FILED
NOT FOR PUBLICATION SEP 17 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
NEGASI TEWELDE-DESTA, No. 10-70489
Petitioner, Agency No. A088-346-796
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Negasi Tewelde-Desta, a native and citizen of Eritrea, petitions for review of
the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s decision denying his applications for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We have
*
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).
jurisdiction under 8 U.S.C. § 1252. We review 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, 1039-40 (9th Cir. 2010), and we grant the petition for review and we
remand.
The agency denied Tewelde-Desta’s claims based on an adverse credibility
determination. Substantial evidence does not support the agency’s non-responsive
demeanor finding because the record shows that Tewelde-Desta answered the
questions he was asked during cross-examination. See Garrovillas v. INS, 156
F.3d 1010, 1014-15 (9th Cir. 1998). Substantial evidence does not support the
agency’s finding that Tewelde-Destas’ testimony and corroborating evidence were
inconsistent regarding when he completed his military service. See Shrestha, 590
F.3d at 1044 (“[U]nder the REAL ID Act, IJs must provide specific and cogent
reasons in support of an adverse credibility determination.” ) (internal quotation
marks omitted). In addition, Tewelde-Desta’s statement that he received his
national service certificate in April 2007 was an incidental misstatement. See Ren
v. Holder, 648 F.3d 1079, 1087 (9th Cir. 2011) (error was quickly-corrected
innocent mistake). Finally, the agency’s finding that Tewelde-Desta gave
inconsistent descriptions of the container in which he was detained is not supported
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because it is based on a mischaracterization of his testimony. See id. at 1086;
Tekle v. Mukasey, 533 F.3d 1044, 1052 (9th Cir. 2008). Accordingly, substantial
evidence does not support the agency’s adverse credibility determination. See id.
at 1055.
We grant the petition for review and remand to the agency to determine in
the first instance whether, accepting Tewelde-Desta’s testimony as true, he is
eligible for asylum, withholding of removal, or CAT relief. See INS v. Ventura,
537 U.S. 12, 16 (2002) (per curiam).
PETITION FOR REVIEW GRANTED; REMANDED.
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