Martinez

I respectfully dissent. The BIA rejected Martinez’s credibility because “the claim the respondent presented before the asylum officer was inconsistent with the one he pursued at the hearing.” He had fair notice from the IJ’s decision of this reason for rejecting his credibility, and tried to explain it away in his appeal to the BIA, but the BIA was “not persuaded by the respondent’s explanations for this discrepancy.”

Martinez twice lied under oath to the INS. He invented a story about having been a member of a student-led political activist group. As he later admitted, this story was entirely untrue. Such “material misstatements of fact” and “gross inconsistencies” in an application for asylum that “involve[ ] the heart of the asylum claim” may provide substantial evidence for an adverse credibility finding. Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir. 1990).

In Ceballos, we explicitly distinguished such falsehoods from the incidental falsehoods told in Turcios v. INS, 821 F.2d 1396 (9th Cir.1987). The majority relies on Akinmade v. INS, 196 F.3d 951 (9th Cir.1999) for the proposition that Martinez’s previous lies are “wholly consistent” with his claim of fear of…

MEMORANDUM **

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 We have jurisdiction under 8 U.S.C. § 1105a (repealed 1996) and we grant the petition.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 *565 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…