Harutyunyan v. Sessions

MEMORANDUM ^**

Laura Harutyunyan and her son, Ed-vard Harutyunyan, natives of the former Soviet Union and citizens of Armenia, petition for review of the Board of Immigration Appeals’ (“BIA”) decision upholding the Immigration Judge’s (“IJ”) denial of their consolidated applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition and remand for further proceedings.

1. The BIA affirmed the IJ’s finding that Petitioners’ testimony was not credible and, accordingly, upheld the IJ’s determination that Petitioners had not met their burden of proving eligibility for asylum, withholding of removal, or CAT protection. If lack of corroboration is one of the stated bases for the IJ or BIA’s adverse credibility determination, as it was in this case, we first consider only the reasons for that determination that were unrelated to corroboration issues and evaluate whether the adverse credibility finding is supported by substantial evidence. See Bhattarai v. Lynch, 835 F.3d 1037, 1043 (9th Cir. 2016). If the adverse credibility finding is not supported by substantial evidence without taking corroboration issues into account, we must evaluate whether the IJ “provide[d] the applicant notice of the specific corroborative evidence that was required and an opportunity to provide it or explain why he [could not] reasonably obtain it.” Id. at 1043. If not, we remand “for the IJ to give the applicant that opportunity.” Id. at 1043-44; see also Lai v. Holder, 773 F.3d 966, 975-76 (9th Cir. 2014), as amended (same); Zhi v. Holder, 751 F.3d 1088, 1094 (9th Cir. 2014) (same).

2. In this case, the BIA identified three non-corroboration-related grounds for affirming the IJ’s adverse credibility determination: (1) one purported inconsistency between Laura and Edvard’s testimony regarding the number of times Edvard was beaten; (2) one purported inconsistency between Laura’s testimony that she was fired in retaliation for her political activities and her written employment records, which indicate that she voluntarily resigned; and (3) the submission of a counterfeit birth certificate for Edvard.

The first inconsistency is “not a proper basis for an adverse credibility determination” because Petitioners were not given an opportunity to explain the discrepancy. Bhattarai, 835 F.3d at 1045; see also Soto-Olarte v. Holder, 555 F.3d 1089, 1092 (9th Cir. 2009) (same). The second inconsistency similarly cannot support an adverse credibility finding because the IJ did not explain why she rejected Laura’s justification for that discrepancy.¹ See Soto-Olarte, 555 F.3d at 1091; see also Guo v. Ashcroft, 361 F.3d 1194, 1201 (9th Cir. 2004) (same). The third ground—Edvard’s counterfeit birth certificate—cannot support an adverse credibility finding because there was no evidence or finding by the IJ that Petitioners knew or should have known the document was counterfeit.² See Yeimane-Berhe v. Ashcroft, 393 F.3d 907, 911-12 (9th Cir. 2004). Given that the counterfeit birth certificate does not weigh against Petitioners’ credibility and the other inconsistencies identified by the IJ and BIA were procedurally defective, a reasonable factfinder considering only the non-corroboration grounds would be compelled to conclude that the adverse credibility determination was not supported by substantial evidence. See id. at 912.

3. The only remaining basis to support the IJ and BIA’s adverse credibility determination is the lack of corroboration for certain aspects of Laura and Edvard’s testimony. But the IJ did not give Petitioners notice or an opportunity to present corroborative evidence on any of those points before denying relief. Because Petitioners were not given an opportunity to corroborate those aspects of their testimony or explain why they could not, we reverse and remand for the IJ to provide them with that opportunity. See Bhattarai, 835 F.3d at 1046-47.

PETITION FOR REVIEW GRANTED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1 . To the extent the IJ and BIA also treated this discrepancy as a corroboration issue, as explained infra, Laura was not told she needed to support her explanation with corroborative evidence or given an opportunity to provide such evidence.

2 . Nor did the IJ explain how a single document of questionable authenticity discredited Edvard’s testimony in light of the ample documentary and DNA evidence corroborating his identity and his relationship to Laura.