Bijay Shrestha v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BIJAY SHRESTHA,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 12-70051
Agency No. A089-674-488
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 10, 2014**
Before: PREGERSON, LEAVY, and MURGUIA, Circuit Judges.
Bijay Shrestha, a native and citizen of Nepal, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
FILED
MAR 17 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence
the agency’s factual findings, applying the standards governing adverse credibility
determinations created by the REAL ID Act. Shrestha v. Holder, 590 F.3d 1034,
1039 (9th Cir. 2010). We grant the petition for review and remand.
The BIA denied Shrestha’s claims for relief based on the IJ’s adverse
credibility determination. Substantial evidence does not support the BIA’s reliance
on a discrepancy between Shrestha’s testimony and his statements to the asylum
officer regarding the number of people who attacked him. See Ren v. Holder, 648
F.3d 1079, 1089 (9th Cir. 2011) (adverse credibility determination was not
supported under the “totality of the circumstances”). Further, in reviewing
Shrestha’s appeal, the BIA did not address Shrestha’s contention that he was not
given an opportunity to explain the other perceived discrepancies the IJ relied
upon. See Shrestha, 590 at 1044; Brezilien v. Holder, 569 F.3d 403, 412 (9th Cir.
2009) (IJs and the BIA are not free to ignore arguments).
Further, at the time of its decision, the BIA did not have the benefit of our
decision in Ren, 648 F.3d at 1089-94.
Finally, in rejecting Shrestha’s contention that his untimely asylum
application was excused by extraordinary circumstances, the BIA appears to have
misconstrued the IJ’s decision as reaching the argument that it was the events
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leading up to the election, and not the election itself, that caused Shrestha to file for
asylum.
Accordingly, we grant the petition for review as to Shrestha’s claims, and
remand, on an open record, for further proceedings in light of this disposition. See
INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam); Soto-Olarte v. Holder,
555 F.3d 1089, 1093-96 (9th Cir. 2009).
PETITION FOR REVIEW GRANTED; REMANDED.
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