                                                                            FILED
                            NOT FOR PUBLICATION                             MAR 29 2016

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


TESFALDET TESFAY                       )      No. 13-70223
WELDEGEBRIAL,                          )
                                       )      Agency No. A087-996-636
             Petitioner,               )
                                       )      MEMORANDUM*
             v.                        )
                                       )
LORETTA E. LYNCH, Attorney             )
General,                               )
                                       )
             Respondent.               )
                                       )

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                            Submitted March 16, 2016**
                             San Francisco, California

Before: FERNANDEZ, GOULD, and FRIEDLAND, Circuit Judges.

      Tesfaldet Tesfay Weldegebrial, a citizen of Eritrea, petitions for review of




      *
       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. Fed. R. App. P. 34(a)(2).
the Board of Immigration Appeals’ denial of his application for asylum,1

withholding of removal,2 and Convention Against Torture (CAT)3 relief. We grant

the petition and remand.

      The BIA’s determination that an alien is not eligible for asylum must be

upheld if “‘supported by reasonable, substantial, and probative evidence on the

record considered as a whole.’” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.

Ct. 812, 815, 117 L. Ed. 2d 38 (1992). “It can be reversed only if the evidence

presented . . . was such that a reasonable factfinder would have to conclude that the

requisite fear of persecution existed.” Id.; see also Farah v. Ashcroft, 348 F.3d

1153, 1156 (9th Cir. 2003). When an alien seeks to overturn the BIA’s

determination, “he must show that the evidence he presented was so compelling

that no reasonable factfinder could fail to find the requisite fear of persecution.”

Elias-Zacarias, 502 U.S. at 483–84, 112 S. Ct. at 817. The same standard applies

to credibility determinations. See Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir.

2004); Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir. 2003). However,


      1
          8 U.S.C. § 1158.
      2
          8 U.S.C. § 1231(b)(3).
      3
      United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No.
100-20 (1988), 1465 U.N.T.S. 85, implemented at 8 C.F.R. § 1208.18.

                                           2
when a determination is based upon credibility, “‘a specific, cogent reason’” for

disbelieving the alien must be offered. Guo v. Ashcroft, 361 F.3d 1194, 1199 (9th

Cir. 2004); see also Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014); Tekle v.

Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008).

      Applying those standards, we hold that the Immigration Judge and BIA

erred. The minuscule mistakes identified neither go to the heart of the matter,4 nor,

“[c]onsidering the totality of the circumstances, and all relevant factors,”5 do they

indicate a lack of credibility. For example, Weldegebrial’s application used the

name of a younger brother as the one at a camp where Weldegebrial said he was

abused, but Weldegebrial made it clear at the hearing that the person who was there

was actually Weldegebrial’s older brother, which in context made sense. Any fair

reading indicates that there was simply a mistake in the name, as he said there was.

Similarly, the application said that the older brother was in Sweden, a rather

unlikely possibility. It, too, appears to be the mistake Weldegebrial testified it

was—it was typed as Sweden rather than Sawa. In any event, neither of those


      4
        See Cortez-Pineda v. Holder, 610 F.3d 1118, 1124 (9th Cir. 2010); Li v.
Ashcroft, 378 F.3d 959, 964 (9th Cir. 2004). That standard need not be met, but
the IJ stated that it was.
      5
       See 8 U.S.C. § 1158(b)(1)(B)(iii); Garcia v. Holder, 749 F.3d 785, 789 (9th
Cir. 2014); Ren v. Holder, 648 F.3d 1079, 1085 (9th Cir. 2011); Shrestha v.
Holder, 590 F.3d 1034, 1040–45 (9th Cir. 2010).

                                           3
inconsistencies has anything to do with his detailed description of his ill treatment,

which is powerfully corroborated by the Country Report.6 That is to say, they were

trivial. Moreover, the peculiar (even nonsensical) error in the letter from a brother

did not reflect upon Weldegebrial’s own credibility, and Weldegebrial’s

descriptions of his arrest did not actually conflict at all. Thus, it was error to find

Weldegebrial to be incredible on those bases. That error infects the asylum,

withholding and CAT determinations. That is especially true in light of the

Country Report, which suggests that those in his position are often persecuted,

tortured, or both, when forced to return to Eritrea.

      We therefore grant the petition and remand to the BIA, on an open record,7

for further consideration consistent with this disposition. See INS v. Orlando

Ventura, 537 U.S. 12, 16–18, 123 S. Ct. 353, 355–56, 154 L. Ed. 2d 272 (2002)

(per curiam).

      Petition GRANTED and REMANDED.




      6
       See U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., 2010 Human
Rights Reports: Eritrea (Apr. 2011).
      7
        In light of the record, the BIA should also expatiate on the Country Report
and the weight, if any, that it gives to the Report’s relevant provisions. We note
that there were other similar reports which reached the same essential conclusions
as the Country Report. See Amnesty Int’l, Eritrea: Sent Home to Det. and Torture
(May 2009); Human Rights Watch, Service for Life: State Repression and
Indefinite Conscription in Eritrea (Apr. 2009).

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