NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 16 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
IBRAHIN CUTIÑO ESPINOSA, No. 20-73145 Petitioner, Agency No. A213-361-729 v.
MERRICK B. GARLAND, Attorney MEMORANDUM* General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted May 12, 2022 Pasadena, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and AMON,** District Judge.
Ibrahin Cutiño Espinosa petitions for review of the Board of Immigration
Appeals’ (“BIA”) decision to uphold the Immigration Judge’s (“IJ”)1 denial of his
applications for asylum, withholding of removal, and protection under the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Carol Bagley Amon, United States District Judge for the Eastern District of New York, sitting by designation. 1 The BIA and the IJ are referred to collectively as “the Agency.” Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252(a)(1) and grant the petition and remand to the BIA for reconsideration of
Cutiño Espinosa’s claims.
1. Factual findings, including adverse credibility determinations, are
reviewed under the highly deferential substantial evidence standard, meaning they
“are conclusive unless any reasonable adjudicator would be compelled to conclude
to the contrary.” Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014) (quoting
8 U.S.C. § 1252(b)(4)(B)). Since the BIA issued its own decision but adopted
specific portions of the IJ’s ruling, we review both, “[b]ut 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.’” Iman v. Barr, 972 F.3d 1058, 1064
(9th Cir. 2020) (quoting Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014)). Here,
the BIA affirmed the IJ’s adverse credibility determination based on one omission
and one discrepancy in Cutiño Espinosa’s testimony but declined to reach the IJ’s
other cited grounds. Neither reason cited by the BIA was an appropriate basis for
finding him not credible.
First, in his asylum application and his declaration, Cutiño Espinosa testified
that in September 2016, he was beaten and threatened by Cuban police, who then
detained him for five days. During his hearing, the IJ asked Cutiño Espinosa if he
required medical treatment during this time, and Cutiño Espinosa responded that
2 he was taken to the doctor.
The Agency erred in relying on Cutiño Espinosa’s failure to mention in his
declaration that he was taken for a medical visit as one of the bases for finding him
not credible. In general, “omissions are less probative of credibility than
inconsistencies created by direct contradictions in evidence and testimony.” Lai,
773 F.3d at 971. Further, when “the omitted information was not inconsistent with
the statements in [the petitioner’s] asylum application, his direct testimony, or any
other evidence in the record” it is less likely to undermine his credibility. Iman,
972 F.3d at 1068. Here, Cutiño Espinosa’s mention of being taken to the doctor
was an omission that did not contradict his earlier testimony. It is additionally
significant that Cutiño Espinosa did not volunteer that he was taken for medical
treatment, but rather, responded to a question from the IJ. It was not an attempt to
“volunteer[] new information at the merits hearing in an effort to buttress his
claims through eleventh-hour testimony.” Id.
The second basis for the adverse credibility finding was a date discrepancy
regarding Cutiño Espinosa’s testimony about his November 2018 detention.
Cutiño Espinosa stated in his asylum application that on November 17, 2018 he
was “beat[en] and dispatriotized forcefully.” However, during testimony and in his
declaration, he stated he was actually arrested on November 10, 2018 and released
on November 17, 2018, and beaten several times during the intervening days—but
3 not specifically on November 17. “[T]o support an adverse credibility
determination, an inconsistency must not be trivial and must have some bearing on
the petitioner’s veracity. As we have repeatedly held, ‘minor 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) (quoting Singh v. Gonzales, 403 F.3d 1081,
1092 (9th Cir. 2005) (omission in original)). We find this inconsistency to be
trivial. At worst, Cutiño Espinosa was off by a few days, and this Court has
excused inconsistencies covering larger time periods. See, e.g., id. (excusing
discrepancy between petitioner’s declaration that his arrest was July 13, 2004 and
his testimony that his arrest occurred “four, five, [or] six months” before leaving
China in February 2005). Furthermore, Cutiño Espinosa clarified and self-
corrected the date. See id. at 1087 (discounting a date inconsistency in part
because it was “quickly-corrected”).
Even under the highly deferential substantial evidence review, the credibility
determination made here cannot be affirmed. The BIA’s cited grounds do not
constitute substantial evidence supporting an adverse credibility determination
when viewed in light of the totality of Cutiño Espinosa’s written and oral
testimony. Alam v. Garland, 11 F.4th 1133, 1135-37 (9th Cir. 2021) (en banc).
We remand to the BIA to consider in the first instance the remaining grounds
4 provided by the IJ. If on remand the Agency determines that Cutiño Espinosa is
credible but that his testimony is insufficient to meet his evidentiary burden, he
must be provided notice and opportunity to present additional corroborating
evidence. Zhi v. Holder, 751 F.3d 1088, 1095 (9th Cir. 2014) (holding that when
the Agency “must revisit the adverse credibility determination[,] . . . . [i]f
additional corroborative evidence is deemed necessary for [the petitioner] to carry
his burden of proof, then the notice requirements in Ren[, 648 F.3d at 1090-93]
apply”).
2. The BIA also erroneously upheld the IJ’s denial of Cutiño Espinosa’s
requested continuance. Cutiño Espinosa sought a continuance so that he could
present additional documents that had not yet arrived. The IJ denied his request
because he found Cutiño Espinosa did not exercise due diligence. The Agency’s
denial of a continuance is reviewed for abuse of discretion. Pleitez-Lopez v. Barr,
935 F.3d 716, 719 (9th Cir. 2019). Here, the Agency’s denial was an abuse of
discretion.
Per 8 C.F.R.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 16 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
IBRAHIN CUTIÑO ESPINOSA, No. 20-73145 Petitioner, Agency No. A213-361-729 v.
MERRICK B. GARLAND, Attorney MEMORANDUM* General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted May 12, 2022 Pasadena, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and AMON,** District Judge.
Ibrahin Cutiño Espinosa petitions for review of the Board of Immigration
Appeals’ (“BIA”) decision to uphold the Immigration Judge’s (“IJ”)1 denial of his
applications for asylum, withholding of removal, and protection under the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Carol Bagley Amon, United States District Judge for the Eastern District of New York, sitting by designation. 1 The BIA and the IJ are referred to collectively as “the Agency.” Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252(a)(1) and grant the petition and remand to the BIA for reconsideration of
Cutiño Espinosa’s claims.
1. Factual findings, including adverse credibility determinations, are
reviewed under the highly deferential substantial evidence standard, meaning they
“are conclusive unless any reasonable adjudicator would be compelled to conclude
to the contrary.” Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014) (quoting
8 U.S.C. § 1252(b)(4)(B)). Since the BIA issued its own decision but adopted
specific portions of the IJ’s ruling, we review both, “[b]ut 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.’” Iman v. Barr, 972 F.3d 1058, 1064
(9th Cir. 2020) (quoting Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014)). Here,
the BIA affirmed the IJ’s adverse credibility determination based on one omission
and one discrepancy in Cutiño Espinosa’s testimony but declined to reach the IJ’s
other cited grounds. Neither reason cited by the BIA was an appropriate basis for
finding him not credible.
First, in his asylum application and his declaration, Cutiño Espinosa testified
that in September 2016, he was beaten and threatened by Cuban police, who then
detained him for five days. During his hearing, the IJ asked Cutiño Espinosa if he
required medical treatment during this time, and Cutiño Espinosa responded that
2 he was taken to the doctor.
The Agency erred in relying on Cutiño Espinosa’s failure to mention in his
declaration that he was taken for a medical visit as one of the bases for finding him
not credible. In general, “omissions are less probative of credibility than
inconsistencies created by direct contradictions in evidence and testimony.” Lai,
773 F.3d at 971. Further, when “the omitted information was not inconsistent with
the statements in [the petitioner’s] asylum application, his direct testimony, or any
other evidence in the record” it is less likely to undermine his credibility. Iman,
972 F.3d at 1068. Here, Cutiño Espinosa’s mention of being taken to the doctor
was an omission that did not contradict his earlier testimony. It is additionally
significant that Cutiño Espinosa did not volunteer that he was taken for medical
treatment, but rather, responded to a question from the IJ. It was not an attempt to
“volunteer[] new information at the merits hearing in an effort to buttress his
claims through eleventh-hour testimony.” Id.
The second basis for the adverse credibility finding was a date discrepancy
regarding Cutiño Espinosa’s testimony about his November 2018 detention.
Cutiño Espinosa stated in his asylum application that on November 17, 2018 he
was “beat[en] and dispatriotized forcefully.” However, during testimony and in his
declaration, he stated he was actually arrested on November 10, 2018 and released
on November 17, 2018, and beaten several times during the intervening days—but
3 not specifically on November 17. “[T]o support an adverse credibility
determination, an inconsistency must not be trivial and must have some bearing on
the petitioner’s veracity. As we have repeatedly held, ‘minor 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) (quoting Singh v. Gonzales, 403 F.3d 1081,
1092 (9th Cir. 2005) (omission in original)). We find this inconsistency to be
trivial. At worst, Cutiño Espinosa was off by a few days, and this Court has
excused inconsistencies covering larger time periods. See, e.g., id. (excusing
discrepancy between petitioner’s declaration that his arrest was July 13, 2004 and
his testimony that his arrest occurred “four, five, [or] six months” before leaving
China in February 2005). Furthermore, Cutiño Espinosa clarified and self-
corrected the date. See id. at 1087 (discounting a date inconsistency in part
because it was “quickly-corrected”).
Even under the highly deferential substantial evidence review, the credibility
determination made here cannot be affirmed. The BIA’s cited grounds do not
constitute substantial evidence supporting an adverse credibility determination
when viewed in light of the totality of Cutiño Espinosa’s written and oral
testimony. Alam v. Garland, 11 F.4th 1133, 1135-37 (9th Cir. 2021) (en banc).
We remand to the BIA to consider in the first instance the remaining grounds
4 provided by the IJ. If on remand the Agency determines that Cutiño Espinosa is
credible but that his testimony is insufficient to meet his evidentiary burden, he
must be provided notice and opportunity to present additional corroborating
evidence. Zhi v. Holder, 751 F.3d 1088, 1095 (9th Cir. 2014) (holding that when
the Agency “must revisit the adverse credibility determination[,] . . . . [i]f
additional corroborative evidence is deemed necessary for [the petitioner] to carry
his burden of proof, then the notice requirements in Ren[, 648 F.3d at 1090-93]
apply”).
2. The BIA also erroneously upheld the IJ’s denial of Cutiño Espinosa’s
requested continuance. Cutiño Espinosa sought a continuance so that he could
present additional documents that had not yet arrived. The IJ denied his request
because he found Cutiño Espinosa did not exercise due diligence. The Agency’s
denial of a continuance is reviewed for abuse of discretion. Pleitez-Lopez v. Barr,
935 F.3d 716, 719 (9th Cir. 2019). Here, the Agency’s denial was an abuse of
discretion.
Per 8 C.F.R. § 1003.29, an IJ “may grant a motion for continuance for good
cause shown.” We have identified four factors to be considered when determining
whether there is good cause for a continuance: “(1) the importance of the evidence,
(2) the unreasonableness of the immigrant’s conduct, (3) the inconvenience to the
court, and (4) the number of continuances previously granted.” Cui v. Mukasey,
5 538 F.3d 1289, 1292 (9th Cir. 2008). In Pleitez-Lopez, we held “that the BIA’s
decision to deny a continuance was an abuse of discretion” because “[t]he BIA
failed to analyze all the Cui factors.” 935 F.3d at 719. Here, the Agency
improperly assessed the second factor, the reasonableness of Cutiño Espinosa’s
conduct, and failed to even address the other three factors.
Contrary to the Agency’s conclusion, Cutiño Espinosa has demonstrated that
there was “good cause” for a continuance in accordance with the Cui factors. First,
the denial was sought for witness statements and testimony that would have
corroborated Cutiño Espinosa’s connections to his stated political advocacy group.
Second, Cutiño Espinosa’s conduct was not unreasonable because he made it clear
on March 5, 2020 when the IJ was setting the hearing date for March 27, 2020 that
documents were still on their way. Further, the Agency did not take into account
the effect of the COVID-19 pandemic on the reasonableness of Cutiño Espinosa’s
conduct and expectations about the documents’ arrival. Even without the delaying
effect of a global pandemic, this Court has previously stated that it is
“unsurprising” when a petitioner is unable “to marshal significant documentary
evidence” within two months—the same time window at issue here—because it is
such a “short time frame.” Cruz Rendon v. Holder, 603 F.3d 1104, 1110 (9th Cir.
2010). Third, the Agency did not give any reason why a continuance would cause
anything more than, at most, a minor inconvenience; even the Government did not
6 oppose the continuance. Fourth, no other continuances had been granted. Our
analysis of the Cui factors demonstrates that the IJ abused his discretion in denying
Cutiño Espinosa’s requested continuance. On remand, Cutiño Espinosa must be
given the opportunity to present the documents for which he sought a continuance.
Cutiño Espinosa argues that not only was the denial of the continuance an
abuse of discretion, but also a due process violation. However, we need not reach
this issue, nor the others raised in his brief, as we have already determined that
remand for the Agency to consider Cutiño Espinosa’s additional evidence is the
appropriate course of action.
The petition for review is GRANTED, and all of Cutiño Espinosa’s claims
are REMANDED for further proceedings consistent with this memorandum.