                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                         FILED
                             FOR THE NINTH CIRCUIT                          MAR 17 2014

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

BIJAY SHRESTHA,                                   No. 12-70051

               Petitioner,                        Agency No. A089-674-488

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

               Respondent.


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

                             Submitted March 10, 2014**

Before:        PREGERSON, LEAVY, and MURGUIA, Circuit Judges.

       Bijay Shrestha, a native and citizen of Nepal, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s (“IJ”) decision denying his application for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).


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

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

determinations created by the REAL ID Act. Shrestha v. Holder, 590 F.3d 1034,

1039 (9th Cir. 2010). We grant the petition for review and remand.

      The BIA denied Shrestha’s claims for relief based on the IJ’s adverse

credibility determination. Substantial evidence does not support the BIA’s reliance

on a discrepancy between Shrestha’s testimony and his statements to the asylum

officer regarding the number of people who attacked him. See Ren v. Holder, 648

F.3d 1079, 1089 (9th Cir. 2011) (adverse credibility determination was not

supported under the “totality of the circumstances”). Further, in reviewing

Shrestha’s appeal, the BIA did not address Shrestha’s contention that he was not

given an opportunity to explain the other perceived discrepancies the IJ relied

upon. See Shrestha, 590 at 1044; Brezilien v. Holder, 569 F.3d 403, 412 (9th Cir.

2009) (IJs and the BIA are not free to ignore arguments).

      Further, at the time of its decision, the BIA did not have the benefit of our

decision in Ren, 648 F.3d at 1089-94.

      Finally, in rejecting Shrestha’s contention that his untimely asylum

application was excused by extraordinary circumstances, the BIA appears to have

misconstrued the IJ’s decision as reaching the argument that it was the events


                                          2                                    12-70051
leading up to the election, and not the election itself, that caused Shrestha to file for

asylum.

      Accordingly, we grant the petition for review as to Shrestha’s claims, and

remand, on an open record, for further proceedings in light of this disposition. See

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

555 F.3d 1089, 1093-96 (9th Cir. 2009).

      PETITION FOR REVIEW GRANTED; REMANDED.




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