                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 30 2016

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



                            FOR THE NINTH CIRCUIT


YANKO YOSIFOV LUKOV,                             No. 12-71810

              Petitioner,                        Agency No. A078-045-981

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

              Respondent.


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

                     Argued and Submitted February 10, 2016
                            San Francisco, California

Before: TASHIMA and W. FLETCHER, Circuit Judges and GETTLEMAN,**
Senior District Judge.

      Yanko Lukov, a citizen of Bulgaria, petitions for review of the decision of

the Board of Immigration Appeals (“BIA”) denying his claims for asylum,




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Robert W. Gettleman, Senior District Judge for the
U.S. District Court for the Northern District of Illinois, sitting by designation.
withholding of removal, and protection under the Convention Against Torture

(“CAT”). We deny the petition.

      Substantial evidence supports the BIA’s adverse credibility determination.

Because Lukov’s application was filed before May 11, 2005, the REAL ID Act

does not apply. Joseph v. Holder, 600 F.3d 1235, 1240 n.3 (9th Cir.

2010). We agree with Lukov and the dissent that some of the purported

inconsistencies relied upon by the BIA, such as the inconsistency regarding where

he was when he woke up from his coma, do not go to the heart of his claim. See

Smolniakova v. Gonzales, 422 F.3d 1037, 1045 (9th Cir. 2005). Nonetheless,

substantial evidence supports the BIA’s decision in light of Lukov’s inconsistent

testimony regarding his absences from a military base. Originally, Lukov testified

that he had been given leave on only one occasion. After the Immigration Judge

(“IJ”) confronted Lukov with a medical record indicating that Lukov had twice

visited a hospital approximately 150 kilometers away during the time he was

supposedly at the base, Lukov for the first time testified that he had run away from

the base two times after experiencing beatings. But the medical record did not

support this new assertion either, as the document indicated that Lukov was treated

for bronchitis during one of these visits, not for injuries that would normally be

associated with a beating. Later testimony further conflicted with Lukov’s original


                                          -2-
statement; during cross-examination, Lukov testified that he ran away five to ten

times during his military service.

       These inconsistencies goes to the heart of Lukov’s claim. Lukov claimed

asylum on account of his Roma ethnicity. His claim stemmed in part from the

mistreatment and beatings he received during his conscripted military service in a

Roma-only brigade. Inconsistent testimony regarding Lukov’s experiences while

at the military base, especially as they relate to the beatings he received, thus goes

to the heart of his allegations.

       Petition for review DENIED.




                                          -3-
                                                                              FILED
Lukov v. Lynch, 12-71810
                                                                              MAR 30 2016

      GETTLEMAN, Senior District Judge, dissenting.                       MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


      I respectfully dissent, and conclude that the adverse credibility finding of the

Board of Immigration Appeals (“BIA”) is not supported by substantial evidence.

Therefore, I would grant the petition, reverse the adverse credibility finding of the

BIA, and remand for further proceedings.

      The BIA identified four bases upon which the Immigration Judge (“IJ”)

found that petitioner’s claims were not credible: (1) the inconsistency between

petitioner’s written statement and testimony concerning whether he first awoke at

home or in the hospital following his alleged beating by police on New Year’s

Eve 1999; (2) the inconsistency between petitioner’s testimony that he was given

leave from the army on only one occasion and a medical document indicating that

he had visited a hospital in his hometown, 150 kilometers from where he was

stationed, on two occasions during his military service; (3) the implausibility of

petitioner’s testimony, given for the first time during the 2009 hearing, that he had

left the military base without leave on several occasions; and (4) petitioner’s

inability to explain why his birth certificate, issued in April 2000, contained his

Bulgarian name and his parents’ Roma names when he had testified that all Roma,

including his parents, were forced to change their names to Bulgarian names

in 1980.
      With the exception of the inconsistency concerning petitioner’s birth

certificate, the BIA conducted its own review and analysis of each inconsistency.

The BIA found that petitioner was given the opportunity to explain each

inconsistency, but that his explanations were unpersuasive or led to additional

inconsistencies. Consequently, the BIA held that the IJ’s adverse credibility

determination was not clearly erroneous.

      Because petitioner’s application was filed before May 11, 2005, the REAL

ID Act does not apply. Joseph v. Holder, 600 F.3d 1235, 1240 n.3 (9th Cir.

2010). Accordingly, the inconsistencies relied on by the BIA in finding petitioner

not credible must go to the heart of his claim. Desta v. Ashcroft, 365 F.3d 741, 745

(9th Cir. 2004). I conclude that because none of the identified discrepancies go to

the heart of petitioner’s claims, the BIA’s adverse credibility finding is not

supported by substantial evidence. See Yi Quan Chen v. INS, 266 F.3d 1094, 1098

(9th Cir. 2001) (reversed on other grounds).

      The State Department’s Country Report on Bulgaria established that

mandatory military service is a common practice for all Bulgarian citizens.

Consequently, petitioner’s claims do not stem in part from the fact that he was

forced to serve in the military, because such service was required regardless of

ethnicity. Instead, petitioner’s claims stem from the repeated physical abuse that


                                           2
he suffered while living in Bulgaria, only some of which he alleges he received

while serving in the military. Petitioner has consistently testified that because of

his Roma ethnicity1 he was assigned to a labor battalion and often beaten during

his military service. Far from diminishing these allegations of abuse, petitioner’s

medical records from the Rakovski hospital corroborate his claim that he was in

fact beaten on at least one occasion while in the military. Any inconsistency

concerning the amount of leave time petitioner was allowed to take during his

military service has no bearing on petitioner’s claims of physical abuse, and

therefore does not go to the heart of petitioner’s claims. See Kaur v. Ashcroft, 379

F.3d 876, 884 (9th Cir. 2004) (superseded by statute on other grounds) (“Minor

inconsistencies that reveal nothing about an asylum applicant’s fear for [her] safety

are not an adequate basis for an adverse credibility finding.” (internal quotations

omitted)) .

       Moreover, petitioner’s account of his 1999 New Year’s Eve police beating

(the event that caused petitioner to flee Bulgaria), a narrative that is corroborated

by medical records,2 is sufficient, standing-alone, to support his claims for relief.

       1
          The State Department’s Country Report also confirmed that minorities are regularly
assigned to labor battalions during their mandatory military service.
       2
         Petitioner’s hospital records from January 1, 2000, indicate that he “suffered a beating
by known individuals; Cannot recollect the incident; Complains of severe headache, nausea,
vomiting, vertigo; Obj. Swelling on the head, heamatomas [sic] on the entire body; Not
                                                                                      (continued...)

                                                 3
Petitioner’s written statement alleged that while at a Free Bulgaria party on New

Year’s Eve in 1999, police raided the party and assaulted the attendees. According

to petitioner’s statement, the police began hitting everyone with their batons, and

the next thing he remembered was “waking up at the hospital,” at which time he

was told that he had been in a coma for 11 hours. Following this incident,

petitioner immediately fled Bulgaria. Although petitioner testified on a single

occasion that he first woke up at home following the alleged beating, as the

majority has held, where petitioner woke up from his coma does not go to the heart

of his claims. Because this event is sufficient on its own to support petitioner’s

claims, it is not necessary to consider his experiences while in the military more

than a decade before the persecution that precipitated his fleeing Bulgaria.

       Finally, although it is not clear whether the BIA relied on the perceived

inconsistency concerning petitioner’s birth certificate, this reason, like the others,

is not a sufficient basis upon which to find petitioner not credible. The IJ3 held that

the inconsistency goes to the heart of petitioner’s case because it concerns his


       2
       (...continued)
cognizant of time and place; . . . Direction to neurosurgeon.”
       3
           As noted above, the BIA identified this inconsistency as one of the bases upon which
the IJ found petitioner not credible, but did not engage in its own analysis concerning the
inconsistency. I will assume that the BIA adopted and affirmed the IJ’s reasoning with respect
to this inconsistency. See Alaelua v. INS, 45 F.3d 1379, 1382 (9th Cir. 1995) (holding that
where the BIA adopts and affirms the findings and reasoning of the IJ, the court reviews the IJ’s
opinion as if it were the opinion of the BIA).

                                                 4
claimed Roma ethnicity. However, by identifying his parents by their Roma

names, the birth certificate also identifies petitioner as Roma, regardless of whether

his Roma or Bulgarian name was used. Petitioner, in fact, explained this concept

during direct examination when he testified that someone looking at the document

would know his ethnic origins because his parents’ Roma names were used on the

form. As such, contrary to the IJ’s reasoning, the birth certificate supports

petitioner’s claim that he is Roma.

      Moreover, whether petitioner was in fact ordered to change his Roma name

to a Bulgarian name does not go to the heart of his claims. In light of the fact that

the alleged name change occurred in 1980 and petitioner did not flee Bulgaria until

2000, the information was not a basis for his claimed persecution. Instead, it was

merely background information concerning discrimination against Roma in

Bulgaria.

      Because the grounds upon which the BIA based its conclusion fail to

persuade me of the reasonableness of the adverse credibility finding, I find

petitioner’s testimony credible and conclude that the record compels reversal. See

INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992) (For the court “[t]o reverse the

BIA finding we must find that the evidence not only supports [reversal], but




                                           5
compels it.” (emphasis in original)). For these reasons, I would grant the petition,

reverse the BIA’s finding, and remand for further proceedings.




                                          6
