                                                                             FILED
                             NOT FOR PUBLICATION                              DEC 04 2012

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




                             FOR THE NINTH CIRCUIT



MARTIK SARGSYAN; KRISTINE                         No. 08-72040
SARGSYAN,
                                                  Agency Nos.         A078-249-396
              Petitioners,                                            A078-364-947

  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 November 7, 2012
                             San Francisco, California

Before: FARRIS, NOONAN, and BYBEE, Circuit Judges.

       Kristine and Martik Sargsyan appeal the Board of Immigration Appeal’s

denial of their petition for asylum and withholding of removal. We remand.

       The parties are familiar with the facts. Petitioners, Kristine and Martik

Sargsyan, are natives and citizens of Armenia. Both are members of the Baha’i



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
faith who claim they have faced persecution in Armenia because of their religion.

They are requesting asylum in the United States, where their parents have already

been granted asylum. In support of their applications for relief and protection, the

petitioners offered testimony and documentary evidence at their removal hearing.

The Board issued its own opinion pursuant to 8 C.F.R. § 1003.1(e)(5).

       We review the relevant legal conclusions de novo. Hamazaspyan v. Holder,

590 F.3d 744, 747 (9th Cir. 2009). The IJ’s factual findings are reviewed under the

substantial evidence standard. Lopez-Rodriquez v. Mukasey, 536 F.3d 1012, 1015

(9th Cir. 2008). Because the Board affirmed the IJ’s decision and added its own

reasons, this court reviews both decisions. Kataria v. INS, 232 F.3d 1107, 1112

(9th Cir. 2000); Avetova-Elisseva v. INS., 213 F.3d 1192, 1197 (9th Cir. 2000) (the

court looks to the IJ’s decision “as a guide to what lay behind the BIA’s

conclusion”). We determine our own jurisdiction de novo. Ghahremani v.

Gonzales, 498 F.3d 993, 997 (9th Cir. 2007).

       The IJ made an adverse credibility finding as to the petitioners’ testimony

regarding their persecution claims. It rejected their reasons for the untimely filing

of their asylum applications. The Board concurred with the IJ’s finding that the

petitioners were ineligible for asylum because their applications were untimely and

because they had not met their burden to show extraordinary circumstances. The
Board also concurred with the IJ’s alternative decision to deny the petitioners’

asylum claims because they were not credible.

      With regard to the petitioner’s claim that the BIA erred in determining it

lacked jurisdiction to consider the petitioners’ claims regarding their derivative

asylum applications, we find no BIA error.

      With regard to the issue of untimely filing, the record supports the IJ’s

finding that petitioners had not established extraordinary circumstances.

Substantial evidence supports the conclusion that petitioners did not meet the

requirements for an exception to the deadline.

      With regard to the withholding of removal claim, substantial evidence does

not support the IJ’s adverse credibility finding. The IJ pointed to inconsistencies in

the number of people who caused the injuries petitioners claim to have suffered;

the group affiliations of the attackers; what weapons were used; and on how many

areas of the body they were beaten. These inconsistencies do not go to the heart of

the petitioners’ persecution claims. We are particularly wary of an adverse

credibility determination based on such minor inconsistencies given that the

petitioners’ parents were previously granted asylum based on the same underlying

events. We conclude in this regard that the IJ lacked substantial evidence to

support the adverse credibility finding.
      Conclusion. The IJ erred in finding the petitioners not credible because of

minor inconsistencies. The Board repeated the error. We, therefore, remand for

further proceedings.

      REMANDED.
                                                                             FILED
Sargsyan v. Holder, No. 08-72040                                              DEC 04 2012

                                                                         MOLLY C. DWYER, CLERK
BYBEE, Circuit Judge, concurring:                                          U .S. C O U R T OF APPE ALS




      I concur in full in the disposition, but write separately to emphasize my

concern with the BIA’s failure to reconcile its decision with the fact that the

petitioners’ parents were previously granted asylum based on the same underlying

events. This is particularly concerning given that the rejection of the petitioners’

withholding of removal claim was predicated on an adverse credibility finding.

This case is subject to pre-REAL ID Act law regarding the valid bases for an

adverse credibility determination, meaning that an adverse credibility

determination can only be validly supported by inconsistencies if those

inconsistencies go to the heart of the claim. Cortez-Pineda v. INS, 610 F.3d 1118,

1124 & n.7 (9th Cir. 2010). It would seem that the heart of petitioners’ claim has

much in common with the heart of the claim on which petitioners’ parents were

already granted asylum. Rejection of petitioners’ withholding of removal claim

may very well be reconcilable with the previous grant of asylum to petitioners’

parents, but the BIA should at least make that reconciliation explicit on remand.
