Svetlana KISIYAN, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent, 236 F. App'x 292

MEMORANDUM We reverse the denial of asylum, withholding of removal and protection under the Convention Against Torture (CAT) to Svetlana Kisiyan. Both grounds the immigration judge (IJ) articulated to support her adverse credibility determination were based on speculation and conjecture. See Jibril v. Gonzales, 423 F.3d 1129, 1135 (9th Cir.2005); Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1054 n. 4 (9th Cir.2005). We therefore reverse the IJ’s adverse credibility determination.

The IJ and BIA both erroneously stated that there was no evidence connecting the sexual assaults on Kisiyan by a captain in Armenia’s National Security Service with Kisiyan’s husband’s ethnicity or religion. Kisiyan’s testimony supports the conclusion that she was sexually assaulted both because her attacker “thought she was attractive” and because of her husband’s religion and ethnicity, which suffices as “evidence from which it is reasonable to believe that the harm was motivated, at least in part, by an actual or implied protected ground.” Shoafera v.

INS, 228 F.3d 1070, 1074-75 (9th Cir.2000) (quoting Borja v. INS, 175 F.3d 732, 736 (9th Cir. 1999) (en banc)) (emphasis in original). Because the IJ’s incorrect characterization of the evidence precluded consideration of Kisiyan’s asylum and withholding of removal claims under a mixed motive analysis in the first instance, we remand for further proceedings. See Azanor v. Ashcroft, 364 F.3d 1013, 1021 (9th Cir.2004) (“[W]e must decide whether to grant or deny the petition for review based on the Board’s reasoning rather than our independent analysis of the record.”).

Finally, the IJ’s decision leaves it unclear whether she would have denied Kisiyan’s CAT claim even if she had found Kisiyan credible and whether she improperly required Kisiyan to show persecution on a protected ground in the CAT context. See Kamalthas v. INS, 251 F.3d 1279, 1282-83 (9th Cir.2001); Farah v. Ashcroft, 348 F.3d 1153, 1156-57 (9th Cir.2003). We therefore also remand for further consideration of Kisiyan’s CAT claims. REVERSED and REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.