                                                                         FILED
                    UNITED STATES COURT OF APPEALS                        DEC 22 2010

                                                                      MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                      U.S . CO U RT OF AP PE A LS




NELLI SIMONYAN,                                No. 07-72713

              Petitioner,                      Agency No. A075-687-459

  v.
                                               ORDER
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



Before:      FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

       Respondent's petition for panel rehearing is granted and the memorandum

disposition filed on February 22, 2010, is withdrawn. A replacement

memorandum disposition is being filed concurrently with this order.
                                                                           FILED
                             NOT FOR PUBLICATION                            DEC 22 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S . CO U RT OF AP PE A LS




                              FOR THE NINTH CIRCUIT



NELLI SIMONYAN,                                  No. 07-72713

               Petitioner,                       Agency No. A075-687-459

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

               Respondent.



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

                             Submitted February 16, 2010**

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

       Nelli Simonyan, a native of the former Soviet Union and citizen of Armenia,

petitions for review of the Board of Immigration Appeals' ('BIA') order

dismissing her appeal from an immigration judge's ('IJ') decision denying her

application for asylum and withholding of removal. We have jurisdiction under 8


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. y 1252. We review for substantial evidence, Soto-Olarte v. Holder, 555

F.3d 1089, 1091 (9th Cir. 2009). We grant the petition for review and we remand.

      The IJ and BIA found Simonyan not credible based on an inconsistency

within her testimony regarding the date of her first arrest, and on several perceived

discrepancies between her claim and her witness' testimony. Substantial evidence

does not support the agency's adverse credibility finding based on the date

discrepancy, or based on the discrepancy regarding the number of uniformed

officers during the second arrest. See Bandari v. INS, 227 F.3d 1160, 1166 (9th

Cir. 2000) ('Any alleged inconsistencies in dates that reveal nothing about a

petitioner's credibility cannot form the basis of an adverse credibility finding.');

Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 662 (9th Cir. 2003) ('Minor

inconsistencies in the record that do not relate to the basis of an applicant's alleged

fear of persecution, go to the heart of the asylum claim, or reveal anything about an

asylum applicant's fear for his safety are insufficient to support an adverse

credibility finding.'). In addition, substantial evidence does not support the

agency's findings that there were other discrepancies between Simonyan and her

witness regarding the second arrest. See Bandari, 227 F.3d at 1167 (rejecting

adverse credibility finding that was not supported by the record).




                                           2                                     07-72713
      Substantial evidence also does not support the BIA's alternate conclusion

that a presumption of a well-founded fear of persecution was rebutted solely based

on the remarµs of one witness that the Pentecostal church is now officially

recognized by the Armenian government. See Lopez v. Ashcroft, 366 F.3d 799,

805 (9th Cir. 2004) (BIA's determination regarding changed circumstances must

be sufficiently individualized to rebut the presumption).

      Accordingly, we grant the petition for review and remand Simonyan's

asylum and withholding of removal claims on an open record, see Soto-Olarte, 555

F.3d at 1093-96, for further proceedings consistent with this disposition. See INS

v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).

      PETITION FOR REVIEW GRANTED; REMANDED.




                                          3                                   07-72713
