Kallas v. Holder
Kallas v. Holder
Opinion of the Court
MEMORANDUM
Petitioners Denis Kallas (“Denis”), his wife Yaroslavna Kallas (‘Yaroslavna”), and
We have jurisdiction under 8 U.S.C. § 1252. We conclude that the IJ’s adverse credibility determinations were not supported by substantial evidence, and that the evidence compels a contrary conclusion. We therefore grant the petition and remand to the BIA for further proceedings.
We address each of the IJ’s reasons for his adverse credibility determination:
Denis Kallas
1. The IJ accused Denis of making inconsistent statements; this is not supported by the record. For instance, there is no inconsistency between Denis’s written declaration that he was detained for 3 days, and his oral testimony that he was taken out of his cell “in the third day.” Nor is there any inconsistency between Denis’s written declaration that a “small crowd” gathered at the demonstration in Kiev, and his oral testimony that “many people” participated in the demonstration.
2. The IJ made speculative assertions about how Denis should have behaved. For instance, he speculated that Denis would not have left his wife and child in Ukraine if they had really been attacked by UNA-UNSO. Speculation about how people would behave in a given situation cannot support an adverse credibility determination. See, e.g., Zhou v. Gonzales, 437 F.3d 860, 865 (9th Cir. 2006); Kumar v. Gonzales, 444 F.3d 1043, 1050-53 (9th Cir. 2006).
Yaroslavna Kallas
1. The IJ rested on several incorrect factual determinations. For instance, the IJ stated that Yaroslavna claimed that she needed only 7 days of bed rest following the UNA-UNSO attack. Yaroslavna specifically testified that she stayed in bed for 14 days. Likewise, Yaroslavna never claimed that the administration of her school approved the students’ protest. Rather, she testified that “they didn’t allow us to stage that meeting inside, so it was outside on the street.” The IJ’s factual assertions are not supported by the record.
2. The IJ accused Yaroslavna of making inconsistent statements; this is not supported by the record. For instance, there is no inconsistency between Yaros-lavna’s contention that she was hit with a police baton, and her testimony that “I didn’t really suffer physically.”
3. Contrary to our case law, the IJ found Yaroslavna’s testimony that she was raped by her jailers implausible because she did not seek medical treatment. A victim of sexual assault does not automatically compromise her credibility by failing to report the assault at the first opportunity. Kebede v. Ashcroft, 366 F.3d 808, 811 (9th Cir. 2004). This logically includes failure to seek medical treatment.
Notwithstanding the high degree of deference afforded to the IJ’s credibility determination, the IJ must provide “‘a
We therefore remand this matter to the BIA under INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002). See also He v. Ashcroft, 328 F.3d 593 (9th Cir. 2003). Because it is “apparent from the record before us 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 v. Holder, 555 F.3d 1089, 1095 (9th Cir. 2009), on remand the BIA shall credit Petitioners’ testimony as true and proceed to determine whether they are entitled to relief from removal. In light of our disposition, we need not address Petitioners’ due process claims.
PETITION FOR REVIEW GRANTED IN PART AND REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided
Case-law data current through December 31, 2025. Source: CourtListener bulk data.