Madhu Adhikari v. Eric H. Holder Jr.

MEMORANDUM

Madhu Sudhan Adhikari, a native and citizen of Nepal, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from the immigration judge’s decision denying his application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252 . We review for substantial evidence the agency’s factual findings, applying the new standards governing adverse credibility determinations created by the Real ID Act. Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir.2010). We grant the petition for review, and we remand.

Substantial evidence does not support the BIA’s adverse credibility finding based on a perceived inconsistency between Adhikari’s declaration and testimony regarding the nature of the threats he received from Maoists, because Adhikari’s ultimate testimony that he perceived the Maoists’ threat in January of 2005 as an intent to physically harm him is consistent with what he stated in his declaration. See Morgan v. Mukasey, 529 F.3d 1202, 1206-10 (9th Cir.2008) (agency relied on discrepancies that did not exist or were inconsequential).

In reaching its alternate finding that Adhikari failed to establish a…