                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 30 2012

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




                             FOR THE NINTH CIRCUIT



MARIA CONSUELO CIFUENTES                         No. 09-71898
CALDERON,
                                                 Agency No. A072-408-895
               Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted July 17, 2012 **

Before:        SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.

       Maria Consuelo Cifuentes Calderon, a native and citizen of Guatemala,

petitions for review of the Board of Immigration Appeals’ (“BIA”) order

dismissing her appeal from an immigration judge’s decision denying her




          *
             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).
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 factual findings, including the

agency’s adverse credibility findings. Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th

Cir. 2008). We grant the petition for review, and we remand.

      Substantial evidence does not support the agency’s reliance on the omission

of Cifuentes Calderon’s union membership from her asylum application because

she did not have an opportunity to explain this omission at the hearing. See Soto-

Olarte v. Holder, 555 F.3d 1089, 1091-92 (9th Cir. 2009). Further, substantial

evidence does not support the agency’s reliance either on the omission of Cifuentes

Calderon’s time in Mexico from her application or on the inconsistency in how

long she was held because any omission or inconsistency on these issues is minor.

See Bandari v. INS, 227 F.3d 1160, 1165-66 (9th Cir. 2000) (inconsistency in date

of beating insufficient to support adverse credibility finding). In addition,

substantial evidence does not support reliance on the omission of Cifuentes

Calderon’s kidnaping from the application because she did not omit the kidnaping.

See Tekle, 533 F.3d at 1052 (rejecting inconsistency finding regarding duration of

beating because agency misunderstood or misremembered testimony). Moreover,

substantial evidence does not support reliance on perceived non-responsiveness


                                           2                                    09-71898
because Cifuentes Calderon described the meeting with her employers, and the

agency did not identify any other instances of non-responsiveness. See Singh v.

Ashcroft, 301 F.3d 1109, 1113-14 (9th Cir. 2002). Finally, substantial evidence

does not support the agency’s plausibility finding because it is based on

speculation and addresses the motivation for the alleged kidnaping rather than

Cifuentes Calderon’s credibility. See Ge v. Ashcroft, 367 F.3d 1121, 1124-25 (9th

Cir. 2004) (findings rested on impermissible speculation or conjecture about what

authorities would or would not do). Accordingly, we grant the petition with

respect to Cifuentes Calderon’s asylum, withholding of removal, and CAT claims

and remand, on an open record, for further proceedings in accordance with this

disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam); Soto-

Olarte, 555 F.3d at 1096.

      PETITION FOR REVIEW GRANTED; REMANDED.




                                          3                                   09-71898
                                                                            FILED
                                                                            JUL 30 2012

                                                                       MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS




SILVERMAN, Circuit Judge, dissenting:

      I would deny the petition for review based on the BIA’s alternative

conclusion that Cifuentes Calderon failed to establish a nexus to a protected

ground.
