Shergill

dissenting.

I respectfully dissent. This case rises and falls on the well established standard of review in immigration cases. Under the substantial evidence standard, the Board of Immigration Appeal’s (“BIA”) factual findings can only be reversed if “the evidence presented ... was such that a reasonable factfinder would have to conclude [that the BIA erred].” INS v. Elias-Zacarias, 502 U.S. 478, 481 , 112 S.Ct. 812 , 117 L.Ed.2d 38 (1992). Accord Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir.1998) (holding BIA’s credibility findings reviewed under substantial evidence standard). In other words, the evidence must not only support a contrary conclusion, it must compel such a conclusion. Elias-Zacarias, 502 U.S. at 481 n. 1.

The majority writes an eloquent brief for why the BIA could have come out differently and, in doing so, reweighs the evidence, parses language, and weaves a plausible story. The standard of review is not de novo and we are not asked to determine whether the IJ or the BIA could have reached a different conclusion. Indeed, they could have. The question is whether the evidence compelled a different result, that is whether substantial evidence is lacking to…

MEMORANDUM ***

Amrik Singh Shergill, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (BIA’s) decision in which it affirmed the immigration judge’s (IJ’s) denial of his applications for asylum and withholding of deportation, and denied his motions to remand to the IJ. We have jurisdiction under 8 U.S.C. § 1252 (b). Because the parties are familiar with the facts, we discuss them only insofar as necessary to reach our decision. We grant the petition and remand to the BIA for further proceedings.

We review the BIA’s negative credibility determination, a finding of fact, for substantial evidence. 1 Vilorio-Lopez v. INS, 852 F.2d 1137, 1141 (9th Cir.1988); Turcios v. INS, 821 F.2d 1396, 1399 (9th Cir.1987). We conclude that the BIA did not establish that substantial evidence supported its negative credibility determination, and hence the BIA erred in determining that Shergill was not eligible for asylum or withholding of deportation on that basis.

Neither Shergill’s failure to mention his prior arrests in his asylum application nor his omission at the hearing of the three body searches that he described in his asylum application justify a…