                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 14 2012

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




                             FOR THE NINTH CIRCUIT



MADHU SUDHAN ADHIKARI,                           No. 08-74061

               Petitioner,                       Agency No. A098-848-292

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

               Respondent.



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

                             Submitted March 6, 2012 **

Before:        B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.

       Madhu Sudhan Adhikari, a native and citizen of Nepal, petitions for review

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

the immigration judge’s decision denying his application for asylum and

withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review


          *
             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).
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 (9th Cir. 2010). We grant the petition for review,

and we remand.

      Substantial evidence does not support the BIA’s adverse credibility finding

based on a perceived inconsistency between Adhikari’s declaration and testimony

regarding the nature of the threats he received from Maoists, because Adhikari’s

ultimate testimony that he perceived the Maoists’ threat in January of 2005 as an

intent to physically harm him is consistent with what he stated in his declaration.

See Morgan v. Mukasey, 529 F.3d 1202, 1206-10 (9th Cir. 2008) (agency relied on

discrepancies that did not exist or were inconsequential).

      In reaching its alternate finding that Adhikari failed to establish a well-

founded fear of persecution, the BIA erred because it did not consider Adhikari’s

declaration and relevant testimony documenting specific instances in which

Maoists continued to search for him after his confrontation with them. See Singh v.

Gonzales, 494 F.3d 1170, 1173 (9th Cir. 2007) (remanding where the BIA failed to

consider and address affidavits submitted by petitioner and his attorney).




                                                                                08-74998
      Accordingly, we remand for the BIA to assess Adhikari’s asylum and

withholding of removal claims in light of this disposition, deeming his testimony

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

      PETITION FOR REVIEW GRANTED; REMANDED.




                                                                             08-74998
