NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 23 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JINBEI XUE, No. 12-73492
Petitioner, Agency No. A087-848-870
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 13, 2014**
Before: CLIFTON, BEA, and WATFORD, Circuit Judges.
Jinbei Xue, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration
judge’s decision denying his application for asylum and withholding of removal.
We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence
*
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 agency’s factual findings, applying the standards governing adverse credibility
determinations created by the REAL ID Act, Shrestha v. Holder, 590 F.3d 1034,
1039 (9th Cir. 2010), and review de novo claims of due process violations in
immigration proceedings, Zetino v. Holder, 622 F.3d 1007, 1011 (9th Cir. 2010).
We grant the petition for review, and we remand.
Substantial evidence does not support the BIA’s reliance on Xue’s inability
to recall the days of the week on which specific events occurred. See Ren v.
Holder, 648 F.3d 1079, 1085-86 (9th Cir. 2011) (inconsistency regarding day
incident occurred was “manifestly trivial” and could “not form a basis for an
adverse credibility determination”). Substantial evidence also does not support the
BIA’s reliance on Xue’s omission of being taken to a court because, contrary to the
BIA’s finding, Xue was never asked about this omission. See Soto-Olarte v.
Holder, 555 F.3d 1089, 1092 (9th Cir. 2009) (IJ must provide opportunity to
explain any inconsistencies that form basis for denying claim). Finally, the
inconsistency regarding whether the six signatories on a witness statement were
arrested with Xue does not support the adverse credibility finding. See Ren, 648
F.3d at 1087 (finding “initial error” was “a quickly-corrected innocent mistake”).
Accordingly, we grant the petition for review and remand Xue’s asylum and
withholding of removal claims on an open record for further proceedings
2 12-73492
consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002)
(per curiam); Soto-Olarte, 555 F.3d at 1095-96.
PETITION FOR REVIEW GRANTED; REMANDED.
3 12-73492