Hong Vo v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 21 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HONG T. VO, AKA Hong Thi Vo, No. 19-72333
Petitioner, Agency No. A215-818-865
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 9, 2020
Pasadena, California
Before: PAEZ and BADE, Circuit Judges, and ZOUHARY,** District Judge.
Dissent by Judge BADE
Hong Vo, a citizen of Vietnam, petitions for review of a decision of the Board
of Immigration Appeals (“BIA”) dismissing her appeal from the order of an
Immigration Judge (“IJ”) denying an application for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
jurisdiction under 8 U.S.C. § 1252 and grant the petition.
Under the REAL ID Act, we review BIA legal determinations without
deference and BIA factual findings for substantial evidence. Bringas-Rodriguez v.
Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc). Substantial-evidence
review is “highly deferential,” meaning a finding will be reversed “only if the
evidence compels a contrary conclusion.” Angov v. Lynch, 788 F.3d 893, 898, 900
(9th Cir. 2015) (internal quotation marks omitted). “Because the BIA conducted its
own review and did not adopt the IJ’s decision, our review is limited to the BIA’s
decision.” Bringas-Rodriguez, 850 F.3d at 1059 (internal quotation marks omitted).
However, we may consider the IJ’s underlying decision “as a guide to what lay
behind the BIA’s conclusion[s].” Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir.
2010) (citation omitted).
The BIA affirmed the IJ’s adverse credibility determination based on three
inconsistencies: (1) the date of Vo’s second arrest; (2) whether Vo’s mother was
present at the police station after her initial release; and (3) Vo’s failure to disclose,
prior to her hearing before the IJ, allegations of sexual assault by Vietnamese police.
Substantial evidence does not support these inconsistencies as grounds for an
adverse credibility determination.
1. First, the BIA found Vo’s testimony that she left detention and went
home with her mother to be inconsistent with her statement to the asylum officer.
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During Vo’s asylum interview, the following exchange took place:
Q: How were you released?
A: On the morning of the 13th, they interviewed me one more time
and then they released me and I have to find my way home by
myself.
Reliance on an inconsistency (which may not be inconsistent at all) related to
such a peripheral detail ignores the reality that Vo was arrested and released several
times within a period of days. See Ren v. Holder, 648 F.3d 1079, 1085–86
(9th Cir. 2011) (noting that abuse victims “often confuse the details of particular
incidents, including the time or dates of particular assaults and which specific actions
occurred on which specific occasion”) (citation omitted); see also Shrestha, 590 F.3d
at 1044 (noting “trivial inconsistencies that under the total circumstances have no
bearing on a petitioner’s veracity should not form the basis of an adverse credibility
determination”).
The BIA also noted that Vo first testified her mother came to her holding cell,
but later clarified that her mother actually met her at “the gate where [she] was
detained.” But again, this slip-up hardly undermines Vo’s account of her repeated
arrests and violent interrogations. See Ren, 648 F.3d at 1087 (“[T]he mistakes that
witnesses make in all innocence must be distinguished from slips that, whether or
not they go to the core of the witness’s testimony, show that the witness is a liar or
[her] memory completely unreliable.”) (citation omitted).
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2. Vo’s declaration states she was arrested a second time “on
approximately June 17, 2018,” but she testified before the IJ that the second arrest
took place on June 26, 2018. Such a minor discrepancy, which does not enhance
Vo’s claim of persecution, is an insufficient basis for an adverse credibility
determination. See id. at 1085–86.
3. Vo also testified that, during the second detention, Vietnamese police
touched her breast. When the IJ asked Vo why she did not previously reveal the
allegation in her asylum interview or declaration, Vo indicated she feared for her
mother’s safety in Vietnam: “Because if I say so my mom will go up there and
complain and then they will hit my mom. They will beat my mom.” The IJ then
asked Vo how her mother, who was in Vietnam, would learn of the contents of her
declaration. Vo explained she feared her family in the United States would receive
the declaration and inform her mother.
Vo’s omission of the assault does not support the adverse credibility
determination for three reasons. First, Vo’s failure to disclose the sexual assault
prior to her hearing testimony was not a true inconsistency but rather a further
elaboration of the abuse she suffered in custody. Cf. Kin v. Holder, 595 F.3d 1050,
1057 (9th Cir. 2010) (upholding an adverse credibility finding where the petitioners
“omitted any mention of their participation in a demonstration that is the entire basis
for their claim”) (emphasis added). Second, the BIA relied on the IJ’s finding that
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Vo’s “omission of such a significant fact [was] not reasonable, just because she
hadn’t told anybody before.” That is not a proper basis for an adverse credibility
determination. “We have previously held that the assumption that the timing of a
victim’s disclosure of sexual assault is a bellwether of truth is belied by the reality
that there is often delayed reporting of sexual abuse.” Mousa v. Mukasey, 530 F.3d
1025, 1027 (9th Cir. 2008) (internal quotation marks omitted). Finally, the BIA
found that “[Vo] could not explain how her family would gain access to the
information outlined in her declaration and asylum application.” But this finding
has no basis in the record; the IJ never asked Vo to explain how her family in
America would obtain her declaration. Therefore, the alleged inconsistency cannot
serve as substantial evidence for finding Vo not credible. See Soto-Olarte v. Holder,
555 F.3d 1089, 1091–92 (9th Cir. 2009) (holding that “inconsistencies cannot serve
as substantial evidence for a finding [of adverse credibility] . . . when neither the IJ
nor the BIA addressed [the applicant’s] explanation in a reasoned manner”) (internal
quotation marks omitted); Shrestha, 590 F.3d at 1044, 1046.
For these reasons, we grant the petition and remand to the agency to reconsider
Vo’s credibility and, if warranted, her eligibility for asylum, withholding, and relief
under CAT. The Government shall bear the costs on appeal.
PETITION FOR REVIEW GRANTED; REMANDED.
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FILED
Vo v. Barr, No. 19-72333 AUG 21 2020
MOLLY C. DWYER, CLERK
BADE, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I respectfully dissent. The agency’s “credibility determinations are findings
of fact,” Rizk v. Holder, 629 F.3d 1083, 1087 (9th Cir. 2011), that “are conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary,” id. (quoting 8 U.S.C. § 1252(b)(4)(B)). In my view, substantial
evidence supports two of the bases relied upon by the BIA in affirming the IJ’s
determination that Vo was not credible. Because Vo fails to point to evidence
sufficient to support her applications in the absence of her credible testimony, I
would deny the petition. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.
2003).
1. Although the “mere omission of details [in an asylum application] is
insufficient to uphold an adverse credibility finding,” Silva-Pereira v. Lynch, 827
F.3d 1176, 1185 (9th Cir. 2016) (quoting Lai v. Holder, 773 F.3d 966, 971 (9th Cir.
2014)), the agency can make such a finding based on “omissions that are not
‘details,’ but new allegations that tell a ‘much different—and more compelling—
story of persecution than the initial application.’” Id. (brackets omitted) (quoting
Zamanov v. Holder, 649 F.3d 969, 974 (9th Cir. 2011)). That is what happened here.
In her testimony before the IJ, Vo added an entirely new allegation of
persecution by the Vietnamese police that she had omitted from her sworn statement,
her credible fear interview, and the declaration that she prepared with her attorney
and submitted to support her asylum application. For the first time, she alleged that
one of the officers commented that she was likely a virgin and squeezed her breast.
By adding this new allegation of sexual assault, Vo undoubtedly provided a “more
compelling . . . story of persecution.” Id. As we have recognized quite correctly,
sexual assault may constitute persecution on its own. See, e.g., Garcia-Martinez v.
Ashcroft, 371 F.3d 1066, 1072 (9th Cir. 2004). By including these allegations in her
testimony, but not in her sworn statement, her credible fear interview, or her
declaration, Vo created a more compelling account of persecution at the hearing.
The agency was within its bounds to rely on this inconsistency to find Vo not
credible. Silva-Pereira, 827 F.3d at 1185.
I disagree with the majority’s reasons for rejecting the agency’s finding. To
my knowledge, we have never announced a rule that the omission of a sexual assault
allegation cannot support an adverse credibility determination. Instead, we have
held that the agency should excuse such an omission when the petitioner “provide[s]
a compelling explanation for her failure to mention her [sexual assault] at an earlier
time in the proceedings.” Mousa v. Mukasey, 530 F.3d 1025, 1028 (9th Cir. 2008).
For example, substantial evidence might not support an adverse credibility finding
if the evidence demonstrated a “cultural reluctance to admit the fact that it had
occurred.” Id.; see also Paramasamy v. Ashcroft, 295 F.3d 1047, 1053 (9th Cir.
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2002) (“[The petitioner] provided a strong, unrebutted explanation for her reluctance
to reveal details—her cultural reluctance to tell male interviewers that she had been
violated.”). Vo did not provide a compelling explanation here.
Moreover, the agency offered a more-than-sufficient basis for rejecting the
explanations Vo did offer. As it noted, Vo’s omission was troubling because, “as
opposed to the interviews at the border and with the [asylum officer],” Vo submitted
her declaration after “careful preparation with her attorney.” When questioned by
the IJ about the omission, Vo explained: (1) she thought she could “present and say
that at court,” (2) she had never told anyone before, and (3) that she didn’t want her
mother to know. The agency rejected each explanation. As the IJ found, Vo’s
explanations did not account for such a significant omission, particularly in the
context of her “careful[ly] prepar[ed]” declaration. And the BIA elaborated further,
stating that Vo’s explanations that “she was afraid that her mother and family may
find out about the incident” and that “she thought she did not need to detail this
incident” were not reasonable because of the detailed nature of her declaration.1
Even if these explanations were plausible, the agency did not unreasonably reject
them. See Zamanov, 649 F.3d at 974; see also Kin v. Holder, 595 F.3d 1050, 1057
1
In contrast to my colleagues’ interpretation of the record, the agency did
not conclude that Vo’s omissions were unreasonable “just because she hadn’t told
anybody before.” Rather, the agency found that Vo’s explanation for the
omission—that “she hadn’t told anybody before”—was not reasonable in light of
the detailed nature of the rest of her affidavit.
3
(9th Cir. 2010) (concluding that the petitioner’s explanation that he believed a
particular incident would be discussed at a hearing was “not persuasive enough to
compel the conclusion that the omissions [from his asylum application] were
immaterial”).
2. I also would conclude that substantial evidence supports the agency’s
adverse credibility determination based on the inconsistencies between Vo’s
statements at her credible fear interview and her hearing testimony about the
presence of her mother at the police station following her initial release from
custody. As the agency recounted, Vo’s testimony about her mother at her hearings
was very detailed. She testified that (1) her mother came to the police station and
begged for her release every day, (2) her mother filled out paper work at another
location, (3) her mother came to her cell, (4) her mother didn’t come to her cell, (5)
her mother was waiting for her outside, (6) her mother took her home, and (7) the
police gave her mother two options: “go back to where I was” or “stay in the city of
Ho Chi Minh.” But a few months earlier at her credible fear interview, Vo made no
mention of her mother’s presence when she was released from custody and instead
said she went home alone. When asked to explain these inconsistent statements, Vo
stated she did not remember her mother was there when she was released after the
first arrest. The agency rejected this explanation as implausible.
Given the detailed testimony she provided about her mother at the hearings,
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which conflicted with her statements at her credible fear interview, I would find that
substantial evidence supported the agency’s conclusion. Moreover, this is not a case
in which petitioner was asked to testify in detail about events that occurred long ago;
Vo’s credible fear interview occurred approximately six months after her initial
arrest in Vietnam and she testified before the IJ only a few months after her credible
fear interview. Thus, I cannot conclude that the record compels a conclusion
contrary to the agency’s.
***
When reviewing adverse credibility determinations, our role is not to stand in
the shoes of the BIA or IJ. Instead, we must ask whether the record compels a
conclusion contrary to the agency’s. I cannot say that it does. For that reason, I
dissent.
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