Hayk Barseghyan v. MERRICK B. GARLAND , Attorney General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAYK B ARSEGHYAN ,
Petitioner,
v.
M ERRICK B. GARLAND , Attorney
General,
Respondent.
No. 16-72849
Agency No.
A205-533-215
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 15, 2022
San Francisco, California
Filed July 8, 2022
Before: Sidney R. Thomas, Ronald M. Gould, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Gould

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SUMMARY*
Immigration
Granting Hayk Barseghyan’s petition for review of the
Board of Immigration Appeals’ dismissal of his appeal of an
Immigration Judge’s denial of his application for asylum and
related relief, the panel held that three out of four
inconsistencies the BIA relied upon in upholding the IJ’s
adverse credibility determination were not supported by the
record, and remanded on an open record for the BIA to
determine in the first instance whether the remaining
inconsistency was sufficient to support the adverse
credibility determination.
The panel agreed with Barseghyan that there was no
inconsistency between his testimony and declaration
regarding how he arrived at the hospital after being tortured.
The panel concluded that Barseghyan’s ability to leave
Armenia was also not inconsistent with his testimony that
police wanted to see him again and would call him back for
further questioning. The panel concluded that the BIA also
erred by relying upon a purported inconsistency regarding
Barseghyan’s distribution of anti-government drawings
because there was in fact no inconsistency, and the IJ did not
rely on that ground. Moreover, the BIA did not provide a
specific reason for rejecting Barseghyan’s reasonable
explanation for it.
The panel held that substantial evidence did not support
the IJ’s reliance upon insufficient corroborating evidence as
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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BARSEGHYAN V . GARLAND 3
a basis for finding Barseghyan not credible because the IJ
categorically ignored documents that were consistent with
Barseghyan’s testimony. The panel explained that by
ignoring such evidence, the IJ did not consider “the totality
of the circumstances” when making the adverse credibility
determination.
The panel held that the BIA further erred by
misinterpreting the IJ’s holding regarding corroborating
evidence as relying on 8 U.S.C. § 1158(b)(1)(B)(ii), and by
erroneously characterizing the IJ’s holding as concluding
that Barseghyan did not provide sufficient corroborating
evidence to sustain his burden of proof independent of his
own non-credible testimony, when the IJ actually relied
upon the lack of documentation as one factor supporting its
adverse credibility determination under 8 U.S.C.
§ 1158(b)(1)(B)(iii). The BIA thus erred by affirming a
finding that the IJ did not make.
The panel held that the record did support the agency’s
finding of an inconsistency concerning whether Barseghyan
was arrested at his home or at a police station. Noting that
in Alam v. Garland, 11 F.4th 1133 (9th Cir. 2021) (en banc),
the en banc court declined to decide how many
inconsistencies require sustaining or rejecting an adverse
credibility determination, the panel similarly declined to
engage in line drawing here and emphasized that all but one
inconsistency relied upon by the BIA were not supported by
the record. The panel remanded on an open record for the
BIA to determine in the first instance whether this remaining
inconsistency was sufficient to support the adverse
credibility determination.
The panel did not reach the BIA’s holding concerning
Barseghyan’s eligibility for protection under the Convention

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Against Torture because it was based upon the IJ’s adverse
credibility determination and should be reviewed further on
remand.
COUNSEL
Kevin W. Harris (argued), Sacramento, California; Ryan
Friedman, Friedman Law Firm Inc., Sacramento, California;
for Petitioner.
Brooke M. Maurer (argued), Trial Attorney; Nancy E.
Friedman, Senior Litigation Counsel; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
OPINION
GOULD, Circuit Judge:
Hayk Barseghyan, a native and citizen of Armenia,
petitions this Court for review of a decision by the Board of
Immigration Appeals (“BIA”) dismissing his appeal of the
Immigration Judge’s (“IJ”) denial of his application for
asylum, withholding of removal, and relief from removal
under the Convention Against Torture. The BIA affirmed
based upon the IJ’s adverse credibility determination. We
grant Barseghyan’s petition for review because three out of
four inconsistencies relied upon by the BIA are not
supported by the record. We remand on an open record for
the BIA to determine in the first instance whether the
remaining inconsistency is sufficient to support the adverse
credibility determination.

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BARSEGHYAN V . GARLAND 5
BACKGROUND
Barseghyan alleges that he suffered persecution and
torture from the Armenian government because of his
political opinion. He is a member of HZhk, the anti-
government opposition party also known as the People’s
Party of Armenia. Barseghyan participated in a peaceful
demonstration in 2008 to contest the results of an election.
The police began to shoot at and attack protestors, and
Barseghyan was struck on the head with a police baton and
lost consciousness. A neighbor, Zakharyan Mesrop, saw
him fall and was able to pull him to safety.
Barseghyan was concerned about reports of the
government buying votes in the next election. He wanted to
remind people what happened in and after the 2008 election.
Barseghyan’s wife made drawings at his request, depicting
government corruption in the 2008 election and the
government’s violence at the protest. He displayed these
anti-government drawings in a bazaar on January 19, 2013,
and distributed photocopies of the drawings.
A few days later, on January 23, he claims the police
arrested him, questioned him for a few hours, and then
released him. He was told to “change [his] mind” about the
drawings and that he would be called back for additional
questioning.
A week later, he was called back to the police station
where he was asked to say that the opposition party was
planning to attack the police. Because this was untrue, he
refused, at which point he was taken to a different location
where he claims he was beaten by members of the National
Security Service. Barseghyan described that he was
physically beaten, drugged, forced to strip, put in a cold
shower, and had bright lights shined in his face, among other

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things. He was asked repeatedly to sign a blank document,
which he refused. The National Security Service took his
identification card affiliating him with the opposition party.
Officials started beating him again, and he lost
consciousness. If all this was believed, he clearly showed
past persecution. See Mamouzian v. Ashcroft, 390 F.3d
1129, 1134 (9th Cir. 2004) (granting petition where
petitioner had been beaten by government officials for
demonstrating against the government); Ahmed v. Keisler,
504 F.3d 1183, 1194 (9th Cir. 2007) (same); see also Kaur
v. Wilkinson, 986 F.3d 1216, 1222 (9th Cir. 2021) (“The
hallmarks of persecutory conduct include, but are not limited
to, the violation of bodily integrity and bodily autonomy.”).
Barseghyan regained consciousness at the hospital.
When he was released from the hospital, a police officer
allegedly told him not to tell anyone what happened and to
say instead that he got into a fight. He was told that he would
be “contacted for future ‘interrogations’” and that if he
continued distributing anti-government art he would be
“severely punished.”
Barseghyan fled Armenia and applied for admission to
the United States from Mexico without a valid entry
document. The Department of Homeland Security ordered
him removed and issued a Notice to Appear. Barseghyan
conceded removability and filed an application for asylum,
withholding of removal, and protection under the
Convention Against Torture. He submitted a declaration
with his application and also testified at a merits hearing.
The IJ found Barseghyan not credible and denied his
claims for relief from removal. In making the adverse
credibility determination, the IJ relied upon three purported
inconsistencies between Barseghyan’s written declaration
supporting his application and his oral testimony at the

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BARSEGHYAN V . GARLAND 7
hearing, as well as the lack of supporting documentation and
the weakness of the documentation he did provide. The BIA
dismissed Barseghyan’s appeal based on the IJ’s adverse
credibility determination. Barseghyan timely petitioned for
review, and we have jurisdiction under 8 U.S.C. § 1252.
DISCUSSION
A.
“Taking the totality of the circumstances into account,
we review the BIA’s credibility determination for substantial
evidence.” Kumar v. Garland, 18 F.4th 1148, 1153 (9th Cir.
2021); 8 U.S.C. § 1158(b)(1)(B)(iii). We review both “the
reasons explicitly identified by the BIA” and “the reasoning
articulated in the IJ’s oral decision in support of those
reasons.” Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014)
(citation omitted). Prior to enactment of the REAL ID Act,
we were required to sustain an adverse credibility finding so
long as one of the agency’s identified grounds was supported
by substantial evidence and went to the heart of the claim.
Alam v. Garland, 11 F.4th 1133, 1135 (9th Cir. 2021) (en
banc). The REAL ID Act eliminated the “heart of the claim”
requirement and imposed a “totality of the circumstances”
standard in assessing credibility. Id. (citing 8 U.S.C.
§ 1158(b)(1)(B)(iii)). We have “no bright-line rule under
which some number of inconsistencies requires sustaining or
rejecting an adverse credibility determination.” Id. at 1137.
If an IJ determines that a noncitizen is not credible, the
IJ must provide “specific and cogent reasons” to support its
adverse credibility determination. Shrestha v. Holder,
590 F.3d 1034, 1043, 1044 (9th Cir. 2010). The REAL ID
Act permits IJs to consider factors such as demeanor, candor,
responsiveness, plausibility, inconsistencies, inaccuracies,
and falsehoods to form the basis of an adverse credibility

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determination. Id. at 1044 (cleaned up). For each factor, the
IJ should point to “specific instances in the record” that
support the adverse credibility determination. Id.
If the IJ relies upon purported inconsistencies to make an
adverse credibility determination, the IJ must provide the
noncitizen with an opportunity to explain each
inconsistency, although this opportunity can occur through
direct or cross-examination. Rizk v. Holder, 629 F.3d 1083,
1088 (9th Cir. 2011), overruled in part on other grounds by
Alam, 11 F. 4th 1133. If the noncitizen offers an explanation
that is “reasonable and plausible,” the IJ has to provide a
“specific and cogent reason for rejecting” the explanation.
Id. (citation omitted). But if the noncitizen does not provide
a plausible explanation, or if the IJ reasonably rejects the
proffered explanation, the IJ may rely on that inconsistency
to make an adverse credibility determination. Id. In addition
to the noncitizen’s explanation, the IJ should also consider
“other record evidence” that helps determine whether an
inconsistency exists. Shrestha, 590 F.3d at 1044.
B.
We grant Barseghyan’s petition for review because three
out of four inconsistencies the BIA relied upon in upholding
the adverse credibility determination are not supported by
the record.
1. Barseghyan’s arrival at the hospital
The BIA and IJ determined that Barseghyan provided
inconsistent testimony regarding how he got to the hospital
after being tortured. In his written declaration, Barseghyan
described that after he was beaten by government officials,
“my health was deteriorating, I began losing time and
orientation . . . I could not remember things. I was released

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BARSEGHYAN V . GARLAND 9
and went to the hospital where I was bed-ridden.” On direct
examination when asked who transported him to the
hospital, he answered, “Those same policemen I believe,
because of the condition that I was in perhaps they also
became scared.” On cross-examination, the government
asked him about how he got to the hospital and suggested he
took himself. Barseghyan again answered that the police
took him and that he came to his senses at the hospital.
Barseghyan contends that there is no inconsistency, and
we agree. His written declaration does not specify how he
arrived at the hospital (just that he went there), and the fact
that his written declaration describes that he was “bed-
ridden” at the hospital shows that he was in no condition to
transport himself. The first mention of Barseghyan
transporting himself to the hospital appears not in something
that Barseghyan said or wrote but rather in the government’s
framing on cross-examination: the government added that
Barseghyan’s declaration “says that you were released and
you went to the hospital on your own.” The BIA, in a
footnote, acknowledged that Barseghyan never actually said
in his declaration that he took himself to the hospital. This
alleged inconsistency does not support an adverse credibility
determination because it is not, in fact, inconsistent. See
Kumar, 18 F. 4th at 1154.
2. Barseghyan’s first arrest
The second inconsistency the IJ and BIA relied upon is
whether Barseghyan was arrested at his home or the police
station on January 23. In his written declaration, Barseghyan
stated that the police arrested him inside of his house on
January 23 but that he was “questioned and released.” He
explained that he “was told that [he] will be called for
additional questioning” and that a week later he was “called
back” to the police. On direct examination, Barseghyan

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testified that he was called to the police station on January
23. This topic did not come up in cross-examination, but the
IJ asked Barseghyan about it near the end of the hearing and
gave him the opportunity to explain why his declaration
stated that he was arrested inside his house, but his testimony
described that he was called to the police station on January
23. Barseghyan initially confirmed that the police called him
by phone on January 23, but then clarified that the “second
time was the phone call” and he “forgot that they came to
my home January 23rd and then it was a phone call, later.”
Barseghyan contends that his declaration and testimony
are consistent and that he was describing two different
encounters with the police, while the IJ thought he was
describing a single encounter. He explains that in the first
encounter, on January 23, he was arrested at his home and
went to the police station for questioning, after which he was
released. In the second encounter, he was called by the
police and went to the station. This explanation is supported
by his written declaration, in which he wrote that he was
arrested at home but “questioned and released,” and a week
later was called “back” to the police station. In common
usage of the English language, one cannot be “released”
from their own home, nor could a person be “called back” to
the station if the person had been only arrested and
questioned at home. But Barseghyan nevertheless testified
on direct examination that he was “called to the police” on
January 23, conflicting with his explanation of being
arrested at home and then questioned at the station. When
pressed by the IJ to explain the discrepancy at the hearing,
Barseghyan stated that he “simply forgot that they came to
my home January 23rd.” While “this may very well have
been an honest answer,” it is “hardly an explanation for the
inconsistency.” Kumar, 18 F.4th at 1054. Under the

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BARSEGHYAN V . GARLAND 11
deferential review we give to the BIA’s factual findings, we
conclude that this inconsistency is supported by the record.
3. Barseghyan’s ability to leave the country
The IJ and BIA relied upon third a purported
inconsistency about whether the police were looking for
Barseghyan when he left the country. On direct
examination, Barseghyan stated that the police wanted to
“see” him again and said they would call him back for more
questioning. On cross-examination, the government
attempted to cast doubt on this statement by emphasizing
that other government officials at the airport allowed him to
leave the country. Barseghyan explained that at that time,
the police were not actively looking for him, and he “could
leave the country.”
We agree with Barseghyan that this is not an
inconsistency that supports an adverse credibility
determination. The fact that the police were aware of
Barseghyan’s phone number and address, and that he came
to the police station for questioning the last time they called
him, supports his answer that the police wanted to see him
again but were “not looking” for him. In Chouchkov v.
I.N.S., 220 F.3d 1077, 1083 (9th Cir. 2000), we held that
substantial evidence did not support the BIA’s decision
where the BIA assumed the Russian KGB and the police “are
all on the same page and operate with seamless efficiency”
and were working “in tandem.” Similarly here, that other
government officials allowed Barseghyan to board a plane
does not make his testimony inconsistent.
4. Barseghyan’s display of anti-government artwork
The BIA also relied upon an inconsistency regarding
whether Barseghyan distributed the anti-government

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drawings at a bazaar or traveled around to many villages
with the drawings. The BIA erred in relying on this
inconsistency because the IJ did not rely on it. See Zumel v.
Lynch, 803 F.3d 463, 475 (9th Cir. 2015) (“[T]he BIA may
review an IJ’s factual findings only to determine whether the
findings are clearly erroneous . . . [T]he BIA may not make
its own findings or rely on its own interpretation of the
facts.”) (citation and internal quotation omitted).
But even if we considered it, this inconsistency does not
support the adverse credibility determination because it is
not actually inconsistent. Barseghyan’s oral and written
testimony describe that in the weeks leading up to the
election, he was “going around and reminding people” of the
government’s violence and corruption, and the first time that
his anti-government drawings caused a problem was when
he showed them at a bazaar on January 19, 2013.
The government manufactures a discrepancy by
characterizing the factual situation as an “either/or”
situation: either Barseghyan traveled around to villages, or
he showed the drawings at a single bazaar. On cross-
examination, the government asserted that Barseghyan’s
“written statement says that you just showed those
[drawings] to people at the bazaar” and asked him to explain.
Like with the first inconsistency, the government again
added something to Barseghyan’s written declaration that is
not actually contained in it. Barseghyan’s testimony
consistently and sufficiently explained that in the weeks
leading up to the election, he was going around and
reminding people of the government’s corruption, and that
the first time he had a problem showing the drawings was on
January 23, a few days after showing them at a bazaar.
This inconsistency does not support an adverse
credibility determination for yet another reason: the BIA did

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BARSEGHYAN V . GARLAND 13
not provide a specific reason for rejecting Barseghyan’s
reasonable explanation for it. Before relying upon a
purported inconsistency to make an adverse credibility
determination, the fact finder must provide the applicant
with an opportunity to explain each inconsistency. Rizk,
629 F.3d at 1088. If the applicant gives a “reasonable and
plausible” explanation, the fact finder must state a “specific
and cogent” reason for rejecting it. Id. Here, the BIA
explained that it “agree[d] with the Immigration Judge” that
Barseghyan’s explanation “is not persuasive.” This
mischaracterizes the record, as the IJ made no such finding.
But even if the BIA had not relied upon a statement the IJ
did not make, neither the BIA nor the IJ provided a “specific
and cogent” reason for rejecting what appears to be a
“reasonable and plausible” explanation from Barseghyan.
Id.
C.
In addition to the alleged inconsistencies, the IJ also
relied upon the “lack of supporting documentation and the
weakness of the supporting documentation” to make its
adverse credibility determination. Substantial evidence does
not support the IJ’s reliance upon the lack of or weakness of
Barseghyan’s documentation as a basis for finding him not
credible because the IJ categorically ignored the documents
that were consistent with his testimony. The IJ did not
address the hospital record confirming that Barseghyan was
hospitalized on January 31, 2013. Nor did the IJ mention the
statement submitted by a neighbor who was at the political
demonstration with Barseghyan and helped him after he was
attacked by the police. This document is an individual
statement made by someone with personal knowledge of the
events, satisfying two bases the IJ gave for affording little
weight to the document Barseghyan submitted on behalf of

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other neighbors. By ignoring documents consistent with
Barseghyan’s testimony, the IJ did not consider “the totality
of the circumstances” when making its adverse credibility
determination. 8 U.S.C. § 1158(b)(1)(B)(ii); see also
Shrestha, 590 F.3d at 1044 (concluding that ignoring
“relevant record evidence would be to make a credibility
determination on less than the total circumstances in
contravention of the REAL ID Act’s text.”).
The BIA further erred by misinterpreting the IJ’s
holding. The IJ relied upon the lack of documentation as one
factor supporting its adverse credibility determination under
8 U.S.C. § 1158(b)(1)(B)(iii). The BIA erroneously
characterized the IJ’s holding about documentation as a
finding under a different statutory provision, 8 U.S.C.
§ 1158(b)(1)(B)(ii), that Barseghyan did not provide
sufficient corroborating evidence to sustain his burden of
proof “independent of his own non-credible testimony.”
This part of the BIA order cannot stand because it is not
supported by the record. For a determination under section
1158(b)(1)(B)(ii), the IJ must first determine that
corroborating evidence is required and give notice of the
specific corroboration required. Ren v. Holder, 648 F.3d
1079, 1091–92 (9th Cir. 2011). The IJ failed to take these
steps here, reinforcing that it made no finding under section
1158(b)(1)(B)(ii). The BIA thus erred by affirming a finding
that the IJ did not make.
To summarize, all but one inconsistency the IJ relied
upon in making its adverse credibility determination are not
actually inconsistent. The BIA erred by adding a fourth
inconsistency upon which the IJ did not rely. And the BIA
erred by misconstruing the IJ’s holding about Barseghyan’s
documentation. We grant the petition and remand for the
BIA to determine whether the remaining inconsistency,

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BARSEGHYAN V . GARLAND 15
regarding whether Barseghyan was arrested at home or the
police station on January 23, 2013, is sufficient to support an
adverse credibility determination. In Alam, we declined to
decide how many inconsistencies require sustaining or
rejecting an adverse credibility determination. 11 F.4th
at 1137. Instead, we held that an adverse credibility
determination must be supported by substantial evidence in
light of the totality of the circumstances and all relevant
factors. We again decline to engage in line drawing here and
emphasize that all but one inconsistency relied upon by the
BIA in upholding the adverse credibility determination
against Barseghyan are not supported by the record. See
Kumar, 18 F.4th at 1156. We remand on an open record so
that the government and Barseghyan can provide additional
evidence if they choose. We do not reach the BIA’s holding
about Barseghyan’s eligibility for protection under the
Convention Against Torture because it was based upon the
IJ’s adverse credibility determination and should be
reviewed further on remand.
PETITION GRANTED and REMANDED.

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