Gamityan v. Gonzales

MEMORANDUM ** Hakob Gamityan, a native of Greece and citizen of Armenia, and his wife, Anush Sarafyan, a native and citizen of Armenia, petition for review of the Board of Immigration Appeals’ affirmance of an Immigration Judge’s (“IJ”) denial of their application for asylum, withholding of removal, and for relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252 . We review for substantial evidence, Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir.2001), and grant the petition. Substantial evidence does not support the IJ’s and BIA’s denial of asylum and withholding of removal based on an adverse credibility finding. Because the adverse credibility finding is based on minor inconsistencies which do not go to the heart of the matter, and an inconsistency which is not supported by the record, we grant petitioner’s asylum and withholding of removal claims. See Singh v. Gonzales, 439 F.3d 1100, 1105 (9th Cir.2006). Petitioners’ CAT claim is waived because they failed to raise it in their opening brief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996). Accordingly, we grant the petition with regard to the asylum and withholding of removal claims and remand to the agency for further proceedings consistent with this order. See INS v. Ventura, 537 U.S. 12, 16 , 123 S.Ct. 353 , 154 L.Ed.2d 272 (2002) (per curiam). PETITION FOR REVIEW GRANTED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.