FILED
NOT FOR PUBLICATION FEB 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HUMUTAL MALUDIN SITORUS, Nos. 06-74209 and 07-71233
Petitioner, Agency No. A78-020-370
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 9, 2011
Pasadena California
Before: D.W. NELSON, REINHARDT, and N.R. SMITH, Circuit Judges.
Humutal Sitorus (“Sitorus”) petitions this Court for review of: (1) the Board
of Immigration Appeals’s (“BIA”) denial of his application for withholding of
removal and Convention Against Torture (“CAT”) relief; and (2) the BIA’s denial
of his motion to reopen due to ineffective assistance of counsel. The BIA affirmed
the Immigration Judge’s (“IJ”) denial of withholding of removal and CAT relief on
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the basis of an adverse credibility determination. We have jurisdiction pursuant to
8 U.S.C. § 1252(a)(1). We grant Sitorus’s petition as to withholding of removal
and relief under CAT and remand to the BIA to determine whether Sitorus, now
considered credible, has established eligibility for withholding of removal and
CAT relief. Because we remand to the agency for further proceedings, we need
not address the motion to reopen.
We first find that Sitorus sufficiently raised the adverse credibility issue to
the BIA. “When a petitioner files no brief and relies entirely on the notice of
appeal to make an immigration argument, as he may do before the BIA, see 8
C.F.R. § 1003.38(f), then the notice of appeal serves in lieu of a brief, and he will
be deemed to have exhausted all issues raised therein.” Abebe v. Gonzales, 554
F.3d 1203, 1208 (9th Cir. 2009). Sitorus’s notice of appeal to the BIA alleged that
the IJ erred in making the adverse credibility finding. The statements in the notice
“[were] sufficient to put the BIA on notice [that Sitorus was challenging the
adverse credibility finding] . . . and the agency had an opportunity to pass on this
issue.” Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (per curiam) (holding
that the petitioner’s request to reverse the IJ's denial of relief under the Convention
Against Torture sufficiently “raised the issue of Convention relief before the BIA,
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and our precedent requires nothing more”). Thus, we have jurisdiction to review
this issue.
We review adverse credibility determinations for substantial evidence. Gui
v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002) (citations omitted). Under this
standard, the BIA’s determinations are to be upheld if they are supported by
“reasonable, substantial and probative evidence” in the record. Kumar v.
Gonzales, 444 F.3d 1043, 1049 (9th Cir. 2006) (citations omitted). However, “the
BIA must provide a petitioner with a reasonable opportunity to offer an
explanation of any perceived inconsistencies that form the basis of a denial of
asylum.” Chen v. Ashcroft, 362 F.3d 611, 618 (9th Cir. 2004) (reversing negative
credibility finding because applicant was denied a reasonable opportunity to
explain a perceived inconsistency).
In this case, the IJ provided no such opportunity for Mr. Sitorus to explain
perceived inconsistencies in his statements. As to each of the inconsistencies he
found in the record, the IJ failed to question Mr. Sitorus and allow him to clarify
his testimony. See id. at 618 (“The IJ did not question her further concerning her
failure to request permission to become pregnant. Instead, he moved on to another
subject, leaving this court to speculate whether Mrs. Chen did not fully understand
the nature of the question due to the difficulties of translation, or whether she had
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feared that a fine would be assessed immediately, or worse, that she would have
been required to abort her child.”). “The IJ's doubt about the veracity of [his]
story, therefore, cannot serve as a basis for the denial of [his claims].” Id.
Because the IJ failed to provide Sitorus an opportunity to explain his
allegedly inconsistent statements, we reverse the adverse credibility determination
and remand to the agency to determine whether Sitorus, now considered credible,
has established eligibility for withholding of removal and CAT relief.
Petition for review GRANTED and REMANDED to the BIA for further
proceedings.
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