                                                                           FILED
                            NOT FOR PUBLICATION                             APR 09 2010

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




                           FOR THE NINTH CIRCUIT




NUNE MAMIKONYAN;                       )      No. 05-76689
DAVIT KIRAKOSYAN,                      )
                                       )      Agency Nos. A075-686-638
      Petitioners,                     )                  A075-686-639
                                       )
      v.                               )      MEMORANDUM *
                                       )
ERIC H. HOLDER, Jr., Attorney          )
General,                               )
                                       )
      Respondent.                      )
                                       )

                         Petition to Review an Order of the
                          Board of Immigration Appeals

                             Submitted April 5, 2010**
                               Pasadena, California

Before:      FERNANDEZ, SILVERMAN, and GRABER, Circuit Judges.

      Nune Mamiµonyan, a native and citizen of Armenia, petitions for review of




      *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
the Board of Immigration Appeals' denial of her application for asylum,1

withholding of removal,2 and Convention Against Torture3 (CAT) relief.4 We

grant the petition in part and dismiss it in part.

       The BIA's determination that an alien is not eligible for asylum must be

upheld if ''supported by reasonable, substantial, and probative evidence on the

record considered as a whole.'' INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.

Ct. 812, 815, 117 L. Ed. 2d 38 (1992). 'It can be reversed only if the evidence

presented . . . was such that a reasonable factfinder would have to conclude that the

requisite fear of persecution existed.' Id.; see also Farah v. Ashcroft, 348 F.3d

1153, 1156 (9th Cir. 2003). When an alien seeµs to overturn the BIA's adverse

determination, 'he must show that the evidence he presented was so compelling

that no reasonable factfinder could fail to find the requisite fear of persecution.'

Elias-Zacarias, 502 U.S. at 483-84, 112 S. Ct. at 817. The same standard applies

to credibility determinations. See Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir.

       1
           8 U.S.C. y 1158.
       2
           8 U.S.C. y 1231(b)(3).
       3
      United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, Treaty Doc. No. 100-200,
1465 U.N.T.S. 85, implemented at 8 C.F.R. y 1208.18.
       4
       Because the petition of Davit Kiraµosyan, her son, is derivative of hers, we
do not consider it separately. It stands or falls with hers.

                                            2
2004); Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir. 2003). However,

when a determination is based upon credibility, ''a specific, cogent reason'' for

disbelieving the alien must be offered. Guo v. Ashcroft, 361 F.3d 1194, 1199 (9th

Cir. 2004).

      We have reviewed the record and are satisfied that the BIA's credibility

decision was not supported by substantial evidence. The BIA agreed with the

Immigration Judge that Mamiµonyan lacµed credibility. The BIA, liµe the IJ,

placed heavy reliance on an unsworn letter from Mamiµonyan's mother that was

filed when she sought to obtain refugee status for herself and for Mamiµonyan.

The letter did not refer to matters that Mamiµonyan presented in her application for

asylum and testimony. We do not see how that letter can bear the weight placed

upon it and almost by itself serve to support rejection of Mamiµonyan's

testimony.5 Even if it was proper to draw inferences from the omissions in the

letter, on this record the inferences are weaµ and at least approach speculation. See

Lin v. Gonzales, 434 F.3d 1158, 1162 (9th Cir. 2006); Bandari v. INS, 227 F.3d

1160, 1167 (9th Cir. 2000). The fact that Mamiµonyan could not explain what her

mother was thinµing about does not change our conclusion. Nor does the fact that

      5
       The letter was submitted by the government. Had it been tendered by
Mamiµonyan to support her application, we might have reached a different
conclusion. See Kohli v. Gonzales, 473 F.3d 1061, 1071 (9th Cir. 2007).

                                          3
neither Mamiµonyan's mother nor her son testified do so, and, as the BIA pointed

out, her brother lacµed sufficient µnowledge.

      Because the BIA's credibility determination was not supported by the

evidence, we grant Mamiµonyan's petition and remand to the BIA for further

consideration of her asylum application. See INS v. Ventura, 537 U.S. 12, 16-17,

123 S. Ct. 353, 355-56, 154 L. Ed. 2d 272 (2002) (per curiam); Guo, 361 F.3d at

1203-04.

      For the same reason, we remand for further consideration of Mamiµonyan's

application for withholding of removal. See Smolniaµova v. Gonzales, 422 F.3d

1037, 1053 (9th Cir. 2005).6

      Petition GRANTED in part, and DISMISSED in part.




      6
        On appeal, Mamiµonyan asserts that she is entitled to CAT relief.
However, she did not raise a CAT issue before the BIA. Thus, we lacµ jurisdiction
over the claim. See Zara v. Ashcroft, 383 F.3d 927, 930-31 (9th Cir. 2004). She
also failed to raise her current claim about the IJ's denial of a continuance before
the BIA. We lacµ jurisdiction over that issue as well. See Mabugat v. INS, 937
F.2d 426, 430 (9th Cir. 1991). Thus, we dismiss the petition as far as those issues
are concerned.

                                         4
                                                                           FILED
Mamiµonyan v. Holder, No. 05-76689                                         APR 09 2010

                                                                        MOLLY C. DWYER, CLERK
FERNANDEZ, Circuit Judge, dissenting:                                    U.S. COURT OF APPEALS



      In my view, the omissions in Mamiµonyan's mother's letter, the admission

of which Mamiµonyan did not object to, together with her brother's lacµ of

µnowledge that she was a Jehovah's Witness in Armenia and her failure to call her

mother or her son, who was present in court, to testify were sufficient to support

the lacµ of credibility determination. Thus, I respectfully dissent, except as to

footnote 6.
