Gayane Martirosyan v. WILLIAM P. BARR, Attorney General

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GAYANE MARTIROSYAN,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 17-70919
Agency No. A206-267-383
ORDER
Before: McKEOWN, W. FLETCHER, and MURGUIA, Circuit Judges.
The Memorandum Disposition, filed on March 20, 2019, and reported at 765
Fed.Appx. 196 (9th Cir. 2019), is amended as follows:
At 765 F. App’x at 197, the subsection heading and the first full paragraph
beginning with <When we review> and ending with <Bhattarai, 835 F.3d at
1043.> are deleted. A citation to Soto-Olarte v. Holder, 555 F.3d 1089, 1094 (9th
Cir. 2009) is added to the next paragraph.
At 765 F. App’x at 197–98, the sentences beginning with <Both her oral>
and ending with <the declaration.> are amended to read as follows: “Both her oral
testimony and her written declaration compel a conclusion that two officers were
present. Further, Martirosyan adequately explained any possible inconsistency as
due to translation error.”
FILED
JUL 29 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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At 765 F. App’x at 198, the subsection heading and the first full paragraph
beginning with <An applicant for asylum> and ending with <Ren, 648 F.3d at
1090–93.> are deleted. The second full paragraph beginning with <Here, the IJ>
and ending with <Sidhu v. INS, 220 F.3d 1085, 1091 (9th Cir. 2000).> is deleted
and replaced with the following sentence: “Third, the record compels the
conclusion that the corroborating evidence requested by the IJ was reasonably
unavailable and duplicative, so the failure to produce that evidence could not
support an adverse credibility finding.”
The following paragraph is added:
“[I]t is apparent” from this record “that the IJ and BIA have listed all possible
reasons to support an adverse credibility determination, and they are
inadequate in law or not supported by substantial evidence.” Soto-Olarte, 555
F.3d at 1095. In other words, “it is evident that the IJ and BIA have both
strained to provide reasons properly supporting an adverse credibility finding,
but despite their best efforts have been unable to do so.” Id. at 1094–95.
Accordingly, we deem Martirosyan credible on remand.
Lastly, <hold that she was credible> in the final sentence is amended to
<deem her credible>.
A clean copy of the amended memorandum disposition is attached to this
order.
With these amendments, Judges McKeown, W. Fletcher, and Murguia have
voted to deny the petition for panel rehearing (Dkt. No. 38). The petition for
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rehearing is DENIED. No further petitions for rehearing or rehearing en banc may
be filed.
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GAYANE MARTIROSYAN,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 17-70919
Agency No. A206-267-383
AMENDED MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 12, 2019
San Francisco, California
Before: McKEOWN, W. FLETCHER, and MURGUIA, Circuit Judges.
Gayane Martirosyan petitions for review of the Board of Immigration
Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of her
application for asylum, withholding of removal, and protection under the
Convention Against Torture. The BIA upheld the IJ’s adverse credibility
FILED
JUL 29 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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determination based on what it found to be evasive and unresponsive testimony
regarding the organization bylaws and the photographs she submitted with her
application, a supposed inconsistency in the record regarding the number of police
officers present, and a failure to provide sufficient corroborating evidence. We
have jurisdiction under 8 U.S.C. § 1252. We grant the petition and remand for
further proceedings.
We review factual findings, including adverse credibility determinations and
determinations regarding the availability of corroborating evidence, for substantial
evidence. Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014); see 8 U.S.C.
§ 1252(b)(4). We will uphold factual findings “unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B);
Bhattarai v. Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016) (quoting Garcia, 749 F.3d
at 789). Because Martirosyan filed her application after May 11, 2005, we apply
the credibility and corroboration standards set forth in the REAL ID Act.
We hold that the BIA’s adverse credibility determination is not supported by
substantial evidence, reverse the determination, and deem Martirosyan’s testimony
credible. See Ren v. Holder, 648 F.3d 1079, 1089 (9th Cir. 2011); Soto-Olarte v.
Holder, 555 F.3d 1089, 1094 (9th Cir. 2009). First, substantial evidence does not
support the agency’s finding that Martirosyan was unresponsive and evasive
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regarding the photographs she submitted with her application and regarding her
testimony about the organization bylaws. Martirosyan provided responsive,
detailed, and consistent testimony throughout the two days of hearings, and the IJ’s
findings to the contrary lack a basis in the record.
Second, substantial evidence does not support the agency’s finding that
Martirosyan’s oral testimony that two police officers were present in the basement
was inconsistent with her translated written declaration, which implied through use
of the English word “another” that three officers were involved. Both her oral
testimony and her written declaration compel a conclusion that two officers were
present. Further, Martirosyan adequately explained any possible inconsistency as
due to translation error.
Third, the record compels the conclusion that the corroborating evidence
requested by the IJ was reasonably unavailable and duplicative, so the failure to
produce that evidence could not support an adverse credibility finding.
“[I]t is apparent” from this record “that the IJ and BIA have listed all
possible reasons to support an adverse credibility determination, and they are
inadequate in law or not supported by substantial evidence.” Soto-Olarte, 555 F.3d
at 1095. In other words, “it is evident that the IJ and BIA have both strained to
provide reasons properly supporting an adverse credibility finding, but despite
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their best efforts have been unable to do so.” Id. at 1094–95. Accordingly, we
deem Martirosyan credible on remand.
We grant Martirosyan’s petition, deem her credible, and remand to the BIA
to determine whether Martirosyan is eligible for asylum, withholding of removal,
and protection under the Convention Against Torture. See INS v. Ventura, 537
U.S. 12 (2002) (per curiam).
PETITION GRANTED AND REMANDED.
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