                                                                           FILED
                             NOT FOR PUBLICATION                            AUG 12 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



KRISTINE HAKOBYAN; ANI                           No. 07-71680
AYVAZYAN,
                                                 Agency Nos.     A096-349-782
              Petitioners,                                  A096-349-783

  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.

       Kristine Hakobyan and her daughter, Ani Ayvazyan, petition for review of a

decision of the Board of Immigration Appeals (BIA) affirming an Immigration

Judge’s (IJ) denial of their application for asylum, withholding of removal, and




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
relief under the Convention Against Torture (CAT). We grant the petition and

remand to the BIA.

      1.     The BIA and IJ denied Hakobyan’s application for asylum and

withholding on adverse credibility grounds, basing their determination on

perceived inconsistencies in Hakobyan’s testimony regarding the following: (a) the

nature and extent of Hakobyan’s involvement in the soldier’s complaint; (b) the

number of complaints Hakobyan made to the local police about domestic abuse;

and (c) Hakobyan’s father-in-law’s motivation for beating her on September 5,

2001. We hold that “the evidence compels a contrary result.” Singh v. Holder, 643

F.3d 1178, 1180 (9th Cir. 2011).

             a.      In focusing on the language differences between Hakobyan’s

second affidavit and her testimony, the BIA improperly based its adverse

credibility determination on a “[m]inor inconsistenc[y] that reveal[s] nothing about

[Hakobyan’s] fear for her safety.” Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir.

2008) (quoting Kaur v. Ashcroft, 379 F.3d 876, 884 (9th Cir. 2004)). That

Hakobyan’s half-page long, second affidavit was somewhat imprecise and lacking

in detail cannot support an adverse credibility determination, see Smolniakova v.

Gonzales, 422 F.3d 1037, 1044-45 (9th Cir. 2005), particularly considering that her

first, more detailed affidavit was entirely consistent with her testimony regarding


                                          2
the nature of her involvement in the soldier’s complaint. Hakobyan’s statements

that she informed the soldier’s parents of the sources of his injuries and offered to

testify in any resulting proceedings is entirely consistent with her representation

that she “assisted” in filing the soldier’s complaint; the information and promise

were essential both to the content of the complaint and its prospects for success,

and so constituted assistance. The only remaining inconsistency regarding the

nature and extent of Hakobyan’s involvement in the soldier’s complaint – whether

it was the soldier who actually filed the complaint or the soldier’s parents on his

behalf – does not go to the heart of her claim for relief.1 See Tekle, 533 F.3d at

1051. Whether it was the soldier or the soldier’s parents who actually filed the

complaint is not relevant to Hakobyan’s claim that she was persecuted on account

of her involvement in the complaint, as the distinction has nothing to do with

Hakobyan’s own actions. What does matter is that there is no inconsistency

regarding the key fact – that she was centrally involved: Hakobyan’s two affidavits

and her testimony were consistent in suggesting that the complaint would not have

been filed but for Hakobyan’s actions.




      1
        Because Hakobyan filed her asylum application prior to May 11, 2005, we
review the BIA’s adverse credibility determination under pre-REAL ID Act
standards.

                                           3
             b.     The second reason for the BIA’s adverse credibility

determination also erroneously focused on the lack of precision in one of

Hakobyan’s affidavits. Considering that Hakobyan thought that contacting the

regional authority was a way to make a complaint to the police, her testimony that

she went directly to the police station twice and also made numerous complaints to

the regional authority is consistent with the statement in her affidavit that she made

numerous complaints to the police.

             c.     The third reason for the BIA’s adverse credibility determination

is similarly unsupported by the record. Hakobyan’s explanation of her alleged

inconsistency in stating that her father-in-law and husband beat her for

participating in the student movement clearly revealed that she had been testifying

about why her family beat her in general, as opposed to the motivation for the

September 5, 2001, beating in particular. Contrary to the IJ’s assertions, she did

not try to claim that she was being beaten in 2001 for participating in an

organization that she had stopped openly associating with in 1998.

      As the BIA’s adverse credibility finding is for these reasons not supported

by substantial evidence, on remand, Hakobyan is to be deemed credible for the

purposes of assessing her asylum and withholding claims. See Soto-Olarte v.

Holder, 555 F.3d 1089, 1094-95 (9th Cir. 2009) (holding that “the deemed credible


                                          4
rule may apply when it is evident that the IJ and BIA have both strained to provide

reasons properly supporting an adverse credibility finding, but despite their best

efforts have been unable to do so”).

      2.     We agree with the parties that the BIA’s footnote regarding its doubts

that Hakobyan had established a nexus between the harm she had suffered and a

protected ground was not a determination of this issue. We therefore remand for

the BIA to make this determination in the first instance. See INS v. Ventura, 537

U.S. 12, 16 (2002) (per curiam). We note, however, that the IJ’s nexus discussion,

with which the BIA appeared to agree, was not an accurate reflection of the record

as a whole. The essence of Hakobyan’s asylum claim is that she suffered

persecution because of her political opinion. Hakobyan testified that she was

beaten by her father-in-law and husband because of her political activities outside

her work: The student organization was one example; helping the soldier was

another. She also testified that she was beaten by police because of her

involvement in the soldier’s complaint.

      Exposing government corruption, whistle-blowing, and participating in

politically active student organizations are all expressions of political opinion. See

Fedunyak v. Gonzales, 477 F.3d 1126, 1129 (9th Cir. 2007); Kataria v. INS, 232

F.3d 1107, 1114 (9th Cir. 2000), superseded by statute on other grounds, REAL


                                           5
ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231. On remand, the BIA should

consider Hakobyan’s claim in light of these precedents.

      3.      The BIA erred in concluding that it need not consider Hakobyan’s

CAT claim because she made “no substantive argument on appeal in support of

protection under the CAT.” Hakobyan’s “request was sufficient to put the BIA on

notice that [she] was challenging the IJ’s [CAT] determination, and the agency had

an opportunity to pass on this issue. . . . [O]ur precedent requires nothing more.”

Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004). Accordingly, the BIA must

decide the issue on the merits.2

      PETITION GRANTED AND REMANDED.




      2
        We reject the government’s argument that Hakobyan waived her CAT
claim before this court. The separate section in Hakobyan’s brief regarding CAT
was sufficient to give the government adequate notice that she is continuing to
pursue that claim for relief. See Nuru v. Gonzales, 404 F.3d 1207, 1223 n.13 (9th
Cir. 2005).

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