NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 17 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT HENRI ANTOINE BA, No. 13-70876 Petitioner, Agency No. A079-267-329 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted December 10, 2019 Pasadena, California Before: O’SCANNLAIN, PAEZ, and OWENS, Circuit Judges. Henri Antoine Ba, a Senegalese citizen from the country’s southern region of Casamance, petitions for review of the Board of Immigration Appeals’ (BIA’s) denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252(a). For the reasons explained below, we grant the petition and remand for further proceedings. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. The government argues that our jurisdiction is limited in light of the Immigration Judge’s (IJ’s) determination—in the context of Ba’s subsequent application for adjustment of status—that the statutory terrorism bar applies to Ba’s asylum application. We disagree. Under 8 U.S.C. § 1158(b)(2)(D), we cannot review the Attorney General’s determination that an applicant is ineligible for asylum because of the statutory terrorism bar. See Bellout v. Ashcroft, 363 F.3d 975, 977 (9th Cir. 2004). But no such determination was made here. The BIA and IJ denied Ba asylum on the basis of Ba’s credibility and declined to decide whether the terrorism bar applied. Thus, 8 U.S.C. § 1158(b)(2)(D) does not limit our review of the agency’s denial of Ba’s asylum application.1 2. Substantial evidence does not support the adverse credibility determination underlying the denial of Ba’s application for asylum. See Diaz- Jimenez v. Sessions, 902 F.3d 955, 958 (9th Cir. 2018). The BIA and IJ both relied on discrepancies in Ba’s account regarding his role with a regional separatist movement, Mouvement des Forces Démocratiques de Casamance (“MFDC”). For pre-REAL ID Act claims like Ba’s asylum application, “[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 1 We express no views on the applicability of the statutory terrorism bar, which the government may assert on remand. 2 credibility determination.” Kaur v. Gonzales, 418 F.3d 1061, 1064 (9th Cir. 2005). But the discrepancies regarding whether Ba sold MFDC membership cards or encouraged others to join the organization are “neither substantial nor go to the heart of [Ba’s] claims of past persecution.” Morgan v. Mukasey, 529 F.3d 1202, 1207 (9th Cir. 2008). For example, Ba’s account of the persecution he experienced involved witnessing a summary execution after being pulled off a bus due to his Diola ethnicity. See generally Ndom v. Ashcroft, 384 F.3d 743, 748 (9th Cir. 2004) (describing government persecution against ethnic Diola in Casamance). Ba’s inconsistent testimony regarding his role with the MFDC “reveal[s] nothing about [his] fear for [his] safety.” ...
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