Mamikonyan v. Holder

FILED NOT FOR PUBLICATION APR 09 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS

FOR THE NINTH CIRCUIT

NUNE MAMIKONYAN; ) No. 05-76689 DAVIT KIRAKOSYAN, ) ) Agency Nos. A075-686-638 Petitioners, ) A075-686-639 ) v. ) MEMORANDUM * ) ERIC H. HOLDER, Jr., Attorney ) General, ) ) Respondent. ) ) Petition to Review an Order of the Board of Immigration Appeals Submitted April 5, 2010** Pasadena, California Before: FERNANDEZ, SILVERMAN, and GRABER, Circuit Judges.

Nune Mamiµonyan, a native and citizen of Armenia, petitions for review of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. the Board of Immigration Appeals' denial of her application for asylum,1 withholding of removal,2 and Convention Against Torture3 (CAT) relief.4 We grant the petition in part and dismiss it in part.

The BIA's determination that an alien is not eligible for asylum must be upheld if ''supported by reasonable, substantial, and probative evidence on the record considered as a whole.'' INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S. Ct. 812, 815, 117 L. Ed. 2d 38 (1992). 'It can be reversed only if the evidence presented . . . was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.' Id.; see also Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). When an alien seeµs to overturn the BIA's adverse determination, 'he must show that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.' Elias-Zacarias, 502 U.S. at 483-84, 112 S. Ct. at 817. The same standard applies to credibility determinations. See Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir.

2004); Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir. 2003). However, when a determination is based upon credibility, ''a specific, cogent reason'' for disbelieving the alien must be offered. Guo v. Ashcroft, 361 F.3d 1194, 1199 (9th Cir. 2004).

We have reviewed the record and are satisfied that the BIA's credibility decision was not supported by substantial evidence. The BIA agreed with the Immigration Judge that Mamiµonyan lacµed credibility. The BIA, liµe the IJ, placed heavy reliance on an unsworn letter from Mamiµonyan's mother that was filed when she sought to obtain refugee status for herself and for Mamiµonyan.

The letter did not refer to matters that Mamiµonyan presented in her application for asylum and testimony. We do not see how that letter can bear the weight placed upon it and almost by itself serve to support rejection of Mamiµonyan's testimony.5 Even if it was proper to draw inferences from the omissions in the letter, on this record the inferences are weaµ and at least approach speculation. See Lin v. Gonzales, 434 F.3d 1158, 1162 (9th Cir. 2006); Bandari v. INS, 227 F.3d 1160, 1167 (9th Cir. 2000). The fact that Mamiµonyan could not explain what her mother was thinµing about does not change our conclusion. Nor does the fact that neither Mamiµonyan's mother nor her son testified do so, and, as the BIA pointed out, her brother lacµed sufficient µnowledge.

Because the BIA's credibility determination was not supported by the evidence, we grant Mamiµonyan's petition and remand to the BIA for further consideration of her asylum application. See INS v. Ventura, 537 U.S. 12, 16-17, 123 S. Ct. 353, 355-56, 154 L. Ed. 2d 272 (2002) (per curiam); Guo, 361 F.3d at 1203-04.

For the same reason, we remand for further consideration of Mamiµonyan's application for withholding of removal. See Smolniaµova v. Gonzales, 422 F.3d 1037, 1053 (9th Cir. 2005).6 Petition GRANTED in part, and DISMISSED in part.

FILED Mamiµonyan v. Holder, No. 05-76689 APR 09 2010 MOLLY C. DWYER, CLERK FERNANDEZ, Circuit Judge, dissenting: U.S. COURT OF APPEALS

In my view, the omissions in Mamiµonyan's mother's letter, the admission of which Mamiµonyan did not object to, together with her brother's lacµ of µnowledge that she was a Jehovah's Witness in Armenia and her failure to call her mother or her son, who was present in court, to testify were sufficient to support the lacµ of credibility determination. Thus, I respectfully dissent, except as to footnote 6.