NOT FOR PUBLICATION                        FILED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, 

, 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.”


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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, 

, 1200 (9th Cir. 2004). Rubel was

not provided an opportunity to clarify the ambiguity created by the low-quality

translation.

      On this record—and at least for the reasons relied on by the BIA—the IJ’s

adverse credibility finding is not supported by substantial evidence. See Salaam v.

INS, 

, 1238 (9th Cir. 2000) (per curiam).1




      1
         The government argues Rubel’s claim regarding translation difficulties is
unexhausted. But, a claim can be exhausted if the BIA is put “on notice” of it, even
if the notice is “inartful.” Coronado v. Holder, 

, 986 (9th Cir. 2014).
Here, Rubel argued before the BIA that the IJ ignored “cultural differences,”
including “speak[ing] a foreign language,” that may have contributed to the
adverse credibility determination. This was sufficient to put the BIA on notice that
translation problems contributed to the IJ’s adverse credibility finding.

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          2.   The BIA’s alternative finding—that, assuming the credibility of

Rubel’s testimony, he failed to establish a well-founded fear of persecution—was

not supported by substantial evidence.

      Rubel testified that, because of his political affiliation with the Bangladesh

Nationalist Party, he received between ten and fifteen death threats from members

of the Awami League, his brother was beaten by members of the Awami League

because of Rubel’s political work, and Rubel’s cousin was murdered because of his

work for the BNP. If Rubel’s testimony was credible, his testimony would be

sufficient to establish a well-founded fear of future persecution. See Navas v. INS,

, 657-58 (9th Cir. 2000).2

      3.       The BIA did not abuse its discretion by failing to consider the evidence

Rubel submitted for the first time on appeal. The BIA appropriately construed

Rubel’s motion as a motion to remand and evaluated whether the evidence was



      2
         The government argues that Rubel failed to exhaust this argument and that
he waived the argument by not raising it in his opening brief. The BIA determined
that, assuming the credibility of Rubel’s testimony, he failed to establish a fear of
future persecution. Because the BIA addressed the issue, it was exhausted. See
Parada v. Sessions, 

, 914 (9th Cir. 2018). As to waiver, Rubel’s
opening brief argued that “the IJ erred in concluding . . . the Petitioner . . . does not
have [a] well-founded fear of future persecution,” relying, at least in part, on the
threats Rubel received, the beating of his brother, and the murder of his cousin.
This was sufficient to preserve the claim. See Ndom v. Ashcroft, 

,
750-51 (9th Cir. 2004), superseded by statute on other grounds, Real ID Act of
2005, Pub. L. No. 109–13, 119 Stat. 231, as recognized in Parussimova v.
Mukasey, 

, 739 (9th Cir. 2009).

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material and previously unavailable. 8 C.F.R. § 1003.2(c)(1); see INS v. Doherty,

, 323 (1992); Goel v. Gonzales, 

, 738-39 (9th Cir. 2007)

(per curiam).

      PETITION GRANTED in part and DENIED in part, REMANDED.

Each party shall bear its own costs.




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