Halajanyan v. Holder

FILED
NOT FOR PUBLICATION MAY 26 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HASMIK HALAJANYAN, No. 05-77205
Petitioner, Agency No. A095-875-359
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.
Hasmik Halajanyan, a native and citizen of Armenia, petitions for review of
a Board of Immigration Appeals order summarily affirming an immigration
judge’s denial of her applications for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). The IJ found that
Halajanyan had not testified credibly about her past persecution at the hands of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Armenian authorities. Evaluating the IJ’s decision as we would that of the Board,
Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir. 2004), we conclude that substantial
evidence did not support the IJ’s adverse credibility determination. See Singh v.
Gonzales, 439 F.3d 1100, 1105 (9th Cir. 2006). We therefore grant the petition and
remand for further proceedings.
The IJ identified certain minor inconsistencies in the record, such as the date
of Halajanyan’s son’s arrest and the relative timing of the search of her home.
These discrepancies, which cannot be viewed as attempts to enhance Halajanyan’s
claims of persecution, are too insignificant to support an adverse finding regarding
Halajanyan’s credibility generally. See Singh v. Ashcroft, 362 F.3d 1164, 1171 (9th
Cir. 2004). Halajanyan’s insistence that her son was detained for only one week
suggests that she confused March 17th and February 17th when she recounted the
date of her son’s arrest. Allowing for this mistake, there was no inconsistency in
Halajanyan’s testimony about the length of her son’s detention. Similarly, there
were no inconsistencies—as the IJ thought there were—in Halajanyan’s testimony
about (1) where she was walking when she was hit by a military vehicle, (2) where
on her body officers struck her after her arrest, or (3) the fact that she spoke to her
son on the telephone but did not know where he was at the time. We cannot sustain
an adverse credibility determination based on perceived inconsistencies that the
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record does not support. See Quan v. Gonzales, 428 F.3d 883, 886 (9th Cir. 2005)
(vacating adverse credibility finding where “there was no true inconsistency” in the
record).
The coincidence that various incidents occurred on March 24th of different
years did not give the IJ a “legitimate articulable basis to question [Halajanyan’s]
credibility.” Guo v. Ashcroft, 361 F.3d 1194, 1199 (9th Cir. 2004). Neither did the
IJ “offer a specific, cogent reason,” id., for her finding that Halajanyan’s testimony
about her husband’s whereabouts was “inconsistent and vague.” The IJ did not
specifically identify instances of vague or inconsistent testimony, and Halajanyan
offered plausible responses when questioned about her husband’s location.
To the extent that Halajanyan’s testimony about whether she was in Armenia
or Russia in 1999 conflicts with her son’s asylum application, she was never given
an opportunity to explain the discrepancy. “[U]nclear testimony may not serve as
substantial evidence for an adverse credibility finding when an applicant is not
given the chance to attempt to clarify his or her testimony.” Id. at 1200.
Finally, because “the mere omission of details is insufficient to uphold an
adverse credibility finding,” Bandari v. INS, 227 F.3d 1160, 1167 (9th Cir. 2000),
Halajanyan’s omission of the details of her release from the hospital in her asylum
application cannot support the IJ’s determination that she was not credible. In her
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one-and-a-half page asylum application statement, prepared without the benefit of
counsel, Halajanyan stated that “[a]fter [her] release from the hospital [she]
continued [her] treatment at the clinic.” The statement reveals nothing about the
manner in which she was “release[d]” from the hospital. Halajanyan elaborated on
that point in her testimony before the IJ, describing how she “escape[d]” the
hospital by sneaking out when police monitoring her were not present. The record
confirms that Halajanyan viewed the circumstances of her departure from the
hospital as dispensable details, at least in the context of a one-and-a-half-page
written summary of her entire four-year saga. When asked, “Why didn’t you say
on your statement that you had escaped the hospital?,” Halajanyan replied “I don’t
know[,] maybe I thought [it was] not necessary.” Halajanyan’s written statement is
not fundamentally inconsistent with her oral testimony. The IJ’s scrutiny of the
details Halajanyan elected to omit from this portion of her application
statement—when other details were necessarily omitted throughout this short
written summary of events—cannot support an adverse credibility determination.
We grant the petition for review, vacate the IJ’s credibility finding, and
remand to the agency. Despite the inadequacy of the IJ’s reasons, “we cannot say
that no doubts have been raised” about Halajanyan’s credibility on the record
before us. Hartooni v. INS, 21 F.3d 336, 343 (9th Cir. 1994) (internal quotation
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marks omitted). We therefore remand to the agency to reassess Halajanyan’s
credibility in the first instance and determine her eligibility—if it finds her
credible—for asylum, withholding of removal, and CAT protection. See
Garrovillas v. INS, 156 F.3d 1010, 1017 (9th Cir. 1998).
GRANTED and REMANDED.
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