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United States Court of Appeals, Ninth CircuitMar 24, 2009
320 Fed. Appx. 570 (9th Cir. 2009)

No. 04-71507.

Submitted March 18, 2009.

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Filed March 24, 2009.

Niels Frenzen, University of Southern CA, Law School Immigration Clinic, Los Angeles, CA, for Petitioner.

Regional Counsel, Western Region Immigration Naturalization Service, Laguna Niguel, CA, Ronald E. Lefevre, Chief Legal Officer, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, David Dauenheimer, Richard M. Evans, Esq., U.S. Department of Justice, Civil Division/Torts Branch, Washington, DC, for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A079-776-521.

Before: LEAVY, HAWKINS, and TASHIMA, Circuit Judges.


This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Samson Mehari Ghebremedhin, a native and citizen of Eritrea, petitions for review of the Board of Immigration Appeals' ("BIA") order dismissing his appeal from an immigration judge's order denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency's factual findings, Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002), and we review de novo questions of law, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir. 2003). We grant the petition for review and remand for further proceedings.

The BIA found Ghebremedhin not credible because during his airport credible fear interview he omitted information that he had been imprisoned and mistreated. The asylum officer who conducted the English-language interview did not testify at the hearing, and the record does not contain a transcript of the interview or the asylum officer's notes. Substantial evidence therefore does not support the BIA's reliance on this omission to find Ghebremedhin incredible, because the record does not support the agency's rejection of Ghebremedhin's explanation for the omission. See Singh v. Gonzales, 403 F.3d 1081, 1087-91 (9th Cir. 2005) (stating that without officer testimony or detailed notes from the asylum interview, an Assessment to Refer provides insufficient evidence to support an adverse credibility determination); see also Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Or.1999) (holding the BIA must address in a reasoned manner the explanations that a petitioner offers for perceived inconsistencies).

Because the BIA relied on its credibility finding to reject Ghebremedhin's asylum, withholding, and CAT claims, we grant the petition as to all three claims. We remand for the further proceedings consistent with this disposition. See Soto-Olarte v. Holder, 555 F.3d 1089, 1095-96 (9th Cir. 2009).

Because we remand based upon the BIA's unsupported adverse credibility finding we need not address Ghebremedhin's due process claim. See Silaya v. Mukasey, 524 F.3d 1066, 1073 n. 2 (9th Cir. 2008).