Maria Consuelo Cifuentes Calderon 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NOT FOR PUBLICATION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
MARIA CONSUELO CIFUENTES
CALDERON,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 09-71898
Agency No. A072-408-895
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 17, 2012**
Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.
Maria Consuelo Cifuentes Calderon, a native and citizen of Guatemala,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing her appeal from an immigration judge’s decision denying her
FILED
JUL 30 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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application for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252. We review for substantial evidence factual findings, including the
agency’s adverse credibility findings. Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th
Cir. 2008). We grant the petition for review, and we remand.
Substantial evidence does not support the agency’s reliance on the omission
of Cifuentes Calderon’s union membership from her asylum application because
she did not have an opportunity to explain this omission at the hearing. See Soto-
Olarte v. Holder, 555 F.3d 1089, 1091-92 (9th Cir. 2009). Further, substantial
evidence does not support the agency’s reliance either on the omission of Cifuentes
Calderon’s time in Mexico from her application or on the inconsistency in how
long she was held because any omission or inconsistency on these issues is minor.
See Bandari v. INS, 227 F.3d 1160, 1165-66 (9th Cir. 2000) (inconsistency in date
of beating insufficient to support adverse credibility finding). In addition,
substantial evidence does not support reliance on the omission of Cifuentes
Calderon’s kidnaping from the application because she did not omit the kidnaping.
See Tekle, 533 F.3d at 1052 (rejecting inconsistency finding regarding duration of
beating because agency misunderstood or misremembered testimony). Moreover,
substantial evidence does not support reliance on perceived non-responsiveness

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because Cifuentes Calderon described the meeting with her employers, and the
agency did not identify any other instances of non-responsiveness. See Singh v.
Ashcroft, 301 F.3d 1109, 1113-14 (9th Cir. 2002). Finally, substantial evidence
does not support the agency’s plausibility finding because it is based on
speculation and addresses the motivation for the alleged kidnaping rather than
Cifuentes Calderon’s credibility. See Ge v. Ashcroft, 367 F.3d 1121, 1124-25 (9th
Cir. 2004) (findings rested on impermissible speculation or conjecture about what
authorities would or would not do). Accordingly, we grant the petition with
respect to Cifuentes Calderon’s asylum, withholding of removal, and CAT claims
and remand, on an open record, for further proceedings in accordance with this
disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam); Soto-
Olarte, 555 F.3d at 1096.
PETITION FOR REVIEW GRANTED; REMANDED.

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SILVERMAN, Circuit Judge, dissenting:
I would deny the petition for review based on the BIA’s alternative
conclusion that Cifuentes Calderon failed to establish a nexus to a protected
ground.
FILED
JUL 30 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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