Karaman Kevlishvili v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION
NOV 17 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KARAMAN KEVLISHVILI; NAZO No. 12-72801
KEVLISHVILI,
Agency Nos. A097-881-464
Petitioners, A097-881-465
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 4, 2015
Pasadena, California
Before: W. FLETCHER and GOULD, Circuit Judges and CHRISTENSEN,** Chief
District Judge.
Petitioners Karaman Kevlishvili (Kevlishvili) and his wife Nazo Kevlishvili
petition for review of a final order of the Board of Immigration Appeals (BIA)
dismissing their appeal from an immigration judge’s (IJ) decision finding them
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Dana L. Christensen, Chief District Judge for the U.S.
District Court for the District of Montana, sitting by designation.
removable from the United States, denying their application for asylum and
withholding of removal, and denying their claim for relief under the Convention
Against Torture. We grant the petition and remand to the BIA for further
proceedings.
Because Kevlishvili filed the asylum application before May 11, 2005, we
review this case under pre-REAL ID Act case law. See Sinha v. Holder, 564 F.3d
1015, 1021 & n.3 (9th Cir. 2009). We review the adverse credibility determination
for substantial evidence. Gui v. I.N.S., 280 F.3d 1217, 1225 (9th Cir. 2002). The
BIA adopted several of the IJ’s reasons for finding Kevlishvili not credible. In
each instance, the BIA relied on alleged inconsistencies between a “narrative
statement” accompanying Kevlishvili’s application and his testimony. We find
that the BIA’s adverse credibility determination is not supported by substantial
evidence. We address each of the BIA’s reasons for its determination in turn.
1. Kevlishvili’s narrative statement says that he and “two employees . . .
were beaten” by Georgian police in his office, but he testified that police beat him,
his assistant, and a “tractor driver.” The BIA erroneously concluded that these two
statements are inconsistent. Kevlishvili did not offer testimony about his
assistant’s or the tractor driver’s employment status; instead, he identified them by
their professional roles. The statement that the third person in his office was a
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“tractor driver” does not indicate that the driver was not Kevlishvili’s employee.
Kevlishvili was farming on leased land, and it was entirely plausible that he
employed a person who drove a tractor on the farm.
2. Kevlishvili’s narrative statement says that he complained to the police
about the aforementioned incident, but the police failed to address it. He testified
that the police forced him to retract his complaint. The BIA erroneously concluded
that his narrative statement and his testimony are inconsistent. Kevlishvili’s story
was consistent; he was persecuted by Georgian police for his political beliefs, he
complained to the authorities, and the authorities did nothing to prevent his future
persecution.
3. Kevlishvili’s narrative statement states that at a political rally held in
March 2003, “V. Rcheumeshvili, Mindeli and other members of our party made
speeches. Among the speakers was my son, Alexander.” He testified that he also
gave a speech. The BIA erroneously concluded that these statements are
inconsistent. Kevlishvili’s narrative statement does not say that the speakers
mentioned by name were the only speakers, and it does not say that he did not
make a speech. Indeed, the narrative statement says that “other members of our
party made speeches.” Kevlishvili was not inconsistent about who spoke at the
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political rally, and “the mere omission of details is insufficient to uphold an
adverse credibility finding.” Bandari v. INS, 227 F.3d 1160, 1167 (9th Cir. 2000).
4. Kevlishvili’s narrative statement says that in May 2003, police arrested
“a few active members of our party, including my son, Alexander, and some
peaceful village residents.” Kevlishvili testified that the police “arrested
approximately between 40, 50, more like 40 people.” When asked to elaborate,
Kevlishvili explained that 40 people were arrested and then released, but a few
people were detained. The BIA erroneously concluded that these statements are
inconsistent. Kevlishvili’s assertion that 40 people were arrested is consistent with
his statement that a few members of his party were arrested along with “some
peaceful village residents.” Moreover, Kevlishvili’s interchangeable use of the
words “detain” and “arrest” suggests at most that he uses those words differently
from a trained American lawyer. It does not suggest that his story changed.
5. According to Kevlishvili, his son was killed in May 2003. The details of
how his son’s body was found and where Kevlishvili first saw the body were
unclear from his narrative statement. When asked to elaborate, Kevlishvili
explained that a passerby found his son’s body along the bank of a river and that
Kevlishvili first saw the body at the morgue. In the hearing, the IJ found this
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explanation convincing. Accordingly, to the extent the adverse credibility finding
was based on this incident, it is not supported by substantial evidence.
We find that the adverse credibility finding is not supported by substantial
evidence and that Kevlishvili is credible. The IJ explained in his decision that,
were it not for his adverse credibility finding, he would find that Kevlishvili had
shown that he and Nazo had suffered past persecution. Accordingly, we hold that
Kevlishvili has shown that he and Nazo have suffered past persecution.
However, the IJ found that the presumption of a well-founded fear of future
harm had been rebutted for two reasons. First, the IJ found that Kevlishvili could
safely return to Georgia because he could choose to live in a different area of the
country from his previous home. Second, the IJ found that Georgia’s political
conditions have changed since the Kevlishvilis’ departure and that they no longer
have to fear the regime of former President Shevardnadze. Since the BIA did not
address these alternative findings, we remand for further consideration by the BIA.
PETITION GRANTED AND REMANDED.
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