FILED
NOT FOR PUBLICATION MAR 14 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MADHU SUDHAN ADHIKARI, No. 08-74061
Petitioner, Agency No. A098-848-292
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 6, 2012 **
Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
Madhu Sudhan Adhikari, a native and citizen of Nepal, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from
the immigration judge’s decision denying his application for asylum and
withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review
*
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).
for substantial evidence the agency’s factual findings, applying the new standards
governing adverse credibility determinations created by the Real ID Act. Shrestha
v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). We grant the petition for review,
and we remand.
Substantial evidence does not support the BIA’s adverse credibility finding
based on a perceived inconsistency between Adhikari’s declaration and testimony
regarding the nature of the threats he received from Maoists, because Adhikari’s
ultimate testimony that he perceived the Maoists’ threat in January of 2005 as an
intent to physically harm him is consistent with what he stated in his declaration.
See Morgan v. Mukasey, 529 F.3d 1202, 1206-10 (9th Cir. 2008) (agency relied on
discrepancies that did not exist or were inconsequential).
In reaching its alternate finding that Adhikari failed to establish a well-
founded fear of persecution, the BIA erred because it did not consider Adhikari’s
declaration and relevant testimony documenting specific instances in which
Maoists continued to search for him after his confrontation with them. See Singh v.
Gonzales, 494 F.3d 1170, 1173 (9th Cir. 2007) (remanding where the BIA failed to
consider and address affidavits submitted by petitioner and his attorney).
08-74998
Accordingly, we remand for the BIA to assess Adhikari’s asylum and
withholding of removal claims in light of this disposition, deeming his testimony
credible. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
PETITION FOR REVIEW GRANTED; REMANDED.
08-74998