Kudryashov v. Holder , 492 F. App'x 734 ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 13 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DAVIT KUDRYASHOV, No. 07-74907
Petitioner, Agency No. A099-358-686
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 October 14, 2011
Pasadena, California
Before: PREGERSON and BYBEE, Circuit Judges, and DAVIDSON, Senior
District Judge.**
Petitioner Davit Kudryashov (“Kudryashov”), a native and citizen of
Armenia, seeks review of the Board of Immigration Appeals (“BIA”) denying his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Glen H. Davidson, Senior District Judge for the U.S.
District Court for the Northern District of Mississippi, sitting by designation.
application for asylum and withholding of removal.1 We have jurisdiction
pursuant to 8 U.S.C. § 1252. We grant the petition and remand.
Kudryashov is a Molokan Christian who lived in Armenia before arriving in
the United States. He testified that both he and his family members became targets
for persecution at the hands of Armenian government officials. The Immigration
Judge (“IJ”) found Kudryashov’s testimony not credible and, on that basis, denied
his applications for asylum, withholding of removal, and protection under the
Convention Against Torture. Kudryashov appealed to the BIA. The BIA
dismissed Kudryashov’s appeal and accepted the IJ’s adverse credibility finding.
Because the BIA adopted the IJ’s adverse credibility finding, we treat the
IJ’s reasons as the BIA’s reasons. See He v. Ashcroft, 328 F.3d 593, 595-96 (9th
Cir. 2003). We review for substantial evidence the agency’s factual findings,
applying the REAL ID Act standards governing adverse credibility determinations.
Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). “Although the
substantial evidence standard is deferential, the IJ must provide a specific cogent
reason for the adverse credibility finding.” Gui v. INS, 280 F.3d 1217, 1225 (9th
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Kudryashov did not specifically and distinctly challenge the denial of his
Convention Against Torture claim in his opening brief on appeal, therefore, this
claim is waived. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 2004)
(citation omitted).
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Cir. 2002) (internal quotation marks omitted); see also Shrestha, 590 F.3d at 1042(explaining that the REAL ID Act did not alter this rule). Under the REAL ID Act,
“a trier of fact may base a credibility determination on . . . any inaccuracies or
falsehoods in [the applicant’s] statements, without regard to whether an
inconsistency . . . goes to the heart of the applicant’s claim.” 8 U.S.C. §
1158(b)(1)(B)(iii). Nevertheless, “trivial inconsistencies that under the total
circumstances have no bearing on a petitioner’s veracity should not form the basis
of an adverse credibility determination.” Shrestha, 590 F.3d at 1044. The IJ listed
many reasons for her adverse credibility determination, but upon review of the
record, we conclude that none of these reasons are supported by substantial
evidence.
The inconsistencies between Kudryashov’s oral testimony and his asylum
interview are based on the asylum officer’s Assessment to Refer. An applicant’s
interview statement in an Assessment to Refer may be permissible impeachment
evidence if the statement is reliable. Yan Liu v. Holder, 640 F.3d 918, 926 (9th
Cir. 2011). Nevertheless, we have found that an Assessment to Refer alone is not
substantial evidence supporting an adverse credibility determination if it does “not
contain any record of the questions and answers at the asylum interview, or other
detailed, contemporary, chronological notes of the interview”; is only a “short,
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conclusory summary – essentially, an opinion”; there “is no transcript of the
interview”; the asylum officer did not testify at the hearing; and the applicant was
not “given any opportunity to explain the discrepancies the asylum officer
perceived.” Singh v. Gonzales, 403 F.3d 1081, 1089-90 (9th Cir. 2005).
The Assessment to Refer here did not contain a transcript of the interview,
and, aside from two pages of notes from the re-interview, did not contain any
record of the questions and answers at the asylum interview or other detailed,
contemporary, chronological notes of the interview. Furthermore, there is no
indication that Kudryashov had the opportunity to review the Assessment before
his merits hearing and the asylum officer did not testify at his removal hearing.
Moreover, although the IJ asked Kudryashov whether he made certain statements
to the asylum officer, Kudryashov was not asked to explain the discrepancies in the
underlying statements. Therefore, the Assessment to Refer, standing alone, “is not
substantial record evidence supporting the IJ’s adverse credibility ground.” Id. at
1090. Accordingly, the IJ’s findings that Kudryashov was inconsistent regarding
the date of his military call-up, whether or not he was arrested in 2005, when his
parents were arrested, and whether or not he looked into alternative military
service cannot form the basis of the adverse credibility determination.
Even if the IJ could base part of the credibility finding on the faulty
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Assessment to Refer, the inconsistencies found by the IJ cannot form a basis for an
adverse credibility determination. The discrepancy regarding the date Kudryashov
was called up for military service is not only based on the faulty Assessment to
Refer, but is also a trivial inconsistency that has no bearing on Kudryashov’s
credibility. See Ren v. Holder, 648 F.3d 1079, 1086 (9th Cir. 2011) (“‘[M]inor
discrepancies in dates that . . . cannot be viewed as attempts by the applicant to
enhance his claims of persecution have no bearing on credibility.’” (alterations in
original) (quoting Singh, 403 F.3d at 1092)). The discrepancy regarding the date
of his last arrest in Armenia is also based on the faulty Assessment to Refer and is
also a trivial inconsistency that cannot be viewed as an attempt to enhance his
claims of persecution. See id. The same analysis goes for the date his parents were
arrested. See id.There is no inconsistency between Kudryashov’s oral testimony and his
asylum interview regarding whether he was aware of alternate military service.
See Morgan v. Mukasey, 529 F.3d 1202, 1208-09 (9th Cir. 2008) (no inconsistency
between application and testimony). In his oral testimony, Kudryashov stated that
he did not recall telling the asylum officer that he was unaware of alternate military
service, and there is no reference to alternate military service in the Assessment to
Refer or in the re-interview notes. Because alternate military service was not
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discussed in his asylum interview, it follows that he would not recall telling the
officer that he was not aware of alternate service. Inconsistencies not supported by
facts in the record cannot form the basis of an adverse credibility determination.
See Shrestha, 590 F.3d at 1042 (the trier of fact must “provide specific and cogent
reasons supporting an adverse credibility determination”).
Similarly, there is no inconsistency between Kudryashov’s oral testimony
and documentary evidence as to whether he went through the Dominican Republic
on the way to the United States and whether he received his fake passport in
Madrid or in Moscow. Kudryashov’s testimony that he had never been to the
Dominican Republic, is not inconsistent with the stamp in his fake passport. Based
on the IJ’s own findings, Kudryashov did not receive that passport until one-and-a-
half years after the Dominican Republic stamp was put in the passport. Thus, there
is no inconsistency and this factor cannot form the basis of an adverse credibility
determination.
Kudryashov’s failure to provide corroborating documentation of his arrests
and persecution in Armenia cannot form the basis of an adverse credibility
determination here. Under the REAL ID Act, an IJ may require corroborating
evidence “unless the applicant does not have the evidence and cannot reasonably
obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii). A trier of fact would be
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compelled to conclude that Kudryashov could not reasonably obtain these pieces of
corroborating evidence since they were either never given to him by the Armenia
government, or were lost after Kudryashov’s friend died under suspicious
circumstances. Contra Shrestha, 590 F.3d at 1048 (finding it not unreasonable for
the IJ to require accessible corroborating evidence from the petitioner’s parents
because the evidence was “reasonably expected,” and a “reasonable trier of fact
would not be compelled to conclude that corroborating evidence was
unavailable”). Thus, this factor cannot form the basis of an adverse credibility
determination.
The IJ also noted that Kudryashov did not have corroborating evidence from
the person who helped him get plane tickets and a fake passport. Kudryashov was
not told to bring a statement from this person to his hearing, however. Because a
“requirement that something be provided even before notice is given would raise . .
. due process concerns,” the IJ has to undertake a two-step analysis before basing
an adverse credibility determination on a failure to provide corroborative evidence.
Ren, 648 F.3d at 1092-93. First, “the IJ must determine whether an applicant’s
credible testimony alone meets the applicant’s burden of proof.” Id. at 1093. If the
IJ determines that the testimony does meet the burden of proof, then no further
evidence is needed. Id. But, “[i]f a credible applicant has not yet met his burden
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of proof, then the IJ may require corroborative evidence.” Id. If corroboration is
required, “the IJ must give the applicant notice of the corroboration that is required
and an opportunity either to produce the requisite corroborative evidence or to
explain why that evidence is not reasonably available.” Id. In other words, even
though corroborative evidence may be required, the petitioner must still get “notice
and an opportunity to respond.” Id.Unlike in Ren, where the petitioner was told he needed corroborative
evidence at his first hearing and then told specifically what evidence he was
required to bring at his second hearing, here, Kudryashov was never informed that
he would need a corroborating statement about his travel. Because the IJ found
him not credible, she did not give him an opportunity to bring specific
corroborating evidence.
We therefore remand for further proceedings to determine Kudryashov’s
eligibility for asylum and withholding of removal. See INS v. Ventura, 537 U.S.
12, 16 (2002) (“The proper course . . . is to remand to the agency for additional
investigation or explanation.” (internal quotation marks omitted)); Soto-Olarte v.
Holder, 555 F.3d 1089, 1096 (9th Cir. 2009) (remanding on an open record to the
BIA to make determinations that are that are properly supported by the evidence).
PETITION FOR REVIEW GRANTED; REMANDED.
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