                                                                             FILED
                     UNITED STATES COURT OF APPEALS                           JAN 22 2013

                                                                          MOLLY C. DWYER, CLERK
                             FOR THE NINTH CIRCUIT                         U .S. C O U R T OF APPE ALS




NEGASI TEWELDE-DESTA,                             No. 10-70489

              Petitioner,                         Agency No. A088-346-796

  v.
                                                  ORDER
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



Before:      WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

       The memorandum disposition filed on September 17, 2012, is withdrawn.

An amended memorandum disposition is being filed concurrently with this order.

       With this amendment, respondent’s petition for panel rehearing is denied.

       No further petitions for rehearing will be entertained in this closed case.
                                                                           FILED
                              NOT FOR PUBLICATION                           JAN 22 2013

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




                              FOR THE NINTH CIRCUIT



NEGASI TEWELDE-DESTA,                             No. 10-70489

               Petitioner,                        Agency No. A088-346-796

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

               Respondent.



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

                             Submitted September 10, 2012 **

Before:        WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

       Negasi Tewelde-Desta, a native and citizen of Eritrea, petitions for review of

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

immigration judge’s decision denying his applications for asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”). We have


          *
             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).
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the

agency’s factual findings, applying the new standards governing adverse

credibility determinations created by the REAL ID Act, Shrestha v. Holder, 590

F.3d 1034, 1039-40 (9th Cir. 2010), and we grant the petition for review and we

remand.

      The agency denied Tewelde-Desta’s claims based on an adverse credibility

determination. Substantial evidence does not support the agency’s non-responsive

demeanor finding because the record shows that Tewelde-Desta answered the

questions he was asked during cross-examination. See Garrovillas v. INS, 156

F.3d 1010, 1014-15 (9th Cir. 1998). Substantial evidence does not support the

agency’s finding that Tewelde-Destas’ testimony and corroborating evidence were

inconsistent regarding when he completed his military service. See Shrestha, 590

F.3d at 1044 (“[U]nder the REAL ID Act, IJs must provide specific and cogent

reasons in support of an adverse credibility determination.” ) (internal quotation

marks omitted). In addition, Tewelde-Desta’s statement that he received his

national service certificate in April 2007 appears to be an “innocent mistake.” See

Ren v. Holder, 648 F.3d 1079, 1087 (9th Cir. 2011). Finally, the agency’s finding

that Tewelde-Desta gave inconsistent descriptions of the container in which he was

detained is not supported because it is based on a mischaracterization of his


                                          2                                     10-70489
testimony. See id. at 1086; Tekle v. Mukasey, 533 F.3d 1044, 1052 (9th Cir. 2008).

Accordingly, substantial evidence does not support the agency’s adverse credibility

determination. See Ren, 648 F.3d at 1089.

      We grant the petition for review and remand to the agency to determine in

the first instance whether, accepting Tewelde-Desta’s testimony as true, he is

eligible for asylum, withholding of removal, or CAT relief. See INS v. Ventura,

537 U.S. 12, 16 (2002) (per curiam).

      PETITION FOR REVIEW GRANTED; REMANDED.




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