Surjit Mahil v. Eric H. Holder Jr. ( 2012 )


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  •                                                                              FILED
    NOT FOR PUBLICATION                              JUL 09 2012
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    SURJIT SINGH MAHIL,                               No. 08-71266
    Petitioner,                        Agency No. A072-109-786
    v.
    MEMORANDUM *
    ERIC H. HOLDER, Jr., Attorney General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted June 26, 2012 **
    Before:        SCHROEDER, HAWKINS, and GOULD, Circuit Judges.
    Surjit Singh Mahil, a native and citizen of India, petitions pro se for review
    of the Board of Immigration Appeals’ order dismissing his appeal from an
    immigration judge’s (“IJ”) decision denying his application for asylum,
    withholding of removal, and protection under the Convention Against Torture
    *
    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).
    (“CAT”). We have jurisdiction under 
    8 U.S.C. § 1252
    . We review for substantial
    evidence factual findings, including the agency’s adverse credibility findings.
    Tekle v. Mukasey, 
    533 F.3d 1044
    , 1051 (9th Cir. 2008). We grant the petition for
    review, and we remand.
    The IJ found Mahil not credible because his testimony regarding ongoing
    police interest lacked detail. On the same issue, the IJ found Mahil’s asylum
    application omitted this police interest, and he further faulted Mahil for not filing a
    supplemental statement. Substantial evidence does not support the IJ’s adverse
    credibility finding because Mahil did not learn of the police interest until after he
    filed his application, he did not know much about it given his lack of personal
    knowledge, and it did not form the basis of his past persecution claim. See Chen v.
    Ashcroft, 
    362 F.3d 611
    , 620 (9th Cir. 2004). In addition, substantial evidence does
    not support the perceived inconsistencies the IJ noted in summarizing Mahil’s
    account, including the year and date of Mahil’s first arrest and his failure to seek
    medical treatment. See Tekle, 
    533 F.3d at 1052
     (rejecting inconsistency finding
    regarding duration of beating because IJ misunderstood or misremembered
    testimony); Bandari v. INS, 
    227 F.3d 1160
    , 1165-66 (9th Cir. 2000) (inconsistency
    in date of beating insufficient to support adverse credibility finding); Jibril v.
    Gonzales, 
    423 F.3d 1129
    , 1136 (9th Cir. 2005) (rejecting implausibility findings
    2                                        08-71266
    regarding petitioner’s stoicism and stamina as speculative where IJ did not point to
    record evidence contradicting petitioner’s account).
    Because the IJ’s adverse credibility determination is not supported, Mahil
    was not required to provide corroboration. See Joseph v. Holder, 
    600 F.3d 1235
    ,
    1246 (9th Cir. 2010).
    It is unclear from the IJ’s decision whether–apart from his adverse
    credibility finding–he alternatively denied Mahil’s claims on the merits. See
    Recinos de Leon v. Gonzales, 
    400 F.3d 1185
    , 1194 (9th Cir. 2005) (remanding
    because “[w]e will not guess at the theory underlying the IJ’s . . . opinion”)
    (internal citation and quotations omitted); Movsisian v. Ashcroft, 
    395 F.3d 1095
    ,
    1098 (9th Cir. 2005) (remanding where court was “left without a reasoned decision
    to review”).
    Accordingly, we grant the petition with respect to Mahil’s asylum,
    withholding of removal, and CAT claims, and we remand, deeming Mahil credible,
    for further proceedings consistent with this disposition. See INS v. Ventura, 
    537 U.S. 12
    , 16-18 (2002) (per curiam); Joseph, 
    600 F.3d at 1247
    .
    PETITION FOR REVIEW GRANTED; REMANDED.
    3                                     08-71266