David Sarkisian v. Jefferson Sessions

NOT FOR PUBLICATION FILED JAN 3 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DAVID SARKISIAN, et al., No. 14-73058 Petitioners, Agency No. A087-603-205 A087-603-206 v. A087-603-207 A087-603-208 JEFFERSON B. SESSIONS III, Attorney General, MEMORANDUM* Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted December 4, 2017 Pasadena, California Before: D.W. NELSON and REINHARDT, Circuit Judges, and STEEH,** District Judge. David Sarkisian, with his wife Armine Aleksanyan and their two children as derivative applicants, petitions for review of the Board of Immigration Appeals’ * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable George Caram Steeh III, United States District Judge for the Eastern District of Michigan, sitting by designation. (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We GRANT the petition for review in part, DENY in part, and REMAND. 1. We reverse the agency’s adverse credibility determination as to Sarkisian. The BIA has provided no “specific and cogent reason[] to support” the determination: specifically, “inconsistent testimony [as] to the number of days that he claims he was held captive" and failure to "identify in his affidavit the prominent politician, Avigdor Lieberman, who he claimed . . . was involved in his kidnapping." Sarkisian's testimony calculating the time he spent in captivity varied, but the dates he provided for his kidnapping and his return covered two nights, which can accurately be described in a number of different ways. At most, Sarkisian's response reflects uncertainty as to the best characterization of a time frame spanning two nights – not an inconsistency. See Lai v. Holder, 773 F.3d 966, 971 (9th Cir. 2014) (contrasting the probative value of omissions with that of "inconsistencies created by direct contradictions in evidence and testimony"). Sarkisian's omission of the name "Avigdor Lieberman" from his asylum application also is not a ground for an adverse credibility determination. "It is well established that ‘the mere omission of details is insufficient to uphold an adverse 2 credibility finding.’" Id. (citations omitted). Sarkisian's asylum application stated, "During this incident [the kidnapping] I heard names of people, whom I believe were behind all of this." Sarkisian testified that he gave Lieberman's name during his asylum interview. While there is no record of this interview, the DHS failed to offer any evidence to the contrary or to dispute this testimony. In the removal proceedings, Sarkisian elaborated: "I heard a few times the name of Lieberman." Finally, Sarkisian's application included articles specifically about Lieberman, which would have served no purpose had he not thought Lieberman had some connection to the kidnapping. While we may question the plausibility of Sarkisian’s account or believe there may have been other grounds on which the IJ or BIA could have made an adverse credibility determination, we are constrained to ...

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