Robert Baghdasaryan v. Jefferson Sessions , 683 F. App'x 568 ( 2017 )

FILED
NOT FOR PUBLICATION
MAR 17 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT BAGHDASARYAN, No. 13-73656
Petitioner, Agency Nos. A097-359-552
A097-359-553
v. A097-359-554
A097-359-555
JEFFERSON B. SESSIONS III, Attorney
General,
MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 9, 2017
Pasadena, California
Before: REINHARDT and NGUYEN, Circuit Judges, and MARBLEY,** District
Judge.
Robert Baghdasaryan, a national of Iran and citizen of Armenia, petitions for
review of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for asylum,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
withholding of removal, and relief under the Convention Against Torture (“CAT”).
We review for substantial evidence, Aguilera-Cota v. INS, 914 F.2d 1375, 1378
(9th Cir. 1990), and we deny the petition for review in part, and grant and remand
in part.
1. The BIA correctly concluded that Baghdasaryan’s 2003 application for
asylum was untimely under the one-year bar. INA § 208(a)(2)(D). Here,
Baghdasaryan’s application was not filed until almost two years after he arrived in
the United States, and he is unable to demonstrate either material changed
circumstances affecting his eligibility for asylum or extraordinary circumstances
excusing his delay. Id. Accordingly, we deny the petition for review as to
Baghdasaryan’s asylum claim.
2. The BIA reviewed the IJ’s adverse credibility determination and
expressly adopted five of the findings the IJ articulated in support of that
determination. We conclude that none of the grounds relied upon by the BIA is
sufficient to find Baghdasaryan’s testimony not credible.
First, the BIA adopted the IJ’s finding that there were discrepancies between
Baghdasaryan’s affidavit and his testimony with respect to his role in the Armenian
People’s Party (“APP”). This conclusion is not supported by the record. There is
no conflict between Baghdasaryan’s statement in his affidavit that he was “a
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member of the opposition party and a leader of its primary organization,” and his
later testimony that he was “the leader of the primary organization in my district.”
Moreover, the IJ erred by failing to address in a “reasoned manner”
Baghdasaryan’s plausible explanation for the alleged inconsistency, namely that
the organization of the APP was such that one could be both a leader of its
“primary organization” and a leader of a given district. Osorio v. INS, 99 F.3d 928,
933 (9th Cir. 1996).
Second, the IJ found that Baghdasaryan provided inconsistent testimony
with respect to the year in which he joined the APP and the number of rallies he
organized in 2001. These types of minor discrepancies “that do not relate to the
basis of an applicant's alleged fear of persecution or go to the heart of the asylum
claim, do not support generally an adverse credibility finding.” Singh v. Gonzales,
439 F.3d 1100, 1105 (9th Cir. 2006) (quoting Mendoza Manimbao v. Ashcroft, 329
F.3d 655, 660 (9th Cir. 2003)). Additionally, we have noted that “[t]he ability to
recall precise dates of events years after they happen is an extremely poor test of
how truthful a witness’s substantive account is.” Singh v. Gonzales, 403 F.3d 1081,
1090-91 (9th Cir. 2005). Here, Baghdasaryan was being asked to recall events that
took place over a decade prior, and there is nothing to suggest that Baghdasaryan’s
claim for relief is affected either by the exact year he joined the APP or the precise
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number of rallies he organized. These alleged discrepancies therefore cannot
provide substantial evidence that his testimony was not credible.
Third, the IJ found that Baghdasaryan had embellished his claim by
testifying to three arrests that were not included in his original affidavit. We have
held, however, that a “failure to state each and every ground for a claim of political
asylum at the time of the initial application should not prejudice that claim.”
Aguilera-Cota, 914 F.2d at 1382. Moreover, Baghdasaryan was never provided
with an opportunity to explain why he omitted the three additional arrests from his
affidavit. The government acknowledges that Baghdasaryan was “not provided an
opportunity to explain why his affidavit omitted the additional arrests,” but argues
that this was not error because “the issue is not about perceived inconsistencies, but
rather significant omissions which embellished his claim.” This reasoning is
without merit, as we have never held that a petitioner need not be given a chance to
explain perceived discrepancies between his affidavit and testimony. Cf.
Garrovillas v. INS, 156 F.3d 1010, 1013-14 (9th Cir. 1998) (requiring that the BIA
consider the petitioner’s explanation regarding alleged inconsistencies between his
asylum application and his testimony).
Fourth, the BIA adopted the IJ’s finding that Baghdasaryan had provided
“questionable” testimony because a large rally at which he claimed to have been
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arrested was not included in the 2000 State Department Country Report. This
finding also cannot support the adverse credibility determination, as the IJ failed to
address in a reasoned manner Baghdasaryan’s plausible explanation that the
Armenian government suppressed such information. Additionally, the IJ’s
statement that “it is ridiculous” that the government could suppress information
about the rally is unsupported by the record, and thus was impermissible
speculation. See Shah v. INS, 220 F.3d 1062, 1071 (9th Cir. 2000).
Fifth, the IJ found that Baghdasaryan’s testimony regarding his March 2001
detention was inconsistent with his affidavit. The IJ noted a number of alleged
conflicts between the two accounts, but failed to provide Baghdasaryan with an
opportunity to explain any of the perceived inconsistencies. See Tekle v. Mukasey,
533 F.3d 1044, 1053 (9th Cir. 2008). Additionally, the IJ improperly relied upon
“omissions” in Baghdasaryan’s affidavit to discredit his testimony with respect to
the March 2001 incident. See Alvarez-Santos v. I.N.S., 332 F.3d 1245, 1254 (9th
Cir. 2003) (“Omissions from asylum applications are often not a sufficient basis
for discrediting later testimony.”). The fact that Baghdasaryan gave a more in-
depth account of his detention over the course of his lengthy immigration hearing
than in his four-page affidavit does not mean that he can be found incredible. See
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Bandari v. INS, 227 F.3d 1160, 1167 (9th Cir. 2000). A petitioner cannot be
penalized simply for providing additional detail.
Finally, the BIA adopted the IJ’s finding that Baghdasaryan failed to present
evidence of his membership in the APP and political activities in Armenia.
Because substantial evidence does not support the underlying adverse credibility
determination, Baghdasaryan cannot be required to provide corroborative evidence.
See Kaur v. Ashcroft, 379 F.3d 876, 890 (9th Cir. 2004) (holding that where
enumerated reasons underlying an adverse credibility finding fail, no independent
corroborative evidence is required).
3. Baghdasaryan additionally claims that the IJ and BIA failed to consider
his request for relief under CAT as separate from his application for asylum and
withholding of removal. He is correct. Both the IJ and the BIA based their denial
of Baghdasaryan’s CAT claim in large part on the underlying adverse credibility
determination. This was legal error, as a “negative credibility determination”
cannot be allowed to “wash over” a petitioner’s claim for relief under CAT.
Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001) (quoting Mansour v. INS,
230 F.3d 902, 908 (7th Cir. 2000). Such reasoning is particularly applicable in this
case, where the adverse credibility determination itself was not based on
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substantial evidence. See Taha v. Ashcroft, 389 F.3d 800, 802 (9th Cir. 2004) (per curiam).
4. Accordingly, we grant the petition for review in part and remand to the
BIA for further proceedings to determine whether, accepting Baghdasaryan’s
testimony as credible, he is entitled to withholding of removal and relief under
CAT. See INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam).
Petition DENIED in part; GRANTED and REMANDED in part.
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