San v. Ashcroft
San v. Ashcroft
Opinion of the Court
MEMORANDUM
Myint Myint San, a native and citizen of Burma, petitions for review of the Board of Immigration Appeals’ (BIA) denial of her applications for asylum and withholding of deportation. Because the BIA summarily affirmed the decision of the Immigration Judge (IJ), we review the IJ’s decision as if it were the decision of the BIA. See Al-Harbi v. INS, 242 F.3d 882, 887-88 (9th Cir. 2001).
The IJ made an adverse credibility determination against San on multiple grounds, all of which were improper. The IJ faulted San for “inconsistencies” which did not exist and minor discrepancies that did not go to the heart of her claims and therefore should have been disregarded. See, e.g., Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir. 2003). He also erred in disbelieving San because she did not have enough corroborating evidence, despite our clear law that none is required when an applicant presents credible testimony. See, e.g., Salaam v. INS, 229 F.3d 1234, 1239 (9th Cir. 2000). The IJ further based his determination on non-dispositive omissions in San’s asylum application, another ground this court has generally found impermissible. See, e.g., Bandari v. INS, 227 F.3d 1160, 1166-67 (9th Cir. 2000); Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir. 1996). Finally, the IJ disbelieved San because he speculated that it was implausible that San was able to obtain a passport and visa and was given leave from her civil service job if she was going to be arrested. In discrediting San on these grounds, however, the IJ did not consider San’s reasonable explanations and based his decision on no more than speculation. This was also clearly contrary to law. See Abovian v. INS, 219 F.3d 972, 979 (9th Cir. 2000); Lopez-Reyes, 79 F.3d at 912.
Second, the IJ erred in his alternative holding that, even if San’s testimony was taken as true, she did not have a well-founded fear of future persecution. In doing so, he chiefly relied on the fact that San’s questioning by the military intelligence and her failure to be promoted does not rise to the level of past persecution. However, regardless of the lack of past persecution, the record compels a finding of well-founded fear of future persecution.
While in Burma, San was questioned by military authorities and helped conceal the whereabouts of her younger brother, who was a rebel, by asserting that he was dead.
For the foregoing reasons, we GRANT the petition for review and REVERSE the IJ’s adverse credibility determination. We also REVERSE the IJ’s holding that San did not have a well-founded fear of future persecution and hold that she is eligible for asylum. We AFFIRM the IJ’s holding that San is not entitled to withholding of deportation. We REMAND for the Attorney General to exercise his discretion as to whether to grant asylum.
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.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.