Swe v. Holder , 366 F. App'x 808 ( 2010 )

FILED
NOT FOR PUBLICATION FEB 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KYI KYI SWE, No. 05-74208
Petitioner, Agency No. A075-608-740
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 1, 2010
Pasadena, California
Before: SCHROEDER, FISHER, and N.R. SMITH, Circuit Judges.
Kyi Kyi Swe, a native and citizen of Burma, petitions for review of a
decision by the Board of Immigration Appeals (“BIA”) affirming the decision of
an immigration judge (“IJ”) finding her not credible and denying her application
for asylum, withholding of removal, and relief under the Convention Against
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. Because the BIA
adopted the IJ’s decision as the final agency determination, we review the IJ’s
decision directly. See Mashiri v. Ashcroft, 383 F.3d 1112, 1118 (9th Cir. 2004).
We grant the petition and remand.
Although the IJ found Swe incredible based on seven purported
inconsistencies in her testimony, none are based on substantial evidence. See Gui
v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002). The IJ erred by failing to take into
account the context of individual statements, failing to confront Swe concerning
some alleged inconsistencies, see Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th
Cir. 1999), failing to respond to explanations of alleged inconsistencies, see Soto-
Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir. 2009), and finding inconsistencies
between Swe’s testimony and his own mere speculation and conjecture, see Ge v.
Ashcroft, 367 F.3d 1121, 1124 (9th Cir. 2004).
When substantial evidence does not support an adverse credibility
determination, the petitioner is deemed credible. See Shire v. Ashcroft, 388 F.3d
1288, 1299 (9th Cir. 2004). The government has conceded that if Swe’s testimony
is credible, she has established past persecution on account of political opinion.
See also Lopez v. Ashcroft, 366 F.3d 799, 804 (9th Cir. 2004). “[A] rebuttable
presumption of a well-founded fear [now] arises, and the burden shifts to the
2
government to demonstrate that there has been a fundamental change in
circumstances such that the applicant no longer has a well-founded fear.”
Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004) (internal quotation
marks and citations omitted). We therefore grant the petition for review with
regard to the asylum claim and remand this matter to the BIA. Swe’s claims for
withholding of removal and CAT relief are also remanded for reconsideration in
light of her credible testimony.
PETITION FOR REVIEW GRANTED and REMANDED.
3