                                                                              FILED
                            NOT FOR PUBLICATION                                JUL 24 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ERIK MIRATOVICH DOLUKHANYAN,                     No. 12-71942

              Petitioner,                        Agency No. A095-673-447

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                        Argued and Submitted July 6, 2015
                              Pasadena, California

Before: W. FLETCHER, PAEZ, and BERZON, Circuit Judges.

      Erik Miratovich Dolukhanyan, a native and citizen of Armenia, petitions for

review of the decision of the Board of Immigration Appeals (“BIA”) affirming the

Immigration Judge’s (“IJ”) denial of his asylum application on the basis of her

finding that Dolukhanyan was not credible. The IJ identified three discrepancies in

Dolukhanyan’s testimony, and also found that his failure to present the testimony


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
of his mother and sister (who both reside in Los Angeles) detracted from his

credibility. Because each of these bases was either improperly found or is not

supported by substantial evidence, we grant the petition and remand.

      First, Dolukhanyan testified that he was involved in a car accident in

Armenia and was subsequently tried and convicted of falling asleep at the wheel,

but claimed that the accident was “cooked up,” and the prosecution an incident of

persecution. The IJ found that Dolukhanyan’s testimony regarding the “cooked

up” accident was inconsistent with the record of conviction from the Armenian

court, which showed that Dolukhanyan had pled guilty and had confessed to falling

asleep at the wheel, and that the court had sentenced him to a five-year suspended

sentence with three years of probation based on a plea of leniency from the wife of

a passenger who had died in the crash. But Dolukhanyan never wavered in his

testimony regarding the crash, never denied that he had pled guilty, and explained

that the Armenian court record was erroneous. A person may plead guilty even in

a sham trial, and the IJ never addressed Dolukhanyan’s explanation that the court

record was simply incorrect. Moreover, the IJ failed to consider that Dolukhanyan

could testify credibly as to his subjective belief about the accident, even if she

thought that his conclusions about what actually happened were wrong. “An

adverse credibility finding is improper when an IJ fails to address a petitioner’s


                                           2
explanation for a discrepancy or inconsistency.” Kaur v. Ashcroft, 379 F.3d 876,

887 (9th Cir. 2004) (superseded by statute on other grounds). Because the IJ failed

to address Dolukhanyan’s explanations, her finding regarding his Armenian

conviction was improper.

      The IJ further found that Dolukhanyan’s father Marat Dolukhanyan’s

asylum application, signed on February 17, 2002, which stated that Erik

Dolukhanyan was at that point in Russia “contradicted” Erik Dolukhanyan’s

“assertion that he was arrested after participating in a rally in Armenia in

December 2001.” Plainly, it does not. Therefore, her finding does not go to the

heart of Dolukhanyan’s claim, and, because this is a pre-REAL ID Act case, cannot

constitute substantial evidence. Khadka v. Holder, 618 F.3d 996, 1000 (9th Cir.

2010).

      Moreover, to the extent that Marat Dolukhanyan’s asylum application is

inconsistent with Erik Dolukhanyan’s testimony regarding his presence in Armenia

and Russia, Erik Dolukhanyan explained that he and his father were not in touch at

the time Marat Dolukhanyan filed it. Therefore, Marat Dolukhanyan had no

knowledge of his son’s whereabouts. The IJ relied on the inconsistency because

Dolukhanyan “testified that he was in contact with his father on a couple occasions

following his father’s entry into the United States in November 2001.” However,


                                           3
while Dolukhanyan did testify that he was in contact with his father “a couple

times” after his father left Armenia, he testified that such contact began in

December of 2002. The IJ did not address Dolukhanyan’s testimony regarding

when contact with his father resumed, and therefore her conclusions regarding

Marat Dolukhanyan’s asylum application were also improper. See Kaur, 379 F.3d

at 887.

      Additionally, at the hearing, the government submitted two police records

documenting two incidents in which Dolukhanyan had been arrested in the United

States. The IJ found that Dolukhanyan had “repeatedly” and “steadfastly” denied

being arrested, and that his “vehement denial of either arrest, even after being

presented with the Government’s evidence, substantially detracts from his

credibility.” But Dolukhanyan did not deny that he was taken into custody both

times, vehemently or otherwise. Instead, he admitted that both incidents occurred,

and explained that his initial denial of the 2008 arrest stemmed from his confusion

over the meaning of the word “arrest,” an explanation that is borne out by the

transcript of the hearing. The IJ’s conclusion mischaracterized Dolukhanyan’s

testimony, failed to address his explanation, and is not supported by substantial

evidence.




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       Finally, the IJ faulted Dolukhanyan for failing to corroborate his claims with

the readily available testimony of his mother and sister. Because this is a pre-

REAL ID Act case, we must look to see whether “the corroborating evidence [was]

both material to the petitioner’s asylum claim and non-duplicative of other

corroboration.” Sidhu v. INS, 220 F.3d 1085, 1091 (9th Cir. 2000). “[W]here an

applicant produces credible corroborating evidence to buttress an aspect of his own

testimony, an IJ may not base an adverse credibility determination on the

applicant’s failure to produce additional evidence that would further support that

particular claim.” Id. Dolukhanyan produced ample documentary evidence, the

authenticity of which the IJ never questioned. Moreover, Dolukhanyan never

claimed that either his mother or his sister had witnessed or had any knowledge of

the persecution he claims he suffered in Armenia. They could only have testified

as to what Dolukhanyan told them; that is, their testimony would have been

duplicative of Dolukhanyan’s own testimony and immaterial. Therefore, the IJ

erred in requiring it.

       PETITION GRANTED AND REMANDED.




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