                                                                              FILED
                             NOT FOR PUBLICATION                               JAN 20 2015

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



                             FOR THE NINTH CIRCUIT


KARINE STEPANIAN; GRIGOR                          No. 11-70898
KUPELIAN; GAYANE KUPELIAN;
ASDGHIK KUPELIAN,                                 Agency Nos.         A078-649-864
                                                                      A078-649-865
              Petitioners,                                            A078-649-866
                                                                      A078-649-867
  v.

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

              Respondent.


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

                     Argued and Submitted December 12, 2014
                               Pasadena, California

Before: PREGERSON, WARDLAW, and BERZON, Circuit Judges.

       Karine Stepanian (“Stepanian”), her husband Grigor Kupelian (“Kupelian”),

and their daughters, Gayane Kupelian (“Gayane”) and Asdghik Kupelian

(“Asdghik”) (collectively, “petitioners”), petition for review of a final order of the

Board of Immigration Appeals’ (“BIA” or “Board”) denying their applications for


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”). We grant the petition and remand to the BIA, on an open record,

for a new credibility finding. See Soto-Olarte v. Holder, 555 F.3d 1089, 1096 (9th

Cir. 2009).

      1. We review the BIA’s “factual findings, including adverse credibility

determinations, for substantial evidence.” Garcia v. Holder, 749 F.3d 785, 789 (9th

Cir. 2014). “Adverse credibility findings must be supported by specific, cogent

reasons, and the reasons set forth must be substantial and must bear a legitimate

nexus to the finding.” Akinmade v. INS, 196 F.3d 951, 954 (9th Cir. 1999)

(citations, internal quotation marks, and alterations omitted). Because petitioners

filed their claim in 2000, the pre-REAL ID Act standard for adverse credibility

determinations controls. See Kaur v. Gonzales, 418 F.3d 1061, 1064 n. 1 (9th Cir.

2005). Under that standard, if the BIA cites inconsistencies in the petitioner’s

claim in support of its adverse credibility finding, those inconsistencies “must go to

the heart of the asylum claim to support an adverse credibility finding.” Kin v.

Holder, 595 F.3d 1050, 1055 (9th Cir. 2010).

      “‘In reviewing [a] decision of the BIA, we consider only the grounds relied

upon by that agency.’” Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir.

2011) (quoting Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per


                                                                                      2
curiam)). When the BIA attributes “significant weight to the [IJ’s] findings, we

‘look to the IJ’s oral decision as a guide to what lay behind the BIA’s conclusion.’”

Gu v. Gonzales, 454 F.3d 1014, 1019 (9th Cir. 2006) (quoting Avetova-Elisseva v.

INS, 213 F.3d 1192, 1197 (9th Cir. 2000)).

      2. The agency’s denial of petitioners’ asylum claims was wholly premised

on its adverse credibility finding, which, in turn, was entirely premised on three

inconsistencies in Stepanian’s testimony as to her two prior entries in 1996 and

1998 and her manner of entry in 2000. None of the inconsistencies relied upon by

the IJ or the BIA arose from Stepanian’s detailed and well-corroborated account of

experiences in Armenia. We therefore examine only whether the inconsistencies

regarding Stepanian’s entries go to the heart of her asylum claim.1

      The IJ concluded that Stepanian “concealed dates of entry and manners of

entry in order to show that the problems that [petitioners] faced in either Lebanon

or Armenia were considerably greater than they were,” and that the prior entries

indicated “she really did not have a fear of returning either to Lebanon or

Armenia.” The BIA agreed that Stepanian had not established past persecution

because she was not credible due to the discrepancies regarding the entries.


      1
        The BIA did not adopt the IJ’s finding that Stepanian had presented
falsified documents, and so did not rely on any such falsification in upholding the
IJ’s adverse credibility determination.
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      The discrepancies the IJ and BIA cited regarding Stepanian’s prior entries do

not “concern[] events central to petitioner’s version of why [s]he was persecuted

and fled,” Singh v. Gonzalez, 439 F.3d 1100, 1108 (9th Cir. 2006), or a major

event in petitioners’ narrative of past persecution, see Alvarez-Santos, 332 F.3d at

1254. The actual incidents of past persecution in Armenia were corroborated with

testimony from neighbors and uncontroverted medical evidence. And the prior

entries do not, standing alone, indicate that Stepanian “really did not have a fear of

returning,” and thereby indicate that all her testimony regarding persecution in

Armenia was not true. She could well have feared future persecution even though

she voluntarily returned, on the basis of past persecution that both pre- and post-

dated her prior visits to the United States. While some of the incidents of past

persecution that Stepanian described happened before the prior entries in 1996 and

1998, Stepanian and her husband were also violently attacked and severely beaten

on two separate occasions after the prior entries. Stepanian specifically testified

that the persecution they experienced “g[o]t worse” after 1998, and that her

husband’s business was closed that year. Also, Stepanian’s young daughter had

been living in the United States since June of 1995, which explains why she visited

in 1996 and 1998. Though an asylum petitioner’s voluntary return to the country

of persecution can support an adverse credibility finding under some


                                                                                         4
circumstances, Loho v. Mukasey, 531 F.3d 1016, 1018 (9th Cir. 2008), voluntary

return is not alone sufficient to disprove an asylum claim, even where the past

persecution entirely predates the voluntary return, so long as the voluntary return is

sufficiently explained, see Ding v. Ashcroft, 387 F.3d 1131, 1133–34, 1139–40

(9th Cir. 2004). Similarly, while return trips can be considered as a factor that

rebuts the presumption of well-founded fear after past persecution is established,

return trips “standing alone” are not sufficient to do so. Boer-Sedano v. Gonzales,

418 F.3d 1082, 1091–92 (9th Cir. 2005).

      Stepanian’s testimony about how she crossed the border also did not directly

contradict any of her testimony about her experience of persecution. See de Leon-

Barrios v. INS, 116 F.3d 391, 393 (9th Cir. 1997) (“[M]inor inconsistencies and

minor omissions relating to unimportant facts will not support an adverse

credibility finding.”). While the method of entry is relevant to determining

removability, it is not a factor that must be established to show a well-founded fear

of future persecution. See Deloso v. Ashcroft, 393 F.3d 858, 863–64 (9th Cir.

2005).

      Finally, while there are significant inconsistencies between petitioners’

assertions that they were living in Armenia and the visitor visas apparently

obtained in Lebanon, which identified Stepanian as a resident or citizen of that


                                                                                        5
country, Stepanian was never asked to explain those inconsistencies, and the BIA

and IJ did not rely on them in finding Stepanian not credible.

       As the IJ recognized, Stepanian otherwise presented “consistent,” extensive

testimony detailing the past persecution that she and her family experienced as

Pentecostals living in Armenia both before and after the entries in 1996 and 1998.

Because the false statements or inconsistencies cited by the agency “must be

viewed in light of all the evidence presented in the case,” Kaur v. Gonzales, 418

F.3d 1061, 1066 (9th Cir. 2005), we hold the BIA’s adverse credibility

determination unreasonably relied upon discrepancies that, on the current record,

do not go to the heart of the asylum claim. Wang v. INS, 352 F.3d 1250, 1254-55

(9th Cir. 2003). For that reason, “[a] reasonable adjudicator would be compelled to

conclude that the factual findings underlying the . . . adverse credibility finding

were not supported by substantial evidence.” Singh, 439 F.3d at 1109 (quoting

Wang v. Ashcroft, 341 F.3d 1015, 1022 (9th Cir. 2003)) (second alteration in

original).

       “We [therefore] remand on an open record to give the agency the

opportunity to evaluate [Stepanian’s] credibility while allowing [her] to explain as-

yet-unexplained inconsistencies.” Soto-Olarte, 555 F.3d at 1096.

GRANTED and REMANDED on an open record.


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