United States Court of Appeals For the First Circuit
No. 20-1302
DARWIN ALIESKY CUESTA-ROJAS,
Petitioner,
v.
MERRICK B. GARLAND,* UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Lipez, and Barron, Circuit Judges.
Irene C. Freidel, with whom PAIR Project was on brief, for petitioner. Gene P. Hamilton, Counselor to the Attorney General, U.S. Department of Justice, Office of the Attorney General, with whom Ethan P. Davis, Acting Assistant Attorney General, Civil Division, Zoe J. Heller, Senior Litigation Counsel, and Katherine S. Fischer, U.S. Department of Justice, Office of Immigration Litigation, Civil Division, were on brief, for respondent.
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Merrick B. Garland has been substituted for former Attorney General William P. Barr as the respondent. March 15, 2021 BARRON, Circuit Judge. Darwin Aliesky Cuesta Rojas
("Cuesta Rojas"), a native and citizen of Cuba, petitions for
review of an order of the Board of Immigration Appeals ("BIA")
affirming the denial of his application for asylum, withholding of
removal, and protection under the Convention Against Torture
("CAT"). We vacate and remand.
I.
Cuesta Rojas entered the United States without
inspection in March 2019 and was apprehended at an unknown location
near the southern border. After the United States Department of
Homeland Security ("DHS") took him into custody, Cuesta Rojas
expressed a fear of returning to Cuba. A credible fear interview
was then scheduled.
An asylum officer conducted the credible fear interview
by telephone in Spanish on May 8, 2019. The interview lasted for
one hour and nine minutes.
The asylum officer took notes during the interview and
also prepared a short, two-paragraph "Summary of Testimony" that
was appended to the asylum officer's interview notes. The document
as a whole contained boxes that the interviewer marked to confirm
that Cuesta Rojas had been read the summary and had agreed that it
was accurate. Another box indicated that the interviewer had asked
whether Cuesta Rojas had "any changes/corrections" to the summary
and that he had answered "no."
- 3 - According to the summary, Cuesta Rojas told the asylum
officer that he is "considered to be an opponent of the Cuban
gov[ernment]" and that he had been "arrested, detained, beaten,
and threatened [with] prison for being against the Cuban
government . . . on a number of occasions" by individuals
associated with the Cuban police.
Cuesta Rojas reviewed the summary and agreed that it was
accurate. The asylum officer found Cuesta Rojas credible and
referred his case to immigration court.
Cuesta Rojas remained in detention as he awaited further
immigration court proceedings. On June 5, 2019, DHS served Cuesta
Rojas with a Notice to Appear that charged him with removability
under 8 U.S.C. §§ 1182(a)(7)(A)(i)(I), (a)(6)(A)(i). At his
initial appearance on June 14, 2019, Cuesta Rojas agreed, at the
Immigration Judge's ("IJ") prompting, to have his case continued
to allow him time to look for an attorney. Cuesta Rojas also
affirmed that he understood that, without an attorney, he might be
called upon to represent himself.
Cuesta Rojas was unable to find an attorney, and at the
next hearing on July 5, 2019, acting pro se, he conceded
removability. The IJ advised Cuesta Rojas that he might be
eligible for asylum and instructed him to complete an application
(Form I-589).
- 4 - At a subsequent hearing on July 18, 2019, Cuesta Rojas,
still pro se, filed an I-589 application, in which he claimed that
he feared political persecution and torture upon a return to Cuba.
The IJ accepted this filing but advised Cuesta Rojas in general
language that "corroborating evidence" -- "such as identity
documents," "witnesses," "affidavits, statements, or letters" --
might be needed at the subsequent merits hearing in order for
Cuesta Rojas to qualify for asylum. The IJ also told Cuesta Rojas
that he could "provide . . . documents or papers to show things
like membership in a particular political party," as well as
"police reports, medical records, and court records about what
happened to you and others like you in your country." Cuesta Rojas
indicated that he understood.
The removal proceedings commenced as scheduled on July
25, 2019. Cuesta Rojas was again pro se. He testified about eight
incidents of interrogation, detention, and assault by Cuban
officials or individuals acting in concert with them, which he
claimed occurred as a result of his anti-Castro political beliefs
and membership in the Cuban Independent and Democratic Party ("CID
Party"). Cuesta Rojas also submitted various documents to the IJ
as potential corroboration for his account. The submitted
documents included a copy of Cuesta Rojas's passport, his birth
certificate, a document indicating that he had no criminal record
in Cuba, a receipt of items seized from him by the Cuban Ministry
- 5 - of the Interior, a letter from a delegate of the CID Party
discussing Cuesta Rojas's party membership, and the U.S. State
Department's Cuba 2018 Human Rights Report.
At the end of the hearing, the IJ orally denied Cuesta
Rojas's application for relief. The IJ explained in its oral
ruling that, "as an initial matter," it was "called on to assess
this respondent's credibility." The IJ then noted that it "must
keep in mind that there must be specific and cogent reasons to
question the respondent's credibility" but that "having witnessed
the respondent's testimony and reviewed the evidence of record,"
it found that "respondent is not a credible witness."
In support of that conclusion, the IJ focused on the
fact that Cuesta Rojas had been under oath during the initial
credible fear interview and also at the asylum hearing but that in
the IJ's view there were "several significant discrepancies"
between his interview account of what he had endured in Cuba and
his hearing account. In consequence, the IJ explained that "based
on these significant discrepancies," it doubted "whether [Cuesta
Rojas] was ever detained . . . [or] arrested in Cuba."
In addition, the IJ also found that Cuesta Rojas's
application had "very significant shortcomings as to corroborating
evidence," by pointing in particular to "missing" documents --
such as medical records and letters from family members. The IJ
- 6 - further found that Cuesta Rojas's explanations for not submitting
such documents were "hard to believe."
Because the IJ determined that Cuesta Rojas was "not a
credible witness," it found that he had "failed to establish his
burden of proof" with respect to his application for asylum and
request for withholding of removal and protection under the CAT.
Accordingly, it denied him relief and ordered his removal.
Cuesta Rojas, still pro se, timely appealed the IJ's
ruling to the BIA. In addition to a statement of reasons for that
appeal, Cuesta Rojas submitted new documents to the BIA as
potential corroboration for his account. In particular, Cuesta
Rojas submitted documents purporting to be hospital notes stating
that he had been treated in September 2017 for a "wound about 3 cm
[in the] left lateral part of the abdomen," and similar notes
indicating treatment in December 2017 in the form of "minor
surgery" for a "scalp wound." Cuesta Rojas also submitted to the
BIA what he characterized as a "warning letter" from the Cuban
Ministry of the Interior stating that Cuesta Rojas had been
"interrogated on repeated occasions for behavior of disaffection
against the Revolution"; a document indicating that Cuesta Rojas
had been arrested for "demonstrat[ing] against the revolution";
and a document purporting to have been signed by four members of
a Committee for the Defense of the Revolution stating that Cuesta
Rojas had been "unsubscribe[d]" for counterrevolutionary ideas,
- 7 - his "repeated[] state[ments] that in Cuba human rights are
violated," and his failure to pay dues.
The BIA dismissed Cuesta Rojas's appeal on February 12,
2020, explaining that it "decline[d] to set . . . aside as clearly
erroneous" the IJ's decision to deny "relief in this case based on
an adverse credibility finding and the respondent's failure to
corroborate his claim." (emphasis added). The BIA also declined
to remand the case in light of the evidence submitted by Cuesta
Rojas for the first time on appeal, observing that Cuesta Rojas
had "not explained how he obtained this evidence . . ., and why he
was unable to present it during the proceedings before the
Immigration Judge." Further, the BIA added, "the newly submitted
evidence does not address or resolve the credibility concerns
raised by the Immigration Judge."
After the BIA issued its decision, Cuesta Rojas secured
representation, and this counseled petition for review followed.
II.
Cuesta Rojas's petition for review of the BIA's decision
focuses on whether its affirmance of the IJ's adverse credibility
determination -- which provided the sole basis for the denial of
his asylum, withholding of removal, and CAT claims, see Mboowa v.
Lynch, 795 F.3d 222, 226 (1st Cir. 2015); Pan v. Gonzales, 489
F.3d 80, 86 (1st Cir. 2007) (explaining that an "adverse
credibility determination can prove fatal" to an I-589
- 8 - application) -- is sustainable. Moreover, in pressing that
contention, Cuesta Rojas's petition argues chiefly that the BIA's
decision is not supported by substantial evidence, as it must be
to be sustained. See Gitau v. Sessions, 878 F.3d 429, 432 (1st
Cir. 2017).1
With respect to that contention, our review is
deferential. We must "uphold credibility findings if 'the IJ has
given reasoned consideration to the evidence and has provided a
cogent explanation for his finding.'" Huang v. Holder, 620 F.3d
33, 37 (1st Cir. 2010) (quoting Muñoz-Monsalve v. Mukasey, 551
F.3d 1, 5 (1st Cir. 2008)). In addition, our review in all events
is of the record "as a whole," Al-Amiri v. Rosen, 985 F.3d 1, 4
(1st Cir. 2021) (quoting Sanabria Morales v. Barr, 967 F.3d 15, 19
(1st Cir. 2020)), and not merely of isolated pieces of it.
1 Cuesta Rojas also argues that the agency violated his statutory right to counsel and his constitutional right to due process of law. See Hernandez Lara v. Barr, 962 F.3d 45, 54-56 (1st Cir. 2020); 8 U.S.C. § 1362. But, as he concedes, these arguments were not raised before the BIA. We decline to consider them under the circumstances of this case, but express no opinion on whether or when we are without jurisdiction to do so. See Bernal-Vallejo v. I.N.S., 195 F.3d 56, 60 (1st Cir. 1999) ("[While we might retain] jurisdiction over [the] constitutional due process argument, . . . [the petitioner] has not exhausted his administrative remedies as to that argument. We [therefore] dismiss the petition.").
- 9 - A.
Before we begin our review, it is important to clarify
the nature of the findings that we must scrutinize. As we
explained in recounting the procedural history, the IJ referred in
explaining its decision to deny relief to Cuesta Rojas not only to
the "discrepancies" between the accounts that he gave at,
respectively, his credible fear interview and his testimony at his
removal proceedings, but also to "very significant shortcomings as
to corroborating evidence."
As we read the IJ's decision, there is no suggestion
that the corroboration "shortcomings" alone provided the basis for
the IJ's finding that Cuesta Rojas was not credible. Thus, we
understand the adverse credibility finding to rest at least in
substantial part on the asserted discrepancies between his
interview account and his removal proceeding account, which, the
IJ determined, the corroborating evidence could not overcome given
the ways in which it was lacking. Compare Hoxha v. Gonzales, 446
F.3d 210, 216 (1st Cir. 2006) ("[I]f the applicant is found not to
be entirely credible, corroborating evidence may be used to bolster
an applicant's credibility." (quoting Dhima v. Gonzales, 416 F.3d
92, 95 (1st Cir. 2005))), with Joumaa v. Ashcroft, 111 F. App'x
15, 19 (1st Cir. 2004) ("A conspicuous lack of corroborating
evidence that should be obtainable by the petitioner without great
difficulty is a cogent reason for doubting the credibility of the
- 10 - testimony."), and Albathani v. I.N.S., 318 F.3d 365, 373 (1st Cir.
2003) ("[T]here was reason to doubt the event occurred; only
Albathani's word established it, and there was a conspicuous lack
of corroborating evidence from his family members in America.").
Nor does the BIA's decision affirming the IJ's ruling
suggest otherwise. As we have noted, it states only that the BIA
"decline[d] to set . . . aside as clearly erroneous" the IJ's
decision to deny "relief in this case based on an adverse
credibility finding and the respondent's failure to corroborate
his claim." (emphasis added).
Thus, given that "a reviewing court, in dealing with a
determination . . . which an administrative agency alone is
authorized to make, must judge the propriety of such action solely
by the grounds invoked by the agency," SEC v. Chenery Corp., 332
U.S. 194, 196 (1947), we must vacate and remand the BIA's decision
affirming the IJ's adverse credibility finding so long as the
"discrepancies" to which the IJ referred fail on their own to
provide a supportable basis for sustaining the adverse credibility
finding. For, if that finding is not supportable, then we have no
basis for concluding that the adverse credibility finding itself
is, given that the "shortcomings" as to corroboration do not supply
a standalone basis for the IJ's adverse credibility finding. And,
as we will explain, we conclude that the "discrepancies" finding
itself does not hold up on substantial evidence review. We thus
- 11 - begin and end our substantial evidence review with our assessment
of what the record supports regarding that finding alone, as our
judgment as to that finding in and of itself requires that we
vacate the BIA's ruling affirming the IJ's order.
B.
The IJ described the "significant discrepancies" in
Cuesta Rojas's accounts of his experience in Cuba as follows:
[R]espondent told this court today that he had been detained eight times . . . [and] that he had been detained and not arrested. . . . The respondent told the asylum officer . . . that he had been detained four times . . . [and] that he had been arrested.
. . . . [R]espondent testified to this court today that he had been stabbed in an incident on the street, on September 18th, 2017 . . . after having been attacked by four individuals who were in a car. . . . [But] in . . . the asylum officer's notes, the notes reflect that respondent testified that his last arrest was September 18th, 2017. The notes do not indicate any statement that respondent was stabbed on that date.
. . . . [R]espondent's asylum application and his testimony lead this court to believe that he was detained on December 8th, 2017. However, the respondent's testimony before the asylum officer . . . was that his last arrest was September 18th, 2017. . . . There was no mention in those notes of any incident on December 8th, 2017.
Notably, the lion's share of these claimed discrepancies
may be traced to a divergence between Cuesta Rojas's all-day
testimony at his removal proceedings and the notes that the asylum - 12 - officer took during the one-hour telephonic interview that
resulted in the two-paragraph summary of the credible fear
interview that Cuesta Rojas was then asked to review and that he
confirmed as accurate.2 The extent to which these "discrepancies"
may be traced back only to those notes -- and not to the summary
itself -- is, in our view, of more significance than the IJ, or
the BIA, appeared to acknowledge in finding the claimed
discrepancies to be concerning.
For one thing, Cuesta Rojas was never asked to confirm
the accuracy of the asylum officer's notes themselves. Indeed,
the record does not even show that the notes to which the
"discrepancies" may be traced were seen by or read to Cuesta Rojas.
In addition, the notes are just that. They are not a verbatim
2 That summary read in full:
You were arrested, detained, beaten, and threatened to be sent to prison for being against the Cuban government. You expressed your opposition against the regime in an English class and you were arrested and taken to a police station and interrogated and beaten and threatened. One week later you were expelled from the university. After that you were arrested on a number of occasions and you were similarly mistreated and threatened [to] be imprisoned if you did not stop your opposing the Cuban government.
You fear that you will be arrested, detained and possible [sic] killed in prison, if you return to Cuban [sic] because you are considered to be an opponent of the Cuban govt.
- 13 - transcript of the credible fear interview that the asylum officer
conducted, and, in accord with the limited purpose that the notes
served, the official document that sets them forth expressly
cautions in bolded language at the outset that:
The following notes are not a verbatim transcript of this interview.
These notes are recorded to assist the individual officer in making a credible fear determination and the supervisory officer in reviewing the determination.
There may be areas of the individual's claim that were not explored or documented for the purposes of this threshold screening.
In consequence, the government's contention that the
record demonstrates "blaring inconsistencies" in Cuesta Rojas's
account of what he had endured in Cuba is simply not plausible in
this case insofar as those claimed extreme divergences are
traceable only to the notes. For, as we will explain, when read
in their proper context, the notes here -- save for one exception
to which we will attend -- do not provide a supportable basis for
finding that there were any inconsistencies at all.
Take first the IJ's emphasis on its finding that Cuesta
Rojas told the asylum officer about four incidents of detention in
Cuba but then testified at his removal proceedings about eight
incidents of detention. This asserted discrepancy is predicated
solely on what the notes record Cuesta Rojas as having said during
- 14 - his credible fear interview and not on the summary of it that
Cuesta Rojas affirmed was accurate.
In fact, there is no discrepancy at all between that
summary and his testimony at the removal proceedings when it comes
to the number of times he was detained. The summary does not at
any point indicate that he was detained fewer than eight times.
Nor does anything in the record indicate that Cuesta
Rojas affirmatively claimed at his credible fear interview that
the four incidents of detention referenced in the notes were the
only four incidents in which he was detained, such that his
subsequent discussion of eight such detentions in his testimony
conflicts with what he had said earlier in that interview. In
fact, there is no dispute that the eight incidents about which
Cuesta Rojas testified were inclusive of the four incidents to
which the notes referred.
Thus, there would be reason to conclude that Cuesta Rojas
changed his account in relation to the number of times that he was
detained only if one were to treat the notes as establishing that
Cuesta Rojas said in his interview something that he never
confirmed that he said -- that he had been detained four and only
four times -- and that the notes themselves do not purport to
establish that he said -- that he was detained four and only four
times. Yet, the IJ nonetheless found a discrepancy between Cuesta
Rojas's interview account and his testimonial account based merely
- 15 - on the fact that the notes say he was detained four times and the
transcript of the testimony says he was detained eight times.
A similarly acontextual analysis -- that fails to treat
the notes as the sketch that they represent themselves to be --
infects the IJ's emphasis on the supposed fact that Cuesta Rojas
told the asylum officer during his credible fear interview that
"a" person stabbed him during one of the incidents just referenced
while he testified at the removal proceeding that "one" person
stabbed him in the course of an assault carried out by "four"
individuals. The notes at no point indicate that Cuesta Rojas
represented that only one person was present during the attack.
Thus, the testimony is easily reconciled with the notes,
even assuming the use of the word "a" in them should be given the
significance that the IJ attributed to it. The former merely
expands in a consistent manner on the limited details reflected in
the asylum officer's own means of summarizing what Cuesta Rojas
told him in the interview.
It is true that, as the IJ also pointed out, Cuesta Rojas
testified before the IJ that the stabbing incident occurred on
September 18, 2017, and that the notes themselves do not associate
any specific date with the stabbing event. Yet, again, the fact
that the verbatim transcript of Cuesta Rojas's testimony includes
more detail than the notes in terms of the timing of the attack
hardly supplies a reason in this case to conclude that Cuesta
- 16 - Rojas's testimony about the attack at his removal proceedings is
inconsistent with what he said during the interview. Given the
bolded caveat that accompanied the notes, it is pure conjecture to
conclude that, because the notes do not refer to a specific date,
Cuesta Rojas himself must not at that time have supplied one. Nor
does anything in the record provide support for a finding that
Cuesta Rojas had been asked to supply the date but could not, let
alone that he had represented at the interview that the attack did
not occur on the date on which he ultimately testified that it
did.
In these three respects, then, the record regarding the
claimed discrepancies, far from supplying a basis for finding that
Cuesta Rojas gave one account at his credible fear interview and
an inconsistent one in his testimony at the removal proceedings,
at most supplies a basis for finding that he did just what one
would expect an asylum applicant to do: "add[] detail" when
testifying at his removal proceedings about the events underlying
his asylum application in a manner that is entirely consistent
with his prior, less formal account of those same events at his
credible fear interview. Kartasheva v. Holder, 582 F.3d 96, 106
(1st Cir. 2009); see also, e.g., Zhu v. Mukasey, 537 F.3d 1034,
1041 (9th Cir. 2008) ("[P]etitioner's statements [during an
interview] . . . are not inconsistent with her subsequent
testimony; rather, they constitute a vague outline of her more
- 17 - detailed testimony at the hearing."). Thus, these three claimed
discrepancies do not support characterizing this case as one in
which the asylum applicant either offered contradictory accounts
or so significantly augmented his account after the credible fear
interview that there is a substantial reason to question the
veracity of the more detailed account that he ultimately gave in
his testimony. Compare Kartasheva, 582 F.3d at 106 ("While
Kartasheva added a detail about this event during her testimony,
it was not implausible given her previous descriptions of the
incident."), with Ye v. Lynch, 845 F.3d 38, 44 (1st Cir. 2017)
(petitioner "omitted any mention whatsoever of past persecution,
a fear of future persecution, or events that might imply such a
fear" in interview, and this was substantial evidence supporting
later adverse credibility finding), and Muñoz-Monsalve, 551 F.3d
at 8 (petitioner "fail[ed] to mention any of his supposedly
'extensive' political activities in either of his original
immigration interviews"; "when an alien's earlier statements omit
any mention of a particularly significant event or datum, an IJ is
justified . . . in doubting the petitioner's veracity" (emphasis
added)).
The IJ did identify one respect in which there is
arguably an actual inconsistency -- at least in a technical,
syntactical sense -- between the notes and the account that Cuesta
Rojas supplied at the removal proceedings. The IJ pointed out
- 18 - that the asylum officer's notes indicated that Cuesta Rojas's "last
arrest" was on September 18, 2017, while Cuesta Rojas had testified
before the IJ that this was not actually his last arrest but
instead just "one of the last."
But, this inconsistency -- owing its origin in this case,
as it does, to the notes -- cannot suffice to render the
credibility finding supportable any more than the three supposed
discrepancies that we have just considered. The inconsistency
here is between a detail that Cuesta Rojas offered in his credible
fear interview and an account that he later gave in testimony at
the removal proceeding. The key issue, then, with respect to the
adverse credibility finding, is whether the seeming divergence is
adequately explained. See Ly v. Mukasey, 524 F.3d 126, 131 (1st
Cir. 2008) ("The IJ's [adverse credibility] determination
must . . . be 'based on omissions and discrepancies in the record
that were not adequately explained by the alien'" (quoting Hem v.
Mukasey, 514 F.3d 67, 69 (1st Cir. 2008))); Hoxha, 446 F.3d at 220
(determining whether "[t]he record . . . supports the IJ's
determination that [the petitioner] did not convincingly explain
the inconsistencies in his case").
Here, when asked to explain the apparently conflicting
statement in the notes, Cuesta Rojas testified that he did, in
fact, tell the asylum officer that this was "one of the last"
arrests -- "I had never said that it had been 'the' last one."
- 19 - The IJ rejected this seemingly plausible explanation.
Yet, it did so without either pointing to any reason to do so or
purporting to give any weight to the fact that the discrepancy was
between interview notes and a verbatim transcript. See Kartasheva,
582 F.3d at 105 (holding that an "IJ's adverse credibility
determination must be set aside" given its failure to "recognize[]
the procedural differences between an asylum interview and the
hearing before the IJ" and to weigh those differences "in the
balance"); see also Ferreira v. Lynch, 831 F.3d 803, 809-11 (7th
Cir. 2016) (remanding to the BIA when it failed to consider whether
"the notes from the credible-fear interview are unreliable
because . . . they are a summary and not a verbatim transcript");
Bassene v. Holder, 737 F.3d 530, 537 (9th Cir. 2013) (indicating
that even "a contradiction between a petitioner's asylum
interview, where the interview was not recorded and notes were
taken by hand, and removal hearing testimony [alone may not be]
substantial evidence to justify an adverse credibility finding"
(citing Singh v. Gonzales, 403 F.3d 1081, 1087 (9th Cir. 2005))).
That failure looms large in this case given that the summary itself
is not inconsistent with the testimony, and that it was the summary
and not the notes that Cuesta Rojas was asked and confirmed to be
accurate.
The government relies on Jiang v. Gonzales, 474 F.3d 25
(1st Cir. 2007), to support its contention that the IJ did not err
- 20 - in rejecting Cuesta Rojas's explanation of this discrepancy, as it
contends that Jiang establishes that the IJ "was not required to
accept [Cuesta Rojas's] self-serving explanation" for it. But, in
Jiang, the divergence was not between the notes taken by an asylum
officer at a credible fear interview and the asylum applicant's
subsequent testimony. It was between the asylum applicant's asylum
application, which he had filled out and signed, and his later
testimony. See id. at 27-28. And, in any event, the divergence
in Jiang concerned a far more significant point of fact (whether
the applicant's parents had ever been arrested and interrogated
about the applicant's whereabouts at all) than does the alleged
discrepancy here. See id.3 Thus, even if the IJ had some basis
for concluding that the notes did not match up with the later
testimony with regard to this particular detail about the "last
arrest," Jiang supplies no support for the IJ's determination that
this divergence on that point of detail was not adequately
explained or that it, in and of itself, warrants a finding that
Cuesta Rojas's account of past persecution is not to be believed.
The government's reliance on Mazariegos-Paiz v. Holder, 734 3
F.3d 57 (1st Cir. 2013), fails for similar reasons. See id. at 65 ("[Petitioner's] I–589 application . . . chronicled his membership in the [very political party that] the petitioner asserted . . . was the source of the alleged persecution," and his insistence "that [t]his statement was a mistake . . . was undercut by evidence that his application had been read to him; that he was fully aware of its contents; and that he had not sought to correct it." (first emphasis added)).
- 21 - C.
To this point, our focus has been on the "discrepancies"
that the IJ identified that may be traced back only to what the
notes of the credible fear interview report Cuesta Rojas said.
But, there is also one respect in which the IJ found that there
was a problematic inconsistency between the interview summary,
which Cuesta Rojas had confirmed to be accurate, and his subsequent
testimony. Specifically, the IJ noted that the summary indicated
that Cuesta Rojas had been "arrested" in Cuba but that his
testimony indicated that he had never been formally "arrested,"
only detained.
There is no indication, however, that, at the time of
the credible fear interview, from which the summary referring to
Cuesta Rojas having been arrested was drawn, any distinction was
drawn by the interviewer between "arrest" and "detention," each of
which is a species of a "seizure" even under the Fourth Amendment,
see, e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 878
(1975), such that Cuesta Rojas may fairly be deemed to have
attributed significance to any such distinction during the
interview. It is thus hard to see how his affirmance of the
accuracy of the summary, which referred to both detentions and
arrests, represented an effort to mislead. And, indeed, it was
only later, during the removal proceedings -- after a distinction
had come to be drawn between a "detention" that takes place without
- 22 - a paper trail and an "arrest" that is documented4 -- that Cuesta
Rojas clarified, consistent with a document that he had supplied
in support of his account which indicated that he had no criminal
record in Cuba, that he had been detained but not formally arrested
in connection with the commission of any crime.
Thus, we do not see how this aspect of the record
supplies a basis for concluding that Cuesta Rojas's testimony
concerning his repeated detentions was not credible. And that is
especially so when the U.S. State Department's Human Rights Report
4 This distinction came into being after the IJ observed that a document submitted by Cuesta Rojas indicated that he had no criminal record in Cuba and then pointedly asked, "how many times were you arrested by the police in Cuba, sir?" The following exchange then took place:
Cuesta Rojas: I was detained several times. Exactly, being eight times. . . . . Immigration Judge: Sir, were you ever charged with a crime? Cuesta Rojas: No, your honor. The detentions . . . were unjust. And that is the reason why there is no documentation of us being detained. They would just take us to the police station and beat us. . . . But they never had any type of official registry of it because it was not convenient for them. . . . . Immigration Judge: So, sir, were you ever arrested in Cuba? Cuesta Rojas: No, your honor. Only detained by the detentions that they did, which were not official detentions.
- 23 - that Cuesta Rojas submitted to the IJ -- which neither the IJ nor
the BIA mentioned -- itself represents that undocumented
detentions of the sort he claimed to have been subjected to are
commonplace in Cuba.5 See Mukamusoni v. Ashcroft, 390 F.3d 110,
124 (1st Cir. 2004) (explaining that U.S. State Department reports
are "extremely important for contextualizing, in the absence of
direct corroboration, the events which [an applicant] claims
constitute persecution" and can "bolster[ an] alien's claim"
(quoting Cordero-Trejo, 40 F.3d at 491)).
D.
The government's reliance on our prior decisions in Weng
v. Holder, 593 F.3d 66 (1st Cir. 2010); Loja-Paguay v. Barr, 939
F.3d 11 (1st Cir. 2019); and Pan, 489 F.3d 80, to argue that the
BIA did not err in affirming the IJ's credibility finding based on
the claimed discrepancies just reviewed is also mistaken. In both
Weng and Loja-Paguay, the petitioners admitted to having made
statements about central matters during the credible fear
5 This report states that "[p]olice officials routinely conducted short-term detentions, at times assaulting detainees" and "[s]uch detentions generally lasted from several hours to several days"; that "[t]he law provides that police officials furnish suspects a signed 'report of detention,' noting the basis, date, and location of any detention in a police facility . . . but the law was frequently not followed"; and that "[t]he police routinely violated procedural laws with impunity and at times failed or refused to provide citizens with legally required documentation, particularly during arbitrary detentions."
- 24 - interview that were in conflict with their subsequent testimony,
see Weng, 593 F.3d at 72; Loja-Paguay, 939 F.3d at 14-15, yet we
have no admitted conflict over such a matter here. And while we
stated in Pan that "the report of the asylum interview enjoys a
presumption of regularity," 489 F.3d at 86 (emphasis added); see
also Zaruma-Guaman v. Wilkinson, 988 F.3d 1, 7 (1st Cir. 2021)
(similar), we did not thereby suggest that a disclaimer to the
notes underlying it, such as the one that accompanied the asylum
officer's notes in this case, should be disregarded.
E.
We emphasize that we recognize that a finding of adverse
credibility may be supported by an accretion of discrepancies no
one of which on its own suffices to demonstrate that there is
reason to doubt the account offered by the one requesting relief.
See Jianli Chen v. Holder, 703 F.3d 17, 26 (1st Cir. 2012). But,
in considering each claimed discrepancy in its own right here, we
are not pursuing a divide and conquer strategy, such that
individual inconsistencies are being precluded from being
considered as a whole. See Al-Amiri, 985 F.3d at 4 ("[W]e look
not to isolated pieces of evidence but to the 'record considered
as a whole.'" (quoting Sanabria Morales, 967 F.3d at 19)); cf.
United States v. Guzman-Ortiz, 975 F.3d 43, 55 (1st Cir. 2020)
("[A] judge may not pursue a 'divide and conquer' strategy in
considering whether the . . . evidence . . . adds up[.]"). We
- 25 - further "recognize that aggregation may support an adverse
credibility finding even if the underlying discrepancies are
immaterial and 'do not go to the heart of the applicant's claim.'"
Jabri v. Holder, 675 F.3d 20, 24 (1st Cir. 2012). Here, we are
explaining why the record does not support finding any of these
inconsistencies to be concerning at all, such that their
amalgamation necessarily cannot be of concern. See, e.g.,
Ferreira, 831 F.3d at 811 (explaining that even following the REAL
ID Act, "inconsistencies cited by immigration judges 'should not
be trivial'" (quoting Tawuo v. Lynch, 799 F.3d 725, 727 (7th Cir.
2015)). Zero plus zero still equals zero, no matter the context
in which the equation must be performed.
III.
Our analysis to this point has focused solely on the
claimed "discrepancies." Cuesta Rojas does separately contend
that the BIA erred when it "decline[d] to set aside as clearly
erroneous" the IJ's determination that its "adverse credibility
finding . . . was not resolved by reliable corroborative
evidence." In that connection, Cuesta Rojas also challenges the
BIA's decision insofar as he contends that it "did not consider
the substance of any of the [new] documents" that he provided to
the BIA in his appeal from the IJ's ruling. That additional
evidence included (as we have noted at the outset) records
purporting to be from a hospital in Cuba that describe the
- 26 - treatment Cuesta Rojas received from it for a "wound about 3 cm
[in the] left lateral part of the abdomen" in September 2017 and
the "minor surgery" he received for a "scalp wound" in December
2017; a warning letter from the Cuban Ministry of the Interior
indicating that Cuesta Rojas was "interrogated on repeated
occasions for behavior of disaffection against the Revolution";
and a document recording an arrest/detention of Cuesta Rojas in
August 2016 after Cuesta Rojas "demonstrated against the
revolution."
With respect to this contention, we note that although
the IJ did point to "shortcomings" in the documentary evidence
initially submitted by Cuesta Rojas, the IJ did not mention the
U.S. State Department's Human Rights Report submitted by him, which
asserted that others in Cuba have experienced political
persecution similar in nature to what Cuesta Rojas claimed to have
experienced.6 See Mukamusoni, 390 F.3d at 123 (noting similar
6 The report, which we adverted to earlier, also states that in Cuba, "[h]uman rights issues included reports of . . . torture of political dissidents, detainees, and prisoners by security forces; . . . arbitrary arrest and detention; . . . [and] denial of freedom of association, including refusal to recognize independent associations." "Government officials . . . committed most human rights abuses and failed to investigate or prosecute those who committed the abuses." "[T]here were numerous reports of detained activists whose whereabouts were temporarily unknown because the government did not register these detentions." "There were reports of police assaulting detainees or being complicit in public harassment of and physical assaults on peaceful demonstrators." "[A]rbitrary arrests and short-term detentions - 27 - instance in which the "BIA . . . made no mention of the background
and country conditions evidence that [petitioner] submitted into
the record"); see also El Moraghy v. Ashcroft, 331 F.3d 195, 203
(1st Cir. 2003) (explaining that these reports are "relevant as to
credibility"). In addition, the IJ did not mention a letter from
a CID Party delegate that Cuesta Rojas submitted which did state
that Cuesta Rojas "is a member of the CID" and added that Cuesta
Rojas "was being coerced, threatened, detained and on several
occasions persecuted and beaten as a result of his ideology against
the Castrista government," even though the IJ stated that there
was an "absence of . . . corroborating evidence to establish that
[Cuesta Rojas] was a member of the [CID] political party."
With respect to the new evidence that Cuesta Rojas
presented to the BIA regarding corroboration, the BIA stated in
summary fashion in its opinion that "the newly submitted evidence
does not address or resolve the credibility concerns raised by the
Immigration Judge," and then added that it declined to "remand
[the] proceedings to the Immigration Court for further
consideration" of that evidence.
At oral argument before us, the government represented
that, in the event we were to vacate and remand the agency's
continue[] to be a common government method for controlling independent public expression and political activity."
- 28 - decision even without addressing these findings regarding
corroboration as such, the evidence concerning corroboration just
described that the BIA appeared not to consider in depth would be
treated as part of the record for the IJ to review. And we
understand, in consequence, that the documents in question -- which
purport to corroborate two attacks that resulted in injuries to
Cuesta Rojas, his political activity in Cuba, and the concern it
drew from Cuban authorities -- will be given such weight as it may
warrant.
In light of that representation, and the fact that our
ruling as to the discrepancies finding suffices to require us to
vacate and remand, see Mukamusoni, 390 F.3d at 122 (explaining
that it is error to treat an asylum applicant's testimony as if it
were "weaker than it actually was" and to then "demand[] a higher
level of corroboration" on that mistaken basis than otherwise would
be required); see also Mboowa, 795 F.3d at 229 (explaining that
"[i]n the ordinary course we do not . . . attempt to read the tea
leaves" in the event that a central aspect of the agency's
credibility assessment is flawed); Castañeda-Castillo v. Gonzales,
488 F.3d 17, 25-26 (1st Cir. 2007) (en banc) (similar),7 we need
7 Cf. also 8 C.F.R. § 1208.13(a) ("The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration."); 8 U.S.C. § 1158(b)(1)(B)(ii) (similar).
- 29 - not resolve the aspects of Cuesta Rojas's petition for review that
concern the IJ and the BIA's corroboration findings. Rather,
consistent with the government's representation about what the
record will consist of on remand, we remand those matters to be
decided by the agency in a manner consistent with this opinion,
and on the understanding that the new evidence that Cuesta Rojas
supplied that the BIA appeared not to evaluate in depth will be
given the weight that is warranted.
IV.
We grant the petition for review, vacate the decisions
of the IJ and BIA denying Cuesta Rojas's application for asylum,
withholding of removal, and CAT protection, and remand for further
proceedings consistent with this opinion.
- 30 -