                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       NOV 20 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

GARIK GAMBARYAN,                                No.    16-73312

                Petitioner,                     Agency No. A097-371-451

 v.
                                                MEMORANDUM*
WILLIAM P. BARR, Attorney General,

                Respondent.

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

                     Argued and Submitted November 8, 2019
                              Pasadena, California

Before: MURGUIA and HURWITZ, Circuit Judges, and ZOUHARY,** District
Judge.

      Garik Gambaryan, a citizen of Armenia, petitions for review of a decision of

the Board of Immigration Appeals (“BIA”) dismissing his appeal from the order of

an Immigration Judge (“IJ”) denying an application for asylum, withholding of

removal, and protection under the Convention Against Torture.              We have


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
jurisdiction under 8 U.S.C. § 1252(a)(1) and grant the petition.

      In this pre-REAL ID Act case, an adverse credibility determination must be

supported by a specific and cogent reason that goes to the heart of the petitioner’s

claim. See Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir. 2004). We review only those

parts of the IJ’s credibility finding that were relied upon by the BIA. See Tekle v.

Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008). The adverse credibility finding must

be supported by substantial evidence. See Don v. Gonzales, 476 F.3d 738, 741 (9th

Cir. 2007).

      1.      The BIA and IJ both incorrectly found Gambaryan was not credible

because his asylum statement did not assert he was taken to an Armenian internal

affairs office and placed on a blacklist. The Government recognizes that error, and

now argues Gambaryan instead omitted this information from his testimony before

the IJ, rather than from his asylum statement. Our review, however, is confined to

the reasoning given by the BIA. See Becker v. Gonzales, 473 F.3d 1000, 1001 n.2

(9th Cir. 2007). In any event, Gambaryan did testify to the IJ about this incident.

Because the adverse credibility finding rests on an inconsistency that does not exist

in the record, it is not supported by substantial evidence. See Singh v. Gonzales, 403

F.3d 1081, 1090 (9th Cir. 2005) (granting petition where “[t]he purported

inconsistency identified by the IJ [did] not exist, and [did] not support the adverse

credibility determination.”).


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      2.     The adverse credibility finding is not supported by Gambaryan’s failure

to mention in his asylum application an incident in which he and others were

arrested, beaten, and tested for sexually transmitted diseases. Gambaryan’s asylum

application, which was not prepared by an attorney, stated he was not fluent in

English. Omissions in an asylum statement “are not given much significance

because applicants usually do not speak English and are not represented by counsel.”

Kin v. Holder, 595 F.3d 1050, 1056 (9th Cir. 2010). In addition, Gambaryan’s

omission did not alter or contradict his account of persecution. Therefore, his failure

to include this testimony in his asylum application does not support the adverse

credibility finding. See Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir. 1996)

(holding that petitioner’s failure to file an application that was “as complete as might

be desired, cannot, without more, serve as a basis for a finding of lack of credibility,”

and that “[i]t is well settled that an applicant’s testimony is not per se lacking in

credibility simply because it includes details that are not set forth in the asylum

application.”) (internal quotation marks omitted).

      3.     Gambaryan’s declaration stated he was fired from a job in April 2000,

but he testified before the IJ that the firing occurred in either February or March of

that year. Such small discrepancies in dates that do not bear on the fear of future

persecution are “‘minor inconsistencies’ that cannot form the basis of an adverse

credibility finding.” Bandari v. INS, 227 F.3d 1160, 1166 (9th Cir. 2000) (quoting


                                           3
Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir. 1988)).

      4.     Although Gambaryan initially failed to mention a 2001 walkathon and

his subsequent arrest in response to a question by the IJ during his asylum hearing,

Gambaryan testified consistently with the asylum statement when reminded of the

incident. Gambaryan explained that he originally failed to mention the incident

because he did not realize the IJ’s question was about his arrest. Neither the BIA

nor the IJ addressed this plausible explanation and, therefore, this testimony does

not support the adverse credibility finding. See Hakeem v. INS, 273 F.3d 812, 816

(9th Cir. 2001) (citing Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir. 1998))

(stating that an adverse credibility finding is not supported by substantial evidence

when the petitioner’s explanation for an alleged discrepancy was not addressed).

      PETITION FOR REVIEW GRANTED; REMANDED.




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