                                                                           FILED
                              NOT FOR PUBLICATION                           JAN 08 2010

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




                              FOR THE NINTH CIRCUIT



 DAVIT MKRTCHYAN,                                 No. 06-73986

               Petitioner,                        Agency No. A097-105-585

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

               Respondent.



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

                             Submitted December 15, 2009 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

        Davit Mkrtchyan, a native of the former Soviet Union and citizen of

Armenia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order

denying his motion to remand and dismissing his appeal from an immigration



          *
             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).

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judge’s (“IJ”) decision denying his application for asylum, withholding of removal,

and protection under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the IJ’s

adverse credibility determination, Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th

Cir. 2009), and for abuse of discretion the BIA’s denial of the motion to remand,

Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). We review de novo

claims of due process violations in removal proceedings. Sharma v. INS, 89 F.3d

545, 547 (9th Cir. 1996). We grant the petition for review, and we remand.

       The IJ’s adverse credibility determination relied in part on a government

forensic report regarding the authenticity of Mkrtchyan’s political party

identification. The government did not disclose the forensic report to Mkrtchyan

in advance of the hearing or make the forensic report’s author available for cross-

examination at the hearing. Under these circumstances, the IJ’s consideration of

the forensic report denied Mkrtchyan a fair hearing. See Cinapian v. Holder, 567

F.3d 1067, 1075 (9th Cir. 2009) (government’s failure to disclose forensic reports

in advance of hearing or to make reports’ authors available for cross-examination

and IJ’s subsequent consideration of the reports denied petitioners a fair hearing).

       The BIA also abused its discretion in denying the motion to remand because

the motion contains an alleged newly available document from Mkrtchyan’s


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political party in Armenia purportedly showing the party issued Mkrtchyan an

identification card bearing the same number as the disputed identification card in

the record. The motion therefore offers rebuttal evidence of the forensic report

upon which the IJ relied in part to determine that Mkrtchyan was not credible. In

light of our disposition, we do not address the merits of the IJ’s remaining reasons

for finding Mkrtchyan not credible.

       We remand Mkrtchyan’s asylum, withholding of removal and CAT claims

for further proceedings. See Soto-Olarte, 555 F.3d at 1095-96.

       PETITION FOR REVIEW GRANTED; REMANDED.




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