                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 01 2011

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




                            FOR THE NINTH CIRCUIT



KUMARI PUSPA SHARMA,                             No. 07-73710

              Petitioner,                        Agency No. A098-840-445

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

              Respondent.



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

                      Argued and Submitted October 14, 2011
                            San Francisco, California

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

       Kumari Puspa Sharma, a native and citizen of Nepal, petitions for review of the

Board of Immigration Appeals’s summary affirmance of an Immigration Judge’s

(IJ’s) decision denying her application for asylum, withholding of removal, and relief

under the Convention Against Torture (CAT). Exercising jurisdiction under 8 U.S.C.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
§ 1252, we grant the petition for review and remand to the agency for two reasons.

First, the IJ’s assessment of Sharma’s testimony ignored important record evidence

relating to the discrepancy on which the IJ based her adverse credibility finding.

Second, the IJ should not have sought an additional investigation of the documentary

evidence that Sharma submitted to corroborate her claim.

1.    The IJ rejected Sharma’s asylum and withholding claims after finding her not

credible. Adverse credibility determinations are reviewed for substantial evidence. Gui

v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002). Under this standard of review, the IJ’s

“determination must be upheld if it is supported by reasonable, substantial and

probative evidence from the record.” Kumar v. Gonzales, 444 F.3d 1043, 1049 (9th

Cir. 2006). Our review must consider “the record as a whole.” Singh v. Holder, 638

F.3d 1264, 1270 n.15 (9th Cir. 2011).

      Sharma’s asylum declaration states that she was threatened by the Maoists

during a June 2002 incident, one of three incidents that formed the basis for her claims

of past persecution and a well-founded fear of future persecution. During her asylum

interview, however, Sharma stated that she was physically attacked rather than only

threatened during this particular incident. Before the Immigration Court, Sharma

testified in a manner consistent with her declaration that she was threatened but not

attacked in June 2002; she explained that she was confused during the asylum


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interview and that she had been thinking of a “bigger . . . incident” that occurred later

and did involve physical violence. The IJ found Sharma not credible on the basis of

this discrepancy between her statements before the asylum officer and the otherwise

consistent statements in her declaration and her testimony at the removal hearing.

      The IJ does not appear, however, to have considered a crucial part of the asylum

officer’s notes—the sole account of Sharma’s statements in the asylum interview. At

the end of the notes, the asylum officer wrote the following: “I DN think she

understood some Q’s. She DN understand ‘discrepancy’ between test - decla.” We can

reasonably interpret the asylum officer’s abbreviations to infer that he did not believe

Sharma understood his questions regarding the discrepancy between her declaration

and her statements in the asylum interview—the discrepancy that led the IJ to find her

not credible. “Because an adverse credibility determination under the REAL ID Act

must be based on the ‘totality of the circumstances,’” an IJ is required to “consider

and address, as necessary or otherwise appropriate, relevant evidence that tends to

contravene a conclusion that a given factor undermines credibility.” Shrestha v.

Holder, 590 F.3d 1034, 1044 (9th Cir. 2010). The IJ here, however, did not consider

the obviously “relevant evidence that tends to contravene” her determination that the

discrepancy between Sharma’s statements undermines Sharma’s credibility. We




                                           3
therefore conclude that the IJ’s adverse credibility determination was based “on less

than the total circumstances in contravention of the REAL ID Act’s text.” Id.

2.    In light of her finding that Sharma’s testimony was not credible, the IJ allowed

Sharma to submit additional documentary evidence to corroborate the testimony. The

IJ found that these documents, “taken at face value, . . . do provide significant

corroboration of [Sharma’s] claim.” The IJ nonetheless held that it was “still

incumbent on [Sharma] to undertake any reasonable measures to verify the reliability

of her documentation,” and she drew a negative inference from Sharma’s decision not

to sign a confidentiality waiver that would have permitted the government to conduct

an overseas investigation of the documents. This was error.

      An alien’s “[m]ere failure to authenticate documents, at least in the absence of

evidence undermining their reliability, does not constitute a sufficient foundation for

an adverse credibility finding.” Wang v. INS, 352 F.3d 1250, 1254 (9th Cir. 2003); see

also Shah v. INS, 220 F.3d 1062, 1071 (9th Cir. 2000). The IJ found no evidence

undermining the reliability of the facsimile documents that Sharma submitted; in fact,

she explicitly declined to draw a “negative inference from [Sharma’s] failure to

provide original documents,” given the “great upheaval” in Nepal at the time.

      She therefore erred by seeking additional corroboration of the already reliable

corroborating evidence. As we held in Rosas-Castaneda v. Holder, 655 F.3d 875 (9th


                                          4
Cir. 2011), “[t]he plain language of 8 U.S.C. § 1229a(c)(4)(B),” codifying the REAL

ID Act, “authorizes IJs to request corroboration of only testimonial evidence, and

conspicuously excludes the authority to require an alien to corroborate ‘other evidence

in the record.’” Id. at 884. Because the IJ should not have sought an overseas

investigation to corroborate the reliable documentary evidence that Sharma submitted,

Sharma’s refusal to consent to such an investigation should have been immaterial.

                                   *      *       *

      We remand for the agency to reconsider the question of Sharma’s credibility.

The agency’s credibility analysis on remand shall discount significantly the weight of

Sharma’s statements regarding the June 2002 incident in her asylum interview, given

the asylum officer’s indication that Sharma was not able to understand questions

regarding the discrepancy between her statements regarding the June 2002 incident

and her prior declaration. And it shall give due weight to the corroborating evidence

that Sharma submitted, setting aside Sharma’s refusal to authorize the government to

investigate that evidence. The agency may consider whether it is appropriate to

conduct additional evidentiary proceedings, so as to consider any change in country

conditions and any new corroborating evidence that Sharma may be able to provide.

      GRANTED and REMANDED.




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