Khan v. Immigration & Naturalization Service

13 F. App'x 559

Opinion

MEMORANDUM

Footnotes

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Badal Hossain Khan appeals the Board of Immigration Appeals’ (BIA) denial of his request for asylum and withholding of deportation. We have jurisdiction under 8 U.S.C. § 1105a(a) (1994). The BIA adopted the Immigration Judge’s (IJ) adverse credibility determination, so we look through the BIA’s decision and review the IJ’s decision for substantial evidence. See Singh-Kaur v. INS, 183 F.3d 1147, 1150 (9th Cir.1999).

Khan contends that: (1) the IJ violated his due process rights by “play[ing] the role of the INS Trial Attorney” and not ordering a country conditions report; (2) the IJ made an adverse credibility determination without substantial evidence; and (3) he has a well-founded fear of persecution in Bangladesh. We address each issue as follows:

(1) We lack jurisdiction to consider Khan’s due process arguments because he did not raise the issue with the BIA. See Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir.1994) (concluding the exhaustion requirement applies to due process claims that were correctable by the BIA).

(2) We vacate the IJ’s adverse credibility determination, however, because substantial evidence -does not support the bases for that ruling. On remand should the IJ again find Khan’s testimony not credible, he must articulate with greater specificity the inconsistencies in Khan’s testimony and explain how those inconsistencies go to the heart of Khan’s asylum application. See Garrovillas v. INS, 156 F.3d 1010, 1016 (9th Cir.1998); see also Shah v. INS, 220 F.3d 1062, 1067-68 (9th Cir.2000) (“[I]f discrepancies cannot be viewed as attempts by the applicant to enhance his claims of persecution, [they] have no bearing on credibility.”); Pal v. INS, 204 F.3d 935, 938 (9th Cir.2000); Osorio v. INS, 99 F.3d 928, 931-33 (9th Cir.1996) (“[The Immigration Judge] must address in a reasoned manner the explanations that [the petitioner] offers for these perceived inconsistencies.”).

(3) Further, the IJ should take evidence on whether Khan was assaulted on account of his political opinion, see INS v. Elias-Zacarias, 502 U.S. 478, 482, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), and whether changed country conditions following a shift in political power in Bangladesh would rebut a presumption of future persecution.

REVERSED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.