                                                                                        FILED
                               NOT FOR PUBLICATION                                       AUG 08 2012

                                                                                     MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                                 U.S. COURT OF APPEALS



                               FOR THE NINTH CIRCUIT


 HAMED AGHAJANI,                                       No. 07-74440

                Petitioner,                            Agency No. A095-310-360

   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 July 12, 2012
                                  Pasadena, California

Before: GILMAN,** TALLMAN, and N.R. SMITH, Circuit Judges.

        Hamed Aghajani appeals from the Board of Immigration Appeals’ (the BIA)

denial of his petition for asylum, withholding of removal, and relief under the

Convention Against Torture (CAT). The BIA upheld the findings of the

Immigration Judge (IJ) that Aghajani was not credible.


         *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
        **
                 The Honorable Ronald Lee Gilman, Senior United States Circuit Judge for the Sixth
Circuit, sitting by designation.
      Both the IJ and the BIA determined that Aghajani’s testimony was

inconsistent and thus not credible for the following reasons: (1) Aghajani testified

that he was barred from school following his participation in a 1999 demonstration

in Tehran and that he was too depressed to do much of anything, but evidence in

the record purportedly showed that he attended a different school during this

period; (2) one of the summonses that he received was dated June 1999, before the

demonstration, which conflicted with his testimony that he had no involvement

with law enforcement prior to that event; and (3) his testimony about his mental-

health treatment conflicted with a letter from one of his doctors.

      With respect to the first basis for the adverse credibility finding, the record

appears to be ambiguous. Aghajani attempted to explain the factual discrepancy in

his schooling by stating that he completed his high school studies and pre-

university testing courses in the year before the demonstration, not after. Some of

the record evidence supports this explanation, but other evidence suggests that he

did not complete his courses until 2000, which was after the demonstration.

      When a petitioner’s testimony includes inconsistencies, due process requires

that the IJ provide the petitioner with an opportunity to explain that inconsistency.

See Soto-Olarte v. Holder, 555 F.3d 1089, 1092 & n.1 (9th Cir. 2009). The IJ did

not provide Aghajani with such an opportunity here. We thus conclude that the


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inconsistencies in Aghajani’s schooling presented insufficient grounds for an

adverse credibility finding based on the current record.

      The government concedes that Aghajani was not confronted about the

summons issue, the second basis for the adverse credibility finding. Because of

this failure to confront, the record presently lacks substantial evidence to support

an adverse credibility finding on the summons issue.

      Finally, we conclude that the remaining ground for the adverse credibility

finding—alleged inconsistencies concerning Aghajani’s treatment by psychiatrists

following his detention—lacks merit. When confronted with these alleged

inconsistencies, Aghajani explained that the treatment letter from Narges

Counseling Center mistakenly stated that he had received treatment for a year (the

term of the treatment contract that he had signed), but overlooked the treatment

notes, which confirmed his statement that he had received treatment from Narges

only once. He discontinued this treatment because he believed that the

conversational therapy methods at Narges would not help him, and record evidence

detailing his treatment by other psychiatrists supports this explanation.

      The IJ concluded that Aghajani’s explanation could not be given weight

because the Narges letter talked about the treatment that Aghajani had received.

But this interpretation of the letter lacks support in the record. The copy of the


                                          -3-
letter is redacted and states at most that Aghajani was under treatment for

depression. This simple statement of Aghajani’s general diagnosis does not

suggest a course of treatment or extensive contact between Aghajani and the

therapist at Narges. The IJ’s and the BIA’s reliance on this ground is therefore not

supported by substantial evidence in the record.

      As it currently exists, the record lacks substantial evidence to support the

adverse credibility finding. We therefore remand the petition to the BIA in order

to allow the IJ to confront Aghajani about the schooling and summonses issues, to

accept and consider any corroborating evidence that Aghajani might present, and to

make detailed findings on the question of Aghajani’s credibility. See Hartooni v.

INS, 21 F.3d 336, 343 (9th Cir. 1994) (remanding for a renewed credibility finding

because “we cannot say that no doubts have been raised about [the petitioner’s]

credibility.” (internal quotation marks omitted)).

      The petition for review is GRANTED. This case is REMANDED to the

BIA for further proceedings consistent with this Memorandum.




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