Abram Fareg v. William Barr

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 15 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ABRAM G. FAREG, No. 18-72490

Petitioner, Agency No. A206-909-522

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 7, 2020 Pasadena, California

Before: OWENS and LEE, Circuit Judges, and EZRA,** District Judge.

Abram G. Fareg, a native and citizen of Egypt, petitions for review of the

Board of Immigration Appeals’ (“BIA”) denial of his applications for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).

The BIA affirmed the Immigration Judge’s (“IJ”) adverse credibility determination

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. on three grounds: (1) an inconsistency in the testimonies regarding the first

response after an attack; (2) an inconsistency in the testimonies regarding when

Fareg left the family home; and (3) a finding that Fareg had a preconceived intent

to come to the United States. We review adverse credibility determinations under

a substantial evidence standard. Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th

Cir. 2017). As the parties are familiar with the facts, we do not recount them here.

We grant the petition for review and remand.

The inconsistency regarding the first response post-attack is trivial. “[A]n

adverse credibility finding must be based on more than an innocent mistake . . . ‘to

avoid premising [the] finding on an applicant’s failure to remember non-material,

trivial details[.]’” Singh v. Holder, 643 F.3d 1178, 1180-81 (9th Cir. 2011)

(citation omitted). Inconsistencies that do not enhance claims of persecution are

minor and generally have “no bearing on credibility.” Iman v. Barr, 972 F.3d

1058, 1068 (9th Cir. 2020) (citation omitted). Not only is there a possibility that

the IJ and BIA mischaracterized what Fareg meant when he said he went to the

doctor “immediate[sic] afterwards,” but whether he first went to the doctor or

contacted the neighbor is insubstantial. Although Fareg did suffer bruises and a

broken arm, he did not allege life threatening injuries that required immediate

attention. The first response is thus a “peripheral detail[],” Singh, 643 F.3d at

1181, that does not enhance his claim and has “no bearing on [his] credibility,”

2 Iman, 972 F.3d at 1068.

When Fareg left his home is also trivial. “[M]inor discrepancies in dates

that . . . cannot be viewed as attempts by the applicant to enhance his claims of

persecution have no bearing on credibility.” Ren v. Holder, 648 F.3d 1079, 1086

(9th Cir. 2011) (citation omitted). Here, the difference is a matter of days. What

matters is that Fareg left before the following Friday, which is when the men

threatened to come back and kill him.

The BIA’s only remaining ground is that Fareg had a preconceived intent to

come to the U.S. “[S]peculation and conjecture cannot form the basis of an

adverse credibility finding[.]” Ai Jun Zhi v. Holder, 751 F.3d 1088, 1093 (9th Cir.

2014) (citation omitted). It is quite a speculative leap to find Fareg incredible

based solely on the fact that he filed one U.S. visa application before any incident

of harm.

A party must be given an opportunity to explain any perceived

inconsistencies. See Perez-Arceo v. Lynch, 821 F.3d 1178, 1184 (9th Cir. 2016)

(finding an inconsistency cannot support a negative credibility determination when

the IJ did not ask petitioner about the inconsistency). As discussed above, even if

Fareg had been given an opportunity to explain, the inconsistencies relied upon by

the BIA are insufficient under a substantial evidence standard. On remand, the

BIA and IJ should ensure that Fareg is given an opportunity to explain any other

3 inconsistencies material to the analysis.

PETITION FOR REVIEW GRANTED AND REMANDED.