                                                                           FILED
                            NOT FOR PUBLICATION                            NOV 13 2013

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



                            FOR THE NINTH CIRCUIT


HAO TIAN ZHOU,                                   No. 10-72970

              Petitioner,                        Agency No. A098-463-397

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

              Respondent.


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

                      Argued and Submitted October 10, 2013
                                Honolulu, Hawaii

Before:       KOZINSKI, Chief Judge, FISHER and WATFORD, Circuit Judges.


       1. Three of the alleged discrepancies the IJ pointed to weren’t discrepancies

at all. The IJ found that Zhou’s failure to testify about the ambushed meeting in

the woods and his abuse by police in the lead-up to his arrest showed that he

wasn’t credible. But these two events were detailed in his written application, and


          *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                                 page 2
he wasn’t asked about them on the stand. Omissions of details from oral testimony

that a petitioner discussed in his written application can’t serve as the basis for an

adverse credibility determination. See Osorio v. INS, 99 F.3d 928, 931 (9th Cir.

1996).

      It is also “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.” Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir. 1996) (citation

omitted). The IJ therefore erred in concluding that Zhou’s testimony about the

harassment he faced after his arrest wasn’t credible simply because it contained

details not included in his written application.


      2. The other inconsistencies the IJ identified don’t go to the heart of Zhou’s

claims for relief. Because the pre-Real ID Act standard applies in this case, such

minor inconsistencies can’t form the basis of an adverse credibility determination.

See Smolniakova v. Gonzales, 422 F.3d 1037, 1044 (9th Cir. 2005); Kaur v.

Gonzales, 418 F.3d 1061, 1064 n.1 (9th Cir. 2005). The ambiguity regarding

whether Zhou was “poked” with sticks or with a knife doesn’t go to the heart of his

claim—that he was tied up, abused and wounded.
                                                                              page 3
      Similarly, while he gave arguably inconsistent descriptions of his wife’s

religious affiliation, Zhou’s claim for asylum was based on his persecution, not his

family’s. His statements about his wife’s religion don’t enhance his application or

go to the heart of his claim. See Don v. Gonzales, 476 F.3d 738, 742 (9th Cir.

2007). Furthermore, when asked about this inconsistency on cross-examination, he

explained that he thought the application just concerned himself. The IJ’s failure

to address this reasonable explanation was error. See Singh v. Gonzales, 439 F.3d

1100, 1106 (9th Cir. 2006); Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.

1999).


                                *           *          *

      We GRANT Zhou’s petition for review of the BIA’s dismissal of his claims

for asylum, withholding of removal and protection under the Convention Against

Torture, and we REMAND for further proceedings to determine whether,

accepting his testimony as credible, he is eligible for relief.
