Pabrigui Kaga v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 24, 2021
• Docket: 18-72341
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 24 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PABRIGUI P. KAGA, No. 18-72341

Petitioner, Agency No. A213-089-423

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted May 3, 2021 Pasadena, California

Before: KLEINFELD, WARDLAW, and GOULD, Circuit Judges.

Pabrigui Kaga petitions for review of the Board of Immigration Appeals’

decision denying his application for asylum, withholding of removal, and

protection under the Convention Against Torture, and denying his motion to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. reopen on the basis of ineffective assistance of counsel. We grant the petition and

remand for proceedings consistent with this disposition.

Substantial evidence does not support the Board’s adverse credibility

determination. The Board relied on inconsistencies between Kaga’s testimony and

the State Department Country Report concerning the date of Kaga’s arrest and

when the Red Cross visited him in prison, but these inconsistencies are manifestly

trivial. See Ren v. Holder, 648 F.3d 1079, 1085–86 (9th Cir. 2011). Moreover,

there is no reason to think that the Country Report writer focused on the details of

this kitchen worker’s arrest and imprisonment. Kaga testified almost nine years

after his arrest, and “[t]he ability to recall precise dates of events years after they

happen is an extremely poor test of how truthful a witness’s substantive account

is.” Singh v. Gonzales, 403 F.3d 1081, 1090–91 (9th Cir. 2005).

The Board also relied on an inconsistency between Kaga’s testimony and the

Country Report concerning whether Togo’s military retaliated against him for

challenging his unlawful imprisonment. That supposed “inconsistency” is between

what Kaga says the military did and what Togo’s constitution and laws say they

should have done. It cannot be assumed that Togo’s military obeys those laws, and

the same report notes rampant corruption and abuses of authority within Togo’s

security forces.

2 Finally, the Board relied on an inconsistency between Kaga’s testimony that

he was never charged with a crime and a State Department report describing

charges brought against other people arrested along with Kaga. But the report does

not clearly state that everyone arrested was charged with a crime, nor does it

reference Kaga.

Considering the totality of the circumstances, substantial evidence does not

support the conclusion that Kaga did not testify credibly. See Ren, 648 F.3d at

1084–85.1

GRANTED and REMANDED.

1 The Board also applied the wrong legal standard when it denied Kaga’s motion to reopen on the basis of ineffective assistance of counsel. To show prejudice, an alien must show that his counsel’s inadequate performance “may have affected the outcome of the proceedings.” Iturribarria v. I.N.S., 321 F.3d 889, 900 (9th Cir. 2003) (quoting Ortiz v. I.N.S., 179 F.3d 1148, 1153 (9th Cir. 1999)). He need not make out a prima facie case for relief—he must merely demonstrate that his “asserted ground for relief is at least plausible.” Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir. 2015) (citing Morales Apolinar v. Mukasey, 514 F.3d 893, 898 (9th Cir. 2008)). The evidence that Kaga submitted in support of his motion corroborates his testimony concerning the date of his arrest, explains the strange phraseology in the statements from his wife, brother, and coworker, and resolves the inconsistency between his testimony and his wife’s statement. If Kaga’s attorney had properly submitted this evidence, it may have affected the outcome of the proceedings. 3