                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 28 2010

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




                            FOR THE NINTH CIRCUIT



ZAID T. SOULAIMAN,                               No. 06-72708

              Petitioner,                        Agency No. A098-387-973

  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 May 7, 2010
                              Pasadena, California

Before: B. FLETCHER and PAEZ, Circuit Judges, and KORMAN, United States
District Judge.**

       Zaid T. Soulaiman, an Iraqi Christian, petitions for review of the BIA’s

decision to affirm an Immigration Judge’s (“IJ”) denial of his application for

asylum, withholding of removal, and relief under the Convention Against Torture


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
(“CAT”). The IJ denied Soulaiman’s asylum application and withholding claim

because he found Soulaiman was not credible and because he found that changed

circumstances rebutted Soulaiman’s fear of persecution. The BIA adopted the IJ’s

decision and also found that Soulaiman had failed to prove past persecution on

account of a protected ground. We grant the petition for review and remand.

      The IJ’s credibility determination is not supported by substantial evidence.

See Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir. 2004). Soulaiman’s testimony was

not inconsistent as to whether his family could identify those responsible for their

persecution or reported the persecution to the authorities. See Smolniakova v.

Gonzales, 422 F.3d 1037, 1045 (9th Cir. 2005). His testimony was consistent that

while the family knew who was threatening them and did not report the threats,

they did not know who burned their restaurant or beat Soulaiman but did report

these incidents. Likewise, Soulaiman was not asked to explain the inconsistencies

in his testimony as to the date his family’s restaurant was burned and when the

threats first started. These minor inconsistencies do not constitute substantial

evidence to support the adverse credibility finding. See Kaur v. Gonzales, 418

F.3d 1061, 1064 (9th Cir. 2005); see also Soto-Olarte v. Holder, 555 F.3d 1089,

1092 (9th Cir. 2009). The contradiction between Soulaiman’s asylum application,

which stated that his father had been beaten, and his testimony in which he


                                          2
adamantly denied that his father was beaten served only to weaken his asylum

claim. He certainly had no motivation to lie; to the contrary, his testimony should

be seen as credible. See Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir.

2003); Garrovillas v. INS, 156 F.3d 1010, 1013-14 (9th Cir. 1998). The omissions

in his asylum application of his cousin’s shooting and brother’s attempted

kidnaping are understandable, as they occurred after he left Iraq, and should not be

seen as proof of lack of credibility. See, e.g., Aguilera-Cota v. INS, 914 F.2d 1375,

1382-83 (9th Cir. 1990) (failure to disclose the shooting of the petitioner’s cousin

and niece on asylum application was not substantial evidence for adverse

credibility purposes). Nor was Soulaiman’s use of false documents to enter the

United States a proper basis to find him not credible. Kaur, 379 F.3d at 889.

      Soulaiman’s testimony established past persecution on account of his

religion in this pre-REAL ID Act case. See Sinha v. Holder, 564 F.3d 1015, 1021

& n.3 (9th Cir. 2009); Bandari v. INS, 227 F.3d 1160, 1168-69 (9th Cir. 2000).

Soulaiman’s testimony established at several points that his persecutors targeted

him, at least in part, because of his religion. To the extent that his family’s sale of

beer at their restaurant played a role in his persecution, it signaled to his

persecutors that he was a Christian.




                                            3
The persecutors may well have disapproved of alcoholic beverages but their

motives were clearly mixed, as is evident by the continuing problems his family

suffered after they leased the restaurant and stopped selling beer. The supposition

that his persecutors might also have singled him out due to his family’s perceived

wealth suggests only that there might be an added motive. The agency’s decision

that Soulaiman had not shown persecution on account of his religion is not

supported by substantial evidence.

      Having demonstrated past persecution on account of religion, Soulaiman is

entitled to a presumption of a well-founded fear of future persecution and is

presumptively eligible for withholding of removal. See Mousa v. Mukasey, 530

F.3d 1025, 1029-30 (9th Cir. 2008). The government failed to rebut this

presumption. Soulaiman testified that his family continued to experience serious

problems in Iraq and that there was nowhere in Iraq he could safely practice

Christianity. The country reports corroborate the evidence of the continuing

persecution of Christians in Iraq. The IJ’s conclusion that because Soulaiman’s

family had leased the restaurant they were no longer in danger of persecution is




                                          4
both counter to the evidence and ignores the evidence that his persecutors were

motivated by religion, not merely the sale of beer.1

      We grant the petition for review. We find Soulaiman eligible for asylum

and remand to the Attorney General to exercise its discretion to grant Soulaiman

asylum. We grant withholding of removal because the government has not

rebutted the presumption of Soulaiman’s future persecution. See Ahmed v. Keisler,

504 F.3d 1183, 1200 (9th Cir. 2007). We do not address Soulaiman’s CAT claim

because he did not raise it before this court.

      PETITION GRANTED AND REMANDED.




      1
       We also note that Soulaiman testified that the family was forced to lease the
restaurant due to continued threats.

                                           5
