, 
    319 F.3d 1179
    ,
    1182 (9th Cir. 2003) (alteration in original) (internal citations
    and quotation marks omitted). An alien satisfies the subjective
    component of the well-founded fear test by testifying credibly
    about his fear of future persecution. 
    Mamouzian, 390 F.3d at 1136
    . Because we find that Smolniakova’s testimony is credi-
    ble, she satisfies the subjective portion of the test. Korablina
    v. INS, 
    158 F.3d 1038
    , 1044 (9th Cir. 1998).
    [9] Smolniakova’s credible testimony also compels the
    conclusion that her fear is objectively well-founded. As Smol-
    niakova testified, she suffered violent attacks and repeated
    death threats as a result of her Jewish identity. She was
    attacked and strangled by men calling her a “Jewish Bitch.”
    On one occasion, an assailant slashed her wrist. Despite this
    evidence, the IJ found that Smolniakova’s three trips back to
    Russia demonstrated there was no likelihood of future perse-
    cution. However, Smolniakova provided a reasonable expla-
    nation for the trips. Smolniakova testified that she went to
    Russia on those three occasions to take care of her dying
    mother, who was languishing in the hospital “like a corpse,”
    SMOLNIAKOVA v. GONZALES                      12539
    and to help her family, which was ill-equipped to deal with
    the situation. Rather than belying her avowed fear of returning
    home, Smolniakova’s trips served as a testament to her love
    for her mother, whom she went to great pains to visit despite
    the risk she bore in doing so. See Karouni v. Gonzales, 
    399 F.3d 1163
    , 1176 (9th Cir. 2005) (holding that asylum appli-
    cant’s two return visits to Lebanon to see his dying parents
    did not constitute substantial evidence that his fear of persecu-
    tion was not well-founded); see also Singh v. Moschorak, 
    53 F.3d 1031
    , 1034 (9th Cir. 1995) (reversing denial of asylum
    where the INS “fails to distinguish fortitude in the face of
    danger from absence of fear”).3
    The murder of Smolniakova’s close family friends, the
    Berenshteyns, also supports a finding of well-founded fear of
    persecution. See Zhang v. Gonzales, 
    408 F.3d 1239
    , 1249 (9th
    Cir. 2005) (holding that “acts of violence committed against
    an applicant’s friends or family can establish well-founded
    fear of persecution.”). The IJ concluded that there was no evi-
    dence that the Berenshteyns’ death caused problems for Smol-
    niakova. However, on the night of their murder, Smolniakova
    received an anonymous phone call warning her that what hap-
    pened to the Berenshteyns would happen to her. Moreover,
    after Smolniakova left Russia, Tolik Payrkov, another mem-
    ber of her Jewish organization, was killed. Smolniakova
    understandably fears the same fate would befall her if she
    returned to Russia. In light of these circumstances, no reason-
    able fact-finder could conclude that Smolniakova has less
    than a ten percent chance of future persecution in Russia on
    account of her religion. See Al-Harbi v. INS, 
    242 F.3d 882
    ,
    3
    The government’s reliance on Hakeem v. INS, 
    273 F.3d 812
    , 817 (9th
    Cir. 2001), is inapposite because the court’s consideration of the import
    of Hakeem’s uneventful trips home was solely in the context of its review
    of Hakeem’s claim of withholding of removal, which requires an applicant
    to show a greater likelihood of persecution than she must establish to be
    eligible for asylum. Moreover, as Smolniakova points out, the safety of
    her one family member remaining in Russia, her father, is not probative
    because he is not Jewish.
    12540              SMOLNIAKOVA v. GONZALES
    888 (9th Cir. 2001) (noting “even a ten percent chance of per-
    secution may establish a well-founded fear”). We thus con-
    clude that the IJ’s finding that Smolniakova lacked a well-
    founded fear of future persecution is not supported by sub-
    stantial evidence.
    There is an alternative basis on which we may ground our
    well-founded fear holding. Even were Smolniakova otherwise
    unable to demonstrate a well-founded fear of persecution, the
    finding that she established past persecution entitles her to a
    presumption of well-founded fear. See 
    Korablina, 158 F.3d at 1043
    ; 8 C.F.R. § 1208.13(b)(1). The presumption shifts the
    burden of proof to the government to establish by a prepon-
    derance of the evidence that the presumption no longer con-
    trols. 
    Id. The government
    may satisfy this burden by showing
    that there has been a “fundamental change in circumstances,”
    such that Smolniakova no longer has a well-founded fear, or
    that Smolniakova could “avoid future persecution by relocat-
    ing to another part of [Russia], and under all the circum-
    stances, it would be reasonable to expect [her] to do so.” 8
    C.F.R. § 1208.13(b)(1)(i)-(ii); see also Ochave v. INS, 
    254 F.3d 859
    , 868 n.5 (9th Cir. 2001).
    The Supreme Court has held that we cannot determine the
    issue of changed country conditions in the first instance. INS
    v. Ventura, 
    537 U.S. 12
    , 14 (2002). However, here, the IJ
    addressed the issue of changed circumstances. The relevant
    portion of the IJ’s decision reads as follows: “This Court does
    not find that even if there had been past persecution, that there
    is any likelihood of future persecution. The country condition
    has changed substantially.” Where the IJ reaches the issue of
    changed circumstances, we need not remand, see Ali v. Ash-
    croft, 
    394 F.3d 780
    , 788 (9th Cir. 2005), unless she fails to
    “make an individualized determination as to the effect of
    country conditions.” Lopez v. Ashcroft, 
    366 F.3d 799
    , 806
    (9th Cir. 2004). The IJ here made an individualized determi-
    nation. In concluding that the “country condition has changed
    substantially,” the IJ noted that Smolniakova’s trip to Russia
    SMOLNIAKOVA v. GONZALES                      12541
    with her new husband was proof that she was not afraid to
    return to Russia. In light of the limited evidence submitted by
    the government in rebuttal4 — just two newspaper articles —
    it is not clear whether the IJ could have made her analysis
    more individualized. Because the agency has already brought
    “its expertise to bear upon the matter” and “evaluate[d] the
    evidence,” cf. INS v. Ventura, 
    537 U.S. 12
    , 17 (2002) (per
    curiam), this case requires no further remand for the applica-
    tion of agency expertise or for agency evaluation. See Ali v.
    Ashcroft, 
    394 F.3d 780
    , 788 (9th Cir. 2005).
    [10] We review the IJ’s factual findings regarding changed
    country conditions for substantial evidence. 
    Lopez, 366 F.3d at 805
    ; see also Gui v. INS, 
    280 F.3d 1217
    , 1229 (9th Cir.
    2002). The record does not support the IJ’s conclusion that
    the government rebutted the presumption of well-founded
    fear. The government offered two newspaper articles into evi-
    dence in support of its assertion that Russia was no longer a
    country that posed a threat to Smolniakova. The only relevant
    article profiled a Rabbi who works to cultivate Jewish life in
    Moscow. Nothing in the article suggests that a Jewish refugee
    would no longer have reason to fear persecution if she
    returned to Russia. The article simply concludes that “[t]oday
    there are three Jewish day schools in Moscow. Emigration has
    stabilized and the approximately 2 million Russian Jews are
    4
    We note that the extremely limited evidence of changed country condi-
    tions offered by the government in this case may constitute an alternate
    ground for not remanding on the issue of changed conditions. Where the
    INS offers no evidence concerning changed circumstances before the
    immigration judge, the BIA, or this court, we do not remand because “to
    provide the INS with another opportunity to present evidence of changed
    country conditions . . . would be exceptionally unfair.” Nuru v. Gonzales,
    
    404 F.3d 1207
    , 1228 (9th Cir. 2005) (quoting 
    Baballah, 367 F.3d at 1078
    n.11); see also Ndom v. Ashcroft, 
    384 F.3d 743
    , 756 (9th Cir. 2004). Here,
    aside from the two articles presented to the IJ, the government did not
    assert changed country conditions in its memorandum on appeal to the
    BIA or in its brief to this court. Because we have concluded that remand
    is unnecessary for other reasons, we need not determine whether the scant
    evidence introduced amounts to “no evidence” under our Nuru rationale.
    12542                 SMOLNIAKOVA v. GONZALES
    not only permitted to leave the country; but to retain their
    Russian citizenship.” U.S. Rabbi Cultivates Jewish Life in
    Russia, Wash. Times, Aug. 24, 1996, at 13, reprinted in AR
    at 1017.5 Moreover, a news article such as this is not authori-
    tative. Cf. Molina-Estrada v. INS, 
    293 F.3d 1089
    , 1096 (9th
    Cir. 2002) (holding that generalized information from a State
    Department report on country conditions is not sufficient to
    rebut the presumption of future persecution). In addition,
    “[i]nformation about general changes in the country is insuffi-
    cient for the government to overcome the presumption.”
    
    Lopez, 366 F.3d at 805
    (citing Rios v. Ashcroft, 
    287 F.3d 895
    ,
    901 (9th Cir.2002)).
    Not only is the record bereft of any substantial evidence
    supporting the government’s contention that Russia has
    changed, but Smolniakova, her sister and Yuliya Berenshteyn
    testified that the persecution of Jews in the Kalingrad area of
    Russia continues and has grown substantially worse in recent
    years due to the growing strength of anti-Semitic organiza-
    tions such as the anti-Jewish party, Pamyat. Indeed, Smol-
    niakova testified that she believed her attackers were
    members of Pamyat and pointed out in her brief to the BIA
    that the U.S. Department of State Russia Country Report on
    Human Rights Practices for 1997 states that “Jews continue
    to encounter societal discrimination, and government authori-
    ties have been criticized for insufficient action to counter it.”
    None of this testimony was contradicted or disputed by the
    5
    The other article detailed how the INS had cataloged the misuse of the
    Lautenberg amendment, which allows certain historically persecuted
    groups of the former Soviet Union, including Jews, to seek refugee status
    abroad. See 1989 amendment to 8 U.S.C. § 1157 (Lautenberg amend-
    ment). Notwithstanding that the Lautenberg amendment is not the law
    under which Smolniakova may seek asylum, the article in fact supports
    Smolniakova’s position. See Vast Soviet Refugee Fraud Detailed, Wash.
    Times, Nov. 4, 1995, at A1, reprinted in AR at 1083 (“ ‘The irony is that
    there are plenty of cases from the former Soviet Union which could qual-
    ify [as persecuted refugees],’ noted a top INS official in Moscow in
    December 1993.”) (emphasis added).
    SMOLNIAKOVA v. GONZALES                 12543
    government. The IJ’s finding that Smolniakova’s presumption
    of well-founded fear was rebutted is thus not supported by
    substantial evidence. Accordingly, the presumption of a well-
    founded fear of persecution stands and Smolniakova is eligi-
    ble for asylum on this basis as well.
    [11] We therefore hold that Smolniakova is statutorily eli-
    gible for asylum and remand to the BIA so that it may exer-
    cise its discretion whether to grant her that form of relief.
    B.   Withholding of removal
    [12] A finding of past persecution also gives rise to a pre-
    sumption of withholding of removal. 8 C.F.R.
    § 1208.16(b)(1)(i); Hoque v. Ashcroft, 
    367 F.3d 1190
    , 1198
    (9th Cir. 2004). Because of her finding on the asylum claim,
    however, the IJ did not consider Smolniakova’s withholding
    claim in light of this presumption. We therefore remand
    Smolniakova’s withholding of removal claim to the BIA so
    that it may consider this claim in light of the presumption. See
    He v. Ashcroft, 
    328 F.3d 593
    , 604, (9th Cir. 2003) (holding
    that petitioner was statutorily eligible for asylum, but that
    remand for consideration of withholding of removal claim
    was still required under Ventura).
    C.   Qualifying Marriage
    [13] Pursuant to INA § 216(b)(2), Smolniakova requested
    a removal proceeding to review the INS’s determination that
    her marriage to Roberto Quitevis, a United States citizen, was
    a sham. Under INA § 216(b)(2), “the burden of proof shall be
    on the Attorney General to establish, by a preponderance of
    the evidence” that the qualifying marriage was improper. 8
    U.S.C. § 1186a(b)(2). To dispose of the marriage fraud issue,
    the IJ merely concluded that “the evidence is not clear as to
    whether this was a fraudulent marriage” and went on to hold
    that “[t]he respondent has not met her ‘heavy burden’ of prov-
    ing that she did not enter into this marriage solely for the pur-
    12544              SMOLNIAKOVA v. GONZALES
    pose of obtaining immigration benefits.” In so holding, the IJ
    applied the wrong standard of proof to the wrong party.
    Imposing the heavy burden of clear and convincing evidence
    on Smolniakova likely affected the result, especially in light
    of the IJ’s conclusion that the evidence of marriage fraud was
    not clear. This alone would be sufficient reason to reverse the
    denial of Smolniakova’s petition for review of the termination
    of her conditional resident status and to remand to the BIA.
    [14] We also note that the IJ’s misguided, and at times
    seemingly biased, adverse credibility finding in the asylum
    context casts serious doubt on her analogous finding in the
    sham marriage context. The IJ’s application of differing stan-
    dards to assess the credibility of witnesses undermines her
    impartiality and suggests a “ ‘predisposition [selectively] to
    discredit’ the testimony, rather than any lack of credibility on
    the part of the witnesses.” 
    Paramasamy, 295 F.3d at 1051
    .
    Quitevis testified that his marriage to Smolniakova was
    never more than a mere business proposition — a way for a
    young college graduate in bad financial straits to make some
    easy money. And yet, he testified inconsistently about the first
    payment installment he allegedly received from Smolniakova.
    The IJ was forgiving of this inconsistency, explaining that
    “[a]lthough the amount of payment was not completely con-
    sistent, the testimony is consistent in that Mr. Quitevis was
    paid for marrying the respondent.” The IJ was similarly for-
    giving of Quitevis’ inability to provide consistent testimony
    regarding the date he first met Smolniakova. It is striking,
    however, that the IJ did not extend the same understanding to
    minor inconsistencies, including inconsistent dates, in Smol-
    niakova’s testimony and the testimony of those who were cal-
    led on her behalf.
    Although Smolniakova’s claims were presented together at
    a single hearing, the asylum claim and the qualifying marriage
    claim are analytically distinct. The adverse credibility finding
    in the asylum context must not be allowed to “wash over the
    SMOLNIAKOVA v. GONZALES                 12545
    [qualifying marriage] claim.” Kamalthas v. INS, 
    251 F.3d 1279
    , 1284 (9th Cir. 2001) (quoting Mansour v. INS, 
    230 F.3d 902
    , 908 (7th Cir. 2000)); see also Taha v. Ashcroft, 
    389 F.3d 800
    , 802 (9th Cir. 2004) (reversing the IJ’s adverse credibility
    finding in the asylum context and citing 
    Kamalthas, 251 F.3d at 1284
    , for the proposition that such a finding should not be
    allowed to “wash over” petitioner’s Convention Against Tor-
    ture claim). Where, as here, the IJ’s adverse credibility find-
    ing in the asylum context betrays the IJ’s bias against the
    petitioner, such a finding of necessity casts a suspicious cloud
    over the negative credibility determination made in reviewing
    whether petitioner’s qualifying marriage was a sham.
    [15] Indeed, the IJ explicitly acknowledges this “wash
    over” effect in her decision. When discussing the marriage
    claim, the IJ states, “[T]he totality of the respondent’s evi-
    dence is so internally inconsistent, inconsistent with her asy-
    lum application and inconsistent between witnesses, that the
    Court cannot possibly believe the witness.” We therefore hold
    that the IJ’s numerous erroneous findings that Smolniakova
    was lying about her asylum claim tainted the IJ’s view of her
    credibility with respect to the qualifying marriage claim.
    Accordingly, we reverse the IJ’s credibility determinations in
    the qualifying marriage context and remand to the BIA with
    instructions to hold a new hearing to make fresh findings on
    this issue. Lopez-Umanzor v. Gonzales, 
    405 F.3d 1049
    , 1059
    (9th Cir. 2005) (remanding for a new hearing “to ensure that
    Petitioner has a full and fair opportunity to establish her credi-
    bility”). We further direct the BIA not to return the case to IJ
    Anna Ho. Id.; Perez-Lastor v. INS, 
    208 F.3d 773
    , 782 (9th
    Cir. 2000).
    IV.   Conclusion
    In sum, we reverse the IJ’s adverse credibility finding in
    the asylum context and find that Smolniakova has suffered
    past persecution on account of her religion and has a well-
    founded fear of future persecution. We accordingly find
    12546             SMOLNIAKOVA v. GONZALES
    Smolniakova statutorily eligible for asylum. We remand for
    an exercise of discretion on Smolniakova’s asylum claim and
    for further consideration of the withholding of removal claim
    in light of the presumption that now operates regarding her
    ability to show future threats to her life or freedom. We
    reverse the IJ’s denial of Smolniakova’s petition to review the
    INS’s determination that her marriage to Quitevis was a sham.
    We remand to the BIA for a new hearing to make fresh credi-
    bility findings in the qualifying marriage context and for fur-
    ther review of the INS’s termination of Smolniakova’s
    conditional permanent resident status in light of the new cred-
    ibility findings and in conjunction with an application of the
    appropriate burden of proof. The BIA is instructed not to
    remand the case to IJ Anna Ho.
    PETITION           GRANTED,          REVERSED           AND
    REMANDED.
    

Document Info

Docket Number: 03-71600

Filed Date: 9/7/2005

Precedential Status: Precedential

Modified Date: 10/13/2015

Authorities (40)

97-cal-daily-op-serv-8943-97-daily-journal-dar-14491-veronico-blas , 133 F.3d 1147 ( 1997 )

Abdul Hakeem v. Immigration and Naturalization Service , 273 F.3d 812 ( 2001 )

Julia Floridalma Rios, Paulo Jordan Rios v. John Ashcroft, ... , 287 F.3d 895 ( 2002 )

Tommy R. OSORIO, Petitioner, v. IMMIGRATION AND ... , 99 F.3d 928 ( 1996 )

Xue Yun Zhang v. Alberto Gonzales, United States Attorney ... , 408 F.3d 1239 ( 2005 )

Noemi GARROVILLAS, Petitioner, v. IMMIGRATION AND ... , 156 F.3d 1010 ( 1998 )

Giovanni Molina-Estrada v. Immigration and Naturalization ... , 293 F.3d 1089 ( 2002 )

Baljinder Singh SANGHA, Petitioner, v. IMMIGRATION AND ... , 103 F.3d 1482 ( 1997 )

Abbas Zahedi v. Immigration and Naturalization Service , 222 F.3d 1157 ( 2000 )

Ukashu Nuru, AKA Ukasha Nuru v. Alberto R. Gonzales, ... , 404 F.3d 1207 ( 2005 )

Navaratwam Kamalthas v. Immigration and Naturalization ... , 251 F.3d 1279 ( 2001 )

Mario Ernesto Navas v. Immigration and Naturalization ... , 217 F.3d 646 ( 2000 )

Nasser Mustapha Karouni v. Alberto Gonzales, Attorney ... , 399 F.3d 1163 ( 2005 )

Noel LOPEZ-REYES, Petitioner, v. IMMIGRATION AND ... , 79 F.3d 908 ( 1996 )

Sung Hee Damon Sang Woo Lee Seung Woo Lee v. John Ashcroft, ... , 360 F.3d 1084 ( 2004 )

Wenda Ge v. John Ashcroft, Attorney General , 367 F.3d 1121 ( 2004 )

Nune Mamouzian v. John Ashcroft, Attorney General , 390 F.3d 1129 ( 2004 )

Brijmati SINGH, Petitioner, v. IMMIGRATION AND ... , 134 F.3d 962 ( 1998 )

97-cal-daily-op-serv-4551-97-daily-journal-dar-7564-edgar-octaviano , 116 F.3d 391 ( 1997 )

Naseem Salman Al-Harbi v. Immigration and Naturalization ... , 242 F.3d 882 ( 2001 )

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