Falilou Gaston Bonnaire v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 19 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FALILOU GASTON BONNAIRE, AKA No. 17-72966
Falilou Bonnaire,
Agency No. A209-870-023
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 15, 2020**
San Francisco, California
Before: FRIEDLAND and BENNETT, Circuit Judges, and RAKOFF,*** District
Judge.
Petitioner Falilou Gaston Bonnaire (“Bonnaire”), a native and citizen of
Senegal, petitions for review of a decision of the Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
(“BIA”) affirming the decision of an Immigration Judge (“IJ”) denying Bonnaire’s
applications for withholding of removal and relief under the Convention Against
Torture (“CAT”) based on an adverse credibility determination.1 We have
jurisdiction under 8 U.S.C. § 1252. Reviewing questions of law de novo and the
agency’s factual findings for substantial evidence, Bhattarai v. Lynch, 835 F.3d
1037, 1042 (9th Cir. 2016), we grant the petition for review.
The IJ deemed Bonnaire not credible because (1) he gave some “vague and
non-responsive” answers when cross-examined, and (2) the letters of support he
submitted from his mother and brother did not corroborate certain aspects of his
testimony. The BIA affirmed the IJ’s adverse credibility finding and identified
five specific instances of what the BIA characterized as Bonnaire’s non-
responsiveness. Because “the BIA reviewed the IJ’s credibility-based decision for
clear error and ‘relied upon the IJ’s opinion as a statement of reasons’ but ‘did not
merely provide a boilerplate opinion,’” we “review here the reasons explicitly
identified by the BIA, and then examine the reasoning articulated in the
IJ’s . . . decision in support of those reasons.” Lai v. Holder, 773 F.3d 966, 970
(9th Cir. 2014) (quoting Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008)).
1. Substantial evidence does not support the BIA’s conclusion that Bonnaire
lacked credibility. Two of the five instances that the BIA characterized as non-
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Bonnaire does not challenge the BIA’s denial of his application for asylum.
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responsive were attributable to technical problems with the videoconference by
which Bonnaire’s hearing was conducted.2 First, when Bonnaire was asked how
long he had been in a particular relationship, the interpreter conveyed Bonnaire’s
response as “27 – 22 until I was 28.” But when Government counsel asked
Bonnaire to confirm that answer, he immediately clarified: “The interpreter might
have . . . misheard me, but I said I was 21 until I turned 22.” “[I]nconsistencies in
testimony that possibly resulted from mistranslation or miscommunication do not
support an adverse credibility finding.” Perez-Lastor v. I.N.S., 208 F.3d 773, 781
(9th Cir. 2000).
Second, when Bonnaire was asked whether he had attended a Muslim
naming ceremony—a basic fact about which he had testified consistently
throughout his proceedings—the transcript’s initial indication that he gave “[No
audible response]” before answering “Yes” was plainly a reflection of a delay in
the videoconference transmission. Indeed, when the transcript recorded “[No
audible response]” from Bonnaire with respect to another question earlier in the
hearing, the interpreter explained to the IJ, “I think there’s a delay in [the
transmission].”
As to the third instance characterized as non-responsive by the BIA,
2
Bonnaire appeared pro se at the hearing via videoconference from an
immigration detention center, and the transcript indicates that the hearing
participants had difficulty hearing each other throughout.
3
Bonnaire took some time in answering a question about the name of the hospital to
which he was taken after he was stabbed by his father. But he later provided an
explanation for his delayed response—that he remembered only the colloquial
name of the hospital, and was trying to recall “the exact name on the papers, the
official name.” The agency did not address that seemingly plausible explanation,
which was error. See Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011).
The fourth instance characterized as non-responsive by the BIA was the
result of Bonnaire’s being asked a confusing question about a supposed
inconsistency between two statements that were not actually inconsistent. During
his credible fear interview, when asked whether he had reported his stabbing to the
police, Bonnaire responded that he had not, but that the police had interviewed him
nonetheless. During his hearing, Bonnaire explained that the police had spoken to
him because his mother reported the stabbing. Although these two statements were
not contradictory, Government counsel pressed Bonnaire on why he had not
specified at his credible fear interview that it was his mother who had called the
police. Instead of answering that question directly, Bonnaire repeated that he had
not personally contacted the police, and that it was his mother’s report that had
prompted the police to interview him. This attempt by Bonnaire to explain that his
statements were consistent was not a refusal to respond, but rather reflected the
confusing question he was asked. See Shrestha v. Holder, 590 F.3d 1034, 1044
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(9th Cir. 2010) (instructing that “an adverse credibility determination must be
assessed under a rule of reason” that “recognize[s] . . . the normal limits of human
understanding”).
Finally, we agree with the BIA that Bonnaire’s fifth cited answer was
initially non-responsive, but because he then answered the question, we conclude
that this one instance was not actually an example of non-responsiveness when
viewed in context. Bonnaire gave an answer that was a non sequitur when first
asked how his father would find out if Bonnaire were to be deported to Senegal.
When the question was repeated, however, he provided a fully responsive answer.
This was not an “instance of blatant and unexplained unresponsiveness.” See id. at
1045.
2. The second rationale the BIA provided for its adverse credibility
determination—that Bonnaire failed to produce evidence corroborating certain
aspects of his testimony—was also erroneous. “[A]n IJ cannot articulate for the
first time in her decision denying relief that key corroborative evidence is
missing.” Bhattarai, 835 F.3d at 1043. Yet that is precisely what the IJ did here.
The IJ gave Bonnaire no indication that the letters from his family lacked certain
corroborating details before issuing the decision denying his claims. As a result,
Bonnaire was not given “notice of the corroboration that [was] required and an
opportunity either to produce the requisite corroborative evidence or to explain
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why that evidence [was] not reasonably available.” Ren v. Holder, 648 F.3d 1079,
1093 (9th Cir. 2011).3
We reject the Government’s contention that the IJ’s error was rendered
harmless because Bonnaire “was given an opportunity to explain” the omissions in
his family’s letters when he appealed to the BIA. Bonnaire was entitled not just to
an opportunity to explain the omissions, but also to “an opportunity . . . to produce
the requisite corroborative evidence.” Id. at 1093 (emphasis added). And it is the
IJ, not the BIA, that would need to evaluate any additional evidence from Bonnaire
and make corresponding findings about the strength of his claims in the first
instance. See Vitug v. Holder, 723 F.3d 1056, 1063 (9th Cir. 2013); see also 8
C.F.R. § 1003.1(d)(3)(iv) (“[T]he Board will not engage in factfinding in the
course of deciding appeals.”).
“Because the BIA and IJ’s non-corroboration reasons for the adverse
credibility determination fail, we consider [Bonnaire] ‘otherwise credible.’”
Bhattarai, 835 F.3d at 1046. Accordingly, we grant the petition for review and
remand for consideration of the merits of Bonnaire’s withholding and CAT
3
Contrary to the Government’s contention, Bonnaire adequately exhausted
this issue before the agency by explicitly arguing in his brief to the BIA that the IJ
erred in finding him not credible based on the omissions in his family’s letters. See
Moreno-Morante v. Gonzales, 490 F.3d 1172, 1173 n.1 (9th Cir. 2007).
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claims.4 If the agency determines on remand that Bonnaire’s credible testimony is
insufficient to meet his burden of proof without additional corroborating evidence,
the IJ must give Bonnaire “an opportunity to provide that evidence or explain why
he cannot reasonably obtain it.” See id. at 1048.
PETITION GRANTED.
4
We note that the BIA erred in stating that Bonnaire failed to challenge the
IJ’s denial of his CAT claim. Bonnaire’s brief to the BIA made clear that he was
“appeal[ing] the Immigration Judge’s (IJ) decision denying . . . withholding of
removal[] and protection under the Convention Against Torture due to . . . an
adverse credibility finding.” Bonnaire therefore adequately exhausted his CAT
claim before the agency. See Ren, 648 F.3d at 1083-84.
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