Anna Shahinyan v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION MAY 17 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANNA SHAHINYAN; KARO No. 08-74379
HAIRAPETYAN; SUZAN
HAIRAPETYAN, Agency Nos. A078-650-659
A078-650-660
Petitioners, A078-650-661
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 8, 2013
Pasadena, California
Before: O’SCANNLAIN, PAEZ, and IKUTA, Circuit Judges.
Petitioner Anna Shahinyan petitions for review of the Board of Immigration
Appeals (“BIA”)’s order affirming the Immigration Judge (“IJ”)’s decision
denying her application for asylum and withholding of removal. The IJ found that
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Shahinyan had not established her identity or the identities of her children.1 He
concluded that without proof of their identities, he could not make a credibility
determination or adjudicate Shahinyan’s claims; he therefore denied her
application. The BIA affirmed on the grounds that Shahinyan had failed to present
objective evidence of her and her children’s identities or an inability to obtain
authenticated copies of their birth certificates. We have jurisdiction under 8 U.S.C.
§ 1252. We grant the petition and remand to the BIA for further proceedings on an
open record.
1. The IJ acted contrary to this court’s decision in Kalouma v. Gonzales, 512
F.3d 1073 (9th Cir. 2008). In Kalouma, we held that an alien does not have a
heightened burden to establish identity; thus, he can prove identity—like any other
element of an asylum claim—through credible testimony alone. Id. at 1078-79.
Here, however, the IJ declined to make an adverse credibility determination or
adjudicate Shahinyan’s claims because he believed that he could not do so without
non-testimonial proof of identity. This was legal error, and the BIA failed to
correct the error.
1
Petitioners Karo and Suzan Hairapetyan are the children of Anna
Shahinyan and are therefore derivative beneficiaries of her asylum application.
2
2. The BIA also erred in concluding that Shahinyan failed to establish her
identity and the identities of her children because she did not submit “objective
evidence” of their identities. Under this circuit’s pre-REAL ID Act case law, the
BIA cannot require corroborating evidence from a petitioner about whom the IJ has
not made an adverse credibility determination. Singh v. Gonzales, 491 F.3d 1019,
1024 (9th Cir. 2007), superseded by statute, REAL ID Act of 2005, Pub. L. No.
109-13, § 101(h)(2), 119 Stat. 231, 305, as recognized in Singh v. Holder, 602 F.3d
982 (9th Cir. 2010); Kataria v. I.N.S., 232 F.3d 1113-14 (9th Cir. 2000). Since the
IJ did not make an adverse credibility determination in this case, the BIA had two
options: it could have remanded to the IJ for a proper credibility determination, or
it could have accepted Shahinyan’s testimony as true. In the pre-REAL ID Act
context, however, it was error for the BIA to require corroborating evidence of
identity in the absence of an adverse credibility determination.
PETITION GRANTED AND REMANDED.
3
4
FILED
Shahinyan v. Holder, No. 08-74379 MAY 17 2013
Ikuta, J., with whom O’Scannlain, J., joins, concurring
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
Today the court applies circuit precedent that is contrary to the applicable
regulation, contrary to the BIA’s longstanding interpretation of that regulation, and
contrary to the decisions of our sister circuits. Bound by that precedent—at least
for now—I reluctantly concur.
With respect to pre-REAL ID Act cases, we have held that petitioners can
carry their burden of proving eligibility for relief based on their testimony alone,
and immigration judges cannot require any corroboration of that testimony unless
they first find that the petitioner is not credible. See Tijani v. Holder, 628 F.3d
1071, 1080 (9th Cir. 2010).
This precedent is plainly contrary to text of the applicable regulation, which
merely permits an immigration judge to rely on credible testimony. 8 C.F.R.
§ 208.13(a) (“The testimony of the applicant, if credible, may be sufficient to
sustain the burden of proof without corroboration.” (emphasis added)). More
important, the rule is contrary to the BIA’s own longstanding interpretation of 8
C.F.R. § 208.13(a). In re S-M-J, 21 I. & N. Dec. 722, 724, 729 (BIA 1997)
(holding that, under § 208.13(a), an immigration judge may find that an applicant
is credible, but still determine that the applicant failed to carry her burden of proof
in the absence of evidence supporting her claim). Unsurprisingly, our contrary
interpretation has been rejected by our sister circuits. See, e.g., Soeung v. Holder,
677 F.3d 484, 488 (1st Cir. 2012); Diallo v. INS, 232 F.3d 279, 286 (2d Cir. 2000);
Chukwu v. Att’y General, 484 F.3d 185, 191–92 (3d Cir. 2007); Yang v. Holder,
664 F.3d 580, 585 (5th Cir. 2011); Dorosh v. Ashcroft, 398 F.3d 379, 382 (6th Cir.
2004); El-Sheikh v. Ashcroft, 388 F.3d 643, 647 (8th Cir. 2004); cf. Abovian v. INS,
257 F.3d 971, 973 (9th Cir. 2001) (Kozinski, J., dissenting from denial of rehearing
en banc) (noting that our rule requiring corroboration “has no support in the
immigration laws and pushes our court even further adrift from the law of other
circuits”).
“Thankfully, relief is on its way,” Jibril v. Gonzales, 423 F.3d 1129, 1138
n.1 (9th Cir. 2005), this time in the form of National Cable & Telecommunications
Association v. Brand X Internet Services, 545 U.S. 967 (2005). In Brand X, the
Supreme Court held that an agency’s reasonable interpretation of a statute,
provided the interpretation is otherwise entitled to deference, trumps a prior
judicial construction of the same statute. Id. at 983. “Only a judicial precedent
holding that the statute unambiguously forecloses the agency’s interpretation, and
therefore contains no gap for the agency to fill, displaces a conflicting agency
construction.” Id. at 982–83. Though Brand X addresses the deference owed to
agencies’ statutory interpretations, there is “no reason why these principles should
not apply equally to the interpretation of a regulation.” Levy v. Sterling Holding
Co., LLC, 544 F.3d 493, 502 (3d Cir. 2008); see also In re Lovin, 652 F.3d 1349,
1354 (Fed. Cir. 2011) (same).
We have never held that an immigration statute or regulation compels our
rule precluding immigration judges from requiring corroborating evidence absent
an adverse credibility determination. See, e.g., Ladha v. INS, 215 F.3d 889, 899
(9th Cir. 2000) (noting that our precedent does not even allow us to consider
whether § 208.13 is a permissible interpretation of the INA), overruled in part on
other grounds by Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en
banc). Accordingly, the BIA is free to provide an authoritative construction of 8
C.F.R. § 208.13(a). If it does so, we will have to reassess the continued validity of
our contrary precedent as required by Brand X, 545 U.S. at 982–84. But because
the government has not yet pointed to any such construction, our precedent
remains binding—for now—and I concur in the court’s disposition.