                                                                           FILED
                               NOT FOR PUBLICATION                          DEC 09 2009

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




                               FOR THE NINTH CIRCUIT



 ASOKA ABEYSEKERA WIJENAYAKE;                      No. 07-70930
 MARIE AYONA KAMALIN
 WIJENAYAKE; et al.,                               Agency Nos. A075-746-030
                                                               A075-746-031
               Petitioners,                                    A075-746-032
                                                               A095-000-367
   v.

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

               Respondent.



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

                              Submitted November 17, 2009 **


Before:        ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

        Asoka Abeysekera Wijenayake, his wife, Marie Ayona Kamalin

Wijenayake, and their children, natives and citizens of Sri Lanka, petition for

          *
             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. See Fed. R. App. P. 34(a)(2).

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review of the Board of Immigration Appeals’ (“BIA”) order dismissing their

appeal from an immigration judge’s (“IJ”) decision denying their application for

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

Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for

substantial evidence the agency’s factual findings, Zehatye v. Gonzales, 453 F.3d

1182, 1184-85 (9th Cir. 2006), and we review de novo claims of due process

violations in removal proceedings, Sharma v. INS, 89 F.3d 545, 547 (9th Cir.

1996). We grant in part and deny in part the petition for review.

       Substantial evidence does not support the agency’s adverse credibility

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

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.”); Li v.

Holder, 559 F.3d 1096, 1103-07 (9th Cir. 2009) (minor inconsistency insufficient

to support adverse credibility determination). We therefore remand with

instruction to the agency to deem Wijenayake’s testimony credible. See Soto-

Olarte v. Holder, 555 F.3d 1089, 1095 (9th Cir. 2009).

       Substantial evidence also does not support the agency’s finding that

Wijenayake did not establish a nexus between the harm he suffered and a

statutorily protected ground. See Cruz-Navarro v. INS, 232 F.3d 1024, 1028-30


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(9th Cir. 2000). We therefore remand to the agency to consider whether

Wijenayake has otherwise shown eligibility for relief.

       Finally, in light of our disposition, we do not reach Wijenayake’s due

process contentions.

       The government shall bear the costs for this petition for review.

       PETITION FOR REVIEW GRANTED in part; DENIED in part;

REMANDED.




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