Armen Hakobyan v. Eric H. Holder Jr. , 510 F. App'x 602 ( 2013 )

FILED
NOT FOR PUBLICATION FEB 27 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMEN HAKOBYAN, No. 08-70885
Petitioner, Agency No. A099-442-046
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
ARMEN HAKOBYAN, No. 08-73010
Petitioner, Agency No. A099-442-046
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
ARMEN HAKOBYAN, No. 09-71268
Petitioner, Agency No. A099-442-046
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 15, 2013
San Francisco, California
Before: FARRIS and N.R. SMITH, Circuit Judges, and BURGESS, District
Judge.**
Armen Hakobyan, a native and citizen of Armenia, petitions for review of
three decisions of the Board of Immigration Appeals (BIA). In the proceedings
underlying Ninth Circuit Appeal case no. 08-70885, the BIA affirmed the
immigration judge’s (IJ) denial of his applications for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT).1 The IJ
rejected Hakobyan’s claim of past persecution, concluding that he was not
credible. In the proceedings underlying Ninth Circuit Appeal case no. 08-73010,
the BIA denied Hakobyan’s motion to reopen based upon an ineffective assistance
**
The Honorable Timothy M. Burgess, District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
1
Because Hakobyan filed his application for asylum after May 2005, the
REAL ID Act applies. See REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat.
231.
2
of counsel claim. Finally, in the proceedings underlying Ninth Circuit Appeal case
no. 08-71268, the BIA denied Hakobyan’s motion to reconsider the BIA’s denial
of his motion to reopen. We dismiss the petition for review in case no. 08-70885
as to the asylum claim, but grant the petition for review as to the withholding of
removal and CAT claims. We grant the petitions for review in case nos. 08-73010
and 09-71268. We remand the three cases to the BIA.
1. Hakobyan’s counsel, Margarita Mkrtchyan, filed a motion to continue the
February 15, 2013 oral argument on February 14, 2013. The panel denied the
motion, because neither the motion nor declaration demonstrated exceptional
circumstances. See General Order 3.5. Despite the motion being denied,
Mkrtchyan nevertheless failed to attend the hearing. Rather than punish Hakobyan
for his counsel’s failure to appear for oral argument, we review the case on the
merits.
2. In July 2008, this court issued its decision dismissing Hakobyan’s asylum
application due to lack of jurisdiction. Hakobyan did not move for reconsideration
of that decision under Circuit Rule 27-10. Now, Hakobyan suggests this court
revisit the decision based upon case law decided subsequent to our July 2008
decision. We find no basis to reconsider this court’s previous dismissal order.
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3. The BIA denied Hakobyan’s withholding of removal and CAT claims based
on an adverse credibility determination. It listed four bases for its determination:
(1) Hakobyan witnessed Grigorian beating up a pregnant woman and shoving her
into the trunk of a car but did not mention the incident in his asylum application or
in his direct testimony; (2) the current mayor of the city of Echmiadzin is Garik
Avagyan, which conflicts with his asylum application which states that Avagyan
was a candidate for mayor in 2005; (3) he obtained a passport in Russia but his
application stated that, with the help of friends, he obtained a Russian passport in
Armenia; and (4) he stopped working in his family’s factory in 2004, but the
asylum application states that he stopped working in 2002. The government
concedes that the first two bases were not supported by substantial evidence.
Substantial evidence does not support the remaining two findings. First,
whether Hakobyan obtained a passport in Russia or Armenia has, under the totality
of the circumstances, no bearing on his veracity. See Shrestha v. Holder, 590 F.3d
1034, 1044 (9th Cir. 2010) (“[T]rivial inconsistencies that under the total
circumstances have no bearing on a petitioner’s veracity should not form the basis
of an adverse credibility determination.”). The testimony “says nothing about
[Hakobyan’s] truthfulness or the overall reliability of his account, nor was it an
attempt to enhance his claims.” Ren v. Holder, 648 F.3d 1079, 1085-86 (9th Cir.
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2011). Further, neither the BIA nor the IJ explained why Hakobyan’s assertion
that the translated version of his declaration was incorrect supported an adverse
credibility finding. See Shrestha, 590 F.3d at 1042. Second, with regard to
Hakobyan’s employment, the record does not reflect that the agency confronted
Hakobyan with the inconsistencies, and therefore failed to explain why
Hakobyan’s explanations for the inconsistencies were rejected. See Soto-Olarte v.
Holder, 555 F.3d 1089, 1092 (9th Cir. 2009) (citing Don v. Gonzales, 476 F.3d
738, 741 (9th Cir. 2007)).
The BIA also denied Hakobyan’s withholding of removal and CAT claims,
because he failed to corroborate his claims at the hearing. Because the BIA’s
conclusion that Hakobyan lacked credibility is not supported by substantial
evidence, we also remand the lack of corroboration issue for the BIA to reconsider.
As to corroboration, the BIA should consider recent (and pending) Ninth Circuit
case law, Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011), and Oshodi v. Holder, 671
F.3d 1002 (9th Cir. 2012) rehearing en banc ordered by 678 F.3d 776 (9th Cir.
2012), of which the BIA did not have the benefit in the prior hearing.
4. The BIA denied Hakobyan’s motion to reopen and motion to reconsider,
concluding that Hakobyan was put on notice that corroboration was required and
that the documents submitted did not establish when he entered the United States.
5
The BIA abused its discretion in denying the motion to reopen and motion for
reconsideration. See Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir. 2004),
amended sub nom. Lara-Torres v. Gonzales, 404 F.3d 1105 (9th Cir. 2005)
(reviewing denial of motion to reopen and motion to reconsider for abuse of
discretion). If, as Hakobyan asserts, his former counsel advised him not to provide
corroborating evidence (which was available), we conclude that Hakobyan
presented “plausible grounds for relief,” such that he suffered from ineffective
assistance of counsel. Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir. 2004). The
BIA erred by denying the motions, in part, by applying the now-overruled
Compean I standard to its prejudice analysis for ineffective assistance of counsel.2
Further, the BIA erred in concluding that Hakobyan was on notice that
corroboration was required based upon the questioning during the merits hearing
and the IJ’s oral decision. At that time, Hakobyan was represented by counsel,
who (incorrectly) assured Hakobyan that corroboration was not necessary. We
cannot expect a lay petitioner to be on notice and present corroboration
independently when his counsel assures him otherwise. See Rodriguez–Lariz v.
2
The BIA relied on Matter of Compean, 24 I. & N. Dec. 710 (A.G. 2009)
(vacated by Matter of Compean, 25 I. & N. Dec. 1 (A.G. 2009)), which required an
alien to show that he would have prevailed at the hearing or on appeal had the
negligent representation not occurred.
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I.N.S., 282 F.3d 1218, 1225 n.3 (9th Cir. 2002) (noting that one cannot expect
counsel to suggest that his own conduct is defective). We therefore grant the
petition with respect to Hakobyan’s motion to reopen and motion for
reconsideration and remand to the BIA for it to reassess whether Hakobyan
presented plausible grounds for relief for his asylum, withholding of removal, and
CAT claims.
Because case law under the REAL ID Act has changed significantly since
the time of the hearing, we remand to the BIA on an open record to determine the
merits of Hakobyan’s applications under the REAL ID Act’s standards.
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DISMISSED in part; GRANTED in part;
REMANDED.
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