NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 14 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
VARINDER SINGH CHEEMA, No. 06-71845
Petitioner, Agency No. A077-382-132
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
Varinder Singh Cheema, a native and citizen of India, petitions pro se for
review of a Board of Immigration Appeals (“BIA”) order dismissing his appeal
from an immigration judge’s decision denying his application for asylum,
*
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).
withholding of removal, and protection under the Convention Against Torture
(CAT). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial
evidence, Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008), and we grant the
petition for review.
Substantial evidence does not support the agency’s adverse credibility
determination because the discrepancy between Cheema’s testimony and his
asylum application with respect to the length of his 1996 detention did not enhance
his claim, see Singh v. Ashcroft, 362 F.3d 1164, 1171 (9th Cir. 2004), and the
discrepancy was not accompanied by other indications of dishonesty such as a
pattern of clear and pervasive inconsistency or contradiction, see Don v. Gonzales,
476 F.3d 738, 742 (9th Cir. 2007) (holding discrepancies that do not enhance a
claim may be considered when accompanied by other indications of dishonesty).
Further, even if substantial evidence supports the agency’s alternate finding
that Cheema was not persecuted on account of a protected ground with respect to
his 1994 arrest, the agency failed to consider whether Cheema’s 1996 arrest was on
account of a protected ground, and must be given the opportunity to do so in the
first instance. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
Accordingly, we grant the petition for review, and remand to the BIA for
further proceedings in which Cheema’s testimony shall be deemed credible. See
2 06-71845
Soto-Olarte v. Holder, 555 F.3d 1089, 1095-96 (9th Cir. 2009); see also Ventura,
537 U.S. at 16-18.
PETITION FOR REVIEW GRANTED; REMANDED.
3 06-71845