Anna Shahinyan v. Eric H. Holder Jr.

MEMORANDUM *

Petitioner Anna Shahinyan petitions for review of the Board of Immigration Appeals (“BIA”)’s order affirming the Immigration Judge (“IJ”)’s decision denying her application for asylum and withholding of removal. The IJ found that Shahinyan had not established her identity or the identities of her children. 1 He concluded that without proof of their identities, he could not make a credibility determination or adjudicate Shahinyan’s claims; he therefore denied her application. The BIA affirmed on the grounds that Shahinyan had failed to present objective evidence of her and her children’s identities or an inability to obtain authenticated copies of their birth certificates. We have jurisdiction under 8 U.S.C. § 1252 . We grant the petition and remand to the BIA for further proceedings on an open record.

1. The IJ acted contrary to this court’s decision in Kalouma v. Gonzales, 512 F.3d 1073 (9th Cir.2008). In Kalouma , we held that an alien does not have a heightened burden to establish identity; thus, he can prove identity — like any other element of an asylum claim — through credible testimony alone. Id. at 1078-79 . Here, however, the IJ declined to make an adverse…

concurring.

Today the court applies circuit precedent that is contrary to the applicable *547 regulation, contrary to the BIA’s longstanding interpretation of that regulation, and contrary to the decisions of our sister circuits. Bound by that precedent — at least for now — I reluctantly concur.

With respect to pre-REAL ID Act cases, we have held that petitioners can carry their burden of proving eligibility for relief based on their testimony alone, and immigration judges cannot require any corroboration of that testimony unless they first find that the petitioner is not credible. See Tijani v. Holder, 628 F.3d 1071,1080 (9th Cir.2010).

This precedent is plainly contrary to text of the applicable regulation, which merely permits an immigration judge to rely on credible testimony. 8 C.F.R. § 208.13 (a) (“The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.” (emphasis added)). More important, the rule is contrary to the BIA’s own longstanding interpretation of 8 C.F.R. § 208.13 (a). In re S-M-J, 21 I. & N. Dec. 722, 724, 729 (BIA 1997) (holding that, under § 208.13(a), an immigration judge may find that an applicant…

FILED

NOT FOR PUBLICATION MAY 17 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ANNA SHAHINYAN; KARO No. 08-74379

HAIRAPETYAN; SUZAN

HAIRAPETYAN, Agency Nos. A078-650-659

A078-650-660

Petitioners, A078-650-661

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 8, 2013 Pasadena, California

Before: O’SCANNLAIN, PAEZ, and IKUTA, Circuit Judges.

Petitioner Anna Shahinyan petitions for review of the Board of Immigration

Appeals (“BIA”)’s order affirming the Immigration Judge (“IJ”)’s decision

denying her application for asylum and withholding of removal. The IJ found that

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Shahinyan had not established her identity or the identities of her children.1 He

concluded that without proof of their identities, he could not make a…