                                                                         FILED
                            NOT FOR PUBLICATION                          MAY 27 2014
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT


VACHAKAN BALYAN, et al.                         No. 10-72378

             Petitioners,                       Agency Nos. A075-734-728
                                                            A075-734-729
  v.                                                        A075-734-730

ERIC H. HOLDER, Jr., Attorney General,
                                                MEMORANDUM*
             Respondent.


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

                       Argued and Submitted April 11, 2014
                              Pasadena, California

Before: FARRIS and HURWITZ, Circuit Judges, and FRIEDMAN, Senior District
Judge.**

       Vachakan Balyan, his wife Anahit Margaryan, and their son Vardan Balyan

petition for review of the decision of the Board of Immigration Appeals (“BIA” or


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Paul L. Friedman, Senior District Judge, U.S. District
Court for the District of Columbia, sitting by designation.
“Board”), which affirmed an immigration judge’s denial of asylum, withholding of

removal, and relief under the Convention Against Torture, and which also denied

petitioners’ motion to remand proceedings to the immigration judge. We have

jurisdiction under 8 U.S.C. § 1252(a). Although we find no reversible error in the

BIA’s decision with respect to petitioners’ claims for asylum and related relief, we

conclude that the BIA abused its discretion in denying petitioners’ motion to

remand. We therefore grant the petition and remand for further proceedings.


                                           I.

      Vachakan Balyan, Anahit Margaryan, and Vardan Balyan are Armenian

natives and citizens. They arrived in the United States as non-immigrant visitors in

October 2000. The following month, Vachakan Balyan applied for asylum,

naming his wife and son as derivative beneficiaries. An asylum officer denied

Balyan’s application, and the petitioners were placed in removal proceedings.

Petitioners conceded removability but indicated that they wished to pursue

Balyan’s application for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). In support of his application, Balyan

presented evidence that Armenian government officials and individuals aligned

with the government had subjected him to harassment, extortion, and physical

abuse rising to the level of torture because of his political opinions.



                                           2
      The immigration judge (“IJ”) denied the application for relief, primarily on

the ground that Balyan had not testified credibly. Petitioners timely appealed to

the BIA. While the appeal was pending, petitioners filed a motion to remand their

case to the IJ to seek adjustment of status based on a relative visa petition.

Petitioners asserted that their failure to pursue this relief before the IJ was the

result of the ineffective assistance of their counsel.

      The BIA dismissed petitioners’ appeal, concluding that the IJ’s adverse

credibility determination was not clearly erroneous. The BIA also denied

petitioners’ motion to remand. Petitioners timely filed a petition for review.


                                           II.

      Where the BIA adopts the immigration judge’s decision but adds its own

reasoning, as it did here, we review both decisions. Siong v. INS, 376 F.3d 1030,

1036 (9th Cir. 2004). The factual findings underlying an IJ’s adverse credibility

determination are reviewed for substantial evidence and are “conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.”

Bondarenko v. Holder, 733 F.3d 899, 906 (9th Cir. 2013) (quoting 8 U.S.C.

§ 1252(b)(4)(B)) (internal quotation marks omitted). We review the denial of a

motion to reopen or to remand for abuse of discretion. Mohammed v. Gonzales,

400 F.3d 785, 791 (9th Cir. 2005).



                                            3
                                         III.

      Petitioners contend that the immigration judge erred in determining that

Balyan had not testified credibly, and that the BIA erred in affirming that

determination. The IJ based his adverse credibility determination on several

grounds, including inconsistencies within the evidence Balyan presented, Balyan’s

submission of fraudulent documents (which were subsequently withdrawn), and a

lack of corroborating evidence. Under the applicable pre-REAL ID case law, we

must uphold the IJ’s adverse credibility finding “[s]o long as one of the identified

grounds is supported by substantial evidence and goes to the heart of [the] claim of

persecution.” Tekle v. Mukasey, 533 F.3d 1044, 1052 (9th Cir. 2008) (internal

quotation marks omitted). Because we find that at least one of the grounds

identified by the IJ is supported by substantial evidence and goes to the heart of

Balyan’s claims, we affirm the agency’s denial of asylum, withholding of removal,

and CAT relief.

      The IJ perceived several discrepancies between Balyan’s initial asylum

application and the evidence he presented at trial that “call[ed] into question the

severity of the events that occurred, the source of the alleged persecution, and

whether the alleged persecution was on account of a protected ground.” Most

notably, in the affidavit attached to his initial asylum application, Balyan alleged

that he was harassed and abused by security officers and members of criminal


                                          4
organizations associated with the government after he refused to build a mansion

for a corrupt government official. Balyan stated that during one incident, “as an

excuse to extort [him] more and more,” his persecutors demanded that Balyan

“stop supporting some opposing political parties.” The affidavit is otherwise

devoid of facts relating to Balyan’s political activities or his persecutors’ political

motivations. In denying the asylum application, the asylum officer found that

Balyan had not shown that he was persecuted on account of a protected ground.

       In immigration court, Balyan submitted a supplemental declaration attesting

to events that, if taken as true, would give rise to a political asylum claim. In

contrast to the initial application, the supplemental declaration is replete with

specific statements about Balyan’s support for the opposition New Direction Party.

Balyan stated that during every incident of persecution, his persecutors demanded

that he stop supporting this party. Balyan also averred that police forced him to

sign a document stating that he would never return and support the leader of the

New Direction Party. The incidents of persecution described in his supplemental

declaration are also more numerous, frequent, and severe than those described in

his initial affidavit.

       Although “an applicant’s testimony is not per se lacking in credibility simply

because it includes details that are not set forth in the asylum application,” Taha v.

Ashcroft, 389 F.3d 800, 802 (9th Cir. 2004) (quoting Lopez-Reyes v. INS, 79 F.3d


                                           5
908, 911 (9th Cir. 1996)), material inconsistencies between an applicant’s

testimony and his application may support an adverse credibility determination.

See Zamanov v. Holder, 649 F.3d 969, 973 (9th Cir. 2011)); Alvarez-Santos v. INS,

332 F.3d 1245, 1254 (9th Cir. 2003).

      Discrepancies between the initial application and the applicant’s testimony

in court may be particularly suspicious where – as here – the new facts alleged can

be fairly viewed as an attempt to alter and enhance an applicant’s claim. See

Zamanov, 649 F.3d at 973-74 (distinguishing between testimony that merely

“elaborate[s] on events that had previously been referenced,” and that which

substantially changes the applicant’s claims). It was not unreasonable for the IJ to

draw a negative inference from the increase in the number of incidents of

persecution and the new facts concerning the political motivations of Balyan’s

alleged persecutors. Nor was it error to conclude that the alterations in Balyan’s

account went to the heart of his claims, as they “concern[ed] events central to

[Balyan]’s version of why he was persecuted and fled.” Don v. Gonzales, 476 F.3d

738, 742 (9th Cir. 2007) (quoting Singh v. Gonzales, 439 F.3d 1100, 1108 (9th Cir.

2006)).

      Because we conclude that the BIA’s adverse credibility determination must

be affirmed on this ground, we do not address whether the other grounds

articulated by the agency for denying relief are supported by substantial evidence.


                                          6
                                         IV.

      Petitioners also appeal the BIA’s denial of their motion to remand for

consideration of their ineffective assistance of counsel claim. Petitioners contend

that their failure to seek adjustment of status based on a relative visa was due to the

incompetent advice of their former attorney, who informed them that they could

file for adjustment of status if and when Balyan’s asylum application was denied,

and who allegedly failed to notify the IJ of the relative visa despite Balyan’s

request that he do so.

      Motions to reopen or remand are generally disfavored. See INS v. Doherty,

502 U.S. 314, 323 (1992).1 The BIA need not reopen or remand a case simply to

permit presentation of evidence previously available or request relief that could

have been sought during the initial proceedings “if it appears that the alien’s right

to apply for such relief was fully explained to him or her and an opportunity to

apply therefore was afforded at the former hearing[.]” 8 C.F.R. § 1003.2(c); see

Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 (9th Cir. 2001) (en banc) (“The

purpose of a motion to reopen is to present new facts or evidence that may entitle

the alien to relief from deportation.”). Evidence of ineffective assistance of




      1
             “Under BIA procedure, a motion to remand must meet all the
requirements of a motion to reopen and the two are treated the same.” Ramirez-
Alejandre v. Ashcroft, 319 F.3d 365, 382 (9th Cir. 2003) (en banc).
                                           7
counsel discovered after the hearing, however, may serve as a basis for reopening.

Iturribarria v. INS, 321 F.3d 889, 895-97 (9th Cir. 2003).

      To prevail on an ineffective assistance of counsel claim, a party generally

must comply with the procedural requirements outlined in Matter of Lozada, 19

I. & N. Dec. 637 (BIA 1988). There is no dispute that petitioners satisfied the

procedural requirements.

      In addition, petitioners must show a substantive violation of their right to the

effective assistance of counsel, which, in the context of a removal proceeding, is

grounded in the Fifth Amendment’s Due Process Clause. Id. at 638 (citing Ninth

Circuit cases). “Ineffective assistance of counsel in a deportation proceeding is a

denial of due process under the Fifth Amendment if the proceeding was so

fundamentally unfair that the alien was prevented from reasonably presenting his

case.” Santiago-Rodriguez v. Holder, 657 F.3d 820, 834 (9th Cir. 2011) (quoting

Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir. 1999)). Petitioners must also establish

prejudice, Rodriguez-Lariz v. INS, 282 F.3d 1218, 1226 (9th Cir. 2002), by

demonstrating “that the outcome of the proceeding may have been affected by the

alleged violation.” Oshodi v. Holder, 729 F.3d 883, 896 (9th Cir. 2013) (en banc)

(quotation marks and emphasis omitted).

      In his motion to remand, Balyan included a sworn affidavit stating that while

he was consulting with his former attorney, Alary Piibe, about his asylum claim,


                                          8
Piibe advised petitioners that they could seek adjustment of status through the

relative visa if and when the asylum claim was denied: “[Piibe] always maintained

that we have such option to seek asylum first and then ask for adjustment of

status.” Balyan also stated in his affidavit that on the morning of April 2, 2009 –

the day after Balyan and his wife became eligible for adjustment of status, and the

day that the IJ announced his decision on the asylum claim – Balyan asked Piibe,

before the proceedings began, to inform the IJ of his eligibility to adjust his status

through the relative visa.

      Balyan attached to his remand motion two letters from Piibe, who

contradicted certain portions of Balyan’s account. Piibe asserted that Balyan never

requested that he raise the issue of the relative visa petition with the IJ and stated

that Balyan did not want him to inform the IJ of the approved petition. But Piibe

did not contradict Balyan’s allegation that he had advised petitioners that they

would be able to pursue adjustment of status in a motion to reopen the case with

the IJ if their asylum claim was denied. In fact, Piibe explained that after the IJ

denied petitioners’ asylum claim, Piibe offered to assist petitioners with such a

motion.2


      2
             Piibe’s offer was inconsistent with the applicable regulations
governing motions to reopen proceedings before the Immigration Court. Compare
July 6, 2009 Letter from Alary E. Piibe (“If the respondent’s (sic) truly wished to
seek adjustment of status, they could have easily filed for such relief before the IJ
in the form of a Motion to Reopen.”), with 8 C.F.R. § 1003.23(b)(3) (providing
                                           9
       In denying petitioners’ motion to remand, the BIA first noted that petitioners

could not seek in a motion to remand relief that was available during the prior

hearing. The BIA also rejected Balyan’s ineffective assistance claim, relying on

Piibe’s letters indicating that Balyan had told him not to inform the IJ about the

relative visa.

       The BIA’s decision is flawed in two respects. First, the BIA inexplicably

credits statements in Piibe’s letters over Balyan’s sworn affidavit. Second, the

BIA overlooks undisputed evidence that shows that Piibe provided petitioners with

erroneous advice on the proper procedure for seeking adjustment of status.

       We have made plain that the BIA may not make credibility determinations

when evaluating affidavits attached to a motion to reopen or remand. See Avagyan

v. Holder, 646 F.3d 672, 678-79 (9th Cir. 2011) (“The BIA and this court are under

an affirmative obligation to accept as true the facts stated in [petitioner’s] affidavit

in ruling upon his motion to reopen unless [we find] those facts to be inherently

unbelievable.”) (internal quotation marks omitted); Bhasin v. Gonzales, 423 F.3d

977, 986 (9th Cir. 2005) (“We have long held that credibility determinations on

motions to reopen are inappropriate.”); id. at 986-87 (“As motions to reopen are

decided without a factual hearing, the Board is unable to make credibility



that a motion to reopen may not be used to present evidence or seek relief that was
available during the prior hearing).
                                           10
determinations at this stage of the proceedings.”) (internal quotation marks

omitted).

      Moreover, the agency’s conclusion that Piibe was not ineffective is

contradicted by the undisputed evidence in the record. Balyan avers that Piibe

advised petitioners that they would be able to seek adjustment of status if and when

their asylum claims were denied, and Piibe does not dispute that point. Indeed,

Piibe’s letters indicate that he remained under the mistaken impression that the

denial of petitioners’ asylum claims had no effect on their ability to raise

adjustment of status claims. By following Piibe’s advice, petitioners unknowingly

waived their right to present the adjustment of status claims in immigration court.

Rodriguez-Lariz, 282 F.3d at 1226. Because the government does not dispute that

Balyan and Margaryan are eligible for adjustment of status, it is clear that the

outcome of the proceeding “may have been affected by the alleged violation.”

Oshodi, 729 F.3d at 896.3




      3
              Government counsel conceded at oral argument that ineffective
assistance relating to adjustment of status would be prejudicial to Balyan and his
wife. On remand, it is possible that the agency will determine that the erroneous
advice of counsel was not prejudicial to their son, Vardan Balyan, who may be
ineligible for adjustment on the relative visa. As the BIA did not reach the
question of prejudice in its decision, we leave this question to the agency to
address in the first instance.
                                          11
      We therefore grant the petition for review and remand to the BIA for further

proceedings consistent with this decision.

      PETITION GRANTED; REMANDED.




                                         12
