                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 09 2011

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




                            FOR THE NINTH CIRCUIT



BHUPAL HARI KAYASTHA,                            No. 07-72154

              Petitioner,                        Agency No. A098-452-283

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

              Respondent.



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

                             Submitted May 3, 2011 **
                               Pasadena, California

Before: PREGERSON, FISHER, and BERZON, Circuit Judges.

       Bhupal Hari Kayastha (“Kayastha”), 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 and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252.

        *
             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).
      The BIA cited to its decision in Matter of Burbano, 20 I. & N. Dec. 872

(BIA 1994), but clarified that “[a]lthough the Immigration Judge included

impermissibly speculative findings in his decision, we are nonetheless unable to

conclude that the IJ’s overall credibility determination was clearly erroneous.” In

particular, the BIA concluded that three of the IJ’s reasons for finding Kayastha not

credible were supported by the record. Accordingly, we review for substantial

evidence “the reasons explicitly identified by the BIA, and then examine the

reasoning articulated in the IJ’s oral decision in support of those reasons.” Tekle v.

Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008). We grant the petition for review

and remand.

      Substantial evidence does not support the agency’s adverse credibility

determination. First, Kayastha’s failure to submit a written declaration, which he

prepared himself, that was not as complete as his oral testimony is not a proper

basis for an adverse credibility finding. See Smolniakova v. Gonzales, 422 F.3d

1037, 1045 (9th Cir. 2005) (“[A]sylum forms filled out by . . . people who . . . are

unable to retain counsel should be read charitably, especially when it comes to the

absence of a comprehensive and thorough account of all past instances of

persecution.”) (internal quotation marks omitted); Akinmade v. INS, 196 F.3d 951,

956 (9th Cir. 1999) (“[A] concern that the affidavit is not as complete as might be


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desired cannot, without more, properly serve as a basis for a finding of lack of

credibility.”) (internal quotation marks omitted). Kayastha testified regarding the

two primary incidents upon which his asylum claim was based, both of which were

described in his declaration, and merely supplemented his declaration with a

description of three additional incidents.

      Second, the IJ’s conclusion that Kayastha was “evasive” when answering

questions about the nature of the threats he received is unsupported by the record.

A review of Kayastha’s testimony in the record reveals (1) an innocent confusion

about the exact question being asked, (2) an answer to the IJ’s specific question,

and (3) a clarification of testimony.

      Finally, the inconsistency the BIA perceived between Kayastha’s declaration

stating he was “tortured,” and his testimony about his harsh mistreatment when

held in captivity by armed Maoists for sixteen days is not supported by the record.

See Tekle, 533 F.3d at 1052-55. Moreover, the IJ erred by failing to give Kayastha

an opportunity to explain the perceived inconsistency. See Soto-Olarte v. Holder,

555 F.3d 1089, 1091-92 (9th Cir. 2009) (adverse credibility determination not

supported by substantial evidence where agency failed to offer petitioner

opportunity to explain inconsistency upon which the adverse determination was

partially based).


                                             3
      Accordingly, we grant the petition for review, and remand for the agency to

reconsider Kayastha’s asylum and withholding of removal claims, taking his

testimony as true. See Soto-Olarte, 555 F.3d at 1093-96; see also INS v. Ventura,

537 U.S. 12, 16-18 (2002) (per curiam).

      PETITION FOR REVIEW GRANTED; REMANDED.




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