Samuel Ishimwe v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 2, 2019
• Docket: 16-73005
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 02 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAMUEL ISHIMWE, No. 16-73005

Petitioner, Agency No. A099-461-896

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted May 16, 2019 Portland, Oregon

Before: N.R. SMITH, WATFORD, and R. NELSON, Circuit Judges.

Samuel Ishimwe petitions for review of the decision of the Board of

Immigration Appeals (“BIA”) denying his applications for asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”) based on the

immigration judge’s (“IJ”) adverse credibility determination. We have jurisdiction

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. under 8 U.S.C. § 1252. We grant Ishimwe’s petition and remand it to the BIA for

further review.

The BIA found no clear error in the IJ’s adverse credibility finding,

specifically identifying several of the IJ’s noted discrepancies. See Tekle v.

Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008) (limiting our review to “reasons

explicitly identified by the BIA”). The BIA did not identify any inconsistency that,

by itself, would support an adverse credibility finding. Rather, the BIA noted that

“the number of inconsistencies [was] problematic” and that “[w]hile some of [the

inconsistencies] standing alone may not support an adverse credibility finding, they

do support one under the totality of the circumstances.”1

The BIA relied on nine of the IJ’s adverse credibility findings. Of these

nine, seven were not supported by substantial evidence.

First, the BIA improperly relied on an inconsistency between Ishimwe’s

testimony and a transcript of the testimony of an anonymous witness (Witness

AAA), who testified in an unrelated criminal proceeding. As a general rule,

“Congress has provided that an alien in a deportation hearing must have ‘a

1 The IJ also recognized that some of the discrepancies were not enough on their own to support an adverse credibility finding, but “considering the totality of the circumstances,” the IJ concluded that Ishimwe’s testimony lacked the “requisite ring of truth.” The IJ similarly did not identify any discrepancy that, by itself, could support an adverse credibility finding. 2 reasonable opportunity to cross-examine witnesses presented by the government.’”

Saidane v. INS, 129 F.3d 1063, 1065 (9th Cir. 1997) (citation and alteration

omitted). The submission of this evidence was neither probative nor

fundamentally fair. See Sanchez v. Holder, 704 F.3d 1107, 1109 (9th Cir. 2012)

(per curiam). Further, the testimony of Witness AAA used to “impeach” Ishimwe

was not pertinent to Witness AAA’s testimony before the foreign tribunal. As the

government conceded, Witness AAA was not cross-examined with regard to the

number of people killed or the location of the bodies, because those facts were not

at issue.

Second, even if it were appropriate to use the testimony of Witness AAA,

the BIA erred in its conclusion that Witness AAA testified that Ishimwe’s nephew

killed the pastor. Witness AAA testified that the Interahamwe was behind the

killings but did not testify to specific names. Further, substantial evidence does not

support the asserted inconsistency with regard to whether Ishimwe knew who

killed the pastor, because the IJ and the BIA failed to provide “specific, cogent

reason[s]” for rejecting Ishimwe’s reasonable explanation. See Rizk v. Holder, 629

F.3d 1083, 1087-88 (9th Cir. 2011).

Third, substantial evidence does not support the BIA’s finding about why

Ishimwe was summoned by the Gacaca Court. The BIA relied on only one of the

3 IJ’s conclusions surrounding Ishimwe’s alleged inconsistent testimony regarding

the Gacaca Court: whether Ishimwe had ever been accused of killing the pastor.

Although Ishimwe was confronted, neither the IJ nor the BIA addressed Ishimwe’s

explanation that being “answerable” for the pastor’s death was equivalent to being

asked for information on who killed the pastor; not that he, himself, was personally

being accused of the murder. The failure to consider Ishimwe’s explanation was

error. See Soto–Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir. 2009).

Fourth, substantial evidence does not support the BIA’s finding that there

was an inconsistency with regard to why Ishimwe claimed he was targeted by Tutsi

soldiers. Ishimwe stated in both his asylum application and his testimony that he

was targeted because he was Hutu, educated, and wealthy, and because he helped

with the pastor’s burial. Thus, there was no inconsistency.

Fifth, substantial evidence does not support the BIA’s finding that Ishimwe

was inconsistent with regard to how he and his family fled their home in March

2006. Notably, it is difficult to determine whether his testimony was inconsistent

with his asylum application. In his asylum application, he asserted that he and his

family all fled in different directions. Similarly, in his testimony, when he was

asked whether he and his family all went to “the neighbor’s house,” he responded

that they went to “neighbors’ places.” However, upon further questioning,

4 Ishimwe only named one neighbor. Although he was confronted about this

perceived inconsistency (whether they all fled to the same neighbor or different

neighbors), Ishimwe never offered an explanation other than repeating his claim

that he went to one neighbor and his family went to other neighbors. See Quan v.

Gonzales, 428 F.3d 883, 886 (9th Cir. 2005) (finding an IJ’s adverse credibility

determination unsupported by substantial evidence where “there was no true

inconsistency”).

Sixth, although the record supports the BIA’s finding that Ishimwe failed to

testify on direct examination that the Tutsi soldiers showed him a grenade when

they broke into his home, this finding (under the circumstances) is trivial. See Ren

v. Holder, 648 F.3d 1079, 1085 (9th Cir. 2011) (noting that we “must take into

account the totality of the circumstances, and should recognize that the normal

limits of human understanding and memory may make some inconsistencies or

lack of recall present in any witness’s case”) (alterations and quotation marks

omitted). Relevant here is that Ishimwe testified consistently that the Tustsi

soldiers left a grenade in front of his home after they broke in to the house.

Whether they showed him the grenade prior to leaving it does not enhance

Ishimwe’s claim. When Ishimwe was confronted with the omission, Ishimwe

confirmed that they showed him a grenade when they broke in to the house.

5 Seventh, substantial evidence does not support the BIA’s determination that

Ishimwe’s omission (that he fled to his mother’s house prior to fleeing to the

Congo) was significant. In Ishimwe’s asylum application, he asserted after he and

his family were attacked in April 1994, he decided to flee to the Congo. In his

testimony before the IJ, he detailed his flight to the Congo, which included a two-

to-three-month stay at his mother’s home before he left for the Congo. When

confronted with this omission, Ishimwe provided a confused explanation.

Although Ishimwe’s explanation was not clear, the omission was a “collateral

detail[]” of how he fled Rwanda; it’s inclusion in his testimony did not create a

“much different—and more compelling—story of persecution than his initial

application.”2 Zamanov v. Holder, 649 F.3d 969, 973–74 (9th Cir. 2011). Thus,

the omission “is insufficient to uphold an adverse credibility finding.”

Silva-Pereira v. Lynch, 827 F.3d 1176, 1185 (9th Cir. 2016) (internal quotation

marks omitted).

Finally, substantial evidence may support the BIA’s conclusion that Ishimwe

was inconsistent with regard to how his sister-in-law and her children were killed

and his location during these events. Generally, we deny a petition if a single

2 Neither the IJ nor the BIA suggested that this omission in detail was material or an attempt to enhance his claim of persecution. 6 ground is supported by substantial evidence. Rizk, 629 F.3d at 1087. However,

because these two findings do not go to the heart of the matter and are unrelated to

his personal claims of persecution (save for general persecution against Hutu

people) and because the BIA and the IJ relied on “the number of inconsistencies”

and stated that some of the inconsistencies alone would not support an adverse

credibility finding, we do not know how the BIA would evaluate these two

remaining claims in light of the totality of the circumstances. Thus, we cannot

conduct a meaningful review of the BIA’s decision, see Delgado v. Holder, 648

F.3d 1095, 1107–08 (9th Cir. 2011) (en banc), and therefore remand to the BIA to

determine whether these two remaining inconsistencies continue to support an

adverse credibility finding under the totality of the circumstances.

PETITION FOR REVIEW GRANTED; REMANDED.

7 FILED Ishimwe v. Barr, 16-73005 JUL 2 2019 R. NELSON, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

I respectfully dissent. I would deny Ishimwe’s petition because substantial

evidence supports at least four of the IJ’s adverse credibility findings relied upon

by the BIA.

The panel majority concluded that two of the inconsistencies were supported

by substantial evidence. Because, according to the panel majority, those

inconsistencies did not go to the heart of Ishimwe’s claim and were unrelated to his

personal claims of persecution, the panel remanded. However, under the REAL ID

Act, which applies here, an inconsistency may serve as the basis for an adverse

credibility determination without regard to whether the inconsistency goes to the

heart of the claim. 8 U.S.C. § 1158(b)(1)(B)(iii). The inconsistencies at issue,

even those with which the majority agrees, are not “mere trivial error[s] such as a

misspelling,” Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010) (citation

omitted), “typographical errors[,] or inconsistencies in specific dates and times,”

Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011). As such, the inconsistencies

identified by the panel majority warrant denial of the petition.

First, the panel agrees Ishimwe gave contradictory accounts of the deaths of

his sister-in-law and her family. Regardless of whether these inconsistencies go to

the heart of Ishimwe’s claim (which is not required), they are deeply troubling: his

1 application states they were “massacred [] with bullets” and those who did not die

immediately “were smashed with hoes” by Tutsi soldiers, yet he testified that Tutsi

soldiers killed them by burning down the house in which they were gathered.

When confronted with this inconsistency, Ishimwe responded, “the point is that

they died.” Ishimwe was also inconsistent as to his location during these events.

The panel majority also found a third inconsistency supported by the record

but found it “trivial.” Ishimwe’s application states that Tutsi soldiers “broke the

glasses of the window of my bed room and showed me a grenade, I, my wife and

children screamed for assistance then by the grace of God they left. That night

they left the grenade in front of my home.” When testifying, he stated the soldiers

“did not come into my house” and that he discovered the grenade “[i]n the morning

when we woke up.”

This inconsistency was not trivial; it relates to the basis for his claim of

persecution. See Singh v. Gonzales, 439 F.3d 1100, 1108 (9th Cir. 2006) (“An

inconsistency goes to the heart of a claim if it concerns events central to

petitioner’s version of why he was persecuted and fled.”). Even assuming, as the

panel did, that a direct confrontation in which soldiers show him a grenade while

his family screams does not enhance a claim of persecution when compared to

discovering a grenade the following morning, inconsistencies that do not enhance a

claim of persecution are still relevant to a credibility determination when

2 accompanied by a pattern of inconsistency. See Don v. Gonzales, 476 F.3d 738,

742 (9th Cir. 2007); Kaur v. Gonzales, 418 F.3d 1061, 1067 (9th Cir. 2005)

(“[W]hen inconsistencies that weaken a claim for asylum are accompanied by

other indications of dishonesty—such as a pattern of clear and pervasive

inconsistency or contradiction—an adverse credibility determination may be

supported by substantial evidence.”).

Additionally, Ishimwe was inconsistent about his knowledge of who killed

Pastor Amon. He initially testified several times that he did not know who killed

Pastor Amon. When later confronted with a document showing that his brother

was charged with participating in the murder, Ishimwe revealed he was told in

1994 that his nephew participated in the murder of Pastor Amon. He confirmed

that he and his brother both believed this to be true. When confronted with this

inconsistency and asked why he did not mention this when asked earlier, Ishimwe

stated that he didn’t know “whether he’s the one that did it, but he was in the group

which went there.”

The IJ considered Ishimwe’s “explanation for the inconsistency,” and

“considered [it when] weighing credibility,” Shrestha, 590 F.3d at 1044 (citations

omitted), but found he “did not provide a sufficient explanation as to why he

initially failed to share this information with the Court when asked about the

identify of Pastor Amon’s killer.” However, the panel majority found that “the IJ

3 and BIA failed to provide ‘specific, cogent reason[s]’ for rejecting Ishimwe’s

reasonable explanation.”

As this additional inconsistency was yet another specific and cogent

example offered in support of the IJ’s adverse credibility determination, the IJ’s

limited discussion why Ishimwe’s explanation was insufficient does not render the

determination unsupported. See Rizk, 629 F.3d at 1088 (“[T]he requirement of a

reasoned decision in federal sentencing cases depends on the context of each

individual case and that ‘[t]he appropriateness of brevity or length, conciseness or

detail, when to write, what to say, depends on the circumstances.’” (describing the

holding in Rita v. United States, 551 U.S. 338, 356–59 (2007))). “An IJ is not

obliged to provide a protracted written or oral analysis of the alien’s proffered

explanation,” id. at 1088, nor does “[t]he obligation to provide a specific, cogent

reason for a negative credibility finding [] require the recitation of unique or

particular words,” de Leon-Barrios v. I.N.S., 116 F.3d 391, 394 (9th Cir. 1997).

We should have denied Ishimwe’s petition and upheld the IJ’s adverse

credibility determination. See 8 U.S.C. § 1252(b)(4)(B) (“[A]dministrative

findings of fact are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.”). I disagree with the panel majority’s

statement that we do not know how the BIA would evaluate the two findings that it

did find supported in the absence of the other seven. The BIA noted that “[w]hile

4 some of these matters standing alone may not support an adverse credibility

finding, they do support one under the totality of the circumstances.” (Emphasis

added). The panel majority wrongly states the BIA found some inconsistencies

alone “would not” support an adverse credibility finding. Even under the panel’s

view, substantial evidence supports two of the adverse credibility findings (and

others are supported by substantial evidence)—neither finding stands alone.

This is sufficient to deny the petition. This court “must uphold the IJ’s

adverse credibility determination so long as even one basis is supported by

substantial evidence.” Rizk, 629 F.3d at 1088, 1089 (emphasis added) (focusing on

only “one of the key contradictions the IJ identified”); see also Lianhua Jiang v.

Holder, 754 F.3d 733, 738–39 (9th Cir. 2014) (finding one of the inconsistencies

relied upon by the BIA sufficient to uphold the IJ’s adverse credibility finding and

noting “we need not comment on the remaining grounds cited”).