Farid Marzbanian v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FARID MARZBANIAN,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 11-72677
Agency No. A099-880-379
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 10, 2015 **
San Francisco California
Before: SCHROEDER and SILVERMAN, Circuit Judges, and GARBIS, Senior
District Judge. ***
Farid Marzbanian, a native of Iran and citizen of Germany, petitions for
review of the Board of Immigration Appeals’ decision affirming the immigration
FILED
FEB 12 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.

-- 1 of 5 --

-2-
judge’s denial of his application for asylum, withholding of removal, and relief
under the Convention Against Torture. We have jurisdiction pursuant to 8 U.S.C.
§ 1252(a), and we GRANT the petition and remand to the BIA for further
proceedings.
In his petition, Marzbanian challenges the BIA’s determination that he failed
to establish eligibility for asylum and withholding of removal.1 Specifically,
Marzbanian challenges the BIA’s determination that he failed to demonstrate past
persecution or a well-founded fear of future persecution. Where, as here, the BIA
reviewed the IJ’s factual and credibility determinations for clear error, we “‘look to
the IJ’s oral decision as a guide to what lay behind the BIA’s conclusion.’ In so
doing, we review here the reasons explicitly identified by the BIA, and then
examine the reasoning articulated in the IJ’s oral decision in support of those
reasons.” Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008) (citation
omitted).
The BIA determined that Marzbanian’s “evidence of harassment, without
corroboration evidence, is insufficient to establish past persecution.” Specifically,
the BIA faulted Marzbanian for failing to obtain a police report that was generated
1 In his petition, Marzbanian does not challenge the BIA’s determination that he is not
eligible for protection under the CAT. Therefore, that argument is waived, and we do not
address it. See He v. Holder, 749 F.3d 792, 795 n.1 (9th Cir. 2014).

-- 2 of 5 --

-3-
following one of his beatings by Neo-Nazis and medical records related to a stroke
caused by one of his beatings. In the present case, the IJ declined to make an
adverse credibility determination against Marzbanian.
Under the REAL ID Act,2
The testimony of the applicant may be sufficient to sustain the
applicant’s burden without corroboration, but only if the applicant
satisfies the trier of fact that the applicant’s testimony is credible, is
persuasive, and refers to specific facts sufficient to demonstrate that
the applicant is a refugee. In determining whether the applicant has
met the applicant’s burden, the trier of fact may weigh the credible
testimony along with other evidence of record. Where the trier of fact
determines that the applicant should provide evidence that
corroborates otherwise credible testimony, such evidence must be
provided unless the applicant does not have the evidence and cannot
reasonably obtain the evidence.
8 U.S.C. § 1158(b)(1)(B)(ii). We have interpreted the above language and held
that an “applicant’s credible testimony ‘may’ be sufficient without corroboration,
but the trier of fact may require corroboration (unless not reasonably obtainable)
even for ‘otherwise credible testimony.’” Aden v. Holder, 589 F.3d 1040, 1044
(9th Cir. 2009). However, we have also held that if the IJ finds the applicant
credible, but decides that the applicant must provide corroborating evidence in
order to meet his burden of proof, the “applicant must be given notice of the
2 Because Marzbanian filed his application after May 11, 2005, the REAL ID Act of
2005 applies to his application. See Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010).

-- 3 of 5 --

-4-
corroboration required, and an opportunity to either provide that corroboration or
explain why he cannot do so.” Ren v. Holder, 648 F.3d 1079, 1091-92 (9th Cir.
2011) (footnote omitted). Here, Marzbanian was not given that notice and
opportunity. See Lai v. Holder, 773 F.3d 966, 976 & n.3 (9th Cir. 2014).
Accordingly, the BIA erred by finding that Marzbanian had failed to demonstrate
past persecution due to his failure to provide corroboration, without first giving
Marzbanian the required notice of the need for corroboration, and an opportunity to
either provide that corroboration or explain why he cannot do so.
In its decision, the BIA also stated that Marzbanian “did not establish that
the treatment he received rises to the level of past persecution.” It is unclear from
the BIA’s decision whether the BIA made this determination based in part on
Marzbanian’s failure to provide corroborating evidence, or the BIA made this
determination assuming Marzbanian’s testimony about his past treatment in
Germany was credible. If the BIA made this determination based in part on
Marzbanian’s failure to provide corroboration, then, as explained above, the BIA
must first give Marzbanian the required notice and opportunity to provide
corroboration prior to reaching a determination as to whether he has established
past persecution. If the BIA made this determination assuming Marzbanian’s
testimony about the treatment he received in Germany was credible, we note that

-- 4 of 5 --

-5-
such a determination would conflict with our precedent. Marzbanian testified that
during the ten years he was in Germany, he was physically beaten by Neo-Nazis
several times, physically beaten by Hezbollah members two or three times, and
received a death threat in his mailbox. In several cases, we have found that where
the applicant was the target of repeated beatings, death threats, and expressions of
hatred, a finding of persecution is compelled. See, e.g., Vitug v. Holder, 723 F.3d
1056, 1065 (9th Cir. 2013); Mashiri v. Ashcroft, 383 F.3d 1112, 1119-20 (9th Cir.
2004); Maini v. INS, 212 F.3d 1167, 1174 (9th Cir. 2000); Duarte de Guinac v.
INS, 179 F.3d 1156, 1162 (9th Cir. 1999); see also Nahrvani v. Gonzales, 399 F.3d
1148, 1153 (9th Cir. 2005) (“Physical violence inflicted against an individual often
‘meets the requirement of severity that characterizes persecution[.]’”).
In conclusion, we grant Marzbanian’s petition for review and remand his
application to the BIA for further proceedings consistent with this memorandum.
“If additional corroborative evidence is deemed necessary for [Marzbanian] to
carry his burden of proof, then the notice [and opportunity] requirements in Ren
apply,” and must be given. Zhi v. Holder, 751 F.3d 1088, 1095 (9th Cir. 2014).
PETITION FOR REVIEW GRANTED; REMANDED.

-- 5 of 5 --