FILED
NOT FOR PUBLICATION MAY 09 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BHUPAL HARI KAYASTHA, No. 07-72154
Petitioner, Agency No. A098-452-283
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 3, 2011 **
Pasadena, California
Before: PREGERSON, FISHER, and BERZON, Circuit Judges.
Bhupal Hari Kayastha (“Kayastha”), a native and citizen of Nepal, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s (“IJ”) decision denying his application for
asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252.
*
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 BIA cited to its decision in Matter of Burbano, 20 I. & N. Dec. 872
(BIA 1994), but clarified that “[a]lthough the Immigration Judge included
impermissibly speculative findings in his decision, we are nonetheless unable to
conclude that the IJ’s overall credibility determination was clearly erroneous.” In
particular, the BIA concluded that three of the IJ’s reasons for finding Kayastha not
credible were supported by the record. Accordingly, we review for substantial
evidence “the reasons explicitly identified by the BIA, and then examine the
reasoning articulated in the IJ’s oral decision in support of those reasons.” Tekle v.
Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008). We grant the petition for review
and remand.
Substantial evidence does not support the agency’s adverse credibility
determination. First, Kayastha’s failure to submit a written declaration, which he
prepared himself, that was not as complete as his oral testimony is not a proper
basis for an adverse credibility finding. See Smolniakova v. Gonzales, 422 F.3d
1037, 1045 (9th Cir. 2005) (“[A]sylum forms filled out by . . . people who . . . are
unable to retain counsel should be read charitably, especially when it comes to the
absence of a comprehensive and thorough account of all past instances of
persecution.”) (internal quotation marks omitted); Akinmade v. INS, 196 F.3d 951,
956 (9th Cir. 1999) (“[A] concern that the affidavit is not as complete as might be
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desired cannot, without more, properly serve as a basis for a finding of lack of
credibility.”) (internal quotation marks omitted). Kayastha testified regarding the
two primary incidents upon which his asylum claim was based, both of which were
described in his declaration, and merely supplemented his declaration with a
description of three additional incidents.
Second, the IJ’s conclusion that Kayastha was “evasive” when answering
questions about the nature of the threats he received is unsupported by the record.
A review of Kayastha’s testimony in the record reveals (1) an innocent confusion
about the exact question being asked, (2) an answer to the IJ’s specific question,
and (3) a clarification of testimony.
Finally, the inconsistency the BIA perceived between Kayastha’s declaration
stating he was “tortured,” and his testimony about his harsh mistreatment when
held in captivity by armed Maoists for sixteen days is not supported by the record.
See Tekle, 533 F.3d at 1052-55. Moreover, the IJ erred by failing to give Kayastha
an opportunity to explain the perceived inconsistency. See Soto-Olarte v. Holder,
555 F.3d 1089, 1091-92 (9th Cir. 2009) (adverse credibility determination not
supported by substantial evidence where agency failed to offer petitioner
opportunity to explain inconsistency upon which the adverse determination was
partially based).
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Accordingly, we grant the petition for review, and remand for the agency to
reconsider Kayastha’s asylum and withholding of removal claims, taking his
testimony as true. See Soto-Olarte, 555 F.3d at 1093-96; see also INS v. Ventura,
537 U.S. 12, 16-18 (2002) (per curiam).
PETITION FOR REVIEW GRANTED; REMANDED.
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