Rykova v. Gonzales
Rykova v. Gonzales
Opinion of the Court
MEMORANDUM
Irina Andreevna Rykova, a native and citizen of Belarus, petitions for review of a decision of the Board of Immigration Appeals (“BIA”), which affirmed the Immigration Judge’s (“IJ”) denial of her application for asylum and withholding of removal on the ground that she lacked credibility. We grant the petition for review, vacate the BIA’s decision, and remand for further proceedings.
We have jurisdiction to review Rykova’s challenge to the adverse credibility finding notwithstanding the lack of specificity in her notice of appeal to the BIA. See 8 C.F.R. § 1003.3(b). Her appeal challenged by implication the adverse credibility finding upon which the IJ’s decision was based. See Aguilera-Cota v. INS, 914 F.2d 1375, 1383 n. 8 (9th Cir. 1990). Moreover, the BIA affirmed the IJ’s credibility findings. See Salaam v. INS, 229 F.3d 1234, 1238 (9th Cir. 2000) (treating BIA’s comments on “implausibility” of testimony as an adverse credibility finding). Thus Rykova has exhausted her administrative remedies, and we have jurisdiction to review her petition. See Sagermark v. INS, 767 F.2d 645, 648 (9th Cir. 1985) (describing the purposes of the administrative exhaustion requirement).
We conclude that the BIA erred in upholding the IJ’s adverse credibility finding.
Although the BIA ruled that Rykova had not sustained her burden of proof, that ruling was not explained by anything other than the adverse credibility finding. The BIA’s decision did not address the question whether, if Rykova’s testimony were credited, she would be eligible for asylum or withholding of removal. It is not appropriate for us to decide this issue when the BIA did not. See INS v. Ventura, 537 U.S. 12, 17-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam). We therefore grant the petition for review, vacate the BIA’s decision, and remand with instructions that the BIA accept Rykova’s testimony as credible and on that basis determine whether she is eligible for asylum or withholding of removal, and whether asylum is to be granted as an exercise of discretion. See Singh v. Ashcroft, 362 F.3d 1164, 1172 (9th Cir. 2004) (amended opinion).
PETITION GRANTED; VACATED AND REMANDED WITH INSTRUCTIONS.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
. We review for substantial evidence the fac
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