17-768 Ntwali v. Barr BIA Montante, IJ A205 953 287 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 4th day of April, two thousand nineteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 PIERRE N. LEVAL, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 TITO NTWALI, 14 Petitioner, 15 16 v. 17-768 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Carlos E. Estrada, Boston, MA. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General, Civil Division; 27 Anthony C. Payne, Assistant 28 Director; Jessica D. Strokus, 29 Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is GRANTED.
5 Petitioner Tito Ntwali, a native and citizen of Rwanda,
6 seeks review of a February 24, 2017, decision of the BIA
7 affirming a June 3, 2015, decision of an Immigration Judge
8 (“IJ”) denying asylum, withholding of removal, and relief
9 under the Convention Against Torture (“CAT”). In re Tito
10 Ntwali, No. A205 953 287 (B.I.A. Feb. 24, 2017), aff’g No.
11 A205 953 287 (Immig. Ct. Buffalo June 3, 2015). We assume
12 the parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 We have reviewed the IJ’s decision as modified by the
15 BIA, minus the IJ’s findings that Ntwali failed to show a
16 nexus to a protected ground or establish a well-founded fear
17 of future persecution. See Xue Hong Yang v. U.S. Dep’t of
18 Justice, 426 F.3d 520, 522 (2d Cir. 2005). While the BIA did
19 not address all the IJ’s bases for finding Ntwali incredible,
20 it did not expressly reject the findings, and we have
21 therefore reviewed the entirety of the IJ’s adverse
22 credibility determination. See Xiu Xia Lin v. Mukasey, 534
2 1 F.3d 162, 166 (2d Cir. 2008) (“When the BIA agrees with an
2 IJ’s adverse credibility determination and adopts particular
3 parts of the IJ’s reasoning, we review the decisions of both
4 the BIA and the IJ.”).
5 The applicable standards of review are well established.
6 See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891
7 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse credibility
8 determination for substantial evidence); Chuilu Liu v.
9 Holder, 575 F.3d 193, 196 (2d Cir. 2009) (reviewing
10 corroboration determination under substantial evidence
11 standard).
12 Credibility
13 “Considering the totality of the circumstances, and all
14 relevant factors, a trier of fact may base a credibility
15 determination on . . . the consistency between the applicant’s
16 . . . written and oral statements . . . , the internal
17 consistency of each such statement, [and] the consistency of
18 such statements with other evidence of record . . . without
19 regard to whether an inconsistency, inaccuracy, or falsehood
20 goes to the heart of the applicant’s claim.” 8 U.S.C.
21 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We
22 defer . . . to an IJ’s credibility determination unless, from
3 1 the totality of the circumstances, it is plain that no
2 reasonable fact-finder could make such an adverse credibility
3 ruling.” Xiu Xia Lin, 534 F.3d at 167. However, “[w]here
4 an IJ relies on erroneous bases to reach an adverse
5 credibility determination, and ‘we cannot confidently predict
6 that the IJ would reach the same conclusion in the absence of
7 the[] deficiencies, the IJ’s adverse credibility
8 determination cannot stand.’” Hong Fei Gao, 891 F.3d at 77
9 (quoting Pavlova v. INS, 441 F.3d 82, 88 (2d Cir. 2006)). We
10 conclude that the errors in the agency’s findings underlying
11 the adverse credibility determination require remand.
12 We have identified the following errors in the agency’s
13 findings. Contrary to the IJ’s finding that Ntwali only once
14 mentioned torture, Ntwali referenced torture multiple times
15 in his application. Certified Administrative Record (“CAR”)
16 at 460-61, 548, 554. The IJ also erroneously found that the
17 country conditions evidence did not note any disappearances.
18 To the contrary, the State Department’s 2013 Human Rights
19 Report explicitly states that the Rwandan government engages
20 in politically motivated kidnapping. CAR at 385, 387, 392,
21 393. The IJ stated that Ntwali omitted his mother’s
22 disappearance from his application, when it was included.
4 1 CAR at 460-61, 548. And again contrary to the IJ’s
2 characterization, Ntwali did raise protected grounds for the
3 harm suffered by his family members: he testified that his
4 father was beaten and taken because he was Congolese and did
5 not want to help the Rwandan Patriotic Front, and he stated
6 that he believed that his brother was arrested for his
7 journalism and political work. CAR at 161-167, 184-85.
8 Although the agency made additional findings that Ntwali
9 does not challenge, those findings are insufficient ground to
10 uphold the adverse credibility determination because they
11 also contain errors. See Shunfu Li v. Mukasey, 529 F.3d 141,
12 146-47 (2d Cir. 2008). For example, the agency overstated
13 an inconsistency as to whether Ntwali’s father died or
14 disappeared, as Ntwali’s testimony as a whole reflects that
15 his father disappeared and was presumed dead. CAR at 161-
16 67, 176, 203, 195-96, 303-04, 505.
17 Corroboration
18 Nor do the agency’s corroboration findings provide an
19 independent basis for the denial of relief. Although the
20 agency may rely on a lack of corroboration to find that an
21 applicant failed to sustain his burden even absent an adverse
22 credibility determination, see 8 U.S.C. § 1158(b)(1)(B)(ii),
5 1 the agency did not sufficiently separate its corroboration
2 findings from its credibility findings, CAR at 114 (IJ finding
3 that Ntwali “failed to adequately corroborate his claim for
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17-768 Ntwali v. Barr BIA Montante, IJ A205 953 287 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 4th day of April, two thousand nineteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 PIERRE N. LEVAL, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 TITO NTWALI, 14 Petitioner, 15 16 v. 17-768 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Carlos E. Estrada, Boston, MA. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General, Civil Division; 27 Anthony C. Payne, Assistant 28 Director; Jessica D. Strokus, 29 Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is GRANTED.
5 Petitioner Tito Ntwali, a native and citizen of Rwanda,
6 seeks review of a February 24, 2017, decision of the BIA
7 affirming a June 3, 2015, decision of an Immigration Judge
8 (“IJ”) denying asylum, withholding of removal, and relief
9 under the Convention Against Torture (“CAT”). In re Tito
10 Ntwali, No. A205 953 287 (B.I.A. Feb. 24, 2017), aff’g No.
11 A205 953 287 (Immig. Ct. Buffalo June 3, 2015). We assume
12 the parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 We have reviewed the IJ’s decision as modified by the
15 BIA, minus the IJ’s findings that Ntwali failed to show a
16 nexus to a protected ground or establish a well-founded fear
17 of future persecution. See Xue Hong Yang v. U.S. Dep’t of
18 Justice, 426 F.3d 520, 522 (2d Cir. 2005). While the BIA did
19 not address all the IJ’s bases for finding Ntwali incredible,
20 it did not expressly reject the findings, and we have
21 therefore reviewed the entirety of the IJ’s adverse
22 credibility determination. See Xiu Xia Lin v. Mukasey, 534
2 1 F.3d 162, 166 (2d Cir. 2008) (“When the BIA agrees with an
2 IJ’s adverse credibility determination and adopts particular
3 parts of the IJ’s reasoning, we review the decisions of both
4 the BIA and the IJ.”).
5 The applicable standards of review are well established.
6 See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891
7 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse credibility
8 determination for substantial evidence); Chuilu Liu v.
9 Holder, 575 F.3d 193, 196 (2d Cir. 2009) (reviewing
10 corroboration determination under substantial evidence
11 standard).
12 Credibility
13 “Considering the totality of the circumstances, and all
14 relevant factors, a trier of fact may base a credibility
15 determination on . . . the consistency between the applicant’s
16 . . . written and oral statements . . . , the internal
17 consistency of each such statement, [and] the consistency of
18 such statements with other evidence of record . . . without
19 regard to whether an inconsistency, inaccuracy, or falsehood
20 goes to the heart of the applicant’s claim.” 8 U.S.C.
21 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We
22 defer . . . to an IJ’s credibility determination unless, from
3 1 the totality of the circumstances, it is plain that no
2 reasonable fact-finder could make such an adverse credibility
3 ruling.” Xiu Xia Lin, 534 F.3d at 167. However, “[w]here
4 an IJ relies on erroneous bases to reach an adverse
5 credibility determination, and ‘we cannot confidently predict
6 that the IJ would reach the same conclusion in the absence of
7 the[] deficiencies, the IJ’s adverse credibility
8 determination cannot stand.’” Hong Fei Gao, 891 F.3d at 77
9 (quoting Pavlova v. INS, 441 F.3d 82, 88 (2d Cir. 2006)). We
10 conclude that the errors in the agency’s findings underlying
11 the adverse credibility determination require remand.
12 We have identified the following errors in the agency’s
13 findings. Contrary to the IJ’s finding that Ntwali only once
14 mentioned torture, Ntwali referenced torture multiple times
15 in his application. Certified Administrative Record (“CAR”)
16 at 460-61, 548, 554. The IJ also erroneously found that the
17 country conditions evidence did not note any disappearances.
18 To the contrary, the State Department’s 2013 Human Rights
19 Report explicitly states that the Rwandan government engages
20 in politically motivated kidnapping. CAR at 385, 387, 392,
21 393. The IJ stated that Ntwali omitted his mother’s
22 disappearance from his application, when it was included.
4 1 CAR at 460-61, 548. And again contrary to the IJ’s
2 characterization, Ntwali did raise protected grounds for the
3 harm suffered by his family members: he testified that his
4 father was beaten and taken because he was Congolese and did
5 not want to help the Rwandan Patriotic Front, and he stated
6 that he believed that his brother was arrested for his
7 journalism and political work. CAR at 161-167, 184-85.
8 Although the agency made additional findings that Ntwali
9 does not challenge, those findings are insufficient ground to
10 uphold the adverse credibility determination because they
11 also contain errors. See Shunfu Li v. Mukasey, 529 F.3d 141,
12 146-47 (2d Cir. 2008). For example, the agency overstated
13 an inconsistency as to whether Ntwali’s father died or
14 disappeared, as Ntwali’s testimony as a whole reflects that
15 his father disappeared and was presumed dead. CAR at 161-
16 67, 176, 203, 195-96, 303-04, 505.
17 Corroboration
18 Nor do the agency’s corroboration findings provide an
19 independent basis for the denial of relief. Although the
20 agency may rely on a lack of corroboration to find that an
21 applicant failed to sustain his burden even absent an adverse
22 credibility determination, see 8 U.S.C. § 1158(b)(1)(B)(ii),
5 1 the agency did not sufficiently separate its corroboration
2 findings from its credibility findings, CAR at 114 (IJ finding
3 that Ntwali “failed to adequately corroborate his claim for
4 the same reasons as stated above,” i.e., in the credibility
5 analysis). As noted previously, the IJ mischaracterized the
6 country conditions evidence. And although the IJ likely had
7 the discretion to discount letters from Ntwali’s friends, the
8 IJ did not discuss other documentary evidence in the record,
9 which included medical records and a police report. See Y.C.
10 v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (deferring to
11 agency decision to afford little weight to an unsworn letter
12 from an interested witness); Jian Hui Shao v. Mukasey, 546
13 F.3d 138, 169 (2d Cir. 2008) (holding that agency does not
14 have to parse each piece of evidence, but must consider
15 evidence material to the claim raised).
16 Due Process
17 We find no merit to Ntwali’s due process claim. Ntwali,
18 who was counseled, had the opportunity to present evidence
19 and testify in support of his claim. See Burger v. Gonzales,
20 498 F.3d 131, 134 (2d Cir. 2007) (“To establish a violation
21 of due process, an alien must show that []he was denied a
22 full and fair opportunity to present h[is] claims or that [he
6 1 was] otherwise deprived . . . of fundamental fairness.”
2 (internal quotation marks and citations omitted). The record
3 reflects that he had notice of credibility requirements, and
4 there is no indication that his hearing was cut short or
5 rushed.
6 In conclusion, we remand due to errors in the adverse
7 credibility determination and the lack of an independent
8 corroboration ruling. We intimate no view as to the outcome
9 of the case on remand.
10 For the foregoing reasons, the petition for review is
11 GRANTED, the BIA’s decision is VACATED, and the case is
12 REMANDED for further proceedings consistent with this order.
13 As we have completed our review, any stay of removal that the
14 Court previously granted in this petition is VACATED, and any
15 pending motion for a stay of removal in this petition is
16 DISMISSED as moot. Any pending request for oral argument in
17 this petition is DENIED in accordance with Federal Rule of
18 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
19 34.1(b).
20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk of Court