Opinion
15-71932
10-03-2022
ROMAN PYANZIN, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Argued and Submitted September 22, 2022 Pasadena, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A205-767-783
Before: IKUTA and H.A. THOMAS, Circuit Judges, and VRATIL, District Judge.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
MEMORANDUM
Roman Pyanzin petitions for review of two orders of the Board of Immigration Appeals (BIA). The first petition (Case No. 15-71932) seeks review of the BIA's order upholding the IJ's decision denying Pyanzin's claims for asylum, withholding of removal, and protection under the Convention Against Torture. The second petition (Case No. 17-71366) seeks review of the BIA's later order denying Pyanzin's motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We deny the petition in Case No. 15-71932. We grant the petition in Case No. 17-71366 and remand for the BIA to reconsider Pyanzin's ineffective assistance of counsel claims.
1. In Case No. 15-71932, the BIA did not err in holding that Pyanzin had failed to provide reasonably available corroborating evidence in the form of a statement from his mother. Construed generously, Pyanzin's brief in support of his petition raises only one pertinent challenge to the BIA's order: that a statement from his mother was not reasonably available to him. This argument fails because the record does not compel the conclusion that such a statement was not reasonably available. See 8 U.S.C. § 1252(b)(4) (standard of review).
2. In Case No. 17-71366, we conclude that the BIA erred in two respects in analyzing Pyanzin's motion to reopen.
a. "The BIA is obligated to consider and address in its entirety the evidence submitted by a petitioner." Singh v. Gonzales, 494 F.3d 1170, 1172 (9th Cir. 2007) (cleaned up). If the Board intends to deny relief, it must provide a reasoned explanation for doing so. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005).
Here, the BIA erred by failing to address several of Pyanzin's arguments regarding alleged deficient performance by his former attorney, Alexander Markman. Because the BIA did not fulfill its obligation to address each of Pyanzin's arguments, we remand for it to do so in the first instance.
b. The BIA abused its discretion by making an improper credibility determination on a motion to reopen. In evaluating a motion to reopen, the BIA "must accept as true the facts asserted by the movant, unless they are 'inherently unbelievable.'" Silva v. Garland, 993 F.3d 705, 718 (9th Cir. 2021) (cleaned up). Rather than accepting the facts asserted in Pyanzin's sworn declaration as true or finding them inherently unbelievable, the BIA conducted an improper credibility analysis, comparing the declaration to an unsworn letter submitted by attorney Markman and crediting the letter over the declaration. The BIA compounded this error when it adjudged Markman's letter to be "more persuasive" than Pyanzin's claims-a lower threshold than the "inherently unbelievable" standard required to disregard a petitioner's sworn statement. See id.
We reject the Government's argument that the BIA's order should be upheld on the ground that Pyanzin's declaration was, supposedly, "irreconcilable" with his testimony before the IJ. The BIA's order makes clear that it denied the motion to reopen in significant part because it found Pyanzin's declaration less persuasive than Markman's letter-an improper credibility determination requiring remand for the BIA to reconsider Pyanzin's claims.
PETITION DENIED in Case No. 15-71932; PETITION GRANTED in Case No. 17-71366.
The Honorable Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by designation.