Juan Gadidas Gonzalez v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 30, 2018
• Docket: 16-70240
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 30 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN JOSE GADIDAS GONZALEZ, No. 16-70240 AKA Mario Rodas Diaz, Agency No. A029-249-349 Petitioner,

v. MEMORANDUM*

MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted November 13, 2018 San Francisco, California

Before: SCHROEDER and WATFORD, Circuit Judges, and KORMAN,** District Judge.

Petitioner Juan Gadidas Gonzalez, a native and citizen of Guatemala,

petitions for review of the BIA’s denial, on credibility grounds, of asylum,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. withholding of removal, and Convention Against Torture (“CAT”) relief. The

adverse credibility finding was based on an inconsistency in the record stemming

from petitioner’s testimony on cross-examination. No recording was made of the

cross-examination. Because the IJ expressly represented that credibility would not

be an issue — indeed, she stated on the record that she “didn't find [Petitioner] to

be incredible” — the parties consented to the IJ reading her notes into the record in

lieu of redoing cross-examination.

The petitioner’s testimony on cross-examination turned out to be a

determinative issue in the IJ’s decision, but neither the IJ nor the BIA gave the

Petitioner an opportunity to explain, on the record, the inconsistency on which the

adverse credibility determination was based. Rather, Petitioner was misadvised by

the IJ that there would be no need for an explanation because credibility was not a

problem.

Petitioner was therefore denied the full and fair hearing that due process

requires. See Joseph v. Holder, 600 F.3d 1235, 1244-1245 (9th Cir. 2010);

Campos-Sanchez v. I.N.S., 164 F.3d 448, 450 (9th Cir. 1999).

The deficiencies in the record were adequately raised before the BIA. It

should have required a new cross-examination of the petitioner.

The petition is GRANTED and REMANDED.

The BIA’s decision is therefore VACATED.