FILED
NOT FOR PUBLICATION JUN 09 2011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
JINGJING SUN, No. 07-71271
Petitioner, Agency No. A095-448-207
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 24, 2011 **
Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.
Jingjing Sun, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration
judge’s decision denying her application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). We have jurisdiction under
*
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).
8 U.S.C. § 1252. We review for substantial evidence, Soto-Olarte v. Holder, 555
F.3d 1089, 1091 (9th Cir. 2009), and we grant the petition for review and remand.
Substantial evidence does not support the BIA’s adverse credibility
determination because the discrepancy between Sun’s testimony and her 2003
medical certificate was attributable to a clerical error. See Shah v. INS, 220 F.3d
1062, 1068 (9th Cir. 2000) (discrepancies capable of being attributed to
typographical or clerical error cannot form the basis of an adverse credibility
determination). Also, the record does not support the BIA’s finding that Sun’s
explanations for the discrepancy were inconsistent. See Kaur v. Ashcroft, 379 F.3d
876, 887 (9th Cir. 2004) (“[A] general response to questioning, followed by a more
specific, consistent response to further questioning is not a cogent reason for
supporting a negative credibility finding.”). Accordingly, we remand for the
agency to reconsider Sun’s withholding of removal and CAT claims on an open
record. See Soto-Olarte, 555 F.3d at 1095. In addition, because the BIA appears
to reject Sun’s excuse for her untimely asylum application based in part on a lack
of credible evidence, we also remand Sun’s asylum claim for further proceedings
consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002)
(per curiam).
PETITION FOR REVIEW GRANTED; REMANDED.
2 07-71271