FILED
NOT FOR PUBLICATION FEB 14 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MOHAMADOU KABBA, No. 10-72973
Petitioner, Agency No. A073-182-732
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2013 **
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Mohamadou Kabba, a native and citizen of The Gambia, 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, withholding of
removal, and protection under the Convention Against Torture. 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, including credibility findings, Tekle v. Mukasey, 533
F.3d 1044, 1051 (9th Cir. 2008), and we grant the petition for review and remand.
The BIA identified four reasons for finding Kabba not credible and denying
his claims. Substantial evidence does not support the BIA’s finding that Kabba’s
testimony that he never returned to The Gambia was inconsistent with the
September 1992 admittance stamps in his passport, because the record reflects the
stamps are for entry into Ghana. See Bandari v. INS, 227 F.3d 1160, 1167 (9th
Cir. 2000) (rejecting adverse credibility finding that was not supported by the
record). Substantial evidence also does not support the BIA’s reliance on an
inconsistency between Kabba’s testimony and asylum application regarding who
he lived with after his father’s death, because Kabba was not given an opportunity
to explain the perceived inconsistency. See Soto-Olarte v. Holder, 555 F.3d 1089,
1092 (9th Cir. 2009). Further, substantial evidence does not support the BIA’s
finding that Kabba’s inability to read or write English was inconsistent with the
threatening letters written to him in English, because the language of the letters
does not reveal anything about Kabba’s credibility. See Shah v. INS, 220 F.3d
1062, 1071 (9th Cir. 2000) (impermissible conjecture and speculation about
appropriate appearance of letters). Finally, substantial evidence does not support
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the BIA’s finding that Kabba conceded he did not live at the address where the
letters were sent. See Tekle, 533 F.3d at 1052-55. Accordingly, we grant the
petition for review and remand to the agency on an open record, see Soto-Olarte,
555 F.3d at 1096, 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.
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