                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 26 2013

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




                            FOR THE NINTH CIRCUIT



MING CHENG JIN,                                  No. 08-73282

              Petitioner,                        Agency No. A099-893-150

  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 March 6, 2013
                              Pasadena, California

Before: PAEZ and WATFORD, Circuit Judges, and CONLON, Senior District
Judge.**

       Ming Cheng Jin petitions this court for review of the BIA’s decision

affirming the Immigration Judge’s adverse credibility determination and denying

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


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Suzanne B. Conlon, Senior District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant

the petition.

       Under the REAL ID Act, which applies to Jin’s application, credibility

determinations must be based on the “totality of the circumstances” and can be

based on inconsistencies even if they do not go “to the heart of the applicant’s

claim.” 8 U.S.C. § 1158 (b)(1)(B)(iii). An IJ must “provide specific and cogent

reasons supporting an adverse credibility determination.” Shrestha v. Holder, 590

F.3d 1034, 1042 (9th Cir. 2009). “Speculation and conjecture cannot form the

basis of an adverse credibility finding, which must instead be based on substantial

evidence.” Kaur v. Ashcroft, 379 F.3d 879, 887 (9th Cir. 2004) (internal quotation

marks and citation omitted); see also Ren v. Holder, 648 F.3d 1079, 1088 (9th Cir.

2011); Singh v. Gonzales, 439 F.3d 1100, 1105 (9th Cir. 2006); Bandari v. INS,

227 F.3d 1160, 1167 (9th Cir. 2000).

       Jin testified that he was persecuted by the Chinese government in retaliation

for aiding North Korean refugees in China. The IJ found Jin not credible because

the IJ concluded that it was implausible that Jin would have carried a medical

record—which was attached to his asylum application along with other personal

documents—“in his pocket” during his journey to the United States without any

particular purpose. This reason is based solely upon the IJ’s personal beliefs and

speculation about how and why Jin might have carried his medical records.
Moreover, Jin actually did provide an explanation for why he brought the record

with him. His trip to the United States occurred shortly after his April visit to the

clinic, therefore, he had his medical record and diagnosis from that visit with him

when he prepared to leave. The IJ’s speculation alone cannot support an adverse

credibility determination. See Kaur, 379 F.3d at 887-88 (holding that the IJ’s

beliefs that the Indian government would not issue a misspelled passport and the

petitioner would have learned the name of her smuggling agent during their

journey were speculative and insufficient to support an adverse credibility

determination); see also Bandari, 227 F.3d at 1166-67.

      The BIA also relied on an apparent discrepancy between Jin’s testimony that

he did not have “any hospital records” and the fact that he had previously

submitted a medical record with his application. However, Jin stated only that he

could not obtain records relating to a particular incident in January 2006, not that

he lacked access to his medical records more generally. The record Jin did submit

was dated April 2006, and he explained that it was for treatment following a

different beating to which he had been subjected. Neither the IJ nor BIA ever

questioned this explanation. Thus, the BIA could not have reasonably found a

discrepancy between Jin's testimony that he could not obtain records relating to

one incident and the fact that he had submitted a record relating to a different

incident. See Shrestha, 590 F.3d at 1044.
      We conclude that substantial evidence does not support the IJ’s adverse

credibility finding, which was adopted by the BIA. However, there may be reliable

reasons in the record for finding Jin not credible. Therefore, we grant Jin’s petition

and remand to the BIA for consideration of his application for asylum, withholding

of removal, and CAT relief without requiring the BIA to deem Jin’s testimony

credible. Soto-Olarte v. Holder, 555 F.3d 1089, 1096 (9th Cir. 2009).

      Petition GRANTED and REMANDED.
