Martinez v. Immigration & Naturalization Service

72 F. App'x 564

Opinions

MEMORANDUM

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Saul Martinez, a native and citizen of Guatemala, petitions for review of the decision by the Board of Immigration Appeals denying his application for asylum and rquest for withholding of deportation. We have jurisdiction under 8 U.S.C. § 1105a (repealed 1996) and we grant the petition.

As both parties conceded, the BIA undertook an independent analysis of Martinez’s testimony and “agreed with,” but did not adopt, the IJ’s decision that Martinez’s description of past persecution was not credible. See Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir.2000) (‘Where the BIA reviews the IJ’s decision de novo, our review is limited to the BIA’s decision, except to the extent the IJ’s opinion is expressly adopted.”). The adverse credibility determination resulted from Martinez’s misrepresentation on his initial asylum application that he had been persecuted based on political belief, rather than sexual orientation. He explained the misrepresentation was due to a fear of facing further persecution if the government learned of his sexual orientation.

The BIA provided no “specific cogent reasons” for rejecting this justification. Valderrama v. INS, 260 F.3d 1083, 1085 (9th Cir.2001). Moreover, “misrepresentations [that] are wholly consistent with [petitioner’s] testimony and application for asylum” do not support a negative credibility finding. Akinmade v. INS, 196 F.3d 951, 955 (9th Cir.1999); see also Paramasamy v. Ashcroft, 295 F.3d 1047, 1053 (9th Cir.2002). Because the BIA stated only that it was “not persuaded by respondent’s explanations” and provided no legitimate, let alone cogent, reason for rejecting Martinez’s “wholly consistent” misrepresentation, we remand for proceedings consistent with this disposition.

PETITION GRANTED.

KLEINFELD, Circuit Judge, dissenting.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.