Al-Mousa v. Mukasey

294 F. App'x 277

Opinions

MEMORANDUM

*

Khalid Al-Mousa, native of Sudan and citizen of Saudi Arabia, petitions for review of the Board of Immigration Appeals (“BIA”) decision dismissing the appeal from the immigration judge’s (“IJ”) denial of his applications for asylum, withholding of removal and relief under the Convention Against Torture. Al-Mousa asserted past persecution and a fear of future persecution in Saudi Arabia on account of his ethnicity or dark skin color. The BIA affirmed the IJ’s findings that Al-Mousa’s asylum application was time-barred, and that he failed to establish a credible claim for relief. Al-Mousa appeals.

We lack jurisdiction to review whether Al-Mousa is excepted from timely asylum filing requirements on the basis of his status as a minor because he failed to raise this argument in the asylum application itself, before the IJ, or in his pro se BIA appeal.¹ When a petitioner fails to exhaust his claim, the issue is waived. See 8 U.S.C. § 1252(d); see also Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th Cir. 2003). The BIA has not been afforded the opportunity to address the issue thoroughly “enough to convince us that the relevant policy concerns underlying the exhaustion requirement — that an administrative agency should have a full opportunity to resolve a controversy or correct. its own errors before judicial intervention — have been satisfied here.” Abebe v. Gonzales, 432 F.3d 1037, 1041 (9th Cir.2005)(en banc) (quoting Sagermark v. INS, 767 F.2d 645, 648 (9th Cir.1985)).

We now consider Al-Mousa’s petitions for withholding of removal and relief under the Convention Against Torture. We conclude that the IJ’s adverse credibility determination, which relies on minor errors or omissions and minor inconsistencies between the asylum application and testimony, is unsupported by substantial evidence. See Hoque v. Ashcroft, 367 F.3d 1190,1194 (9th Cir.2004).

The IJ found that Al-Mousa “admitted” that a portion of his original declaration was false. However, before his testimony, Al-Mousa corrected his declaration, explaining that the attorney who drafted his original statement probably misunderstood him because that attorney spoke a different dialect of Arabic. See, e.g. He v. Ashcroft, 328 F.3d 593, 598 (9th Cir.2003) (unreliable translation can undermine evidence on which an adverse credibility determination is based). Al-Mousa further explained that he was unable to read, and thus unable to check the declaration for accuracy. While detained, Al-Mousa had the statement, which was written in English, read to him in Arabic by a fellow detainee. Noticing the mistranslation, Al-Mousa corrected the declaration to reflect that he had not spoken out about his father’s death outside of the family. He then testified consistently with the corrected statement.²

Al-Mousa was not confronted with, and thus was denied a reasonable opportunity to explain, any perceived inconsistency between his original declaration and his testimony concerning how he identified an officer he was alleged to have assaulted. See, e.g., Chen v. Ashcroft, 362 F.3d 611, 618 (9th Cir.2004). The record reveals that Al-Mousa had communication difficulty with the attorney who drafted his original declaration and that Al-Mousa consistently testified that he learned the officer’s identity from reading his badge, not from previous encounters.

Al-Mousa also plausibly explained an immaterial inconsistency concerning whether the sum paid to the allegedly assaulted officer in order to be released was a bond payment or a damages payment: Al-Mousa’s father’s friend paid the sum and then-18-year-old Al-Mousa was not privy to the details of the arrangement. Similarly, Al-Mousa also explained an inconsistency concerning whether he was ai’rested at his home or his grandmother’s home: Al-Mousa’s father had two houses, and while his grandmother lived in one, he referred to them both as his home. See Garrovillas v. I.N.S., 156 F.3d 1010, 1014 (9th Cir.1998). Finally, the fact that Al-Mousa did not mention his broken nose in his original declaration is an omitted detail “insufficient to uphold an adverse credibility finding.” Bandari v. I.N.S., 227 F.3d 1160, 1167 (9th Cir.2000).

The IJ credited Al-Mousa’s testimony that he will face 400 lashes if returned to Saudi Arabia, but concluded that such a punishment does not constitute torture. We disagree. We conclude, in light of Al-Mousa’s credible testimony and the documentary evidence in the record establishing the clear probability that Al-Mousa will be persecuted and tortured if returned to Saudi Arabia, that he is entitled to withholding of removal. See 8 U.S.C. § 1253(h)(1); I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 430, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). We further necessarily conclude that Al-Mousa is entitled to withholding of removal under Article 3 of the Convention Against Torture. Accordingly, we grant Al-Mousa’s petition for review and remand to the BIA for further proceedings consistent with our disposition.

Our disposition of the withholding issues makes it unnecessary to address Al-Mou-sa’s alternative request for voluntary departure.

PETITION FOR REVIEW GRANTED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

1

. The record indicates that Al-Mousa was over the age of twenty-one at the time of his merits hearing before the IJ and his appeal to the BIA.

2

. Contrary to the assertion of the dissent, the IJ's "factfinding function” does not "quintessential[ly]” include the ability to make an adverse credibility finding on the basis of a seeming inconsistency readily explained by difficulty in interpretation in a case, as here, where there is a language barrier. See Singh v. INS, 292 F.3d 1017, 1021-23 (9th Cir.2002)