Opinion
No. 10-70489 Agency No. A088-346-796
09-17-2012
NEGASI TEWELDE-DESTA, Petitioner, v. ERIC H. HOLDER, Jr., Attorney General, Respondent.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
On Petition for Review of an Order of the
Board of Immigration Appeals
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 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 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.