                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 30 2013

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




                            FOR THE NINTH CIRCUIT



MUNA YUSUF HAILE,                                No. 08-71904

              Petitioner,                        Agency No. A096-351-698

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

              Respondent.



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

                            Submitted January 9, 2013 **
                               Pasadena, California

Before: REINHARDT and WARDLAW, Circuit Judges, and BELL, District
Judge.***

       Muna Yusuf Haile, a native and citizen of Ethiopia, petitions for review of

the order of the Board of Immigration Appeals (BIA) denying her application for


        *
             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 Honorable Robert Holmes Bell, U.S. District Judge for the
Western District of Michigan, sitting by designation.
asylum, withholding of removal,1 and relief under the Convention Against Torture

(CAT). The parties agree that the law governing credibility determinations is that

which was applicable prior to the REAL ID Act. Pub. L. No. 109-13, div. B,

§ 101(h)(2), 119 Stat. 231, 305 (2005). We have jurisdiction over Haile’s petition

as to the withholding of removal and CAT claims pursuant to INA § 242(a)(1), 8

U.S.C. § 1252(a)(1). We grant the petition as to those claims, deem Haile credible

with respect to them, and remand for further proceedings. We dismiss the petition

as to Haile’s asylum claim, although we urge the BIA to reconsider its denial of

asylum in light of the basis for our holding as to Haile’s other claims.

      As to Haile’s withholding of removal and CAT claims, we hold that the

adverse credibility finding made by the BIA and the Immigration Judge (IJ)

(whose opinion was incorporated by the BIA into its decision) is unsupported by

substantial evidence and that the evidence in the record compels the conclusion

that Haile testified credibly. All but one of the grounds relied upon by the BIA and

the IJ relate to Haile’s arrival at Newark Airport and subsequent travels in New

Jersey and California, and many are among the most trivial of inconsistencies (e.g.,

whether or not the individual who assisted Haile with her asylum application was


      1
        Haile was granted withholding of removal to Kenya (a determination that is
not the subject of this appeal) but denied withholding of removal to Ethiopia. We
refer in this disposition solely to the latter claim for relief.

                                           2
talking on his cell phone when they first met). These alleged inconsistencies have

no bearing at all on the persecution that Haile suffered and are therefore not

properly the basis of an adverse credibility finding. See Mendoza Manimbao v.

Ashcroft, 329 F.3d 655, 660 (9th Cir. 2003). Further, many of the alleged

inconsistencies (e.g., that Haile, as an individual with limited English, could not

have lived with homeless individuals) are based not on evidence, but rather on the

IJ’s own speculation and conjecture. See Shah v. INS, 220 F.3d 1062, 1071 (9th

Cir. 2000) (speculation and conjecture may not form the basis of an adverse

credibility determination).2

      The only alleged inconsistency that pertains to the persecution Haile

suffered was that regarding her recollection of events that occurred in Ethiopia

when she was two or three years old. We hold that the IJ’s conclusion regarding

her testimony in this respect is unsupported by substantial evidence. Contrary to

the IJ’s assertion, Haile never claimed that she directly remembered any of the

events that occurred when she was a young child. Indeed, she volunteered quite



      2
        Nor was Haile given the opportunity to explain any of the alleged
inconsistencies raised by the IJ (much less those raised in the first instance by the
BIA in its decision), as our circuit requires. See Campos-Sanchez v. INS, 164 F.3d
448, 450 (9th Cir. 1999) (due process requires that a non-citizen be given a chance
to explain any alleged inconsistencies and that the BIA give reasoned consideration
to the non-citizen’s response).

                                           3
early in her testimony regarding those events (and before any alleged prompting)

that she was relating occurrences that had been described to her by others. Haile’s

psychologist testified that she had offered the same explanation of how she knew

of the events during her psychological interview. Finding no proper basis upon

which to support an adverse credibility determination, we grant the petition for

review as to Haile’s withholding of removal and CAT claims. We remand for

further consideration of these claims with the instruction that the BIA accept

Haile’s testimony as credible. See Arulampalam v. Ashcroft, 353 F.3d 679, 689

(9th Cir. 2003).

       As to Haile’s asylum claim, the BIA held that she was statutorily ineligible

for asylum because she failed to prove that she had filed her asylum application

within the one-year deadline. See INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B).

We lack jurisdiction to review the BIA’s factual determination that an applicant

has not met the filing deadline, INA § 208(a)(3), 8 U.S.C. § 1158(a)(3), although

we retain jurisdiction over questions of law and constitutional questions, INA

§ 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). In her reply brief, Haile conceded that

we lack jurisdiction over her petition for review with respect to her asylum claim.

We therefore do not address that claim on the merits, and dismiss it for lack of

jurisdiction.


                                          4
      We note, however, that the denial of Haile’s asylum claim was based on the

same adverse credibility finding that we hold in this disposition to be unsupported

by substantial evidence. In light of this holding, we strongly urge the BIA, on

remand, to reconsider its holding with regard to that claim as well. See Shire v.

Ashcroft, 388 F.3d 1288, 1299 n.8 (9th Cir. 2004).

      REVERSED IN PART and REMANDED; DISMISSED IN PART.3




      3
          Haile is awarded costs on appeal.

                                              5
