Wijenayake v. Holder

FILED
NOT FOR PUBLICATION DEC 09 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ASOKA ABEYSEKERA WIJENAYAKE; No. 07-70930
MARIE AYONA KAMALIN
WIJENAYAKE; et al., Agency Nos. A075-746-030
A075-746-031
Petitioners, A075-746-032
A095-000-367
v.
ERIC H. HOLDER Jr., Attorney General, MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 17, 2009 **
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Asoka Abeysekera Wijenayake, his wife, Marie Ayona Kamalin
Wijenayake, and their children, natives and citizens of Sri Lanka, petition for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
AR/Research
review of the Board of Immigration Appeals’ (“BIA”) order dismissing their
appeal from an immigration judge’s (“IJ”) decision denying their application 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, Zehatye v. Gonzales, 453 F.3d
1182, 1184-85 (9th Cir. 2006), and we review de novo claims of due process
violations in removal proceedings, Sharma v. INS, 89 F.3d 545, 547 (9th Cir.
1996). We grant in part and deny in part the petition for review.
Substantial evidence does not support the agency’s adverse credibility
determination. See Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir. 1996) (“It is
well-settled that an applicant’s testimony is not per se lacking in credibility simply
because it includes details that are not set forth in the asylum application.”); Li v.
Holder, 559 F.3d 1096, 1103-07 (9th Cir. 2009) (minor inconsistency insufficient
to support adverse credibility determination). We therefore remand with
instruction to the agency to deem Wijenayake’s testimony credible. See Soto-
Olarte v. Holder, 555 F.3d 1089, 1095 (9th Cir. 2009).
Substantial evidence also does not support the agency’s finding that
Wijenayake did not establish a nexus between the harm he suffered and a
statutorily protected ground. See Cruz-Navarro v. INS, 232 F.3d 1024, 1028-30
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(9th Cir. 2000). We therefore remand to the agency to consider whether
Wijenayake has otherwise shown eligibility for relief.
Finally, in light of our disposition, we do not reach Wijenayake’s due
process contentions.
The government shall bear the costs for this petition for review.
PETITION FOR REVIEW GRANTED in part; DENIED in part;
REMANDED.
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