Damdindorj Oyunbaatar v. ERIC H. HOLDER Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAMDINDORJ OYUNBAATAR,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 07-71823
Agency No. A098-510-667
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 5, 2010**
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
Damdindorj Oyunbaatar, a native and citizen of Mongolia, petitions for
review of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for asylum,
FILED
APR 19 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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withholding of removal, and protection under the Convention Against Torture. We
have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Tekle
v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008), and we grant the petition for
review and remand.
The IJ found Oyunbaatar not credible based on her determination that
Oyunbaatar submitted a fraudulent police citation. Because the IJ’s finding was
based on her improper speculation, substantial evidence does not support the
agency’s adverse credibility determination. See Shah v. INS, 220 F.3d 1062, 1071
(9th Cir. 2000) (BIA engaged in impermissible speculation and conjecture in
determining evidence was fraudulent where record contained no evidence of
fraud).
Accordingly, we grant the petition for review, and remand Oyunbaatar’s
claims for further proceedings on an open record. See Soto-Olarte v. Holder, 555
F.3d 1089, 1093-96 (9th Cir. 2009); see also INS v. Ventura, 537 U.S. 12, 16-18
(2002) (per curiam).
PETITION FOR REVIEW GRANTED; REMANDED.

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