Immigration judge denied application for asylum

United States 9th Circuit Court of Appeals Reports

Unpublished

AVAGYAN v. GONZALES, 05-71057 (9th Cir. 1-3-2007) HOVSEP
AVAGYAN, Petitioner, v. ALBERTO R. GONZALES, Attorney
General, Respondent. No. 05-71057, Agency No.
A95-176-270. United States Court of Appeals, Ninth
Circuit. Argued and Submitted November 17, 2006 San
Francisco, California. January 3, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] MEMORANDUM[fn*]

[fn*] This disposition is not appropriate for publication
and may not be cited to or by the courts of this circuit
except as provided by Ninth Cir. R. 36-3.

On Petition for Review of an Order of the Board of
Immigration Appeals.

Before: NOONAN, COX[fn**], and PAEZ, Circuit Judges.

[fn**] The Honorable Emmett Ripley Cox, Senior Circuit Judge
for the Eleventh Circuit Court of Appeals, sitting by
designation.

Petitioner Hovsep Avagyan appeals a BIA decision that
adopted and affirmed the denial by an Immigration Judge
(IJ) of his application for asylum, withholding of removal,
and relief under the United Nations Convention Against
Torture (CAT). The IJ denied all relief based on his
determination that Avagyan lacked credibility.

Avagyan is an Armenian national who was active in a
political opposition movement known as the Front of
National Consent (FNC). During his merits hearing, Avagyan
testified that based on his participation in the FNC, he
was twice arrested, detained and beaten, and denied access
to a lawyer. He suffered injuries including a fractured jaw
and the loss of fifteen teeth as a result of police
brutality. Avagyan also testified that because of his
political activity, one of his sons, who was serving in the
military, was severely mistreated by his commanders, and
that his second son was expelled from his university and
conscripted into the military. His family continued to face
harassment by the police after he fled Armenia.

The IJ cited three reasons for his conclusion that Avagyan
lacked credibility, none of which supports the adverse
credibility determination. First, the IJ disbelieved
Avagyan’s testimony because a municipal hospital report
that listed “[n]umerous injuries and bruises spread all
over the body, concussion . . . and numerous post-traumatic
injuries and bruises” did not include the chin and jaw
injuries that Avagyan described in court. The omission of
an injury from a medical report that is otherwise
consistent with an asylum applicant’s testimony “cannot
serve as the basis for [an] adverse credibility
determination.” Baljit Singh v. Ashcroft, 301 F.3d 1109,
1112 (9th Cir. 2002). Moreover, Avagyan corroborated his
testimony with other medical records and provided a
reasonable explanation for the omission from the municipal
hospital report.

Second, the IJ determined that a family photograph was
inconsistent with Avagyan’s testimony that the military was
severely mistreating his son. The black-and-white
photograph, taken from some distance away, neither
corroborates nor contradicts Avagyan’s testimony that his
son had sustained various internal injuries and that he
suffered from lung and kidney infections. Moreover, the IJ
engaged in impermissible speculation that Avagyan’s wife
would not have smiled for the photograph if her son were
actually suffering as Avagyan alleged. An IJ’s “rank
speculation or conjecture” will not support an adverse
credibility determination. Li v. Ashcroft, 396 F.3d 1073,
1074 (9th Cir. 2005).

Finally, the IJ concluded that Avagyan was not credible
because, despite being in possession of a valid U.S.
visitor’s visa and despite his sons’ mistreatment and his
own arrest, he resumed anti-government demonstrations. But
Avagyan was not required to demonstrate cessation of all
political activity after the initial persecution. Nor does
this court’s precedent require that an individual in
possession of a valid U.S. visa immediately immigrate to
this country to avoid further persecution. See, e.g.,
Baljit Singh, 301 F.3d at 1110, 1114 (reversing an adverse
credibility determination when petitioner had resumed
political opposition work after being beaten by the
police).

Although an IJ’s adverse credibility determination is
entitled to judicial deference, see Ghaly v. INS, 58 F.3d
1425 (9th Cir. 1995), here, Avagyan’s testimony and
documentation “compel[s] . . . a contrary result,” de
Leon-Barrios v. INS, 116 F.3d 391, 393 (9th Cir. 1997)
(construing the substantial evidence standard). Because the
IJ failed to give any “legitimate articulable basis to
question the petitioner’s credibility, and . . . [did not]
offer[] a specific, cogent reason for any stated
disbelief,” Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir.
2003), we grant the petition for review and remand with
instructions to proceed with a determination on the merit’s
of Avagyan’s application for asylum, withholding of
removal, and CAT relief. See INS v. Orlando Ventura, 537
U.S. 12, 17 (2002).

PETITION GRANTED and REMANDED.