                                                                              FILED
                            NOT FOR PUBLICATION                                JAN 22 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


NAN SAN MYINT,                                   No. 08-71859

              Petitioner,                        Agency No. A095-876-729

  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 January 8, 2013
                              Pasadena, California

Before: CANBY, REINHARDT, and WARDLAW, Circuit Judges.

       Nan San Myint, a native and citizen of Burma, petitions for review of the

Board of Immigration Appeals’ (“BIA”) dismissal of her appeal from an

Immigration Judge’s (“IJ”) denial of asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). We have jurisdiction pursuant to

8 U.S.C. § 1252. Because we conclude that the agency’s adverse credibility


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
determination is not supported by substantial evidence, we grant the petition and

remand for further proceedings pursuant to INS v. Ventura, 537 U.S. 12, 16-18

(2002) (per curiam).1

      The BIA affirmed the IJ’s adverse credibility determination, relying on

purported inconsistencies in the record as to the date of Myint’s first husband’s

death, his profession, his age when he died, and Myint’s ability to work for a U.S.

State Department official if she was using a fake passport. The three minor

inconsistencies related to Myint’s first husband are, as the BIA stated, of little

significance. See Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir.

2003) (“Minor inconsistencies in the record that do not relate to the basis of an

applicant's alleged fear of persecution, go to the heart of the asylum claim, or

reveal anything about an asylum applicant's fear for his safety are insufficient to

support an adverse credibility finding.”).

      The fourth “inconsistency”—“how [Myint] came to work for a State

Department official while using an allegedly fake passport”—is wholly

speculative. Myint testified that the State Department official for whom she

      1
        The passage of the REAL ID Act changed our standard of review of an IJ's
adverse credibility finding. However, the relevant provisions of the Act are not
applicable here because Myint filed her asylum application before the effective
date of the Act. See Pub.L. 109-13, Div. B, Title I, § 101(h)(2), 119 Stat. 231
(May 11, 2005) (effective date).

                                             2
worked did not ask for identity documents as a precondition to her employment,

that the official asked for her passport only when necessary to obtain visas, and

that Myint never had any problems traveling with the official and his family. That

testimony was uncontradicted. Nevertheless, the IJ “just refuse[d] to acknowledge

that [Myint] could obtain the security clearance necessary to accompany a foreign

service officer to several countries” if her passport was fraudulent. The agency

impermissibly assumed, without any record evidence, that the State Department

thoroughly investigates all of its employees’ domestic workers, including a foreign

service officer’s housekeeper, to determine whether they are security risks, and that

Myint must have been subject to a background check.2 Because “speculation and

conjecture cannot form the basis of an adverse credibility finding, which must

instead be based on substantial evidence,” this purported inconsistency cannot

support the agency’s adverse credibility finding. Ge v. Ashcroft, 367 F.3d 1121,

1124 (9th Cir. 2004) (internal quotation marks and alteration omitted).

      Because it is apparent from the record that the agency listed all possible

reasons to support an adverse credibility determination and none is supported by



      2
      The foreign service employee himself wrote an email that was part of the
administrative record indicating that he was “not familiar with [Myint’s]
background in Burma” and “kn[e]w nothing of her identity other than the
information in her passport.”

                                          3
substantial evidence, remand for further credibility findings is not necessary. See

Soto-Olarte v. Holder, 555 F.3d 1089, 1095 (9th Cir. 2009). Accordingly, we

grant the petition for review and remand to the agency to assess Myint’s claims on

the merits, deeming her testimony credible. See id. at 1095-96; see also Ventura,

537 U.S. at 16-18.

      PETITION GRANTED; REMANDED.




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