                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                             FOR THE NINTH CIRCUIT                          MAY 23 2014

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

JINBEI XUE,                                      No. 12-73492

               Petitioner,                       Agency No. A087-848-870

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

               Respondent.


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

                             Submitted May 13, 2014**

Before:        CLIFTON, BEA, and WATFORD, Circuit Judges.

       Jinbei Xue, a native and citizen of China, petitions for review of the Board

of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration

judge’s decision denying his application for asylum and withholding of removal.

We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence


          *
             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 agency’s factual findings, applying the standards governing adverse credibility

determinations created by the REAL ID Act, Shrestha v. Holder, 590 F.3d 1034,

1039 (9th Cir. 2010), and review de novo claims of due process violations in

immigration proceedings, Zetino v. Holder, 622 F.3d 1007, 1011 (9th Cir. 2010).

We grant the petition for review, and we remand.

      Substantial evidence does not support the BIA’s reliance on Xue’s inability

to recall the days of the week on which specific events occurred. See Ren v.

Holder, 648 F.3d 1079, 1085-86 (9th Cir. 2011) (inconsistency regarding day

incident occurred was “manifestly trivial” and could “not form a basis for an

adverse credibility determination”). Substantial evidence also does not support the

BIA’s reliance on Xue’s omission of being taken to a court because, contrary to the

BIA’s finding, Xue was never asked about this omission. See Soto-Olarte v.

Holder, 555 F.3d 1089, 1092 (9th Cir. 2009) (IJ must provide opportunity to

explain any inconsistencies that form basis for denying claim). Finally, the

inconsistency regarding whether the six signatories on a witness statement were

arrested with Xue does not support the adverse credibility finding. See Ren, 648

F.3d at 1087 (finding “initial error” was “a quickly-corrected innocent mistake”).

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

withholding of removal claims on an open record for further proceedings


                                          2                                     12-73492
consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002)

(per curiam); Soto-Olarte, 555 F.3d at 1095-96.

      PETITION FOR REVIEW GRANTED; REMANDED.




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