United States v. 2016-03-29 | 13-70223 | TESFALDET WELDEGEBRIAL V. LORETTA E. LYNCH | nonprecedential…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TESFALDET TESFAY ) No. 13-70223
WELDEGEBRIAL, )
) Agency No. A087-996-636
Petitioner, )
) MEMORANDUM*
v. )
)
LORETTA E. LYNCH, Attorney )
General, )
)
Respondent. )
)
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2016**
San Francisco, California
Before: FERNANDEZ, GOULD, and FRIEDLAND, Circuit Judges.
Tesfaldet Tesfay Weldegebrial, a citizen of Eritrea, petitions for review of
FILED
MAR 29 2016
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 finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).

-- 1 of 4 --

the Board of Immigration Appeals’ denial of his application for asylum,1
withholding of removal,2 and Convention Against Torture (CAT)3 relief. We grant
the petition and remand.
The BIA’s determination that an alien is not eligible for asylum must be
upheld if “‘supported by reasonable, substantial, and probative evidence on the
record considered as a whole.’” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.
Ct. 812, 815, 117 L. Ed. 2d 38 (1992). “It can be reversed only if the evidence
presented . . . was such that a reasonable factfinder would have to conclude that the
requisite fear of persecution existed.” Id.; see also Farah v. Ashcroft, 348 F.3d
1153, 1156 (9th Cir. 2003). When an alien seeks to overturn the BIA’s
determination, “he must show that the evidence he presented was so compelling
that no reasonable factfinder could fail to find the requisite fear of persecution.”
Elias-Zacarias, 502 U.S. at 483–84, 112 S. Ct. at 817. The same standard applies
to credibility determinations. See Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir.
2004); Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir. 2003). However,
18 U.S.C. § 1158.
28 U.S.C. § 1231(b)(3).
3United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No.
100-20 (1988), 1465 U.N.T.S. 85, implemented at 8 C.F.R. § 1208.18.
2

-- 2 of 4 --

when a determination is based upon credibility, “‘a specific, cogent reason’” for
disbelieving the alien must be offered. Guo v. Ashcroft, 361 F.3d 1194, 1199 (9th
Cir. 2004); see also Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014); Tekle v.
Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008).
Applying those standards, we hold that the Immigration Judge and BIA
erred. The minuscule mistakes identified neither go to the heart of the matter,4 nor,
“[c]onsidering the totality of the circumstances, and all relevant factors,”5 do they
indicate a lack of credibility. For example, Weldegebrial’s application used the
name of a younger brother as the one at a camp where Weldegebrial said he was
abused, but Weldegebrial made it clear at the hearing that the person who was there
was actually Weldegebrial’s older brother, which in context made sense. Any fair
reading indicates that there was simply a mistake in the name, as he said there was.
Similarly, the application said that the older brother was in Sweden, a rather
unlikely possibility. It, too, appears to be the mistake Weldegebrial testified it
was—it was typed as Sweden rather than Sawa. In any event, neither of those
4See Cortez-Pineda v. Holder, 610 F.3d 1118, 1124 (9th Cir. 2010); Li v.
Ashcroft, 378 F.3d 959, 964 (9th Cir. 2004). That standard need not be met, but
the IJ stated that it was.
5See 8 U.S.C. § 1158(b)(1)(B)(iii); Garcia v. Holder, 749 F.3d 785, 789 (9th
Cir. 2014); Ren v. Holder, 648 F.3d 1079, 1085 (9th Cir. 2011); Shrestha v.
Holder, 590 F.3d 1034, 1040–45 (9th Cir. 2010).
3

-- 3 of 4 --

inconsistencies has anything to do with his detailed description of his ill treatment,
which is powerfully corroborated by the Country Report.6 That is to say, they were
trivial. Moreover, the peculiar (even nonsensical) error in the letter from a brother
did not reflect upon Weldegebrial’s own credibility, and Weldegebrial’s
descriptions of his arrest did not actually conflict at all. Thus, it was error to find
Weldegebrial to be incredible on those bases. That error infects the asylum,
withholding and CAT determinations. That is especially true in light of the
Country Report, which suggests that those in his position are often persecuted,
tortured, or both, when forced to return to Eritrea.
We therefore grant the petition and remand to the BIA, on an open record,7
for further consideration consistent with this disposition. See INS v. Orlando
Ventura, 537 U.S. 12, 16–18, 123 S. Ct. 353, 355–56, 154 L. Ed. 2d 272 (2002)
(per curiam).
Petition GRANTED and REMANDED.
6See U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., 2010 Human
Rights Reports: Eritrea (Apr. 2011).
7In light of the record, the BIA should also expatiate on the Country Report
and the weight, if any, that it gives to the Report’s relevant provisions. We note
that there were other similar reports which reached the same essential conclusions
as the Country Report. See Amnesty Int’l, Eritrea: Sent Home to Det. and Torture
(May 2009); Human Rights Watch, Service for Life: State Repression and
Indefinite Conscription in Eritrea (Apr. 2009).
4

-- 4 of 4 --