Perekhanov v. Holder , 446 F. App'x 60 ( 2011 )

FILED
NOT FOR PUBLICATION JUL 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUDOLF PEREKHANOV, No. 07-72935
Petitioner, Agency No. A097-356-386
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 5, 2011
Pasadena, California
Before: PREGERSON, FISHER, and BERZON, Circuit Judges.
Rudolf Perekhanov (“Perekhanov”), a native and citizen of Georgia,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an immigration judge’s (“IJ”) decision denying his
application for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
§ 1252. We grant the petition for review in part and remand to the agency for
further proceedings.
Credibility determinations are reviewed under the substantial evidence
standard.1 Kin v. Holder, 595 F.3d 1050, 1054 (9th Cir. 2010). “Our review is
limited to the actual grounds relied upon by the BIA.” Ramirez-Altamirano v.
Holder, 563 F.3d 800, 804 (9th Cir. 2009). We conclude that substantial evidence
does not support the BIA’s adverse credibility determination.
First, the BIA’s conclusion that Perekhanov “changed” his testimony about
the extent of the injuries he suffered during the January 16, 1991, home invasion is
unsupported by the record. Perekhanov’s testimony was in no way inconsistent.
He merely answered the specific questions asked of him and provided additional
information in response to additional questioning. See Kaur v. Ashcroft, 379 F.3d
876, 887 (9th Cir. 2004) (“[A] general response to questioning, followed by a more
specific, consistent response to further questioning is not a cogent reason for
supporting a negative credibility finding.”).
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We apply pre-REAL ID Act standards because Perekhanov filed his
application for asylum on October 1, 2003, prior to May 11, 2005, the effective
date of the REAL ID Act. See Sinha v. Holder, 564 F.3d 1015, 1021 n.3 (9th Cir.
2009).
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Second, the BIA’s adverse credibility determination based on an
inconsistency between Perekhanov’s testimony and statements in the “Assessment
to Grant” in his mother’s asylum file is improper. The “Assessment to Grant” is
the asylum officer’s one-page summary of Perekhanov’s mother’s interview. It
does not indicate how translation was conducted during her asylum interview, or
that the asylum officer took her testimony under oath. Additionally, neither
Perekhanov nor his mother were ever asked whether the asylum officer’s
summation of the interview was accurate. Accordingly, the “Assessment to Grant”
in Perekhanov’s mother’s asylum file does not contain sufficient indicia of
reliability to support an adverse credibility finding. See Singh v. Gonzales, 403
F.3d 1081, 1087-90 (9th Cir. 2005) (explaining that, because of the informal nature
of the asylum interview, discrepancies between the asylum officer’s assessment
and an applicant’s testimony before the IJ, without more, is not substantial
evidence supporting an adverse credibility determination). Moreover, Perekhanov
was never given an opportunity to explain the alleged inconsistency between his
testimony and the “Assessment to Grant” in his mother’s asylum file. Thus, the
asserted contradiction may not be relied upon as substantial evidence that
Perekhanov is not credible. See id. at 1084-85; see also Soto-Olarte v. Holder, 555
F.3d 1089, 1091-92 (9th Cir. 2009).
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Third, the BIA concluded that Perekhanov was not credible because it
believed his testimony about the 1991 home invasion was inconsistent with the
police report he submitted stating that a police investigation had been opened and
closed. The BIA’s conclusion here is not supported by substantial evidence.
Perekhanov testified that the police “wouldn’t even open a case,” but he later
testified regarding the police investigation that “[i]t was just opened and closed.
There was no investigation.” Perekhanov obviously meant that the police did not
actually investigate the case, even though they formally opened and later closed an
investigation file on it. Nothing in the police documents states otherwise; there is
no account of what was done to investigate the case, if anything. Perekhanov,
however, was never given an opportunity to clarify his testimony. Accordingly,
the BIA’s adverse credibility finding on this basis is not supported by substantial
evidence. See Guo v. Ashcroft, 361 F.3d 1194, 1200 (9th Cir. 2004) (“[U]nclear
testimony may not serve as substantial evidence for an adverse credibility finding
when an applicant is not given the chance to attempt to clarify his or her
testimony.”); see also Soto-Olarte, 555 F.3d at 1091-92.
Finally, the BIA’s conclusion that Perekhanov is not credible because he
presented inconsistent information about when he was kidnaped is not supported
by substantial evidence. Perekhanov consistently maintained that he was taken by
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Georgian criminals twice, in 1996 and 2001. The only inconsistency was in his
second affidavit, which he reasonably explained must have resulted from a
mistranslation of the date. See Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 662
(9th Cir. 2003) (“[W]e have long recognized that difficulties in interpretation may
result in seeming inconsistencies, especially in cases . . . where there is a language
barrier.”).
“In sum, a reasonable adjudicator would be compelled to conclude that the
[BIA’s] adverse credibility determination is not supported by substantial
evidence.” Arulampalam v. Ashcroft, 353 F.3d 679, 688 (9th Cir. 2003). Because
the BIA erroneously concluded that Perekhanov had not presented a credible
account of his past experiences, we remand Perekhanov’s asylum and withholding
of removal claims to the BIA to determine in the first instance whether, accepting
Perekhanov’s testimony as credible, he has established that he suffered past
persecution. See id. at 689; see also Soto-Olarte, 555 F.3d at 1093-96; INS v.
Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
We also remand to the BIA to determine whether Perkehanov has
established a well-founded fear of future persecution. Perekhanov’s credible
testimony about his past mistreatment is a relevant factor in determining whether
he has an objectively reasonable fear of future persecution. See Canales-Vargas v.
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Gonzales, 441 F.3d 739, 745 (9th Cir. 2006) (concluding that while threats
petitioner suffered from a terrorist group did not amount to past persecution, these
threats created “at least a one-in-ten chance” that petitioner would suffer
persecution in the future).
We deny the petition for review as to Perekhanov’s CAT claim. The BIA’s
conclusion that “there is no evidence that the government of Georgia would torture
him or be acquiescent in his torture,” is supported by substantial evidence in the
record. See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).
Petition for review GRANTED IN PART, DENIED IN PART;
REMANDED. Costs on appeal shall be awarded to Petitioner.
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