NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 15 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
IRENE WANJIRU THIRU, No. 17-72928 19-70012 Petitioner, Agency No. A205-560-108 v.
MERRICK B. GARLAND, Attorney MEMORANDUM* General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted February 5, 2021** Seattle, Washington
Before: McKEOWN and PAEZ, Circuit Judges, and ORRICK,*** District Judge.
Irene Wanjiru Thiru, a native and citizen of Kenya, petitions for review of
the order of the Board of Immigration Appeals (“BIA”) dismissing her appeal from
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable William Horsley Orrick, United States District Judge for the Northern District of California, sitting by designation. the decision of an immigration judge (“IJ”) that denied her application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”)
(petition No. 17-72928) and of the BIA’s subsequent order denying her motion to
reconsider and terminate proceedings (petition No. 19-70012). We have
jurisdiction under 8 U.S.C. § 1252. We grant the petition for review in No. 17-
72928 and deny in No. 19-70012.
When lack of corroboration is one of the stated bases for an adverse
credibility determination, as in this case, we first consider the reasons for that
determination that were unrelated to corroboration issues and evaluate whether the
adverse credibility finding is supported by substantial evidence. See Bhattarai v.
Lynch, 835 F.3d 1037, 1043 (9th Cir. 2016). If, at that point, the adverse
credibility finding is not supported by substantial evidence, we then evaluate
whether the IJ “provide[d] the applicant notice of the specific corroborative
evidence that was required and an opportunity to provide it or explain why he
[could not] reasonably obtain it.” Id. If not, we remand “for the IJ to give the
applicant that opportunity.” Id. at 1043–44.
Here, the BIA upheld the IJ’s determination that Thiru was not credible
based solely on a perceived inconsistency regarding the date on which Thiru was
raped. The inconsistency the IJ identified is this: Thiru testified that the Mungiki
group attacked her and her family three times and that she and her daughters were
2 raped during the second incident on December 7, 2011, yet the medical
examination report issued by the Kenyan police’s physician (Exhibit 7) indicated
that the rape occurred on July 5, 2011, during the first of the three incidents.
Thiru testified that when she went to the police after the third incident, they
issued a “case summary” of all three incidents that she had reported. The case
summary consisted of documents that the IJ marked as Exhibit 6 (cover/first page)
and Exhibit 4 (victim’s statement/second page). The second page describes all
three incidents and lists dates for each incident that corroborate Thiru’s testimony,
including the date of the rape as December 7, 2011. However, the police
separately back-dated the case summary with the date of the first incident reported:
July 5, 2011. Thiru testified that she presented this case summary to the police
physician, who completed the required form (Exhibit 7) based on the information
in the case summary and mistakenly incorporated the date of the case summary
report itself, July 5, as the date of the rape, even though the body of the case
summary lists the date of the rape as December 7. The IJ determined that Thiru
had failed to adequately explain the date discrepancy between Exhibit 7 and her
testimony, did not believe that Thiru could readily corroborate her testimony, and
ultimately denied her applications for relief based on an adverse credibility
determination.
To support an adverse credibility determination, an inconsistency must not
3 be trivial and must have some bearing on the petitioner’s veracity. Shrestha v.
Holder, 590 F.3d 1034, 1044 (9th Cir. 2010). “[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.” Singh v. Gonzales, 403 F.3d 1081,
1092 (9th Cir. 2005).
The date discrepancy regarding when Thiru was raped says nothing about
her truthfulness or the overall reliability of her substantive account of the rape and
the other two attacks. See Ren v. Holder, 648 F.3d 1079, 1086 (9th Cir. 2011).
The IJ’s focus on the date discrepancy constitutes “a flawed approach to credibility
determination.” Singh, 403 F.3d at 1090–91.
Moreover, the date discrepancy cannot serve as substantial evidence for an
adverse credibility finding because neither the IJ nor the BIA provided “a specific
and cogent reason for rejecting” Thiru’s “reasonable and plausible explanation.”
See Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011). Both considered only
Thiru’s statement that “she would have never presented Exhibit 7 if there was a
discrepancy” and ignored her actual explanation (that the police physician
incorporated the wrong date from Exhibits 4 and 6 into Exhibit 7) and the
explanation’s consistency with information on police procedures and treatment of
rape victims described in the Department of State Human Rights Report for Kenya.
The IJ and BIA also ignored other facts that “tend[] to contravene a
4 conclusion that a given factor undermines credibility.” Shrestha, 590 F.3d at 1044.
The medical report issued by the hospital where Thiru and her daughters were
treated after the rape (Exhibit 5) is dated December 8, 2011. And Thiru’s asylum
application, statement in support of her asylum application, declaration in support
of her prehearing statement, and the psychological evaluation report all list
December 7, 2011—the day before the medical report was issued—as the date of
the rape.
The BIA noted another inconsistency, not identified in the IJ’s oral decision,
between Thiru’s asylum application and her statement in support of her asylum
application—whether Thiru’s neighbors came to rescue her during the first attack.
This alleged inconsistency is based on an incomplete reading of Thiru’s statement
in support of her asylum application and cannot form the basis for an adverse
credibility finding. Thiru’s statement explained that while the neighbors did not
come as quickly as she had hoped, they did eventually show up while the attack
was in progress and saved her and her husband from greater harm. That is what
her asylum application stated as well.
The only remaining basis for the IJ and the BIA’s adverse credibility
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 15 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
IRENE WANJIRU THIRU, No. 17-72928 19-70012 Petitioner, Agency No. A205-560-108 v.
MERRICK B. GARLAND, Attorney MEMORANDUM* General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted February 5, 2021** Seattle, Washington
Before: McKEOWN and PAEZ, Circuit Judges, and ORRICK,*** District Judge.
Irene Wanjiru Thiru, a native and citizen of Kenya, petitions for review of
the order of the Board of Immigration Appeals (“BIA”) dismissing her appeal from
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable William Horsley Orrick, United States District Judge for the Northern District of California, sitting by designation. the decision of an immigration judge (“IJ”) that denied her application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”)
(petition No. 17-72928) and of the BIA’s subsequent order denying her motion to
reconsider and terminate proceedings (petition No. 19-70012). We have
jurisdiction under 8 U.S.C. § 1252. We grant the petition for review in No. 17-
72928 and deny in No. 19-70012.
When lack of corroboration is one of the stated bases for an adverse
credibility determination, as in this case, we first consider the reasons for that
determination that were unrelated to corroboration issues and evaluate whether the
adverse credibility finding is supported by substantial evidence. See Bhattarai v.
Lynch, 835 F.3d 1037, 1043 (9th Cir. 2016). If, at that point, the adverse
credibility finding is not supported by substantial evidence, we then evaluate
whether the IJ “provide[d] the applicant notice of the specific corroborative
evidence that was required and an opportunity to provide it or explain why he
[could not] reasonably obtain it.” Id. If not, we remand “for the IJ to give the
applicant that opportunity.” Id. at 1043–44.
Here, the BIA upheld the IJ’s determination that Thiru was not credible
based solely on a perceived inconsistency regarding the date on which Thiru was
raped. The inconsistency the IJ identified is this: Thiru testified that the Mungiki
group attacked her and her family three times and that she and her daughters were
2 raped during the second incident on December 7, 2011, yet the medical
examination report issued by the Kenyan police’s physician (Exhibit 7) indicated
that the rape occurred on July 5, 2011, during the first of the three incidents.
Thiru testified that when she went to the police after the third incident, they
issued a “case summary” of all three incidents that she had reported. The case
summary consisted of documents that the IJ marked as Exhibit 6 (cover/first page)
and Exhibit 4 (victim’s statement/second page). The second page describes all
three incidents and lists dates for each incident that corroborate Thiru’s testimony,
including the date of the rape as December 7, 2011. However, the police
separately back-dated the case summary with the date of the first incident reported:
July 5, 2011. Thiru testified that she presented this case summary to the police
physician, who completed the required form (Exhibit 7) based on the information
in the case summary and mistakenly incorporated the date of the case summary
report itself, July 5, as the date of the rape, even though the body of the case
summary lists the date of the rape as December 7. The IJ determined that Thiru
had failed to adequately explain the date discrepancy between Exhibit 7 and her
testimony, did not believe that Thiru could readily corroborate her testimony, and
ultimately denied her applications for relief based on an adverse credibility
determination.
To support an adverse credibility determination, an inconsistency must not
3 be trivial and must have some bearing on the petitioner’s veracity. Shrestha v.
Holder, 590 F.3d 1034, 1044 (9th Cir. 2010). “[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.” Singh v. Gonzales, 403 F.3d 1081,
1092 (9th Cir. 2005).
The date discrepancy regarding when Thiru was raped says nothing about
her truthfulness or the overall reliability of her substantive account of the rape and
the other two attacks. See Ren v. Holder, 648 F.3d 1079, 1086 (9th Cir. 2011).
The IJ’s focus on the date discrepancy constitutes “a flawed approach to credibility
determination.” Singh, 403 F.3d at 1090–91.
Moreover, the date discrepancy cannot serve as substantial evidence for an
adverse credibility finding because neither the IJ nor the BIA provided “a specific
and cogent reason for rejecting” Thiru’s “reasonable and plausible explanation.”
See Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011). Both considered only
Thiru’s statement that “she would have never presented Exhibit 7 if there was a
discrepancy” and ignored her actual explanation (that the police physician
incorporated the wrong date from Exhibits 4 and 6 into Exhibit 7) and the
explanation’s consistency with information on police procedures and treatment of
rape victims described in the Department of State Human Rights Report for Kenya.
The IJ and BIA also ignored other facts that “tend[] to contravene a
4 conclusion that a given factor undermines credibility.” Shrestha, 590 F.3d at 1044.
The medical report issued by the hospital where Thiru and her daughters were
treated after the rape (Exhibit 5) is dated December 8, 2011. And Thiru’s asylum
application, statement in support of her asylum application, declaration in support
of her prehearing statement, and the psychological evaluation report all list
December 7, 2011—the day before the medical report was issued—as the date of
the rape.
The BIA noted another inconsistency, not identified in the IJ’s oral decision,
between Thiru’s asylum application and her statement in support of her asylum
application—whether Thiru’s neighbors came to rescue her during the first attack.
This alleged inconsistency is based on an incomplete reading of Thiru’s statement
in support of her asylum application and cannot form the basis for an adverse
credibility finding. Thiru’s statement explained that while the neighbors did not
come as quickly as she had hoped, they did eventually show up while the attack
was in progress and saved her and her husband from greater harm. That is what
her asylum application stated as well.
The only remaining basis for the IJ and the BIA’s adverse credibility
determination is lack of corroboration. But the IJ did not give Thiru notice or an
opportunity to present corroborative evidence before denying relief as required
under 8 U.S.C. § 1158(b)(1)(B)(ii) and Ren. Nor did Thiru preemptively decline
5 such an opportunity. While she initially said “[t]he only thing I have is my verbal
evidence,” she later added, “If I’m not able to find them now, I will go back and
talk to my husband and see if there is anything else that he can mail to me if what I
have is not enough.”
In addition, the IJ’s denial of a continuance to allow Thiru to present
corroborative evidence was an abuse of discretion. Cruz Rendon v. Holder, 603
F.3d 1104, 1109–11 (9th Cir. 2010). The need for a continuance resulted from the
government counsel’s submission of the Kenya documents (Exhibits 4 through 7)
into the record at the end of the hearing. This prompted the IJ, who was otherwise
ready to grant Thiru’s application for relief, to ask Thiru for additional evidence to
corroborate her testimony. When Thiru had none at hand, the IJ denied her
application for relief and ordered her removal.
The factors we consider when determining whether failure to grant a
continuance was an abuse of discretion all favor Thiru: The corroborative evidence
was obviously important to the IJ, Thiru’s failure to have evidence to rebut exhibits
that had not been disclosed was reasonable, a continuance would not have
inconvenienced the IJ, and there had been no continuance previously granted in
Thiru’s case. See id. at 1110. The IJ’s offer to reconsider his decision if Thiru
obtained additional evidence at a later date is not a proper remedy for his abuse of
discretion. A continuance would have provided Thiru with a reasonable
6 opportunity to present her case in a full and fair hearing.
Because substantial evidence does not support the IJ and the BIA’s adverse
credibility determination, we grant Thiru’s lead petition for review and remand for
further proceedings consistent with this disposition. If additional corroborative
evidence is still deemed necessary for Thiru to meet her burden of proof, the IJ
must comply with the statutory notice-and-opportunity requirement.
We also remand Thiru’s CAT claim, which the IJ and the BIA summarily
denied without indicating that they considered Thiru’s evidence of country
conditions. See Kamalthas v. INS, 251 F.3d 1279, 1280 (9th Cir. 2001) (holding
that denial of asylum on credibility grounds does not necessarily preclude CAT
relief); Zhiqiang Hu v. Holder, 652 F.3d 1011, 1020 (9th Cir. 2011) (remanding
CAT claim where the BIA failed to provide a reasoned explanation of its decision).
With respect to the second petition, the BIA did not abuse its discretion in
denying Thiru’s motion to reconsider and terminate. Her argument that the lack of
a time and date on her Notice to Appear (“NTA”) divested the IJ of jurisdiction
over the removal proceedings is foreclosed by Karingithi v. Whitaker, 913 F.3d
1158, 1160–62 (9th Cir. 2019) and Aguilar Fermin v. Barr, 958 F.3d 887, 889 (9th
Cir. 2020) (explaining that an NTA “need not contain time, date, and place
information to vest an immigration court with jurisdiction if such information is
provided before the hearing”). Contrary to Thiru’s assertion, Karingithi is not
7 undermined by the Supreme Court’s narrowing of Auer deference in Kisor v.
Wilkie, 139 S. Ct. 2400 (2019) because Karingithi was not solely based on Auer
deference to the BIA’s interpretation of jurisdictional regulations. Rather, after
reaching the conclusion on the basis of our own analysis, we found the BIA’s
interpretation “consistent with our analysis.” Karingithi, 913 F.3d at 1161.1
Petition No. 17-72928, GRANTED AND REMANDED. Petition No. 19-
70012, DENIED.
1 To the extent that Thiru seeks review of the BIA’s denial of sua sponte reopening, we lack jurisdiction to review that determination because it was not based on a “legal or constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). Even if susceptible to review, Thiru’s request was based on the same jurisdictional argument foreclosed by Karingithi and Aguilar Fermin.