Ibrahim Iman v. William Barr

                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 IBRAHIM ABDULKARIM IMAN,                           No. 17-72318
                       Petitioner,
                                                     Agency No.
                      v.                            A209-389-045

 WILLIAM P. BARR, Attorney General,
                        Respondent.                   OPINION

          On Petition for Review of an Order of the
              Board of Immigration Appeals

                    Submitted July 10, 2020 *
                      Pasadena, California

                      Filed August 25, 2020

    Before: Bobby R. Baldock, ** Marsha S. Berzon, and
             Daniel P. Collins, Circuit Judges.

                   Opinion by Judge Baldock




    *
     The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
    **
       The Honorable Bobby R. Baldock, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
2                          IMAN V. BARR

                          SUMMARY ***


                           Immigration

    The panel granted Ibrahim Iman’s petition for review of
the Board of Immigration Appeals’ denial of asylum and
related relief on adverse credibility grounds, and remanded,
holding that in light of the totality of the circumstances, and
in the context of the administrative record presented, the
evidence in this case compelled the conclusion that Iman’s
testimony was credible.

    The panel concluded that to the extent the Board relied
on the immigration judge’s findings that Iman’s testimony
was nonresponsive or undetailed, substantial evidence did
not support that determination. The panel explained that in
order to base an adverse credibility determination on a
petitioner’s nonresponsiveness, the IJ and the Board must
identify specific instances, supported by the record, where
the petitioner did not respond. The panel observed that both
the IJ and Board failed to identify any instance during the
merits hearing where Iman either refused to answer a direct
question or declined to provide requested details regarding
his persecution. The panel further explained that its own
review of the record revealed no such instance, rather the
record showed that Iman gave responsive and detailed
answers about his claim.

    The panel also concluded that the omission from Iman’s
asylum application of information about his sisters’ rapes,

    ***
        This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                        IMAN V. BARR                         3

which he had previously disclosed to immigration officials
during his credible fear interview, did not support the
adverse credibility determination. The panel explained that
although under the REAL ID Act omissions need not go to
the heart of a claim to be considered when evaluating an
applicant’s credibility, they must still be weighed in light of
the totality of the circumstances and all relevant factors. The
panel further explained that a collateral or ancillary omission
that, under the totality of the circumstances, has no tendency
to suggest an applicant fabricated her or his claim is
insufficient to support an adverse credibility determination.
The panel observed that Iman’s omission concerned adverse
consequences for third parties, rather than Iman himself.
The panel explained that because asylum claims ordinarily
are centered around events and circumstances that the
applicants have experienced directly, Iman’s failure (or
decision not) to mention the sexual violence against his
sisters in his application for relief is less probative of his
credibility.

    The panel also observed that the omitted information was
not inconsistent with the statements in Iman’s asylum
application, his direct testimony, or any other evidence in the
record, but instead supplemented rather than contradicted
Iman’s account of events. In addition, the panel noted that
Iman’s testimony about his sisters’ rapes was extremely
brief—accounting for less than a single page of the hearing
transcript—and was elicited through cross-examination
from the government. The panel observed that this therefore
was not a case where an applicant volunteered new
information at the merits hearing in an effort to buttress his
claims through eleventh-hour testimony.            The panel
concluded that given Iman’s prior disclosure, the nature of
the omitted information, and how the additional information
was elicited at the merits hearing, the sole omission the
4                      IMAN V. BARR

agency identified in this case did not support its adverse
credibility determination.

    The panel remanded for consideration of whether,
accepting Iman’s testimony as credible, he is entitled to
relief.


                        COUNSEL

Douglas Jalaie, Los Angeles, California, for Petitioner.

Jeffery R. Leist, Senior Litigation Counsel; Lance L. Jolley,
Trial Attorney; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.


                        OPINION

BALDOCK, Circuit Judge:

    Petitioner Ibrahim Iman, a native and citizen of Somalia,
petitions for review of the denial of his application for
asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). Iman claims he is a
member of a minority Somali clan who fled Somalia after
members of a majority clan forced him to work as slave for
over two years, beat him, and killed his brother. An
immigration judge (IJ) denied Iman relief, in relevant part,
on the ground that his testimony at the merits hearing was
not credible. The Board of Immigration Appeals (BIA)
upheld the denial of relief based on the IJ’s adverse
credibility finding and dismissed Iman’s appeal.
                        IMAN V. BARR                         5

    Iman now challenges the BIA’s decision, arguing the
adverse credibility determination is not supported by
substantial evidence. We agree. In light of the totality of the
circumstances and in the context of the administrative record
presented to us, the evidence in this case compels the
conclusion that Iman’s testimony was credible. Exercising
jurisdiction under 

(a)(1), we therefore grant
the petition and remand to the BIA for further proceedings
consistent with this opinion.

                              I.

    On November 9, 2016, a few months after Iman entered
the United States, he appeared before the immigration court,
conceded removability, and applied for asylum, withholding
of removal, and protection under the CAT. In a written
declaration included with his application, Iman explained he
is a citizen of Somalia and a member of the Madhiban clan,
a minority clan discriminated against and persecuted by
members of larger clans, such as Habr Gedir, who control
the region. For over two years, members of the Habr Gedir
clan treated Iman and his family as slaves and forced them
to work on farms. On at least one occasion when Iman was
tired of working, members of the Habr Gedir clan “tied [him]
up and laid [him] out onto the ground in the hot sun and beat
[him] with a big stick.”

    According to his written statement, Iman fled Somalia in
May 2004 after members of the Habr Gedir clan killed his
brother and took control of his family’s land. Iman made his
way to Kenya, where he lived both as a refugee and illegally
for twelve years before traveling to the United States. In his
declaration, Iman claimed he cannot return home because, to
his knowledge, members of the Habr Gedir clan still control
his family’s farm. Iman further explained he cannot return
to another town in Somalia because, as a member of a
6                          IMAN V. BARR

minority clan, he “will not have any protections from being
harmed by [larger clan groups] since there is no recognized
government in Somalia that will be responsible for [his]
safety.”

    At the merits hearing before the IJ on February 27, 2017,
Iman testified in support of his application for relief. He
discussed his mistreatment in Somalia, how Habr Gedir clan
members killed his brother after his brother resisted their
demands to turn over the family farm, his time living in
Kenya, and his travels to the United States. Iman’s direct
testimony, for the most part, reiterated the written
declaration he submitted with his application.

    On cross-examination, the government questioned Iman
about statements he gave during his credible fear interview
at the U.S. border. As relevant here, Iman admitted he had
previously told immigration officials his sisters were raped,
but he did not include this information in his asylum
application or his direct testimony. When the IJ asked Iman
why this information was not in his application, he
responded, “I—the people who were collecting my
interview, I told them about that matter and I do not know
the English. I did state to my lawyer all my problems and so
I wasn’t aware that—and so I was not aware whether it was
written or not.”

    At the conclusion of the merits hearing, the IJ denied
Iman’s application for asylum, withholding of removal, and
CAT protection. The IJ denied relief principally on adverse
credibility grounds. 1 In an oral decision, the IJ noted that

    1
      The IJ also concluded that, even if Iman’s testimony was credible,
he still failed to meet his burden of proof for asylum, withholding of
removal, and CAT protection. Because the BIA did not consider whether
                           IMAN V. BARR                              7

Iman’s testimony was, “for the most part, consistent.” She
also specifically declined to find that Iman “made
affirmative misrepresentations to the Court.” And she also
found it “entirely plausible that a member of [Iman’s] tribe
would have been treated the way he alleged.” But the IJ
nonetheless determined that Iman’s testimony was not
credible for three reasons.

    First, the IJ found Iman’s testimony lacked “detail in a
great number of locations.” Iman “would be asked questions
multiple times in order to elicit additional detail[,]” the IJ
further noted, “and he would simply repeat his underlying
claim without the details.” Second, the IJ questioned the
plausibility of Iman’s testimony because he claimed to have
overheard a conversation between his brother and members
of the Habr Gedir clan from thirty steps away. The IJ also
speculated that perhaps “it was another sibling[,]” rather
than Iman, who “was out working on a farm by himself with
his brother” because Iman would have been twelve or
thirteen years old when he witnessed members of the Habr
Gedir clan kill his brother. Third, the IJ found that Iman
admitted to some inconsistencies between his written
declaration and a statement taken at the border, but the only
inconsistency the IJ identified was Iman’s omission of his
sisters’ rapes from his asylum application, which he blamed
“entirely on his attorney.”

    Iman appealed the denial of his claims to the BIA. The
BIA found no clear error in the IJ’s adverse credibility
determination and dismissed Iman’s appeal. In so doing, the


Iman would have established eligibility for asylum, withholding of
removal, or CAT protection had he testified credibly, we do not address
the merits of the IJ’s alternative holdings. See Tekle v. Mukasey,

 (9th Cir. 2008).
8                      IMAN V. BARR

BIA cited as “significant[]” Iman’s failure to mention his
sisters’ rapes in his asylum application, and it noted that
Iman failed to provide a reasonable explanation for this
omission. The BIA also pointed to the IJ’s findings that
Iman’s “testimony was non-responsive or lacking detail
when questioned during the hearing,” which “indicated a
lack of candor.” Such findings, the BIA held, constituted a
proper basis for an adverse credibility determination.

    Without credibility, the BIA determined, Iman was not
eligible for asylum or withholding of removal. The BIA
further concluded that, in light of the adverse credibility
finding, Iman failed to meet his burden of proof for
protection under the CAT. Iman timely petitioned for
review.

                             II.

    The central question in this case is whether substantial
evidence supports the agency’s adverse credibility
determination. Iman urges us to answer this question in the
negative because, in his view, he offered neither
unresponsive nor undetailed testimony at the merits hearing
and the BIA erred in relying on a minor omission that
doesn’t undermine his credibility. After setting forth our
standard of review and the relevant legal standards, we
address the merits of Iman’s arguments.

                             A.

    When, like here, the BIA issues its own decision but
adopts particular parts of the IJ’s reasoning, we review both
decisions. Lai v. Holder, 

 (9th Cir. 2014).
In conducting our review, we examine “the reasons
explicitly identified by the BIA” and “the reasoning
articulated in the IJ’s oral decision in support of those
                        IMAN V. BARR                         9

reasons.” 

 (quoting Tekle, 

). But we “do
not review those parts of the IJ’s adverse credibility finding
that the BIA did not identify as ‘most significant’ and did not
otherwise mention.” 

    We review factual findings, including adverse credibility
determinations, for substantial evidence. Qiu v. Barr,

 (9th Cir. 2019). “The agency’s ‘findings
of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.’” Silva-
Pereira v. Lynch, 

 (9th Cir. 2016)
(quoting 

(b)(4)(B)). Under this standard,
“only the most extraordinary circumstances will justify
overturning an adverse credibility determination.” Jin v.
Holder, 

 (9th Cir. 2014) (quoting Shrestha
v. Holder, 

 (9th Cir. 2010)). Though we
afford “a healthy measure of deference” to adverse
credibility determinations, Shrestha, 

, the
agency’s reliance on credibility grounds in denying relief
cannot insulate its decision from review, see 

.
Accordingly, we preserve meaningful appellate review of
BIA decisions by requiring the agency to provide “specific
and cogent reasons” for an adverse credibility determination.

                              B.

    For applications filed after May 11, 2005, such as
Iman’s, the credibility standards set forth in the REAL ID
Act apply. 

 Stat. 231 (2005). Under
the REAL ID Act, an applicant for relief is not presumed
credible, and “the IJ is authorized to base an adverse
credibility determination on ‘the totality of the
circumstances’ and ‘all relevant factors.’” Huang v. Holder,

, 1152–53 (9th Cir. 2014) (quoting 

(b)(1)(B)(iii)). Such factors include, but are not
10                     IMAN V. BARR

limited to, an applicant’s “demeanor, candor, or
responsiveness” as well as the consistency between an
applicant’s statements and other evidence in the record.

(b)(1)(B)(iii).

    While an IJ may base an adverse credibility finding on
“any . . . relevant factor,” she must do so in light of “the
totality of the circumstances.” Id.; see also Shrestha,

. An IJ “cannot selectively examine
evidence in determining credibility, but rather must present
a reasoned analysis of the evidence as a whole.” Tamang v.
Holder, 

 (9th Cir. 2010). In other
words, an IJ may not “cherry pick solely facts favoring an
adverse credibility determination while ignoring facts that
undermine that result.” Shrestha, 

.

                             C.

    In affirming the IJ’s adverse credibility finding, the BIA
relied on the following grounds: (1) Iman’s testimony was
nonresponsive or lacking detail, which indicated a lack of
candor; and (2) Iman omitted from his asylum application
information regarding his sisters’ rapes. For the reasons
given below, we conclude that neither basis supports the
agency’s adverse credibility decision.

                              1.

    We first address the BIA’s determination, based on the
IJ’s credibility findings, that Iman gave nonresponsive or
undetailed testimony at the merits hearing. Although the IJ
did not label Iman’s testimony as nonresponsive, she found
that he “would be asked questions multiple times in order to
elicit additional detail and he would simply repeat his
underlying claim without details.”
                        IMAN V. BARR                         11

    The lack of detail in an applicant’s testimony can be a
relevant factor for assessing credibility. 

 When an
applicant “supplie[s] only vague assertions” and gives “few
details” at the merits hearing, the lack of detailed testimony
can support an adverse credibility finding. 

. For
this factor to form the basis of an adverse credibility
determination, however, the agency must “refer to specific
instances in the record that support a conclusion that the
factor undermines credibility.” 

; see also, e.g., 

 (concluding substantial evidence supported adverse
credibility finding where “IJ noted that [petitioner] had
provided ‘no particular details’ concerning the Maoists’
continued interest in him”).

    In a similar vein, the agency may base an adverse
credibility     determination        on      an      applicant’s
unresponsiveness. 

. But to do so, it “must identify
specific instances, supported by the record, where the
petitioner did not respond.” 

 Although a “pinpoint
citation” to the record is not necessary, the IJ must identify
the particular instances where the petitioner was
unresponsive. Jin, 

 (quoting Shrestha,

); see also, e.g., 

 (“[T]he IJ explained that
Jin was not responsive when he was asked by the
government about his residence.”).

    Here, neither the IJ nor the BIA identified any instance
in the record where Iman’s testimony at the merits hearing
was nonresponsive or lacking detail. As an initial matter, the
IJ did not identify any such instance in her oral decision. The
IJ noted generally that Iman’s testimony was “lacking detail
in a great number of locations,” which “tends to indicate
some memorization,” but she did not identify which
“locations” or parts of Iman’s testimony were lacking in
detail. The BIA, on the other hand, points to the following
12                     IMAN V. BARR

portion of Iman’s testimony in support of the IJ’s credibility
finding:

       [Government]: Was there anybody else shot
       besides your brother?

       [Iman]: Members of my tribe were always
       being shot, were always being killed.

       [Government]: Was there anybody else shot
       besides your brother?

       [Iman]: Yes, there are other, other people
       who were shot.

       [Government]: In your family?

       [Iman]: No.

       [Government]: Why did you tell the
       Immigration officer they started shooting us?

       [Iman]: My brother was shot. The shooting
       that I was talking about was my brother
       getting shot. And if I had just stood, stood
       there, I would have been the second person
       to, to be shot at.

       [Government]: You stated to the Immigration
       officer they started shooting us. Why did you
       say that?

       [Iman]: When they came to the farm they
       began to shoot. They shot my brother, so I
       fled.
                       IMAN V. BARR                       13

       [Government]: But they didn’t shoot you.

       [Iman]: There was—I was not struck with a,
       with a shot.

       [Government]: They didn’t shoot anybody
       else in your family, correct?

       [Iman]: No.

    As the hearing transcript shows, Iman gave responsive
and straightforward answers to the government’s questions.
In response to the government’s initial question, Iman
testified that members of his clan “were always being shot”
by members of the Habr Gedir clan. This testimony was
clearly a reference to shootings in addition to the one
involving Iman and his brother. When the government asked
the same question again, Iman gave the same answer. On
further questioning that focused specifically on the incident
involving Iman’s brother, Iman clarified that his brother was
the only member of his family who was shot, he fled from
the scene, and he was not struck by a bullet. Because the
government did not press Iman for any additional details
about the shootings Iman referenced—such as, for example,
the identities of the other members of his clan who were
shot—it is unclear what further detail Iman should have
provided. The BIA does not explain, and we fail to see, how
this exchange illustrates unresponsiveness, undetailed
testimony, or a lack of candor on Iman’s part.

    Tellingly, the government does not cite the above-
mentioned testimony in its brief, much less argue that such
testimony supports the agency’s adverse credibility decision.
The government instead points to a different portion of
Iman’s testimony concerning how members of the Habr
14                      IMAN V. BARR

Gedir clan forced him to work. According to the
government, this testimony is an example of Iman “repeating
his underlying claim without the details.” We are not
convinced.

    The problem with the government’s argument is
twofold. First, the relevant testimony simply doesn’t support
its position. In reply to nearly identical questions from his
own counsel, Iman gave responsive, consistent, and detailed
answers. Iman first explained he was forced to work as a
slave because he was born into the Madhiban clan, which is
small and outnumbered by the larger Habr Gedir clan. After
testifying that members of the Habr Gedir clan would come
to his house, take him and his family to farms, and force
them to work, Iman recounted a specific incident during
which he was beaten. During this same exchange, Iman
added that Habr Gedir clan members forced him to travel to
the farms at gunpoint.

    We cannot discern from this testimony or elsewhere in
the record what further detail Iman was expected to provide
during this line of questioning.          In any event, the
government’s reliance on this testimony is flawed for a more
fundamental reason: neither the IJ nor the BIA referenced
this testimony in their respective decisions. See Shrestha,

 (“For each factor forming the basis of an
adverse credibility determination, the IJ should refer to
specific instances in the record that support a conclusion that
the factor undermines credibility.”).         This testimony
therefore cannot support the agency’s adverse credibility
decision.

    At the end of the day, both the IJ and BIA failed to
identify any instance during the merits hearing where Iman
either refused to answer a direct question or declined to
provide requested details regarding his persecution in
                        IMAN V. BARR                        15

Somalia. Our review of the record, moreover, revealed no
such instance. Rather, the record shows that Iman gave
responsive and detailed answers about, among other things,
how members of the Habr Gedir clan enslaved him, forced
him to farm various crops, beat him, and killed his brother.
Thus, to the extent the BIA relied on the IJ’s findings that
Iman’s testimony was nonresponsive or undetailed, we
conclude that substantial evidence does not support the
adverse credibility determination.

                              2.

     The BIA also based its adverse credibility decision on an
omission it characterized as an “inconsistenc[y] between
some of [Iman’s] testimony and the evidence in the record.”
“Most significantly,” the BIA noted, Iman omitted from his
asylum application information about his sisters’ rapes,
which he had previously disclosed to immigration officials
during his credible fear interview. To resolve whether
Iman’s failure to include this information in his application
supports the agency’s adverse credibility determination, we
first clarify the principles that govern credibility findings
based on omissions.

    Omissions need not go to the heart of a claim to be
considered when evaluating an applicant’s credibility under
the REAL ID Act, but they must still be weighed in light of
the totality of the circumstances and all relevant factors. See
Shrestha, 

; accord 

(b)(1)(B)(iii). The REAL ID Act, moreover, neither
gives IJs free rein nor erases the agency’s obligation to
“provide specific and cogent reasons supporting an adverse
credibility determination.” Shrestha, 

(emphasis added). Thus, although an IJ may rely on
omissions when evaluating an applicant’s credibility, not all
omissions will deserve the same weight or support an
16                      IMAN V. BARR

adverse credibility finding.          Compare Silva-Pereira,

 (noting that “an adverse credibility
determination may be supported by omissions that are not
‘details,’ but new allegations that tell a ‘much different—and
more compelling—story of persecution than [the] initial
application’” (quoting Zamanov v. Holder, 

 (9th Cir. 2011))), with Lai, 773 F.3d at 973–74
(reversing an adverse credibility determination based on
omissions because the omitted information was
supplemental rather than contradictory, concerned harms
against third parties, and was not volunteered by the
applicant in support of his claims).

    Consistent with these principles, we have recognized
that, in general, “omissions are less probative of credibility
than inconsistencies created by direct contradictions in
evidence and testimony.” Lai, 

. It is also
well established in this circuit that “the mere omission of
details is insufficient to uphold an adverse credibility
finding.” 

 (quoting Singh v. Gonzales, 

 (9th Cir. 2005)). A collateral or ancillary omission
that, under the totality of the circumstances, has no tendency
to suggest an applicant fabricated her or his claim is likewise
insufficient to support an adverse credibility determination.
See Shrestha, 

 (noting that “trivial
inconsistencies that . . . have no bearing on a petitioner’s
veracity should not form the basis of an adverse credibility
determination”); Shah v. INS, 

 (9th Cir.
2000) (“If discrepancies cannot be viewed as attempts by the
applicant to enhance his claims of persecution, they have no
bearing on credibility.” (cleaned up)).

    Although we would never characterize the rapes that
Iman’s sisters suffered as trivial or minor, the omission of
this information from Iman’s asylum application, considered
                        IMAN V. BARR                          17

under the totality of the circumstances, does not support the
agency’s adverse credibility determination. For starters, the
omitted information concerned “adverse consequences for
third parties, not for [Iman] himself.” Lai, 

(explaining that omissions did not undermine the petitioner’s
credibility because they concerned his “fellow church
member’s detention and his wife’s arrest”). “Because
asylum claims ordinarily are centered around events and
circumstances that the applicants have experienced
directly,” Iman’s failure (or decision not) to mention the
sexual violence against his sisters in his application for relief
is less probative of his credibility. 

 at 973–74.

    What’s more, the omitted information was not
inconsistent with the statements in Iman’s asylum
application, his direct testimony, or any other evidence in the
record. The additional information supplemented rather than
contradicted Iman’s account of the forced labor and violence
he and his family endured in Somalia based on clan
membership. See 

. “This is not a case where
contradictory or even impeaching information came out;
rather, it was information consistent with [Iman’s] own
claimed experiences that would have helped his claim had
he brought it out himself.” 

.

    Nor is this a case where an applicant volunteered new
information at the merits hearing in an effort to buttress his
claims through eleventh-hour testimony. See Zamanov,

 (upholding adverse credibility finding based
on omissions where additional incidents “materially altered
[the petitioner’s] entire story in a way that cast doubt on his
credibility”). Iman’s testimony about his sisters’ rapes was
extremely brief—accounting for less than a single page of
the hearing transcript—and was elicited through cross-
examination from the government. See Lai, 

18                      IMAN V. BARR

(finding it implausible an applicant would seek to bolster a
claim only through responses to government questioning). It
strains credulity to think Iman wouldn’t have mentioned his
sisters’ rapes on direct examination if he was trying to
artificially bolster his claims, especially because he had
previously disclosed this information during his credible fear
interview.

    The last point deserves some elaboration and
qualification. In the context of credibility determinations,
the principal danger we associate with omissions are last-
minute attempts to use new allegations to artificially enhance
claims of persecution. See Silva-Pereira, 827 F.3d at 1185–
86; Lai, 733 F.3d at 973. That danger is particularly acute
where newly introduced information contains allegations
crucial to establishing the applicant’s central claim. See
Silva-Pereira, 

 (citing Kin v. Holder,

 (9th Cir. 2010)).

    Put differently, omissions are probative of credibility to
the extent that later disclosures, if credited, would bolster an
earlier, and typically weaker, asylum application. See
Zamanov, 

. In Zamanov, for instance, the IJ
based an adverse credibility determination on the applicant’s
“suspicious” decision to bring up “incidents [that] would
have added great weight to his claim of political
persecution[] only after his unsuccessful appearance before
the asylum officer.” 

 (emphasis added). That danger is
not present in this case. Iman first disclosed the information
about his sisters’ rapes in his asylum interview and later
omitted it from his asylum application and his direct
testimony.

    When assessing credibility, IJs and the BIA must
distinguish between innocuous omissions that don’t bear on
an applicant’s veracity, on the one hand, and omissions that
                          IMAN V. BARR                             19

tend to show an applicant has fabricated her or his claim, on
the other hand. Here, the IJ and the BIA erred by relying on
an omission that has no tendency to show Iman fabricated
his claims of persecution when considered in light of the
totality of the circumstances. Given Iman’s prior disclosure,
the nature of the omitted information, and how the additional
information was elicited at the merits hearing, the sole
omission the agency identified in this case does not support
its adverse credibility decision.

    Because Iman’s omission, standing alone, cannot
support the agency’s adverse credibility determination, we
need not address whether he gave a reasonable and plausible
explanation for the omission or whether the IJ addressed his
explanation in a reasoned manner. Cf. Zhi v. Holder,

, 1092–93 (9th Cir. 2014) (noting that an IJ
must consider explanations for inconsistencies that “form
the basis of an adverse credibility determination”).

                                 III.

    In sum, we hold that substantial evidence does not
support the agency’s adverse credibility determination. The
BIA’s decision affirming the IJ’s denial of relief turned on
the erroneous adverse credibility finding. Stated differently,
the BIA did not consider whether, if Iman were deemed
credible, he would have established eligibility for asylum,
withholding of removal, or protection under the CAT.
Because the agency’s adverse credibility determination is
not supported by substantial evidence, we remand for
consideration of whether, accepting Iman’s testimony as
credible, he is entitled to relief. 2 See Lai, 

.

    2
     The government argues that Iman has waived any challenge to the
agency’s denial of CAT protection by failing to raise the issue in his
20                         IMAN V. BARR

We therefore grant Iman’s petition and remand all three of
his claims to the BIA for further proceedings consistent with
this opinion.

     Petition for Review GRANTED; REMANDED.




opening brief. This argument is flawed for two reasons. First, as we
explained above, the BIA’s decision upholding the IJ’s denial of CAT
protection turned on the erroneous adverse credibility determination,
which Iman has challenged in his brief. Second, in his brief, Iman
specifically asks this court to remand for consideration of his “claim of
asylum, withholding of removal and protection under the Convention
Against Torture” in light of his credible testimony. Pet’r’s Opening Br.
at 14 (emphasis added). We thus reject the government’s waiver
argument.