                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            DEC 07 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


SHAUKAT ALI KHAN, AKA Omar                       No.   14-73902
Kahn Syed,
                                                 Agency No. A079-536-788
              Petitioner,

 v.                                              MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney
General,

              Respondent.


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

                            Submitted December 5, 2017**
                                Pasadena, California

Before: D.W. NELSON and REINHARDT, Circuit Judges, and STEEH,***
District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable George Caram Steeh III, United States District Judge
for the Eastern District of Michigan, sitting by designation.
      Shaukat Ali Khan petitions for review of the BIA’s decision affirming the

IJ’s denial of his application for asylum, withholding of removal, and protection

under the Convention Against Torture (CAT). We grant the petition for review and

remand for further proceedings consistent with this disposition.

      1. Khan argues that the BIA erred in finding that he had not established

arrival in the United States less than one year before the filing of his asylum

application. The government’s brief raises no contrary argument. Accordingly, the

issue is waived. Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009). Even absent

waiver, we would be compelled to reverse. The Notice to Appear (“NTA”) alleged

that Khan was “admitted to the United States at Newark, New Jersey, on or about

May 21, 2001.” Khan admitted to this allegation, and the government never sought

to amend the NTA or otherwise challenge the date of entry in the proceedings.

Khan’s entry on May 21, 2001 is therefore judicially admitted. Hakopian v.

Mukasey, 551 F.3d 843, 846-47 (9th Cir. 2008).

      2. We reverse the agency’s adverse credibility determination. The BIA has

provided no “specific and cogent reason[] to support” such a finding. Kin v.

Holder, 595 F.3d 1050, 1055 (9th Cir. 2010). U.S. Citizenship and Immigration

Services’ issuance of an employment authorization document (“EAD”) to Khan on

April 6, 2001 does not provide evidence of Khan’s presence in the United States on


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that date. The BIA’s own decision recognizes this point in its characterization of

the EAD’s issuance as “not necessarily conclusive evidence” of presence and

providing only “potentially inconsistent evidence” on that point. Issuance is not the

same as receipt– and, contrary to the BIA’s description, there is no evidence that

Khan received the document on that date. Moreover, EADs are mailed and

therefore no evidence of presence– a point that the government does not contest.

The issuance of the EAD while, as Khan’s unrebutted testimony establishes, he

was in Pakistan cannot form the basis for an adverse credibility determination.

       This is a pre-REAL ID case. Consequently, Khan’s “testimony, if unrefuted

and credible . . . is sufficient to establish the facts testified without the need for any

corroboration.” Kaur v. Ashcroft, 379 F.3d 876, 889-90 (9th Cir. 2004). Because

“each of the . . . proffered reasons for an adverse credibility finding fails, we must

accept [Khan’s] testimony as credible.” Id. at 890. Accordingly, no corroboration

of Khan’s testimony is required, and that lack of corroborating evidence does not

form the basis for an adverse credibility determination. Each of the BIA’s reasons

for the adverse credibility determination fails.

       3. Because the BIA’s affirmance of the denial of CAT relief was predicated

on the erroneous adverse credibility determination, we reverse.




                                             3
      We GRANT and REMAND for the agency’s determination of Khan’s

eligibility for asylum and its exercise of discretion, as well as its determination of

his entitlement to withholding and CAT relief, in light of Khan’s credible

testimony.

      GRANTED and REMANDED.




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