Ngassaki v. Holder , 538 F. App'x 28 ( 2013 )

12-2430
Ngassaki v. Holder
BIA
Montante, IJ
A088 935 706
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 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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 13th day of September, two thousand thirteen.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 ROMAIN CHRYSOSTOME NGASSAKI,
14 Petitioner,
15
16 v. 12-2430
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Lauris Wren, Hofstra Law School
24 Asylum Clinic, Hempstead, NY
25
26 FOR RESPONDENT: Stuart F. Delery, Principal Deputy
27 Assistant Attorney General; Jennifer
28 Lightbody, Senior Litigation
29 Counsel; Aimee J. Carmichael, Trial
30 Attorney, United States Department
31 of Justice, Washington, D.C.
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 and the case REMANDED to the BIA.
5 Petitioner Romain Chrysostome Ngassaki, a native and
6 citizen of the Republic of Congo, seeks review of a May 22,
7 2012, decision of the BIA affirming the June 28, 2010,
8 decision of Immigration Judge (“IJ”) Philip J. Montante,
9 which denied his motion to transfer venue to New York, NY
10 and his application for asylum, withholding of removal, and
11 relief under the Convention Against Torture (“CAT”). In re
12 Romain Chrysostome Ngassaki, No. A088 935 706 (B.I.A. May
13 22, 2012), aff’g No. A088 935 706 (Immig. Ct. Buffalo June
14 28, 2010). We assume the parties’ familiarity with the
15 underlying facts and procedural history in this case.
16 Under the circumstances of this case, we have reviewed
17 the IJ’s decision as modified by the BIA. See Yan Chen v.
18 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the
19 denial of a motion to change venue for abuse of discretion.
20 See Monter v. Gonzales, 430 F.3d 546, 558-59 (2d Cir. 2005);
21 Lovell v. INS, 52 F.3d 458, 460 (2d Cir. 1995). We find an
22 abuse of discretion here.
2
1 Ngassaki argues that the BIA abused its discretion
2 because it: (1) relied on a non-existent holding by the IJ;
3 (2) erroneously found that there was no good cause for the
4 transfer; and (3) erroneously found that he was not
5 prejudiced by the denial. First, the BIA’s conclusion that
6 the IJ did not err in rejecting Ngassaki’s motion to
7 transfer venue for failure to follow the rules relies on the
8 IJ’s finding as to Ngassaki’s April 2009 motion, not his
9 subsequently filed July 2009 motion upon which his appeal
10 was based. Although a mischaracterization of the record may
11 not constitute an abuse of discretion where it is clear that
12 the BIA thoroughly reviewed the record and determined, in a
13 sufficient exercise of discretion, that a venue transfer was
14 not warranted, see Lovell, 52 F.3d at 460, there is no
15 indication that the BIA made such a thorough review of the
16 record before upholding the denial of venue transfer.
17 Even assuming, however, that the BIA did consider the
18 good cause factors, its conclusion that those factors failed
19 to establish good cause constitutes an abuse of discretion.
20 See Monter, 430 F.3d at 559; Lovell, 52 F.3d at 461.
21 Similar to Monter, Ngassaki has shown that he resided in the
22 desired venue along with all of his witnesses and his
3
1 counsel, who was unable to represent him in the original
2 venue. Moreover, he has demonstrated that the government
3 did not oppose the transfer. Finally, as to prejudice, the
4 agency’s conclusory finding that “there was no due process
5 violation” is insufficiently detailed for us to review its
6 findings and therefore constitutes an abuse of discretion.
7 “When faced with cursory, summary or conclusory statements
8 from the BIA, we cannot presume anything other than . . . an
9 abuse of discretion, since the BIA’s denial of relief can be
10 affirmed only the basis articulated in the decision . . .
11 and we cannot assume that the BIA considered factors that it
12 failed to mention in its decision.” Anderson v. McElroy,
13 853 F.2d 803, 806 (2d Cir. 1992)(citations and quotations
14 omitted); see also Ke Zhen Zhao v. U.S. Dep’t of Justice,
15 265 F.3d 83, 93 (2d Cir. 2001) (“An abuse of discretion may
16 be found . . . where the [BIA’s] decision . . . is devoid of
17 any reasoning, or contains only summary or conclusory
18 statements . . . .”).
19 Nor can we be confident that Ngassaki suffered no
20 prejudice, given the effect that the denial of the venue
21 transfer may have had on the IJ’s credibility determination.
22 Specifically, the BIA upheld the credibility determination
4
1 primarily due to inconsistencies between Ngassaki’s
2 testimony and that of his witnesses, who appeared only by
3 telephone or affidavit. The location of the proceedings
4 thus may have affected the adverse credibility
5 determination. This concern is particularly acute given the
6 IJ’s statements questioning the credibility of a critical
7 witness - including his concerns that she was relying on
8 documentation rather than speaking from memory during her
9 telephonic testimony - and unavailability of other
10 witnesses. Because we cannot know whether the credibility
11 determination would survive the BIA’s review if all
12 appropriate factors were fully considered, we remand to
13 allow the BIA to determine in the first instance whether
14 Ngassaki was prejudiced by the arbitrary denial of the
15 requested change of venue.
16 For the foregoing reasons, the petition for review is
17 GRANTED and the proceedings remanded to the BIA for further
18 consideration of the motion to change venue and for any
19 additional necessary proceedings consistent with this order.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
5