Stepanian v. Holder
Stepanian v. Holder
Opinion of the Court
MEMORANDUM
Mayak Stepanian, a native of Iran and an adherent of the Armenian Christian faith, appeals from the Board of Immigration Appeals’ (“BIA”) affirmance of the Immigration Judge’s (“U”) order denying asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252 and we vacate and remand to the BIA for clarification.
1. We cannot meaningfully review the BIA’s decision because the BIA is unclear as to the standard of review it applies to the IJ’s decision. The BIA first purports to review the IJ’s decision for clear error. In such cases, “we review ... the reasons explicitly identified by the BIA, and then examine the reasoning articulated in the IJ’s oral decision in support of those reasons.” Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008). The BIA also cites Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), however, which suggests that the BIA “adopts the IJ’s decision in its entirety,” Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1232 (9th Cir. 2008) (internal quotation marks omitted), and which means that “we review the IJ’s decision as if it were that of the BIA,” Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir. 2005) (en banc) (internal quotation marks omitted). Here, the BIA fails to mention the singular ground on which the IJ denied the petition — the adverse credibility finding. If the BIA conducted an independent review, because it was “silent on the issue of credibility, despite an IJ’s explicit adverse credibility finding, we may presume that the BIA found the petitioner to be credible.” Krotova v. Gonzales, 416 F.3d 1080, 1084 (9th Cir. 2005). If the BIA adopted the IJ’s decision under Burbano, we would review the IJ’s adverse credibility finding instead. See Abebe, 432 F.3d at 1040. Such inconsistencies prevent adequate appellate review and require clarification.
VACATED AND REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Dissenting Opinion
dissenting:
I respectfully dissent. Although the Board of Immigration Appeals’ (BIA) decision was not a model of clarity, it was clear enough to allow meaningful review by this court. I am not particularly troubled by the BIA’s prefatory reference to the clear error standard of review. Indeed, that very reference answers one of the criticisms articulated by the majority — that the BIA failed to mention the Immigration Judge’s (IJ) adverse credibility determination. The BIA’s citation to 8 C.F.R. § 1003.1(d)(3) (providing that the Board views credibility finding for clear error) and Matter of A-S, 21 I. & N. Dec. 1106, 1109 (BIA 1998) (same) is an obvious reference to the standard the BIA applies when it reviews the IJ’s adverse credibility determination. Unlike the majority, I see nothing inappropriate in the BIA articulating the standard of review, determining that the standard has been satisfied and adopting the IJ’s decision.
The majority disposition also mentions the erroneous listing of Armenia as the country of removal and mistaken citation to the Uganda Country Report. However, the Petitioner did not rely on the erroneous listing of Armenia as the country of removal as a basis for relief. Moreover, in addressing the country report citation, Petitioner merely argued that “[i]f the BIA actually considered the Uganda country report” it erred. (Emphases added). But we know that the BIA did not actually consider the Uganda report because the exhibit referenced by the BIA corresponded to the Iran Country Report in the record.
In this case, the IJ’s adverse credibility determination rested on the discrepancy about whether the Petitioner was hit in the face or in the stomach. Because this discrepancy goes to the heart of the Petitioner’s claim, it supports the adverse credibility determination. See Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008) (holding that substantial evidence supports an adverse credibility determination when there is an inconsistency “concern[ing] events central to his version of why he was persecuted and fled” Iran) (citation omitted).
For these reasons, I would deny the petition.
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