                                                                           FILED
                             NOT FOR PUBLICATION                            DEC 07 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                             FOR THE NINTH CIRCUIT



SAMVEL HAYRAPETYAN and                           No. 05-77155
PAYTSAR MURADYAN,
                                                 Agency Nos. A079-517-742
              Petitioners,                                   A079-517-743

  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 May 3, 2010
                              Pasadena, California

Before: NOONAN, CLIFTON and BYBEE, Circuit Judges.

       Samvel Hayrapetyan (Hayrapetyan), a native and citizen of Armenia,

petitions for review of the decision of the Board of Immigration Appeals (BIA)

affirming the Immigration Judge's (IJ) denial of his applications for asylum,

withholding of removal, and protection under the Convention Against Torture



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(CAT). The IJ denied relief on the basis of an adverse credibility determination,

and the BIA adopted and affirmed the decision of the IJ, citing Matter of Burbano,

20 I. & N. Dec. 872, 874 (BIA 1994). We therefore review the decisions of both

the IJ and the BIA. See Samayoa-Martinez v. Holder, 558 F.3d 897, 899 (9th Cir.

2009). We evaluate the adverse credibility determination for substantial evidence,

Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir. 2009), and apply pre-REAL

ID Act standards because Hayrapetyan's asylum application was filed prior to the

Act's effective date, see Sinha v. Holder, 564 F.3d 1015, 1021 n.3 (9th Cir. 2009).

Concluding that substantial evidence does not support the IJ's adverse credibility

determination, we grant the petition and remand for further proceedings.

      The IJ relied on inconsistencies in the record pertaining to the two times that

Hayrapetyan received medical treatment after being beaten by the Yerµrapah. The

letter from the hospital where Hayrapetyan first sought treatment was addressed to

Hayrapetyan, not to his brother-in-law, who had obtained the letter after

Hayrapetyan had left Armenia. This discrepancy was explained by Hayrapetyan's

testimony that it is standard practice in Armenia to address such a document to its

subject. The letter also indicated that Hayrapetyan was advised to seeµ follow-up

care from specialists at his place of residence. Hayrapetyan testified that his

mother was told at the hospital that he should travel to the capital city of Yerevan


                                           2
for follow-up treatment. As an explanation for the tension between the advice

documented in the letter and the oral advice that he was given, Hayrapetyan

testified that the specialist care he was advised to seeµ was not available where he

lived.

         The second time that Hayrapetyan received medical care, he did not go to

the hospital. Instead, as Hayrapetyan stated in both his written declaration and his

oral testimony, he received care locally, at a relative's house. Although his written

declaration stated that he was 'treated by the private doctor,' Hayrapetyan

explained during his oral testimony that a doctor was consulted, but there were no

private doctors in his town. Hayrapetyan stated that he was treated by relatives at

home because he was too afraid to go to the hospital for actual treatment by the

doctor.

         For each of the purported inconsistencies regarding Hayrapetyan's medical

care, Hayrapetyan offered reasonable explanations. The IJ erred by failing to

consider these plausible explanations, and for this reason these inconsistencies do

not support adverse credibility. See Soto-Olarte, 555 F.3d at 1091. Moreover,

these discrepancies pertain to minor details that are too insignificant to constitute

substantial evidence. See Singh v. Ashcroft, 362 F.3d 1164, 1171 (9th Cir. 2004);

Garrovillas v. INS, 156 F.3d 1010, 1014 (9th Cir. 1998) (holding that


                                           3
'inconsistencies of less than substantial importance for which a plausible

explanation is offered' cannot serve as the basis for an adverse credibility finding).

      Other inconsistencies identified by the IJ cannot support the adverse

credibility determination because Hayrapetyan was given no opportunity to explain

the perceived contradiction. See Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.

2007) ('[T]he IJ must provide a petitioner with a reasonable opportunity to offer an

explanation of any perceived inconsistencies that form the basis of a denial of

asylum.') (internal quotations omitted). In particular, Hayrapetyan was never

given a chance to clarify or explain his testimony regarding the injuries to his

µidneys.

      Hayrapetyan was also not given an opportunity to explain his error in

naming the presidential candidate of the ANM party. Moreover, this testimony

does not go to the heart of Hayrapetyan's claim for asylum, which is based on

whistleblowing. See Grava v. INS, 205 F.3d 1177, 1181 (9th Cir. 2000) (holding

that whistleblowing against government corruption can constitute political activity

for the purpose of asylum); see also Li v. Holder, 559 F.3d 1096, 1102 (9th Cir.

2009) (holding that the reason underlying an adverse credibility determination

'must go to the heart of the asylum claim.').




                                          4
      The IJ also identified an inconsistency in the number of beatings described in

Hayrapetyan's written declaration and his oral testimony. This alleged

inconsistency is not supported by the record. According to the IJ, Hayrapetyan's

declaration stated that he was beaten at the party meeting, and Hayrapetyan's failure

to mention this beating during his oral testimony amounted to an omission.

However, the declaration is ambiguous as to whether a beating actually occurred at

the party meeting. The declaration states only: 'I demanded to checµ the

informations and taµe legal actions toward criminals and the Chief of the Customs

Department. I was reprimanded by the members of the party, they demanded from

me to give them the document. I refused and as a result I was beaten.' These

sentences, riddled with grammatical errors as they are, can fairly be read to mean

that, generally as a result of his speech, Hayrapetyan suffered abuse. See Ïuan v.

Gonzales, 428 F.3d 883, 886 (9th Cir. 2005) (vacating adverse credibility finding

where 'there was no true inconsistency' in the record).

      Finally, both the IJ and BIA put weight on the death certificate submitted by

Hayrapetyan as proof of his son's death. The government proved the certificate to

be fraudulent. Hayrapetyan testified that he had received the death certificate by

mail from his brother-in-law who was still in Armenia, and that he did not µnow its

true source. The BIA found that Hayrapetyan testimony's about the document's

                                          5
source was unclear, but the BIA cited only to Hayrapetyan's testimony at the first

hearing and failed to taµe into account the full explanation that Hayrapetyan

provided at the subsequent hearing.

      Hayrapetyan's testimony at the first hearing reflected his confusion as to

whether the death certificate sent by his brother-in-law was the original that he had

received after his son's death or a copy. At his second hearing, Hayrapetyan

testified that on the same day of his first hearing, after he had learned that the death

certificate was fraudulent, he called his brother-in-law to find out how it was

obtained. Hayrapetyan's brother-in-law said that he had gone to a regional office to

obtain the document, meaning that the document was not the original that

Hayrapetyan had received while he was still in Armenia. Considering the record as

a whole, there is not substantial evidence to support the conclusion that

Hayrapetyan was the source of, or played a role in obtaining, the fraudulent

document. Where there is no evidence that the petitioner µnew that the document

was fraudulent, such document cannot, by itself, support the adverse credibility

determination. Yeimane-Berhe v. Ashcroft, 393 F.3d 907, 911 (9th Cir. 2004).

      Because none of the above grounds constitutes substantial evidence of

adverse credibility, we grant the petition, vacate the IJ's credibility finding, and

remand to the agency. Despite the inadequacy of the IJ's reasons, 'we cannot say

                                            6
that no doubts have been raised' about Hayrapetyan's credibility on the record

before us. Hartooni v. INS, 21 F.3d 336, 343 (9th Cir. 1994) (internal quotations

omitted). We therefore remand to the agency to reassess Hayrapetyan's credibility

in the first instance and determine his eligibility--if it finds him credible--for

asylum, withholding of removal, and CAT protection. See Garrovillas v. INS, 156

F.3d 1010, 1017 (9th Cir. 1998).

      GRANTED and REMANDED.




                                           7
                                                                              FILED
Hayrapetyan v. Holder, No. 05-77155                                           DEC 07 2010

                                                                         MOLLY C. DWYER, CLERK
BYBEE, Circuit Judge, dissenting:                                          U.S . CO U RT OF AP PE A LS




      Because the IJ's adverse credibility determination was supported by

substantial evidence, I respectfully dissent.

      Hayrapetyan testified he was persecuted by the Armenian government--and

by forces associated with it--after reporting official corruption he witnessed while

worµing for the Customs Department. Specifically, Hayrapetyan testified that,

among other things, his house was set on fire by the Yerµrapah--a military

organization--and that his seven-year-old son died in the fire. To prove his son's

death, Hayrapetyan submitted a death certificate that Respondent proved to be

counterfeit. This counterfeit death certificate creates an inconsistency in

Hayrapetyan's testimony that goes to the heart of his asylum claim: if

Hayrapetyan's son is not dead, then the Yerµrapah may not have set Hayrapetyan's

house on fire as Hayrapetyan claimed. In other words, the counterfeit death

certificate calls into question whether Hayrapetyan was persecuted at all.

      I am not unsympathetic to Petitioner's claim. If Hayrapetyan's testimony is

true, then he suffered horrific persecution at the hands of the Armenian

government and the Yerµrapah. However, when considering the counterfeit death

certificate submitted by Hayrapetyan to prove his son's death along with the other

inconsistencies in Hayrapetyan's testimony, I cannot conclude Petitioner presented
evidence 'so compelling that no reasonable factfinder could find . . . he was not

credible.' Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003) (internal

quotation omitted). I would deny the petition.




                                          2
