                              NOT FOR PUBLICATION                        FILED
                                                                          JAN 3 2018
                      UNITED STATES COURT OF APPEALS
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT


DAVID SARKISIAN, et al.,                         No.    14-73058

               Petitioners,                      Agency No. A087-603-205
                                                            A087-603-206
    v.                                                      A087-603-207
                                                            A087-603-208
JEFFERSON B. SESSIONS III, Attorney
General,                                         MEMORANDUM*

               Respondent.


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

                       Argued and Submitted December 4, 2017
                                Pasadena, California

Before: D.W. NELSON and REINHARDT, Circuit Judges, and STEEH,** District
Judge.


         David Sarkisian, with his wife Armine Aleksanyan and their two children as

derivative applicants, petitions for review of the Board of Immigration Appeals’


*
      This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
      The Honorable George Caram Steeh III, United States District Judge for the
Eastern District of Michigan, sitting by designation.
(“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of his application

for asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”). We GRANT the petition for review in part, DENY in part, and

REMAND.

      1. We reverse the agency’s adverse credibility determination as to Sarkisian.

The BIA has provided no “specific and cogent reason[] to support” the

determination: specifically, “inconsistent testimony [as] to the number of days that

he claims he was held captive" and failure to "identify in his affidavit the

prominent politician, Avigdor Lieberman, who he claimed . . . was involved in his

kidnapping." Sarkisian's testimony calculating the time he spent in captivity

varied, but the dates he provided for his kidnapping and his return covered two

nights, which can accurately be described in a number of different ways. At most,

Sarkisian's response reflects uncertainty as to the best characterization of a time

frame spanning two nights – not an inconsistency. See Lai v. Holder, 773 F.3d

966, 971 (9th Cir. 2014) (contrasting the probative value of omissions with that of

"inconsistencies created by direct contradictions in evidence and testimony").

      Sarkisian's omission of the name "Avigdor Lieberman" from his asylum

application also is not a ground for an adverse credibility determination. "It is well

established that ‘the mere omission of details is insufficient to uphold an adverse


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credibility finding.’" Id. (citations omitted). Sarkisian's asylum application stated,

"During this incident [the kidnapping] I heard names of people, whom I believe

were behind all of this." Sarkisian testified that he gave Lieberman's name during

his asylum interview. While there is no record of this interview, the DHS failed to

offer any evidence to the contrary or to dispute this testimony. In the removal

proceedings, Sarkisian elaborated: "I heard a few times the name of Lieberman."

Finally, Sarkisian's application included articles specifically about Lieberman,

which would have served no purpose had he not thought Lieberman had some

connection to the kidnapping.

      While we may question the plausibility of Sarkisian’s account or believe

there may have been other grounds on which the IJ or BIA could have made an

adverse credibility determination, we are constrained to review the grounds

selected by the BIA. In this case, each of the BIA’s reasons given for the adverse

credibility determination fails.

      The IJ and BIA additionally faulted Sarkisian for failure to provide

corroborative evidence, but did not give notice of the evidence required. On

remand the agency should provide Sarkisian fair notice of any specific

corroborative evidence it may desire. See Bhattarai v. Lynch, 835 F.3d 1037,

1043-44 (9th Cir. 2016).


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      2. We also reverse the BIA's finding that Sarkisian's alleged injuries would

not rise to the level of persecution given the combination of the beating, detention

and death threats. Sarkisian's account of beatings resulting in severe bruising is

supported by Aleksanyan’s testimony as well as by Dr. Khati’s letter. "Physical

harm has consistently been treated as persecution." Ahmed v. Keisler, 504 F.3d

1183, 1194 (9th Cir. 2007). Additionally, "we have consistently held that death

threats alone can constitute persecution." Navas v. I.N.S., 217 F.3d 646, 658 (9th

Cir. 2000) (citations omitted). Sarkisian states that his abductors threatened to kill

not just him but his entire family if he did not cooperate with their demands.

Together, these harms, if suffered, rise to the level of persecution. See Guo v.

Ashcroft, 361 F.3d 1194, 1202 (9th Cir. 2004).

      "[P]roof of past persecution gives rise to a presumption of a well-founded

fear of future persecution and shifts the burden to the government to rebut that

presumption." Ahmed, 504 F.3d at 1197. If Sarkisian’s testimony is deemed

credible, then he will have established past persecution. He would then be entitled

to a presumption of a well-founded fear of future persecution and a presumption

that his life or freedom would be threatened in the future in Israel on the basis of

his claim. 8 C.F.R. §§ 208.13(b)(1), 208.16(b)(1)(i).




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      3. Because the IJ and BIA based the denial of CAT relief in part on the

adverse credibility determination, the agency must reconsider his entitlement to

CAT relief.

      4. We DENY the petition for review as to Aleksanyan’s separate claim,

seeking relief based on her status as a Jehovah’s Witness. Aleksanyan has not

established a well-founded fear of future persecution on that ground.

      5. We GRANT the petition and REMAND for the agency’s determination

of Sarkisian’s eligibility for asylum and its exercise of discretion, as well as its

determination of his entitlement to withholding and CAT relief.

      GRANTED in part, DENIED in part, and REMANDED.




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