Negasi Tewelde-Desta v. ERIC H. HOLDER, Jr., Attorney General

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NEGASI TEWELDE-DESTA,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-70489
Agency No. A088-346-796
ORDER
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
The memorandum disposition filed on September 17, 2012, is withdrawn.
An amended memorandum disposition is being filed concurrently with this order.
With this amendment, respondent’s petition for panel rehearing is denied.
No further petitions for rehearing will be entertained in this closed case.
FILED
JAN 22 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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NOT FOR PUBLICATION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
NEGASI TEWELDE-DESTA,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-70489
Agency No. A088-346-796
AMENDED MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 10, 2012**
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Negasi Tewelde-Desta, a native and citizen of Eritrea, petitions for review of
the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s decision denying his applications for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We have
FILED
JAN 22 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the
agency’s factual findings, applying the new standards governing adverse
credibility determinations created by the REAL ID Act, Shrestha v. Holder, 590
F.3d 1034, 1039-40 (9th Cir. 2010), and we grant the petition for review and we
remand.
The agency denied Tewelde-Desta’s claims based on an adverse credibility
determination. Substantial evidence does not support the agency’s non-responsive
demeanor finding because the record shows that Tewelde-Desta answered the
questions he was asked during cross-examination. See Garrovillas v. INS, 156
F.3d 1010, 1014-15 (9th Cir. 1998). Substantial evidence does not support the
agency’s finding that Tewelde-Destas’ testimony and corroborating evidence were
inconsistent regarding when he completed his military service. See Shrestha, 590
F.3d at 1044 (“[U]nder the REAL ID Act, IJs must provide specific and cogent
reasons in support of an adverse credibility determination.” ) (internal quotation
marks omitted). In addition, Tewelde-Desta’s statement that he received his
national service certificate in April 2007 appears to be an “innocent mistake.” See
Ren v. Holder, 648 F.3d 1079, 1087 (9th Cir. 2011). Finally, the agency’s finding
that Tewelde-Desta gave inconsistent descriptions of the container in which he was
detained is not supported because it is based on a mischaracterization of his

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testimony. See id. at 1086; Tekle v. Mukasey, 533 F.3d 1044, 1052 (9th Cir. 2008).
Accordingly, substantial evidence does not support the agency’s adverse credibility
determination. See Ren, 648 F.3d at 1089.
We grant the petition for review and remand to the agency to determine in
the first instance whether, accepting Tewelde-Desta’s testimony as true, he is
eligible for asylum, withholding of removal, or CAT relief. See INS v. Ventura,
537 U.S. 12, 16 (2002) (per curiam).
PETITION FOR REVIEW GRANTED; REMANDED.

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