FILED
NOT FOR PUBLICATION
DEC 07 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAUKAT ALI KHAN, AKA Omar No. 14-73902
Kahn Syed,
Agency No. A079-536-788
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 5, 2017**
Pasadena, California
Before: D.W. NELSON and REINHARDT, Circuit Judges, and STEEH,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable George Caram Steeh III, United States District Judge
for the Eastern District of Michigan, sitting by designation.
Shaukat Ali Khan petitions for review of the BIA’s decision affirming the
IJ’s denial of his application for asylum, withholding of removal, and protection
under the Convention Against Torture (CAT). We grant the petition for review and
remand for further proceedings consistent with this disposition.
1. Khan argues that the BIA erred in finding that he had not established
arrival in the United States less than one year before the filing of his asylum
application. The government’s brief raises no contrary argument. Accordingly, the
issue is waived. Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009). Even absent
waiver, we would be compelled to reverse. The Notice to Appear (“NTA”) alleged
that Khan was “admitted to the United States at Newark, New Jersey, on or about
May 21, 2001.” Khan admitted to this allegation, and the government never sought
to amend the NTA or otherwise challenge the date of entry in the proceedings.
Khan’s entry on May 21, 2001 is therefore judicially admitted. Hakopian v.
Mukasey, 551 F.3d 843, 846-47 (9th Cir. 2008).
2. We reverse the agency’s adverse credibility determination. The BIA has
provided no “specific and cogent reason[] to support” such a finding. Kin v.
Holder, 595 F.3d 1050, 1055 (9th Cir. 2010). U.S. Citizenship and Immigration
Services’ issuance of an employment authorization document (“EAD”) to Khan on
April 6, 2001 does not provide evidence of Khan’s presence in the United States on
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that date. The BIA’s own decision recognizes this point in its characterization of
the EAD’s issuance as “not necessarily conclusive evidence” of presence and
providing only “potentially inconsistent evidence” on that point. Issuance is not the
same as receipt– and, contrary to the BIA’s description, there is no evidence that
Khan received the document on that date. Moreover, EADs are mailed and
therefore no evidence of presence– a point that the government does not contest.
The issuance of the EAD while, as Khan’s unrebutted testimony establishes, he
was in Pakistan cannot form the basis for an adverse credibility determination.
This is a pre-REAL ID case. Consequently, Khan’s “testimony, if unrefuted
and credible . . . is sufficient to establish the facts testified without the need for any
corroboration.” Kaur v. Ashcroft, 379 F.3d 876, 889-90 (9th Cir. 2004). Because
“each of the . . . proffered reasons for an adverse credibility finding fails, we must
accept [Khan’s] testimony as credible.” Id. at 890. Accordingly, no corroboration
of Khan’s testimony is required, and that lack of corroborating evidence does not
form the basis for an adverse credibility determination. Each of the BIA’s reasons
for the adverse credibility determination fails.
3. Because the BIA’s affirmance of the denial of CAT relief was predicated
on the erroneous adverse credibility determination, we reverse.
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We GRANT and REMAND for the agency’s determination of Khan’s
eligibility for asylum and its exercise of discretion, as well as its determination of
his entitlement to withholding and CAT relief, in light of Khan’s credible
testimony.
GRANTED and REMANDED.
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