                                                                          FILED
                                                                           MAY 27 2011

                                                                       MOLLY C. DWYER, CLERK
                                                                        U .S. C O U R T OF APPE ALS
                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT



KAREN MALKHASYAN, LUSINE                        No. 07-70746
MALKHASYAN, ANI MALKHASYAN,
ASHOT MALKHASYAN,                               B.I.A. No.       A096-345
                                                                 957/958/959/960
             Petitioners,

  v.                                            MEMORANDUM *

ERIC H. HOLDER, JR., Attorney General,

             Respondent.


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

                             Submitted May 6, 2011 **
                               Pasadena, California




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
           The panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).

                                         1
Before: NOONAN, PAEZ, Circuit Judges, and KORMAN,*** District Judge.

      Petitioner Karen Malkhasyan (“Malkhasyan”), his wife Lusina Malkhasyan, and

two children Ani and Ashot Malkhasyan, citizens of Armenia, seek review of a final

order of removal issued January 30, 2007 by the Board of Immigration Appeals

(“BIA”) adopting and affirming the Immigration Judge’s (“IJ”) denial of their

application for asylum, withholding of removal, and protection under the Convention

Against Torture (“CAT”).

      The IJ “conclude[d] that the lead respondent and his spouse were not credible

witnesses . . . based . . . on the inconsistencies between their testimony” and

inconsistences with Malkhasyan’s written declaration that the IJ deemed to be

“material” because they “go to the heart of the respondent’s request for asylum and

withholding of removal in the United States.” Finding that “respondents [did] not

offer[] a persuasive explanation as to the many inconsistencies,” the IJ denied all

requested relief and ordered removal.

      The BIA adopted and affirmed the IJ’s adverse credibility determination citing

Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994). The BIA cited some of the

discrepancies noted by the IJ and held that, because petitioners did not provide


      ***
             The Honorable Edward R. Korman, Senior United States District Judge,
Eastern District of New York, sitting by designation.

                                         2
persuasive explanations for these material inconsistences and omissions, the evidence

was insufficient to sustain the burden of proof required to grant petitioners the relief

and protection requested.

      When “the BIA cites Burbano and also provides its own review of the evidence

and law, we review both the IJ’s and the BIA’s decisions . . . We review de novo the

BIA’s and IJ’s determinations of purely legal questions . . . We review factual findings

on the other hand for substantial evidence.” Ali v. Holder, Nos. 07-71195, 07-73559,

__F.3d__, 2011 WL 923412, at *3 (9th Cir. March 18, 2011) (internal citations

omitted). We must “uphold the factual findings of the [agency] if those findings are

supported by reasonable, substantial, and probative evidence.” Valderrama v. INS,

260 F.3d 1083, 1085 (9th Cir. 2001) (internal quotation marks omitted).             The

deference accorded under the substantial evidence test extends to an IJ’s credibility

findings. See id. The IJ must express “a legitimate articulable basis to question the

petitioner's credibility, [however,] and must offer a specific, cogent reason for any

stated disbelief.” Shah v. INS, 220 F.3d 1062, 1067 (9th Cir. 2000) (internal quotation

marks omitted). Moreover, “the IJ’s adverse credibility determination may not rest

on incidental misstatements that do not go to the heart of [petitioner’s] asylum claim.”

Wang v. INS, 352 F.3d 1250, 1253 (9th Cir. 2003) (internal quotation marks omitted).

Nevertheless, “[s]o long as one of the identified grounds is supported by substantial

                                           3
evidence, and goes to the heart of [petitioner’s] claim of persecution, [the Court is]

bound to accept the [agency’s] adverse credibility finding.” Id. at 1259; accord, Li

v. Ashcroft, 378 F.3d 959, 964 (9th Cir. 2004).

      We conclude that all but one of the alleged inconsistences, omissions and

discrepancies identified by the IJ are not supported by “substantial evidence” or do not

go to the “heart of [petitioner’s] claim of persecution.” Wang, 352 F.3d at 1259. The

one remaining inconsistency involves Malkhasyan’s description of his medical care

after a December 2000 car accident that Malkhasyan alleges was part of an attempt

by the Yerkrapah group to kill him and his family. Specifically, the IJ and BIA found

that Malkhasyan did not adequately explain why he testified that he did not receive

any medical attention following the December 2000 car accident, but submitted

documentation that he had been treated in the hospital for over a month. Malkhasyan

argues on appeal that the inconsistency in his testimony resulted from translation

difficulties. See, e.g., Iao v. Gonzales, 400 F.3d 530, 534 (7th Cir. 2005) (noting,

among the numerous “disturbing features” that “bulk large” in immigration cases,

there is an “[i]nsensitivity to the possibility of misunderstandings caused by the use

of translators of difficult languages.”) (Posner, J.). When asked by the IJ to explain

this inconsistency, Malkhasyan stated that he was in the hospital for “a month and a

half,” but that he didn’t have “any operation or surgery.” The IJ refused to accept this

                                           4
explanation as clarifying Malkhasyan’s prior testimony on this issue. Moreover, when

asked if he was injured in the accident, Malkhasyan responded “[y]es. But not

registered.”   Although this nonresponsive answer clearly indicated a problem in

translation and communication, the IJ did not seek further clarification.         Because

Malkhasyan did not have the opportunity to fully explain the inconsistency in his

testimony regarding this incident, Wang , 352 F.3d at 1253, and neither the IJ nor the

BIA offered “a specific, cogent reason for [their] stated disbelief,” Shah, 220 F.3d at

1067 (internal quotation marks omitted), or explained its relevance to Malkhasyan’s

asylum claim, we conclude that the IJ’s adverse credibility determination was not

supported by substantial evidence. Because of the communication difficulties and the

resulting ambiguity in Malkhasyan’s testimony, we remand to the agency for

clarification of the record. The agency shall afford petitioner the opportunity to

explain fully the inconsistencies in his testimony. The agency shall consider this

explanation and the explanation that Malkhasyan has already provided in determining

the limited question of whether petitioner is credible despite the inconsistencies in his

testimony regarding medical treatment after the car accident. Because the BIA has not

evaluated Malkhasyan’s eligibility for asylum, withholding of removal and protection

under CAT independently from its adverse credibility finding, the agency shall

consider the merits of those claims based on the expanded record on remand. The

                                           5
panel retains jurisdiction of any further appeal.

      REMANDED.




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