## Facts

- Soghomon Abovian, his wife, and adult daughter (derivative applicants) were natives and citizens of Armenia seeking asylum and withholding of deportation.
- Abovian testified that his father was a prominent communist and KGB spy, and that Abovian opposed communism and refused efforts to recruit him into security services.
- Abovian claimed that for years he was harassed and threatened in the Soviet Union because he would not cooperate with the KGB.
- After returning to Armenia in 1988, Abovian said he was interrogated and pressured by the National Security Council (successor to the KGB) due to his involvement with a pro-independence group.
- He alleged repeated threatening phone calls and severe harm to his family, including his daughter being struck by a car and later kidnapped, which he attributed to actors connected to Armenian authorities.
- Abovian also claimed Armenia’s president met with him many times to recruit him to work for security services.
- The record included a State Department report that conflicted with Abovian’s portrayal of the president, and Abovian produced no documents corroborating the major alleged incidents.
- The asylum application and hearing testimony differed on certain points, including whether his daughter was “completely paralyzed” and whether the KGB was definitively responsible for particular abuse.
- The Immigration Judge denied relief without making an explicit credibility finding.
- The BIA denied relief after making its own adverse credibility finding and, in the alternative, concluded that even if credible Abovian had not shown past persecution or a well-founded fear on account of political opinion.

## Issues

1. Whether due process is violated when the BIA makes an initial adverse credibility finding, where the IJ made no credibility finding, without giving the applicant notice of the relied-upon inconsistencies and an opportunity to explain.
2. Whether substantial evidence supported the BIA’s adverse credibility determination and its denial of asylum and withholding of deportation.

## Decision

- The Ninth Circuit granted the petition for review, vacated the BIA’s decision, and remanded.
- The court held that the BIA violated due process by making an independent initial adverse credibility finding without providing notice of the specific concerns and a meaningful opportunity to respond.
- The court further held the adverse credibility determination was not supported by substantial evidence.
- The court declined to affirm on the BIA’s alternative merits rationale because it was not independent and was intertwined with the flawed credibility analysis.

## Legal Principles

- Noncitizens in deportation proceedings are entitled to a full and fair hearing under the Due Process Clause, including a meaningful opportunity to respond to dispositive adverse factual determinations.
- When the BIA makes a new or initial adverse credibility determination not made by the IJ, due process requires notice of the specific grounds and an opportunity to explain or rebut them.
- Adverse credibility findings must be supported by substantial evidence and may not rest solely on lack of corroboration or on discrepancies that do not reasonably support rejecting the claim as a whole.
- When an agency’s alternative holding depends on, or is shaped by, an invalid credibility finding, a reviewing court may remand for reconsideration rather than affirm on the alternative ground.

## Conclusion

The Ninth Circuit vacated the denial of asylum and withholding because the BIA made an initial adverse credibility finding without giving the applicant notice and an opportunity to respond, and because the credibility determination lacked substantial evidentiary support; the case was remanded for further proceedings consistent with due process and proper credibility review.


Abovian v. I.N.S., 219 F.3d 972 (9th Cir. 2000)