Karapetyan v. Mukasey

• Decision Date: 16 September 2008
• Docket Number: No. 05-77141.,No. 05-75865.,05-75865.,05-77141.
• Citation: 543 F.3d 1118
• Parties: Artur KARAPETYAN, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent. Artur Karapetyan, Petitioner, v. Michael B. Mukasey, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

543 F.3d 1118

Artur KARAPETYAN, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

Artur Karapetyan, Petitioner, v. Michael B. Mukasey, Attorney General, Respondent.

No. 05-75865.

No. 05-77141.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 8, 2008.

Filed September 16, 2008.

Howard R. Davis, Davis, Miller & Neumeister, Van Nuys, CA, for the petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division; Richard M. Evans, Assistant Director; Nancy E. Friedman, Office of Immigration Litigation, Civil Division, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A95-179-012.

Before: HARRY PREGERSON and KIM McLANE WARDLAW, Circuit Judges, and GLENN L. ARCHER, JR.,^* Senior Circuit Judge.

PREGERSON, Circuit Judge:

Artur Karapetyan ("Karapetyan"), a native of the Soviet Union and a citizen of Armenia, petitions for review of a final order by the Board of Immigration Appeals ("BIA") that summarily affirmed the Immigration Judge's ("IJ") denial of Karapetyan's application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT") (No. 05-75865). Karapetyan also petitions for review of the BIA's denial of his motion to reconsider its decision (No. 05-77141). We have jurisdiction under 8 U.S.C. § 1252. We grant relief and remand for further proceedings consistent with this opinion.

STANDARD OF REVIEW

Because the BIA adopted and affirmed the decision of the IJ, this court also reviews the IJ's decision. See Hoque v. Ashcroft, 367 F.3d 1190, 1194 (9th Cir. 2004). We review questions of law de novo, Baballah v. Ashcroft, 367 F.3d 1067, 1073 (9th Cir.2004), and factual findings for substantial evidence, Mejia-Paiz v. INS, 111 F.3d 720, 722 (9th Cir.1997). We review the IJ's decision to deny a request for continuance for abuse of discretion. Nakamoto v. Ashcroft, 363 F.3d 874, 883 n. 6 (9th Cir.2004); see also Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988). We also review a denial of a motion to reconsider for abuse of discretion. INS v. Doherty, 502 U.S. 314, 324, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). We will reverse the denial of a motion to reconsider if it is "arbitrary, irrational, or contrary to law." Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (internal quotation marks omitted).

PROCEDURAL AND FACTUAL BACKGROUND

I. KARAPETYAN'S BACKGROUND

Karapetyan is a native of the Soviet Union and a citizen of Armenia. He was admitted as a visitor to the United States on December 25, 2000 and obtained permission to remain until June 24, 2001. He remained in the United States beyond June 24, 2001 without authorization. On February 6, 2002, the Department of Homeland Security ("DHS") (formerly INS) issued a Notice to Appear, which charged Karapetyan with being present in the United States in violation of 8 U.S.C. § 1227(a)(1)(B).

At a master calendar hearing on March 19, 2002, Karapetyan conceded the charge of removability. The IJ designated Armenia as the country of removal. Karapetyan sought immigration relief in the form of asylum, withholding of removal, CAT relief, and, alternatively, voluntary departure.

On June 10, 2004, the IJ held a merits hearing. There, Karapetyan testified and submitted documentary evidence in support of his applications for relief.

II. KARAPETYAN'S TESTIMONY

The IJ determined that Karapetyan testified credibly during the merits hearing, stating "the [IJ] notes that the [petitioner] has testified in a credible manner." Where the IJ finds the applicant's testimony to be credible and the BIA makes no contrary finding, we accept as undisputed the applicant's testimony. Baballah, 367 F.3d at 1073. Thus, we accept the testimony recounted below as true.

Karapetyan was born to a family of mixed ethnicity, with a Russian mother and an Armenian father. When he was a teenager, Karapetyan and his family moved to Yerevan, Armenia to escape the war in Chechnya. In Armenia, Karapetyan's family suffered humiliation and discrimination on account of its mixed ethnicity. Karapetyan was called a "Russian pig," a "Chechnyan bastard," and a "Chechnyan pig" by people in his community and by members of the military.

While completing mandatory military service, Karapetyan was routinely assigned to dirty, demeaning tasks by supervisors who knew of his mixed ethnicity. He was also beaten by military members. When the military officers learned that Karapetyan submitted written complaints about his treatment, Karapetyan was beaten and locked in a cell.

In April 2000, Karapetyan joined the 21st Century Party, a political association led by Arkady Vardanyan ("Vardanyan") that sought governmental change and championed human rights. In October 2000, Karapetyan participated, as a member of the 21st Century Party, in a large protest involving at least 10,000 attendees. Several protesters were arrested, including the 21st Century Party leader, Vardanyan, and his attorney.¹

The day following the protest, military officers searched Karapetyan's home and arrested him. He was detained in isolation for three days.² While in prison, Karapetyan was interrogated regarding his involvement with the 21st Century Party. The military officers called Karapetyan a "Russian pig." They used batons to beat the soles of Karapetyan's feet until he eventually agreed to sign false papers stating that the 21st Century Party was an illegal organization and its leader, Vardanyan, was a Russian spy.

After his release from prison, Karapetyan spoke out against his treatment on a radio station on November 10, 2000. He criticized the Armenian government and called upon others to demonstrate against the government.

Two days later, on November 12, 2000, four law enforcement officers came to Karapetyan's home and beat him "like a dog," leaving bruises on his face and other parts of his body. Karapetyan was hospitalized for injuries caused by those beatings.³ The law enforcement officers told Karapetyan to leave the country. They told him that, if he refused to leave, he would be put in prison or "something else [would] happen" to him. Karapetyan believed he was in grave danger if he remained in Armenia, and so he obtained a B-1/B-2 visa from the United States Embassy on December 6, 2000. He arrived in the United States on December 25, 2000.

Thereafter, Karapetyan applied for asylum, withholding of removal, and CAT relief. He applied for voluntary departure in the alternative.

III. IJ AND BIA DECISIONS

The IJ denied Karapetyan's request for asylum, withholding of removal, and CAT relief, but granted the limited relief of voluntary departure. As a basis for the decision, the IJ found that Karapetyan was not statutorily eligible for asylum because he had failed to show that he was a refugee. Alternatively, the IJ found that Karapetyan was ineligible for asylum because he had failed to submit his fingerprints for a security check. Karapetyan moved for a continuance so that he could submit the fingerprints, but the IJ denied his request.

Karapetyan appealed to the BIA, which affirmed the results without opinion. The BIA subsequently denied Karapetyan's motion to reconsider. Karapetyan timely appealed both decisions.

DISCUSSION

I. THE IJ ERRONEOUSLY REQUIRED CORROBORATING EVIDENCE DESPITE FINDING THAT KARAPETYAN HAD TESTIFIED CREDIBLY

We begin by recognizing that the IJ erred when she required corroborating evidence despite finding that Karapetyan had testified credibly. At the conclusion of Karapetyan's merits hearing, the IJ made an express finding that Karapetyan had testified credibly. The IJ concluded, "the [petitioner] has testified in a credible manner."⁴

Yet, the IJ failed to credit Karapetyan's testimony, in part because he did not provide corroborating documentary evidence of his persecution. Pointing to the lack of corroborating documentary evidence, the IJ concluded that Karapetyan had failed to show that he was statutorily eligible for relief. The IJ's oral decision is laden with references to the lack of certain documents. See Administrative Record (noting petitioner's "fail[ure] to present any documents establishing that [petitioner] was a member of the 21st Century Party") (noting petitioner "brought no documents establishing that he was [ ]ever a member of the 21st Century Party.") (noting petitioner "has presented no documents establishing that there ever was . . . a rally")⁵ (noting petitioner "did not present his passport") (noting petitioner "has supplied no documents, whatsoever, to establish that he ever served in the military") (noting petitioner "did not present anything from his friends at the radio station that he ever gave any kind of speech or talk on the radio"). The IJ denied Karapetyan relief, in part because he did not produce these corroborating documents.⁶

Because the IJ made a finding that Karapetyan testified credibly, the IJ's failure to credit Karapetyan's testimony was improper. We have repeatedly held that, when an applicant has been found to testify credibly, the facts are deemed to be true, and no further corroboration is required.⁷ See, e.g., Kataria v. INS, 232 F.3d 1107, 1113 (9th Cir.2000) ("[W]e must accept testimony as true in the absence of an explicit adverse credibility finding."); Ladha v. INS, 215 F.3d 889, 901 (9th Cir.2000) (reaffirming that "corroboration of credible testimony is not necessary"); Lopez-Alvarado v. Ashcroft, 381 F.3d 847, 855 (9th Cir.2004). In fact, the IJ acknowledged, "[t]he [petitioner's] testimony alone can establish that he is a refugee."

Because corroborating evidence is not necessary in the face of a credibility finding, we accept Karapetyan's testimony as true.

II. THE IJ'S CONCLUSION THAT KARAPETYAN WAS INELIGIBLE FOR ASYLUM RELIEF IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE

Accepting Karapetyan's testimony as true, we must next address whether substantial evidence supported the IJ's finding that...