FILED
NOT FOR PUBLICATION AUG 23 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SI THU HTET, No. 06-70320
Petitioner, Agency No. A095-876-656
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 8, 2010**
Pasadena, California
Before: KOZINSKI, Chief Judge, RAWLINSON, Circuit Judge, and
MARBLEY, District Judge.***
The immigration judge’s adverse credibility finding is not supported by
substantial evidence. The petitioner produced all easily available, non-duplicative,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Algenon L. Marbley, United States District Judge for the
Southern District of Ohio, sitting by designation.
page 2
material evidence corroborating his claims. Cf. Chebchoub v. INS, 257 F.3d 1038,
1044–45 (9th Cir. 2001) (failure to do so can be basis for adverse credibility
finding). The main inconsistency is a minor dispute about who typed a letter
explaining the petitioner’s political activities in the United States. See de Leon-
Barrios v. INS, 116 F.3d 391, 393 (9th Cir. 1997) (“Generally, minor
inconsistencies and minor omissions relating to unimportant facts will not support
an adverse credibility finding.”). That fact is not central to the petitioner’s claims.
The other “inconsistencies” are illusory: First, the petitioner could fear persecution
even though he voluntarily returned to Burma in 2001; he claims he was beaten and
interrogated during that trip. Second, the petitioner could be persecuted even
though the government has left most of his family members alone; they weren’t
engaged in political activities. And the petitioner claims that the one family
member who was involved in political activities—his father—was imprisoned for
such participation, even if he’s now been released. Third, authorities at Yangon
Airport may have the petitioner’s name and picture even though he left without
trouble in 2001; the information could simply have been distributed later. The IJ’s
description of the petitioner’s demeanor wasn’t specific enough to support an
adverse credibility finding either. See Arulampalam v. Ashcroft, 353 F.3d 679, 686
(9th Cir. 2003).
page 3
In addition, the government concedes it has not shown that the petitioner
firmly resettled in Singapore. We therefore grant the petition and remand to the
BIA to determine whether the petitioner is entitled to asylum, withholding of
removal or relief under the Convention Against Torture.
PETITION GRANTED; REMANDED.
FILED
Htet v. Holder AUG 23 2010
No. 06-70320 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent. In my view, the Immigration Judge’s adverse
credibility determination is supported by substantial evidence. The inconsistent
testimony regarding the letter attesting to Petitioner’s membership in the group that
formed the basis for his asserted persecution was an important part of his case. See
Kin v. Holder, 595 F.3d 1050, 1058 (9th Cir. 2010) (“An inconsistency goes to the
heart of a claim if it concerns events central to petitioner’s version of why he was
persecuted and fled.”) (citation and parentheses omitted). Indeed, the Petitioner’s
attorney represented that the witness was testifying about the letter to go “to the
weight [the immigration court] would give to his claim for a well-founded fear of
presently returning to Burma.” Even more telling, the Petitioner’s attorney moved
to withdraw from the case at the close of the first hearing, stating that he could not
“ask [the Petitioner] in good faith any more questions . . .”
In addition, the Immigration Judge (IJ) made a demeanor finding that we
have previously held must be given “special deference.” Singh-Kaur v. INS, 183
F.3d 1147, 1151 (9th Cir. 1999) (citation omitted).
Finally, the IJ noted that Htet’s family remained in Burma undisturbed. This
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finding included the Petitioner’s father who was purportedly arrested for being a
member of the same organization as Petitioner.
Considering this record, I would deny the petition, keeping in mind our
charge that we may reverse the IJ’s ruling only if a contrary determination is
compelled by the evidence. See Hammad v. Holder, 603 F.3d 536, 543 (9th Cir.
2010) (“To reverse the BIA finding we must find that the evidence not only
supports petitioner’s argument, but compels it.”) (citation and alteration omitted).
Because the record in this case does not compel a contrary result, I respectfully
dissent.
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