Kisiyan

MEMORANDUM *

We reverse the denial of asylum, withholding of removal and protection under the Convention Against Torture (CAT) to Svetlana Kisiyan. Both grounds the immigration judge (IJ) articulated to support her adverse credibility determination were based on speculation and conjecture. See *293 Jibril v. Gonzales, 423 F.3d 1129, 1135 (9th Cir.2005); Lopez-Umanzor v. Gonzales, 405 F.3d 1049 , 1054 n. 4 (9th Cir.2005). We therefore reverse the IJ’s adverse credibility determination.

The IJ and BIA both erroneously stated that there was no evidence connecting the sexual assaults on Kisiyan by a captain in Armenia’s National Security Service with Kisiyan’s husband’s ethnicity or religion. Kisiyan’s testimony supports the conclusion that she was sexually assaulted both because her attacker “thought she was attractive” and because of her husband’s religion and ethnicity, which suffices as “evidence from which it is reasonable to believe that the harm was motivated, at least in part, by an actual or implied protected ground.” Shoafera v. INS, 228 F.3d 1070, 1074-75 (9th Cir.2000) (quoting Borja v. INS, 175 F.3d 732, 736 (9th Cir. 1999) (en banc)) (emphasis in original). Because the…

dissenting:

I agree with the majority that the adverse credibility determination cannot be sustained, but I disagree with the majority’s rejection of the agency’s denial of relief on alternative grounds. I would deny the petition.

The IJ denied asylum and withholding of removal, alternatively, because of Kisiyan’s failure to establish that she had a well-founded fear of future persecution based on one of the five enumerated grounds. See 8 U.S.C. § 1101 (a)(42). The BIA underscored that alternative conclusion, stating that even if Kisiyan were found credible, there was an “insufficient nexus” between Kisiyan’s evidence and one of the five protected grounds. The majority does not conclude that the evidence compelled a contrary conclusion, and properly so, because it did not. See Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.2003) (‘We ... must uphold the BIA’s [factual] finding unless the evidence compels a contrary result.”). Neither logic nor our caselaw require the agency to expressly state that it considered and rejected a “mixed motive” theory, and the evidence presented here was not so strong as to demand such treatment. Notably, the evidence in this case falls well…