Ban Htoi v. Mukasey

MEMORANDUM *

Because the parties are familiar with the facts and procedural history of this matter, we will not repeat them here. An adverse credibility finding must be supported by a “legitimate articulable basis to question the petitioner’s credibility, and ... [a] cogent reason for any stated disbelief.” Yan Xia Zhu v. Mukasey, 537 F.3d 1034, 1038 (9th Cir.2008) (quoting Wang v. Ashcroft, 341 F.3d 1015, 1022 (9th Cir.2003)). More particularly, because this is a pre-REAL ID Act case, “[i]t is well settled in our circuit that minor inconsistencies that do not go to the heart of an applicant’s claim for asylum cannot support an adverse credibility determination.” 1 Zhu, 537 F.3d at 1038 -39 (quoting Kaur v. Gonzales, 418 F.3d 1061, 1064 (9th Cir.2005)).

The Immigration Judge’s (IJ) reliance on Ban Htoi’s delay in referencing the rapes as a basis for the adverse credibility finding is at odds with our circuit precedent. We have held that “cultural reluctance” is a “compelling explanation” for a woman’s “failure to mention her rape at an earlier time in the [immigration] proceedings.” Mousa v. Mukasey, 530 F.3d 1025, 1027-28 (9th Cir.2008) (“That Mousa, a Chaldean Christian woman…