FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT HAYK BARSEGHYAN, No. 16-72849 Petitioner, Agency No. v. A205-533-215 MERRICK B. GARLAND, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 15, 2022 San Francisco, California Filed July 8, 2022 Before: Sidney R. Thomas, Ronald M. Gould, and Carlos T. Bea, Circuit Judges. Opinion by Judge Gould 2 BARSEGHYAN V. GARLAND SUMMARY * Immigration Granting Hayk Barseghyan’s petition for review of the Board of Immigration Appeals’ dismissal of his appeal of an Immigration Judge’s denial of his application for asylum and related relief, the panel held that three out of four inconsistencies the BIA relied upon in upholding the IJ’s adverse credibility determination were not supported by the record, and remanded on an open record for the BIA to determine in the first instance whether the remaining inconsistency was sufficient to support the adverse credibility determination. The panel agreed with Barseghyan that there was no inconsistency between his testimony and declaration regarding how he arrived at the hospital after being tortured. The panel concluded that Barseghyan’s ability to leave Armenia was also not inconsistent with his testimony that police wanted to see him again and would call him back for further questioning. The panel concluded that the BIA also erred by relying upon a purported inconsistency regarding Barseghyan’s distribution of anti-government drawings because there was in fact no inconsistency, and the IJ did not rely on that ground. Moreover, the BIA did not provide a specific reason for rejecting Barseghyan’s reasonable explanation for it. The panel held that substantial evidence did not support the IJ’s reliance upon insufficient corroborating evidence as * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. BARSEGHYAN V. GARLAND 3 a basis for finding Barseghyan not credible because the IJ categorically ignored documents that were consistent with Barseghyan’s testimony. The panel explained that by ignoring such evidence, the IJ did not consider “the totality of the circumstances” when making the adverse credibility determination. The panel held that the BIA further erred by misinterpreting the IJ’s holding regarding corroborating evidence as relying on 8 U.S.C. § 1158(b)(1)(B)(ii), and by erroneously characterizing the IJ’s holding as concluding that Barseghyan did not provide sufficient corroborating evidence to sustain his burden of proof independent of his own non-credible testimony, when the IJ actually relied upon the lack of documentation as one factor supporting its adverse credibility determination under 8 U.S.C. § 1158(b)(1)(B)(iii). The BIA thus erred by affirming a finding that the IJ did not make. The panel held that the record did support the agency’s finding of an inconsistency concerning whether Barseghyan was arrested at his home or at a police station. Noting that in Alam v. Garland, 11 F.4th 1133 (9th Cir. 2021) (en banc), the en banc court declined to decide how many inconsistencies require sustaining or rejecting …
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Source: All recent Immigration Decisions In All the U.S. Courts of Appeals