                                                                           FILED
                            NOT FOR PUBLICATION                             APR 25 2011

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




                            FOR THE NINTH CIRCUIT



NORA NAROYAN,                                    No. 06-72632

              Petitioner,                        Agency No. A098-522-807

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

              Respondent.



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

                       Argued and Submitted April 11, 2011
                              Pasadena, California

Before: D.W. NELSON, BYBEE, and M. SMITH, Circuit Judges.

       Nora Naroyan (“Naroyan” or “petitioner”) petitions for review of the Board

of Immigration Appeals’ (“BIA”) denial of her applications for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).

The BIA affirmed the Immigration Judge’s (“IJ”) denial of asylum and

withholding of removal on the basis of an adverse credibility determination and


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
found that Naroyan did not dispute the IJ’s denial of her CAT claim. This Court

has jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We grant Naroyan’s petition as

to asylum and withholding of removal and dismiss the petition as to relief under

CAT.

       This Court reviews adverse credibility determinations for substantial

evidence. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002) (citation omitted).

Under this standard, the BIA’s determinations are to be upheld if they are

supported by “reasonable, substantial and probative evidence” in the record.

Kumar v. Gonzales, 444 F.3d 1043, 1049 (9th Cir. 2006) (citations omitted).

Because the BIA “conducted its own review of the evidence and law rather than

simply adopting the immigration judge’s decision . . . our review is limited to the

BIA’s decision, except to the extent the IJ’s opinion is expressly adopted.”

Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (citation and internal

quotation marks omitted).

       In this case, the BIA pointed to three supposed inconsistencies in the record

that supported its adverse credibility determination: (1) Naroyan testified that she

was beaten by three assailants on May 17, 2004, but the BIA found that she did not

mention this “important incident” in her written application; (2) Naroyan testified

that several people were arrested at a political rally on April 12, 2004, between the


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hours of 6pm and 7pm, but, when confronted with a news report indicating that

arrests took place at 2am on April 13, Naroyan told the asylum officer that the

news report was incorrect and then testified before the IJ that she had only assumed

arrests had taken place during the early evening hours; and (3) the medical records

regarding the injuries Naroyan sustained in the March 16, 2000 police beating

indicate that she suffered from a “thorax injury” and a “left hand injury,” but the

BIA claims that Naroyan also claimed to have sustained a concussion and an ear

injury. None of these grounds constitutes substantial evidence.

      The BIA’s first finding is simply incorrect. Naroyan’s asylum application

did mention the attack on May 17, 2004. Even if the BIA found that Naroyan’s

written application did not mention that she recognized one of her assailants, this

still would not constitute substantial evidence, because it is well settled in the

Ninth Circuit 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.”

Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir. 1996) (citing Aguilera-Cota v. INS,

914 F.2d 1375, 1382 (9th Cir. 1990)).

      The second and third grounds cited by the BIA are at most “[m]inor

inconsistencies in the record that do not relate to the basis of [Naroyan’s] alleged

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


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[her] fear for [her] safety.” Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660

(9th Cir. 2003) (citations omitted). Whether Naroyan witnessed arrests or minor

skirmishes between protestors and police on the evening of April 12, 2004, before

the mass arrests at around 2am on April 13, her testimony was not inconsistent on

this issue. Even assuming Naroyan’s testimony was inconsistent, we fail to see

how this inconsistency goes to the heart of Naroyan’s asylum claim given that

Naroyan was merely present for a short period of time at the rally, did not actively

participate in the rally, and did not suffer any repercussions because of her

presence there. Similarly, during her testimony before the IJ, Naroyan clarified

which injuries had been sustained during the March 2000 police beating and which

injuries were sustained in November 2003. Any omissions in her medical report

are not inconsistent with her testimony. See Singh v. Ashcroft, 301 F.3d 1109,

1112-13 (9th Cir. 2002).

      Because the BIA’s three findings in support of its adverse credibility

determination were not supported by substantial evidence, we reverse that

determination and remand to the agency to consider whether Naroyan, now

considered credible, has established eligibility for asylum and withholding of

removal.




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      We dismiss the petition for review with respect to Naroyan’s CAT claim

because this claim was not exhausted before the BIA.

      Finally, Naroyan’s request for judicial notice of her pending I-130

application is granted.

      Petition for review GRANTED in part, DISMISSED in part, and

REMANDED to the BIA for further proceedings.

      Each party shall bear its own costs on appeal.




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