Chand Naher v. Eric H. Holder Jr. , 437 F. App'x 564 ( 2011 )

FILED
NOT FOR PUBLICATION JUN 09 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CHAND NAHER, No. 08-71833
Petitioner, Agency No. A098-539-904
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 24, 2011 **
Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.
Chand Naher, a native and citizen of India, petitions for review of the Board
of Immigration Appeals’ order affirming an immigration judge’s (“IJ”) decision
denying his application for asylum, withholding of removal, and protection under
*
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).
the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252. We review for substantial evidence, Tekle v. Mukasey, 533 F.3d 1044,
1051 (9th Cir. 2008), and we grant the petition for review and remand for further
proceedings.
Substantial evidence does not support the agency’s finding that Naher lacked
credibility because his father’s name was misspelled on his voter identification
card, where he provided a reasonable explanation and included several other
documents with the correct spelling. See Shah v. INS, 220 F.3d 1062, 1068 (9th
Cir. 2000) (“discrepancy . . . capable of being attributed to a typographical or
clerical error . . . cannot form the basis of an adverse credibility finding”); see also
Kaur v. Ashcroft, 379 F.3d 876, 886-87 (9th Cir. 2004) (discussing petitioner’s
argument that a “phonetic transliteration of a Punjabi name “has many spellings in
English, each of which are interchangeably acceptable as the same word or name”).
The agency also found Naher not credible, in part, because of alleged
inconsistencies between Naher’s statements to the asylum officer and his testimony
at his immigration hearing. We note that the government did not submit any notes
or record of Naher’s interview with the asylum officer. Naher was not provided
with an opportunity to explain or clarify the perceived inconsistency within his
testimony about whether he told the asylum officer about voter irregularities, see
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Soto-Olarte v. Holder, 555 F.3d 1089, 1091-92 (9th Cir. 2009); see also Quan v.
Gonzales, 428 F.3d 883, 886 (9th Cir. 2005) (explaining that an applicant must be
given an opportunity to clarify unclear testimony). The remainder of these
findings are not supported by substantial evidence because they either do not go to
the heart of the claim, see Singh v. Ashcroft, 301 F.3d 1109, 1111 (9th Cir. 2002),
or are based on perceived inconsistencies between his testimony and statements
made to the asylum officer which Naher did not clearly concede, see Singh v.
Gonzales, 403 F.3d 1081, 1089 (9th Cir. 2005).
The remaining alleged inconsistencies the agency relied upon either are
minor and do not go to the heart of Naher’s claim, or are based on speculation. See
Li v. Holder, 559 F.3d 1096, 1102-03 (9th Cir. 2009).
Accordingly, we grant the petition for review and remand for the agency to
consider Naher’s claims with respect to asylum, withholding of removal and CAT,
taking his testimony as true. See Soto-Olarte, 555 F.3d at 1093-96; see also INS v.
Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
PETITION FOR REVIEW GRANTED; REMANDED.
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