                                                                             FILED
                             NOT FOR PUBLICATION                              APR 19 2010

                                                                          MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



DAMDINDORJ OYUNBAATAR,                           No. 07-71823

               Petitioner,                       Agency No. A098-510-667

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,

               Respondent.



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

                              Submitted April 5, 2010 **

Before:        RYMER, McKEOWN, and PAEZ, Circuit Judges.

       Damdindorj Oyunbaatar, a native and citizen of Mongolia, petitions for

review of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s (“IJ”) decision denying his application for asylum,



          *
             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).
withholding of removal, and protection under the Convention Against Torture. 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.

      The IJ found Oyunbaatar not credible based on her determination that

Oyunbaatar submitted a fraudulent police citation. Because the IJ’s finding was

based on her improper speculation, substantial evidence does not support the

agency’s adverse credibility determination. See Shah v. INS, 220 F.3d 1062, 1071

(9th Cir. 2000) (BIA engaged in impermissible speculation and conjecture in

determining evidence was fraudulent where record contained no evidence of

fraud).

      Accordingly, we grant the petition for review, and remand Oyunbaatar’s

claims for further proceedings on an open record. See Soto-Olarte v. Holder, 555

F.3d 1089, 1093-96 (9th Cir. 2009); see also INS v. Ventura, 537 U.S. 12, 16-18

(2002) (per curiam).

      PETITION FOR REVIEW GRANTED; REMANDED.




                                         2                                     07-71823
