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United States Court of Appeals, Ninth Circuit.

Olga BARANNIK, Petitioner, v. William P. BARR, Attorney General, Respondent.

No. 19-70871

Decided: October 26, 2020

Before: GOULD and LEE, Circuit Judges, and KORMAN,* District Judge. Evangeline G. Abriel, Director, Legal Analysis, Research, and Writing, Santa Clara University, School of Law, Santa Clara, CA, for Petitioner Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, R. Trent McCotter, Julia Tyler, Esquire, Russell John Verby, Trial Attorney, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for Respondent


Olga Barannik, a Ukrainian citizen, petitions for review of a decision by the Board of Immigration Appeals (“BIA”) dismissing her appeal for failure to “meaningfully challenge” the Immigration Judge's (“IJ”) adverse credibility determination. We grant the petition and remand for further proceedings.

The Attorney General argues that we lack jurisdiction because of Barannik's alleged failure to exhaust her challenge to the IJ's adverse credibility determination before the BIA. See 8 U.S.C. § 1252(d)(1). We disagree. Barannik proceeded pro se before the BIA, and we therefore apply a “forgiving standard[ ]” in assessing exhaustion, giving her pleadings to the BIA “their most liberal construction.” Pagayon v. Holder, 675 F.3d 1182, 1188 (9th Cir. 2011). Barannik was required only to place the BIA “on notice of the contested issues.” Ren v. Holder, 648 F.3d 1079, 1083 (9th Cir. 2011) (internal quotation omitted). She did so by addressing the IJ's reasons for finding her not credible, such as the IJ's conclusion that she testified inconsistently about the number of times she was harmed in Ukraine. She also argued that the inconsistencies noted by the IJ resulted from translation errors. While these contentions were sufficient to place the BIA on notice under our liberal standard for pro se respondents, we also note that Barannik addressed the adverse credibility finding directly, claiming “I'm personality who need credible.”

We therefore grant the petition and remand to the BIA to consider Barannik's arguments on the merits. See Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir. 2007). We hope that Barannik's able pro bono counsel will continue to assist her on remand.


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