Aung Ko-Ko-Shaung, a.k.a. Ong Ko- Ko 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 Honorable Edward R. Korman, Senior United States District**
Judge for the Eastern District of New York, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AUNG KO-KO-SHAUNG, a.k.a. Ong Ko-
Ko,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-70624
Agency No. A099-631-423
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 7, 2013
Pasadena, California
Before: W. FLETCHER and RAWLINSON, Circuit Judges, and KORMAN,
Senior District Judge.**
Petitioner Ong Ko Ko is an ordained Buddhist monk and national of
Myanmar, formerly known as Burma. According to his written application and
FILED
MAR 29 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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oral testimony, he has been repeatedly imprisoned and tortured by the government
for his membership in the National League for Democracy, a political organization
opposed to the regime in power. Ko Ko stated that in 2006, fearing for his life, he
fled to Thailand and then to Singapore. After several months, he was able to travel
to Mexico and then across the border to the United States where he immediately
sought asylum. At Ko Ko’s removal hearing, despite noting that Ko Ko’s
testimony tracked his written statement and was quite detailed, the IJ found Ko Ko
not credible. IJ ordered Ko Ko removed to Myanmar. The BIA affirmed in a brief
opinion.
We review the BIA’s decision that Ko Ko has failed to meet his burden of
proof for asylum, withholding of removal, or relief under CAT for substantial
evidence. Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir. 2010); Shrestha v.
Holder, 590 F.3d 1034, 1039 (9th Cir. 2010); Bellout v. Ashcroft, 363 F.3d 975,
979 (9th Cir. 2004), superseded by statute on other grounds as stated in Khan v.
Holder, 584 F.3d 773 (9th Cir.2009). We review the IJ’s findings of fact,
including credibility determinations, for substantial evidence. Ren v. Holder, 648
F.3d 1079, 1083 (9th Cir. 2011).
Where, as here, the BIA’s opinion suggests that it did not conduct an
independent review of the record, we look to the “IJ’s oral decision as a guide to

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what lay behind the BIA’s conclusion.” Shrestha, 590 F.3d at 1039, quoting
Avetova-Elisseva v. INS, 213 F.3d 1192, 1197 (9th Cir. 2006).
Because Ko Ko filed for asylum after May 11, 2005, the REAL-ID Act
governs his case. See Srestha, 590 F.3d at 1039. Under the REAL ID Act, the IJ
may consider inconsistencies and omissions that do not go to the heart of the
applicant’s claim. 8 U.S.C. § 1158(b)(1)(B)(iii). The IJ, however, may only base a
credibility determination on “relevant factor[s] that, considered in light of the
totality of the circumstances, can reasonably be said to have a ‘bearing on a
petitioner’s veracity.’” Ren, 648 F.3d at 1084 (quoting Shrestha, 590 F.3d at
1044).
Both the IJ and the BIA relied primarily on an alleged misstatement at Ko
Ko’s bond-hearing to find Ko Ko not credible. Though the bond hearing was not
reported and there were no contemporaneous notes of the hearing taken, the IJ
believed that Ko Ko had stated at the hearing that he left Myanmar in 1996, rather
than 2006.
After the IJ’s and BIA’s decisions were filed, we decided Joseph v. Holder,
600 F.3d 1235 (9th Cir. 2010). In Joseph, we granted the petition and remanded
where an IJ relied on an alleged misstatement made at a bond hearing because,
inter alia, the bond hearing was not recorded and thus lacked the procedural

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safeguards of a removal hearing. Id. at 1240-43. Although Joseph is a pre-REAL
ID case, it is pertinent authority in determining the weight and relevance of factors
the IJ may consider in post-REAL ID cases. See 590 F.3d at 1040. As noted
above, in post-REAL ID cases, an IJ only may consider relevant factors in making
a credibility determination. See Ren, 648 F.3d at 1084.
As a result of this intervening precedent, we remand to the BIA for
reconsideration in light of Joseph v. Holder, 600 F.3d 1235 (9th Cir. 2010).
Petition GRANTED and REMANDED.

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Ko-Ko Shaung v. Holder, No. 08-70624
Rawlinson, Circuit Judge, concurring:
I concur in the remand for the sole purpose of allowing the agency to
consider the effect, if any, of our intervening decision in Joseph v. Holder, 600
F.3d 1235 (9th Cir. 2010).
FILED
MAR 29 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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