Stoliarova v. Holder , 376 F. App'x 700 ( 2010 )

FILED
NOT FOR PUBLICATION APR 16 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
NATALIA STOLIAROVA; SERGUEI No. 06-74688
CHERKASSOV,
Agency Nos. A075-721-384
Petitioners, A075-721-385
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
Natalia Stoliarova and her husband, Serguei Cherkassov, natives and citizens
of Russia, petition for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing their appeal from an immigration judge’s (“IJ”) decision denying their
application for asylum, withholding of removal, and protection under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252. We review de novo questions of law, and we review factual findings for
substantial evidence. See Husyev v. Mukasey, 528 F.3d 1172, 1177 (9th Cir. 2008).
We deny in part and grant in part the petition for review.
Petitioners do not raise any arguments in their opening brief regarding the
agency’s dispositive determination that their asylum application was time-barred.
See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not
supported by argument are deemed waived). Accordingly, we deny the petition as
to petitioners’ asylum claim.
The agency’s adverse credibility determination is not supported by
substantial evidence because Stoliarova’s testimony about the 1996 local elections
was consistent with the documentary evidence concerning the 1997 state elections,
and Stoliarova was not given an opportunity to explain the perceived discrepancy
between her testimony concerning the Fatherland Revival Party and the article
concerning the Fatherland-All Russia Party. See Soto-Olarte v. Holder, 555 F.3d
1089, 1091-92 (9th Cir. 2009). Stoliarova’s lack of knowledge regarding when the
Fatherland Revival Party was established does not support the agency’s adverse
credibility finding because it does not go to the heart of her claim. See Cosa v.
Mukasey, 543 F.3d 1066, 1070 (9th Cir. 2008). Because Stoliarova provided
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documentary evidence regarding the Fatherland Revival Party, her participation in
the trial of the party’s leader, and her beating and subsequent miscarriage, the
agency’s adverse credibility finding based on the failure to provide additional
corroborating evidence is not supported. See Gui v. INS, 280 F.3d 1217, 1227 (9th
Cir. 2002) (where “a petitioner provides some corroborative evidence to strengthen
[her] case, [her] failure to produce still more supporting evidence should not be
held against [her]”).
We therefore grant the petition for review with respect to the withholding of
removal and CAT claims, and remand to the BIA for further proceedings on an
open record. See Soto-Olarte, 555 F.3d at 1093-96; see also INS v. Ventura, 537
U.S. 12, 16-18 (2002) (per curiam).
Because we remand on an open record, we need not reach petitioners’ due
process arguments concerning their lack of an opportunity to examine and explain
the article concerning the Fatherland-All Russia Party. However, we reject
petitioners’ contention that their due process rights were violated because the IJ
was biased. See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000).
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
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