Oyunbaatar v. Holder

Ninth Circuit

Oyunbaatar v. Holder

376 F. App'x 771

CourtCourt of Appeals for the Ninth Circuit

DecidedApril 19, 2010

Docket07-71823

StatusUnpublished

This text of 376 F. App'x 771 (Oyunbaatar v. Holder) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Oyunbaatar v. Holder, 376 F. App'x 771 (9th Cir. 2010).

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Opinion

MEMORANDUM **

Damdindorj Oyunbaatar, a native and citizen of Mongolia, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir.2008), and we grant the petition for review and remand.

The IJ found Oyunbaatar not credible based on her determination that Oyunbaa-tar submitted a fraudulent police citation. Because the IJ’s finding was based on her improper speculation, substantial evidence does not support the agency’s adverse credibility determination. See Shah v. INS, 220 F.3d 1062, 1071 (9th Cir.2000) (BIA engaged in impermissible speculation and conjecture in determining evidence was fraudulent where record contained no evidence of fraud).

Accordingly, we grant the petition for review, and remand Oyunbaatar’s claims for further proceedings on an open record. See Soto-Olarte v. Holder, 555 F.3d 1089, 1093-96 (9th Cir.2009); see also INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

PETITION FOR REVIEW GRANTED; REMANDED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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MEMORANDUM **

Damdindorj Oyunbaatar, a native and citizen of Mongolia, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir.2008), and we grant the petition for review and remand.

The IJ found Oyunbaatar not credible based on her determination that Oyunbaa-tar submitted a fraudulent police citation. Because the IJ’s finding was based on her improper speculation, substantial evidence does not support the agency’s adverse credibility determination. See Shah v. INS, 220 F.3d 1062, 1071 (9th Cir.2000) (BIA engaged in impermissible speculation and conjecture in determining evidence was fraudulent where record contained no evidence of fraud).

Accordingly, we grant the petition for review, and remand Oyunbaatar’s claims for further proceedings on an open record. See Soto-Olarte v. Holder, 555 F.3d 1089, 1093-96 (9th Cir.2009); see also INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

PETITION FOR REVIEW GRANTED; REMANDED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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