NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 24 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JOAO PEDRO MARTINS; T. M. M., No. 25-30 Agency Nos. Petitioners, A246-843-543 A246-843-544 v.
PAMELA BONDI, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted March 2, 2026 Seattle, Washington
Before: PAEZ, BEA, and BRESS, Circuit Judges.
Joao Pedro Martins (“Martins”) and his minor daughter, citizens of Angola,
petition for review of an immigration judge’s (“IJ”) denial of their applications for
asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”).1
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 Martins’s minor daughter filed her own application for asylum, withholding of removal, and relief under CAT. She is also listed as a derivative beneficiary of Martins’s asylum application. We have jurisdiction under 8 U.S.C. § 1252. Where, as here, the Board of
Immigration Appeals (“BIA”) “adopts and affirms the IJ’s order pursuant to Matter
of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), and expresses no disagreement
with the IJ’s decision, we review the IJ’s order as if it were the BIA’s.” Chuen Piu
Kwong v. Holder, 671 F.3d 872, 876 (9th Cir. 2011). “We review factual findings,
including adverse credibility determinations, for substantial evidence.” Garcia v.
Holder, 749 F.3d 785, 789 (9th Cir. 2014). We grant Martins’s petition.
In assessing credibility, the agency must look to the “totality of the
circumstances and all relevant factors.” Alam v. Garland, 11 F.4th 1133, 1135 (9th
Cir. 2021) (en banc). The totality of the circumstances approach to adverse
credibility determinations “imposes the requirement that an IJ not cherry pick
solely facts favoring an adverse credibility determination while ignoring facts that
undermine that result.” Shrestha v. Holder, 590 F.3d 1034, 1040 (9th Cir. 2010).
Under the REAL ID Act, an IJ may base credibility determinations on factors that
do not “go[] to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).
However, an IJ cannot base an adverse credibility determination solely on an
“utterly trivial inconsistency” that has “no bearing on a petitioner’s veracity.”
Shrestha, 590 F.3d at 1043–44.
Here, the IJ based his adverse credibility determination on four
inconsistencies, one omission, one implausibility, and three instances of non-
2 25-30 responsiveness. Of these nine findings, we conclude that eight are not supported
by substantial evidence. This warrants remand of Martins’s asylum, withholding
of removal, and CAT claims. See Kumar v. Garland, 18 F.4th 1148, 1156 (9th Cir.
2021).
1. Inconsistencies.
A. Meeting Location. The IJ determined that Martins “testified
inconsistently regarding the initial meeting location” of a political protest led by
the National Union for Total Independence of Angola (“UNITA”) on February 13,
2021. We conclude that this purported inconsistency is unsupported. See
Bhattarai v. Lynch, 835 F.3d 1037, 1046 (9th Cir. 2016). The record compels the
conclusion that Martins’s declaration was consistent with his testimony: he and
other protestors marched from his “home” in Cazenga to a main street in Cazenga.
Whether “home” is defined specifically as Martins’s “compound” or more broadly
as his neighborhood of Hojihanda, both are located “in Cazenga.” None of these
details conflict with the statement in his declaration that the demonstration began
at his “home in Cazenga.” Accordingly, the record compels the conclusion that
this testimony was not a genuine inconsistency. See Kumar, 18 F.4th at 1154.
B. Time in the Democratic Republic of Congo (“DRC”). The IJ next
determined that Martins “provided inconsistent testimony regarding his time in
DRC.” The record, however, compels the conclusion that Martins’s testimony was
3 25-30 the result of his initial misunderstanding of government’s counsel’s question, i.e.,
“simple human error.” See Kumar, 18 F.4th at 1153. When government’s counsel
specified that he was inquiring about the last time Martins “stepped on DRC soil,”
after Martins asked for clarification, Martins testified that he “step[ped] in the
Congolese territory” for business purposes, through a temporary pass made
available to cross-border traders. Additionally, the IJ erred because he did not give
Martins an opportunity to explain this inconsistency. See Perez-Arceo v. Lynch,
821 F.3d 1178, 1184 (9th Cir. 2016). Contrary to the IJ’s view, Martins should
have been given such an opportunity, as the inconsistency was not “obvious.”
Rather, as the IJ observed during this exchange, Martins was “just asking for
clarification.”
C. Death of Martins’s Father. The IJ also faulted Martins for testifying
inconsistently about the circumstances of his father’s death. We conclude that any
inconsistency between Martins encountering his father “already dead” and a “[f]ew
seconds before he finally was dead” is trivial. See Shrestha, 590 F.3d at 1043–44.
It therefore cannot form the basis of an adverse credibility determination. See id.
D. Timing of Martins’s Cross-Border Salesman Work. The IJ
identified an inconsistency between Martins’s declaration and his testimony
regarding the period in which he worked as a cross-border salesman. The IJ
further determined that Martins’s explanation for this inconsistency was not
4 25-30 satisfactory. This finding is supported by substantial evidence.
2. Omission. According to the IJ, Martins omitted key facts about his
participation in the 2011 UNITA protest from his declaration, even though he later
testified about being beaten and requiring medical treatment. As a threshold
matter, there is a difference between “‘the mere omission of details’” and
“inconsistencies created by direct contradictions”—the former are “less probative
of credibility.” Lai v. Holder, 773 F.3d 966, 971 (9th Cir. 2014) (quoting Singh v.
Gonzales, 403 F.3d 1081, 1085 (9th Cir. 2005)). While Martins’s declaration did
not provide details about the 2011 protest, it states that he “took part in various
demonstrations in which [his] parents were involved.” The greater level of detail
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 24 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JOAO PEDRO MARTINS; T. M. M., No. 25-30 Agency Nos. Petitioners, A246-843-543 A246-843-544 v.
PAMELA BONDI, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted March 2, 2026 Seattle, Washington
Before: PAEZ, BEA, and BRESS, Circuit Judges.
Joao Pedro Martins (“Martins”) and his minor daughter, citizens of Angola,
petition for review of an immigration judge’s (“IJ”) denial of their applications for
asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”).1
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 Martins’s minor daughter filed her own application for asylum, withholding of removal, and relief under CAT. She is also listed as a derivative beneficiary of Martins’s asylum application. We have jurisdiction under 8 U.S.C. § 1252. Where, as here, the Board of
Immigration Appeals (“BIA”) “adopts and affirms the IJ’s order pursuant to Matter
of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), and expresses no disagreement
with the IJ’s decision, we review the IJ’s order as if it were the BIA’s.” Chuen Piu
Kwong v. Holder, 671 F.3d 872, 876 (9th Cir. 2011). “We review factual findings,
including adverse credibility determinations, for substantial evidence.” Garcia v.
Holder, 749 F.3d 785, 789 (9th Cir. 2014). We grant Martins’s petition.
In assessing credibility, the agency must look to the “totality of the
circumstances and all relevant factors.” Alam v. Garland, 11 F.4th 1133, 1135 (9th
Cir. 2021) (en banc). The totality of the circumstances approach to adverse
credibility determinations “imposes the requirement that an IJ not cherry pick
solely facts favoring an adverse credibility determination while ignoring facts that
undermine that result.” Shrestha v. Holder, 590 F.3d 1034, 1040 (9th Cir. 2010).
Under the REAL ID Act, an IJ may base credibility determinations on factors that
do not “go[] to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).
However, an IJ cannot base an adverse credibility determination solely on an
“utterly trivial inconsistency” that has “no bearing on a petitioner’s veracity.”
Shrestha, 590 F.3d at 1043–44.
Here, the IJ based his adverse credibility determination on four
inconsistencies, one omission, one implausibility, and three instances of non-
2 25-30 responsiveness. Of these nine findings, we conclude that eight are not supported
by substantial evidence. This warrants remand of Martins’s asylum, withholding
of removal, and CAT claims. See Kumar v. Garland, 18 F.4th 1148, 1156 (9th Cir.
2021).
1. Inconsistencies.
A. Meeting Location. The IJ determined that Martins “testified
inconsistently regarding the initial meeting location” of a political protest led by
the National Union for Total Independence of Angola (“UNITA”) on February 13,
2021. We conclude that this purported inconsistency is unsupported. See
Bhattarai v. Lynch, 835 F.3d 1037, 1046 (9th Cir. 2016). The record compels the
conclusion that Martins’s declaration was consistent with his testimony: he and
other protestors marched from his “home” in Cazenga to a main street in Cazenga.
Whether “home” is defined specifically as Martins’s “compound” or more broadly
as his neighborhood of Hojihanda, both are located “in Cazenga.” None of these
details conflict with the statement in his declaration that the demonstration began
at his “home in Cazenga.” Accordingly, the record compels the conclusion that
this testimony was not a genuine inconsistency. See Kumar, 18 F.4th at 1154.
B. Time in the Democratic Republic of Congo (“DRC”). The IJ next
determined that Martins “provided inconsistent testimony regarding his time in
DRC.” The record, however, compels the conclusion that Martins’s testimony was
3 25-30 the result of his initial misunderstanding of government’s counsel’s question, i.e.,
“simple human error.” See Kumar, 18 F.4th at 1153. When government’s counsel
specified that he was inquiring about the last time Martins “stepped on DRC soil,”
after Martins asked for clarification, Martins testified that he “step[ped] in the
Congolese territory” for business purposes, through a temporary pass made
available to cross-border traders. Additionally, the IJ erred because he did not give
Martins an opportunity to explain this inconsistency. See Perez-Arceo v. Lynch,
821 F.3d 1178, 1184 (9th Cir. 2016). Contrary to the IJ’s view, Martins should
have been given such an opportunity, as the inconsistency was not “obvious.”
Rather, as the IJ observed during this exchange, Martins was “just asking for
clarification.”
C. Death of Martins’s Father. The IJ also faulted Martins for testifying
inconsistently about the circumstances of his father’s death. We conclude that any
inconsistency between Martins encountering his father “already dead” and a “[f]ew
seconds before he finally was dead” is trivial. See Shrestha, 590 F.3d at 1043–44.
It therefore cannot form the basis of an adverse credibility determination. See id.
D. Timing of Martins’s Cross-Border Salesman Work. The IJ
identified an inconsistency between Martins’s declaration and his testimony
regarding the period in which he worked as a cross-border salesman. The IJ
further determined that Martins’s explanation for this inconsistency was not
4 25-30 satisfactory. This finding is supported by substantial evidence.
2. Omission. According to the IJ, Martins omitted key facts about his
participation in the 2011 UNITA protest from his declaration, even though he later
testified about being beaten and requiring medical treatment. As a threshold
matter, there is a difference between “‘the mere omission of details’” and
“inconsistencies created by direct contradictions”—the former are “less probative
of credibility.” Lai v. Holder, 773 F.3d 966, 971 (9th Cir. 2014) (quoting Singh v.
Gonzales, 403 F.3d 1081, 1085 (9th Cir. 2005)). While Martins’s declaration did
not provide details about the 2011 protest, it states that he “took part in various
demonstrations in which [his] parents were involved.” The greater level of detail
in his testimony does not support the adverse credibility determination, see
Arulampalam v. Ashcroft, 353 F.3d 679, 688 (9th Cir. 2003), when the declaration
was worded broadly enough to account for his later testimony and when Martins
testified that he fled Angola due to the events of 2021, not 2011, making the events
of 2011 less material. See Shrestha, 590 F.3d at 1044.
3. Implausibility. The IJ found that, because Martins’s mother was a
“well-known UNITA activist,” it was not plausible that she would remain in the
hospital for a full week, while Martins would feel compelled to leave after one day
due to his fear of police retaliation. This reasoning is flawed. First, it is based on
the IJ’s speculation regarding Martins’s mother’s fear of the police and her medical
5 25-30 condition. See Kumar, 18 F.4th at 1155. There is no evidence in the record
regarding how Martins’s mother’s fear of the police compared to Martins’s.
Further, there is evidence in the record that his mother suffered greater physical
harm than Martins during the attack. Second, this implausibility cannot support an
adverse credibility finding because Martins was not offered an opportunity to
explain it. See Lalayan v. Garland, 4 F.4th 822, 836 (9th Cir. 2021).
4. Non-Responsiveness. The IJ outlined three instances in which
Martins’s non-responsiveness weighed against his credibility. “‘[T]o support an
adverse credibility determination based on unresponsiveness, the [IJ] must identify
particular instances in the record where the petitioner refused to answer questions
asked of him.’” Lalayan, 4 F.4th at 839 (quoting Shrestha, 590 F.3d at 1042).
None of the instances identified by the IJ meet this criterion. Rather, the record
compels the conclusion that Martins did not refuse to answer these questions.
Because the “rejected findings here all but gut the [IJ’s] adverse credibility
determination… we remand to the [IJ] to determine in the first instance whether
the remaining factor[]—considered on [its] own—suffice[s] to support an adverse
credibility determination.” Kumar, 18 F.4th at 1156. The IJ may also consider
whether to reopen the record to allow further testimony bearing on Martins’s
credibility, including from Martins. We do not address the IJ’s finding that
Martins’s documentary evidence did not “overcome the adverse weight of his
6 25-30 incredible testimony,” as the IJ must reconsider Martins’s testimony in light of this
order. Furthermore, we do not address the IJ’s denial of Martins’s motion for a
continuance.2
PETITION GRANTED.3
2 If, however, on remand, the IJ decides that Martins’s credibility cannot be established without additional corroborative evidence, the IJ should consider whether Martins should have the opportunity to present his wife’s testimony, so that it may be considered alongside his own. 3 We grant the motion to stay removal, Dkt. 2, pending issuance of the mandate.
7 25-30