NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 5 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT OLIUR RAHMAN RUBEL, No. 17-72969 Petitioner, Agency No. A206-908-946 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 4, 2019 Portland, Oregon Before: MURGUIA and HURWITZ, Circuit Judges, and STATON,** District Judge. Oliur Rahman Rubel petitions for review of a decision of the Board of Immigration Appeals (BIA) denying his application for asylum and withholding of removal. In relevant part, Rubel argues: (1) any perceived inconsistencies in his * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Josephine L. Staton, United States District Judge for the Central District of California, sitting by designation. testimony forming the basis of the adverse credibility determination by the Immigration Judge (IJ) were the result of translation problems; (2) the BIA erred in finding that Rubel failed to establish either past or a well-founded fear of future persecution; and (3) the BIA erred by failing to consider additional evidence Rubel submitted on appeal. We have jurisdiction under 8 U.S.C. § 1252, and grant the petition in part, deny it in part, and remand to the BIA for further proceedings. 1. The IJ’s adverse credibility determination was based on discrepancies in Rubel’s testimony “regarding how members of the Awami League threatened him”—specifically, the manner and nature of the threatening phone calls Rubel received. Rubel argues any perceived inconsistencies were the product of translation difficulties. “A competent translation is fundamental to a full and fair hearing,” and “faulty or unreliable translations can undermine the evidence on which an adverse credibility determination is based.” He v. Ashcroft, 328 F.3d 593, 598 (9th Cir. 2003) (citations omitted). The record reveals that translation problems plagued Rubel’s hearing, and those problems contributed to the inconsistencies found by the IJ and BIA. For example, the BIA concluded that Rubel “testified that [the Awami League] called his mobile phone, but eventually stopped calling that number even though it did not change and instead called his mother’s home asking for his whereabouts.” 2 But Rubel never testified that: (1) the Awami League stopped calling his mobile phone; (2) the Awami League called his mother instead of his mobile phone (as opposed to in addition to his mobile phone); or (3) the Awami League called Rubel’s uncle’s home phone, as opposed to calling Rubel on his mobile phone while he was physically present at his uncle’s home. Rather than being clear, Rubel’s testimony created ambiguity about these issues. And, “unclear testimony may not serve as substantial evidence for an adverse credibility finding when an applicant is not given the chance to attempt to clarify his or her testimony.” Guo v. Ashcroft, 361 F.3d 1194, 1200 (9th Cir. 2004). Rubel was not provided an opportunity to clarify the ambiguity created by the ...
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