Court: Court of Appeals for the Ninth Circuit; January 17, 2005; Federal Appellate Court
Alan Borisovich Diambekov, a Russian national, appeals a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge's (IJ) denial of his asylum, withholding of removal, Convention Against Torture (CAT) relief, and voluntary departure applications. The BIA's decision was limited to the IJ's adverse credibility determination, which the court found unsupported by substantial evidence.
The IJ cited three reasons for questioning Diambekov's credibility. First, the IJ claimed Diambekov did not mention an assassination attempt in his written application, which was inaccurate as he referenced it twice. Second, the IJ noted discrepancies between what Diambekov stated in his written application and his testimony regarding past persecutions, failing to acknowledge that Diambekov had indeed testified about key events like the assassination attempt and his detention. The IJ's assertion of a significant omission was deemed factually incorrect, as Diambekov was not prompted to elaborate on less serious details during his testimony.
The third reason, that Diambekov's account was "implausible," relied on speculative questioning regarding the KGB's potential actions, which the court rejected as conjecture. Consequently, the court reversed the BIA's credibility determination and remanded the case for further consideration, including Diambekov's request for voluntary departure, which may have been affected by the credibility finding.
Additionally, the IJ's comments regarding Diambekov's motives for coming to Hollywood were criticized, as such speculation is not permissible in credibility assessments. A dissenting opinion highlighted a minor inconsistency regarding the timing of the assassination attempt, but the court maintained that this did not undermine the core of Diambekov's claim. The petition was granted, and the matter remanded for further review, with the disposition not intended for publication.
