                                                                           FILED
                             NOT FOR PUBLICATION                            MAY 17 2013

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




                             FOR THE NINTH CIRCUIT



ANNA SHAHINYAN; KARO                             No. 08-74379
HAIRAPETYAN; SUZAN
HAIRAPETYAN,                                     Agency Nos.         A078-650-659
                                                                     A078-650-660
              Petitioners,                                           A078-650-661

  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 8, 2013
                              Pasadena, California

Before: O’SCANNLAIN, PAEZ, and IKUTA, Circuit Judges.

       Petitioner Anna Shahinyan petitions for review of the Board of Immigration

Appeals (“BIA”)’s order affirming the Immigration Judge (“IJ”)’s decision

denying her application for asylum and withholding of removal. The IJ found that




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Shahinyan had not established her identity or the identities of her children.1 He

concluded that without proof of their identities, he could not make a credibility

determination or adjudicate Shahinyan’s claims; he therefore denied her

application. The BIA affirmed on the grounds that Shahinyan had failed to present

objective evidence of her and her children’s identities or an inability to obtain

authenticated copies of their birth certificates. We have jurisdiction under 8 U.S.C.

§ 1252. We grant the petition and remand to the BIA for further proceedings on an

open record.

      1. The IJ acted contrary to this court’s decision in Kalouma v. Gonzales, 512

F.3d 1073 (9th Cir. 2008). In Kalouma, we held that an alien does not have a

heightened burden to establish identity; thus, he can prove identity—like any other

element of an asylum claim—through credible testimony alone. Id. at 1078-79.

Here, however, the IJ declined to make an adverse credibility determination or

adjudicate Shahinyan’s claims because he believed that he could not do so without

non-testimonial proof of identity. This was legal error, and the BIA failed to

correct the error.




      1
       Petitioners Karo and Suzan Hairapetyan are the children of Anna
Shahinyan and are therefore derivative beneficiaries of her asylum application.

                                           2
      2. The BIA also erred in concluding that Shahinyan failed to establish her

identity and the identities of her children because she did not submit “objective

evidence” of their identities. Under this circuit’s pre-REAL ID Act case law, the

BIA cannot require corroborating evidence from a petitioner about whom the IJ has

not made an adverse credibility determination. Singh v. Gonzales, 491 F.3d 1019,

1024 (9th Cir. 2007), superseded by statute, REAL ID Act of 2005, Pub. L. No.

109-13, § 101(h)(2), 119 Stat. 231, 305, as recognized in Singh v. Holder, 602 F.3d

982 (9th Cir. 2010); Kataria v. I.N.S., 232 F.3d 1113-14 (9th Cir. 2000). Since the

IJ did not make an adverse credibility determination in this case, the BIA had two

options: it could have remanded to the IJ for a proper credibility determination, or

it could have accepted Shahinyan’s testimony as true. In the pre-REAL ID Act

context, however, it was error for the BIA to require corroborating evidence of

identity in the absence of an adverse credibility determination.

      PETITION GRANTED AND REMANDED.




                                          3
4
                                                                              FILED
Shahinyan v. Holder, No. 08-74379                                              MAY 17 2013
Ikuta, J., with whom O’Scannlain, J., joins, concurring
                                                                          MOLLY C. DWYER, CLERK
                                                                            U .S. C O U R T OF APPE ALS

      Today the court applies circuit precedent that is contrary to the applicable

regulation, contrary to the BIA’s longstanding interpretation of that regulation, and

contrary to the decisions of our sister circuits. Bound by that precedent—at least

for now—I reluctantly concur.

      With respect to pre-REAL ID Act cases, we have held that petitioners can

carry their burden of proving eligibility for relief based on their testimony alone,

and immigration judges cannot require any corroboration of that testimony unless

they first find that the petitioner is not credible. See Tijani v. Holder, 628 F.3d

1071, 1080 (9th Cir. 2010).

      This precedent is plainly contrary to text of the applicable regulation, which

merely permits an immigration judge to rely on credible testimony. 8 C.F.R.

§ 208.13(a) (“The testimony of the applicant, if credible, may be sufficient to

sustain the burden of proof without corroboration.” (emphasis added)). More

important, the rule is contrary to the BIA’s own longstanding interpretation of 8

C.F.R. § 208.13(a). In re S-M-J, 21 I. & N. Dec. 722, 724, 729 (BIA 1997)

(holding that, under § 208.13(a), an immigration judge may find that an applicant

is credible, but still determine that the applicant failed to carry her burden of proof

in the absence of evidence supporting her claim). Unsurprisingly, our contrary
interpretation has been rejected by our sister circuits. See, e.g., Soeung v. Holder,

677 F.3d 484, 488 (1st Cir. 2012); Diallo v. INS, 232 F.3d 279, 286 (2d Cir. 2000);

Chukwu v. Att’y General, 484 F.3d 185, 191–92 (3d Cir. 2007); Yang v. Holder,

664 F.3d 580, 585 (5th Cir. 2011); Dorosh v. Ashcroft, 398 F.3d 379, 382 (6th Cir.

2004); El-Sheikh v. Ashcroft, 388 F.3d 643, 647 (8th Cir. 2004); cf. Abovian v. INS,

257 F.3d 971, 973 (9th Cir. 2001) (Kozinski, J., dissenting from denial of rehearing

en banc) (noting that our rule requiring corroboration “has no support in the

immigration laws and pushes our court even further adrift from the law of other

circuits”).

       “Thankfully, relief is on its way,” Jibril v. Gonzales, 423 F.3d 1129, 1138

n.1 (9th Cir. 2005), this time in the form of National Cable & Telecommunications

Association v. Brand X Internet Services, 545 U.S. 967 (2005). In Brand X, the

Supreme Court held that an agency’s reasonable interpretation of a statute,

provided the interpretation is otherwise entitled to deference, trumps a prior

judicial construction of the same statute. Id. at 983. “Only a judicial precedent

holding that the statute unambiguously forecloses the agency’s interpretation, and

therefore contains no gap for the agency to fill, displaces a conflicting agency

construction.” Id. at 982–83. Though Brand X addresses the deference owed to

agencies’ statutory interpretations, there is “no reason why these principles should

not apply equally to the interpretation of a regulation.” Levy v. Sterling Holding
Co., LLC, 544 F.3d 493, 502 (3d Cir. 2008); see also In re Lovin, 652 F.3d 1349,

1354 (Fed. Cir. 2011) (same).

      We have never held that an immigration statute or regulation compels our

rule precluding immigration judges from requiring corroborating evidence absent

an adverse credibility determination. See, e.g., Ladha v. INS, 215 F.3d 889, 899

(9th Cir. 2000) (noting that our precedent does not even allow us to consider

whether § 208.13 is a permissible interpretation of the INA), overruled in part on

other grounds by Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en

banc). Accordingly, the BIA is free to provide an authoritative construction of 8

C.F.R. § 208.13(a). If it does so, we will have to reassess the continued validity of

our contrary precedent as required by Brand X, 545 U.S. at 982–84. But because

the government has not yet pointed to any such construction, our precedent

remains binding—for now—and I concur in the court’s disposition.
