Thong Hok Kim v. Holder

MEMORANDUM **

Thong Holt Kim, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for withholding of removal and protection under the Convention Against Torture (“CAT”). We review de novo due process claims, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000), and for substantial evidence factual findings, INS v. Elias-Zacarias, 502 U.S. 478 , 481 n. 1, 112 S.Ct. 812 , 117 L.Ed.2d 38 (1992). We grant in part and deny in part the petition for review.

Substantial evidence does not support the BIA’s adverse credibility determination because Kim’s omissions did not serve to enhance his claim and he was not provided with an opportunity to explain the omissions. See Shah v. INS, 220 F.3d 1062, 1068 (9th Cir.2000) (discrepancies that cannot be viewed as attempts to enhance a claim of persecution have no bearing on credibility); Mousa v. Mukasey, 530 F.3d 1025, 1029 (9th Cir.2008) (adverse *561 credibility finding incorrect where alien testified about the infection “only in passing” and was never asked to discuss the seriousness of the infection or how…