Sharikyan v. Holder

FILED
NOT FOR PUBLICATION MAY 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARIAM SHARIKYAN, No. 05-76879
Petitioner, Agency No. A079-542-392
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.
Mariam Sharikyan appeals the Board of Immigration Appeals (“BIA’s”)
decision affirming the Immigration Judge’s (“IJ’s”) adverse credibility finding.
We agree with Sharikyan that the IJ’s adverse credibility finding was not supported
by substantial evidence. The IJ also concluded, however, that even if Sharikyan’s
testimony was deemed credible, she still would not qualify for asylum because her
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
personal circumstances had changed to the degree that she no longer had an
objectively well-founded fear of future persecution. We grant the petition and
remand to allow the BIA to address whether, accepting Sharikyan’s testimony as
credible, Sharikyan is entitled to relief.1
I
“We review the BIA’s findings of fact, including credibility findings, for
substantial evidence and must uphold the BIA’s finding unless the evidence
compels a contrary result.” Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.
2003). “Substantial evidence is more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Id. (quotation marks omitted). Because Sharikyan filed her asylum application
before May 5, 2005, the IJ “must provide specific, cogent reasons to support his
[adverse credibility] determination which cannot be peripheral, but rather must go
1
At oral argument, Sharikyan’s counsel stated that one of its claims on
appeal was that the BIA had ignored Sharikyan’s argument that her original
counsel provided ineffective assistance. Sharikyan did not present this claim in her
final brief before the BIA or in her opening brief before this court. Accordingly,
Sharikyan has forfeited her ineffective assistance of counsel claim and we decline
to address it. See Martin v. City of Oceanside, 360 F.3d 1078, 1081 (9th Cir. 2004)
(explaining that a party “forfeit[s] review of [a] claim . . . [if] the issue is not
specifically and distinctly argued in h[er] opening brief.” (quotation marks
omitted)).
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to the heart of petitioner’s claim.” Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.
2007) (quotation marks and alterations omitted).
Most of the bases on which the IJ rested its adverse credibility finding are
the kind of “minor inconsistencies” that “cannot support an adverse credibility
determination.” Kaur v. Gonzales, 418 F.3d 1061, 1064 (9th Cir. 2005).
Purported inconsistencies that fall into this category include: whether Sharikyan’s
son was tied to a chair or to a stool when he was beaten; the location of the son’s
scar; whether the son’s wife miscarried or showed signs of miscarrying before
delivering; and whether Sharikyan wrote a letter to the National Assembly.2
The IJ’s other reasons for finding Sharikyan incredible fare no better as they
either do not reflect true inconsistencies or do not go to the heart of Sharikyan’s
claim. Don, 476 F.3d at 741. First, the IJ noted that Sharikyan could not
remember the date of her son’s marriage. It is true that when asked when her son
was married, Sharikyan initially answered, “it was in 1999.” She soon corrected
herself to say “year 2000,” however, and she continually insisted that the marriage
2
The Government makes much of the contradiction between Sharikyan’s
written declaration that she and her son had “forwarded a written complaint to the
National Assembly,” and her oral testimony that she had never written anything to
the National Assembly. The record indicates, however, that Sharikyan adequately
explained the discrepancy when she told the judge that they had “done a mistake,”
and that it was actually her son who had written to the National Assembly. The
son verified this account in his own testimony.
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occurred on July 29. That her son was married in late July of 2000 is consistent
with Sharikyan’s testimony that she was attacked while her son was on his
honeymoon in August 2000. A quickly corrected mistake as to the year of a
marriage is the kind of “minor discrepanc[y] in [a] date[]” that “ha[s] no bearing on
credibility.” Kaur, 418 F.3d at 1064.
Second, the IJ pointed to Sharikyan’s son’s initial testimony that he had
“gone to [indiscernible] affairs of goods,” and not his honeymoon, when his
mother was beaten. As with the previous testimony, Sharikyan’s son immediately
corrected himself on this point and repeatedly reaffirmed that he was actually in
Savon on his honeymoon at the time of the attack. Because the son testified that he
was on his honeymoon at the time of the attack on Sharikyan, there is no
inconsistency between his testimony and that of his mother.
Finally, the IJ noted that Sharikyan testified that her son was unconscious
after being beaten and that she needed help bringing him home, while her son
testified that he was “sort of conscious” after the beating and that his mother
brought him back home alone. The son testified that “[a]ll morning I had lost my
consciousness because I had been in that condition in four hours in blood,” and
when asked whether he was conscious, he said, “[i]t can be said that way.” His
testimony that he was barely conscious and that his mother was alone does not
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significantly undermine Sharikyan’s testimony that she called her husband for help
and that they tried to “wake him up.” In any event, this alleged inconsistency does
not go to the heart of Sharikyan’s claim. In sum, because the IJ’s adverse
credibility finding is not supported by substantial evidence, “we . . . accept
[Sharikyan’s] testimony as credible” and grant her petition for review. Kaur v.
Ashcroft, 379 F.3d 876, 890 (9th Cir. 2004).
II
The IJ also held, in the alternative, that Sharikyan did not qualify for asylum
because, even if her testimony was credible, “the reasons for [her] persecution no
longer existed.” A petitioner’s credible testimony regarding past persecution
creates a presumption that the petitioner has a well-founded fear of future
persecution. See Yazitchian v. INS, 207 F.3d 1164, 1168 (9th Cir. 2000). “[I]n the
exercise of his or her discretion,” however, the IJ “shall deny the asylum
application” if the government establishes “by a preponderance of the evidence”
that “[t]here has been a fundamental change in circumstances such that the
applicant no longer has a well-founded fear of persecution . . . .” 8 C.F.R. §
208.13(b)(1). The BIA has interpreted this regulation to include a “fundamental
change” in both personal and country-specific circumstances. In re Y-T-L, 23 I. &
N. Dec. 601, 604–05 (BIA 2003) (en banc).
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Here, the government has provided some evidence that Sharikyan’s personal
circumstances have changed. However, we are uncertain as to whether the BIA
addressed this point in its decision. Although in its most recent decision the BIA
“adopted and affirmed” the IJ’s decision, citing to Matter of Burbano, 20 I&N Dec.
872, 874 (BIA 1994), neither in that decision nor in any of the prior two decisions
did the BIA make any reference to changed circumstances as an alternative basis
for its decision. It is therefore not clear to us that the BIA adopted that portion of
the IJ's decision, particularly since if it had, the prior remands to clarify the basis
for the IJ's adverse credibility determination might not have been necessary. On
remand, the BIA should determine whether, accepting Sharikyan’s testimony as
credible, Sharikyan is eligible for relief. See, e.g., Singh v. Gonzales, 439 F.3d
1100, 1112 (9th Cir. 2006).
GRANTED and REMANDED.
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