Hayrapetyan v. Holder , 405 F. App'x 189 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 07 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
SAMVEL HAYRAPETYAN and No. 05-77155
PAYTSAR MURADYAN,
Agency Nos. A079-517-742
Petitioners, A079-517-743
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 May 3, 2010
Pasadena, California
Before: NOONAN, CLIFTON and BYBEE, Circuit Judges.
Samvel Hayrapetyan (Hayrapetyan), a native and citizen of Armenia,
petitions for review of the decision of the Board of Immigration Appeals (BIA)
affirming 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). The IJ denied relief on the basis of an adverse credibility determination,
and the BIA adopted and affirmed the decision of the IJ, citing Matter of Burbano,
20 I. & N. Dec. 872, 874 (BIA 1994). We therefore review the decisions of both
the IJ and the BIA. See Samayoa-Martinez v. Holder, 558 F.3d 897, 899 (9th Cir.
2009). We evaluate the adverse credibility determination for substantial evidence,
Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir. 2009), and apply pre-REAL
ID Act standards because Hayrapetyan's asylum application was filed prior to the
Act's effective date, see Sinha v. Holder, 564 F.3d 1015, 1021 n.3 (9th Cir. 2009).
Concluding that substantial evidence does not support the IJ's adverse credibility
determination, we grant the petition and remand for further proceedings.
The IJ relied on inconsistencies in the record pertaining to the two times that
Hayrapetyan received medical treatment after being beaten by the Yerµrapah. The
letter from the hospital where Hayrapetyan first sought treatment was addressed to
Hayrapetyan, not to his brother-in-law, who had obtained the letter after
Hayrapetyan had left Armenia. This discrepancy was explained by Hayrapetyan's
testimony that it is standard practice in Armenia to address such a document to its
subject. The letter also indicated that Hayrapetyan was advised to seeµ follow-up
care from specialists at his place of residence. Hayrapetyan testified that his
mother was told at the hospital that he should travel to the capital city of Yerevan
2
for follow-up treatment. As an explanation for the tension between the advice
documented in the letter and the oral advice that he was given, Hayrapetyan
testified that the specialist care he was advised to seeµ was not available where he
lived.
The second time that Hayrapetyan received medical care, he did not go to
the hospital. Instead, as Hayrapetyan stated in both his written declaration and his
oral testimony, he received care locally, at a relative's house. Although his written
declaration stated that he was 'treated by the private doctor,' Hayrapetyan
explained during his oral testimony that a doctor was consulted, but there were no
private doctors in his town. Hayrapetyan stated that he was treated by relatives at
home because he was too afraid to go to the hospital for actual treatment by the
doctor.
For each of the purported inconsistencies regarding Hayrapetyan's medical
care, Hayrapetyan offered reasonable explanations. The IJ erred by failing to
consider these plausible explanations, and for this reason these inconsistencies do
not support adverse credibility. See Soto-Olarte, 555 F.3d at 1091. Moreover,
these discrepancies pertain to minor details that are too insignificant to constitute
substantial evidence. See Singh v. Ashcroft, 362 F.3d 1164, 1171 (9th Cir. 2004);
Garrovillas v. INS, 156 F.3d 1010, 1014 (9th Cir. 1998) (holding that
3
'inconsistencies of less than substantial importance for which a plausible
explanation is offered' cannot serve as the basis for an adverse credibility finding).
Other inconsistencies identified by the IJ cannot support the adverse
credibility determination because Hayrapetyan was given no opportunity to explain
the perceived contradiction. See 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 quotations omitted). In particular, Hayrapetyan was never
given a chance to clarify or explain his testimony regarding the injuries to his
µidneys.
Hayrapetyan was also not given an opportunity to explain his error in
naming the presidential candidate of the ANM party. Moreover, this testimony
does not go to the heart of Hayrapetyan's claim for asylum, which is based on
whistleblowing. See Grava v. INS, 205 F.3d 1177, 1181 (9th Cir. 2000) (holding
that whistleblowing against government corruption can constitute political activity
for the purpose of asylum); see also Li v. Holder, 559 F.3d 1096, 1102 (9th Cir.
2009) (holding that the reason underlying an adverse credibility determination
'must go to the heart of the asylum claim.').
4
The IJ also identified an inconsistency in the number of beatings described in
Hayrapetyan's written declaration and his oral testimony. This alleged
inconsistency is not supported by the record. According to the IJ, Hayrapetyan's
declaration stated that he was beaten at the party meeting, and Hayrapetyan's failure
to mention this beating during his oral testimony amounted to an omission.
However, the declaration is ambiguous as to whether a beating actually occurred at
the party meeting. The declaration states only: 'I demanded to checµ the
informations and taµe legal actions toward criminals and the Chief of the Customs
Department. I was reprimanded by the members of the party, they demanded from
me to give them the document. I refused and as a result I was beaten.' These
sentences, riddled with grammatical errors as they are, can fairly be read to mean
that, generally as a result of his speech, Hayrapetyan suffered abuse. See Ïuan v.
Gonzales, 428 F.3d 883, 886 (9th Cir. 2005) (vacating adverse credibility finding
where 'there was no true inconsistency' in the record).
Finally, both the IJ and BIA put weight on the death certificate submitted by
Hayrapetyan as proof of his son's death. The government proved the certificate to
be fraudulent. Hayrapetyan testified that he had received the death certificate by
mail from his brother-in-law who was still in Armenia, and that he did not µnow its
true source. The BIA found that Hayrapetyan testimony's about the document's
5
source was unclear, but the BIA cited only to Hayrapetyan's testimony at the first
hearing and failed to taµe into account the full explanation that Hayrapetyan
provided at the subsequent hearing.
Hayrapetyan's testimony at the first hearing reflected his confusion as to
whether the death certificate sent by his brother-in-law was the original that he had
received after his son's death or a copy. At his second hearing, Hayrapetyan
testified that on the same day of his first hearing, after he had learned that the death
certificate was fraudulent, he called his brother-in-law to find out how it was
obtained. Hayrapetyan's brother-in-law said that he had gone to a regional office to
obtain the document, meaning that the document was not the original that
Hayrapetyan had received while he was still in Armenia. Considering the record as
a whole, there is not substantial evidence to support the conclusion that
Hayrapetyan was the source of, or played a role in obtaining, the fraudulent
document. Where there is no evidence that the petitioner µnew that the document
was fraudulent, such document cannot, by itself, support the adverse credibility
determination. Yeimane-Berhe v. Ashcroft, 393 F.3d 907, 911 (9th Cir. 2004).
Because none of the above grounds constitutes substantial evidence of
adverse credibility, we grant the petition, vacate the IJ's credibility finding, and
remand to the agency. Despite the inadequacy of the IJ's reasons, 'we cannot say
6
that no doubts have been raised' about Hayrapetyan's credibility on the record
before us. Hartooni v. INS, 21 F.3d 336, 343 (9th Cir. 1994) (internal quotations
omitted). We therefore remand to the agency to reassess Hayrapetyan's credibility
in the first instance and determine his eligibility--if it finds him credible--for
asylum, withholding of removal, and CAT protection. See Garrovillas v. INS, 156
F.3d 1010, 1017 (9th Cir. 1998).
GRANTED and REMANDED.
7
FILED
Hayrapetyan v. Holder, No. 05-77155 DEC 07 2010
MOLLY C. DWYER, CLERK
BYBEE, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
Because the IJ's adverse credibility determination was supported by
substantial evidence, I respectfully dissent.
Hayrapetyan testified he was persecuted by the Armenian government--and
by forces associated with it--after reporting official corruption he witnessed while
worµing for the Customs Department. Specifically, Hayrapetyan testified that,
among other things, his house was set on fire by the Yerµrapah--a military
organization--and that his seven-year-old son died in the fire. To prove his son's
death, Hayrapetyan submitted a death certificate that Respondent proved to be
counterfeit. This counterfeit death certificate creates an inconsistency in
Hayrapetyan's testimony that goes to the heart of his asylum claim: if
Hayrapetyan's son is not dead, then the Yerµrapah may not have set Hayrapetyan's
house on fire as Hayrapetyan claimed. In other words, the counterfeit death
certificate calls into question whether Hayrapetyan was persecuted at all.
I am not unsympathetic to Petitioner's claim. If Hayrapetyan's testimony is
true, then he suffered horrific persecution at the hands of the Armenian
government and the Yerµrapah. However, when considering the counterfeit death
certificate submitted by Hayrapetyan to prove his son's death along with the other
inconsistencies in Hayrapetyan's testimony, I cannot conclude Petitioner presented
evidence 'so compelling that no reasonable factfinder could find . . . he was not
credible.' Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003) (internal
quotation omitted). I would deny the petition.
2