Zahid Hussain v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 16 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZAHID HUSSAIN, No. 17-73072
Petitioner, Agency No. A208-924-883
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, 2023
San Francisco, California
Before: WARDLAW, NGUYEN, and KOH, Circuit Judges.
Zahid Hussain (“Petitioner”), a native and citizen of Pakistan, seeks review
of a decision of the Board of Immigration Appeals (“BIA”) affirming the denial by
an immigration judge (“IJ”) of his applications for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252, and we grant the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Where, as here, the BIA adopts the IJ decision in full, provides its own
analysis of the evidence and relevant law, and cites Matter of Burbano, 20 I. & N.
Dec. 872 (BIA 1994), we review both the BIA and IJ decisions. See Aguilar
Fermin v. Barr, 958 F.3d 887, 891 (9th Cir. 2020). We review the Agency’s
factual findings, including credibility determinations, for substantial evidence. See
Malkandi v. Holder, 576 F.3d 906, 908 (9th Cir. 2009). Under that standard,
“administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
1. Substantial evidence does not support the Agency’s adverse credibility
determination. The Agency is required to assess credibility based on “all relevant
factors” and “the totality of the circumstances.” 8 U.S.C. § 1158(b)(1)(B)(iii)
(asylum); see also id. § 1129a(c)(4)(C) (withholding). As such, “the agency
cannot be selective in its evaluation of credibility; the agency’s analysis must be
reasonable as a whole.” Jin v. Holder, 748 F.3d 959, 964–65 (9th Cir. 2014).
Moreover, “our review will always require assessing the totality of the
circumstances” to determine whether to “sustain[] or reject[] an adverse credibility
determination.” Alam v. Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (en banc).
To start, substantial evidence does not support the Agency’s finding of an
inconsistency, omission, or instance of vagueness in the following instances.
Petitioner’s testimony about his injuries and treatment was not inconsistent with a
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doctor’s note, see Bhattarai v. Lynch, 835 F.3d 1037, 1044–45 (9th Cir. 2016); he
was also not inconsistent about how he was threatened in June 2013, about his
participation in the May 2014 protest, or about where he was treated in October
2014. Finally, Petitioner was not vague or evasive about how he obtained food in
the aftermath of the October 2014 protest. See Iman v. Barr, 972 F.3d 1058, 1066
(9th Cir. 2020).
Next, the Agency failed to address Petitioner’s “plausible and reasonable”
explanations for two alleged inconsistencies related to the October 2014 protest.
Zhi v. Holder, 751 F.3d 1088, 1093 (9th Cir. 2014) (quoting Chen v. I.N.S., 266
F.3d 1094, 1100 (9th Cir. 2001)). First, Petitioner plausibly reconciled the alleged
discrepancy between the police description of the protest and his own testimony by
explaining that the Pakistani government was creating a pretext for his arrest and
post hoc justification for their violence. Second, Petitioner reasonably explained
that there was no difference between his testimony that “during the demonstration
we had a street fight” with police and the statement on the doctor’s note that he
received injuries from a “street fight.” Because the Agency did not address these
explanations, it could not “rely on [them] to make an adverse credibility
determination.” Barseghyan v. Garland, 39 F.4th 1138, 1143 (9th Cir. 2022).
Finally, the Agency failed to ensure that Petitioner was provided notice and
opportunity to explain the remaining bases for its adverse credibility finding. It is
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well-established in our caselaw that “the IJ must provide the noncitizen with an
opportunity to explain each inconsistency,” id. at 1143, any “perceived
implausibility,” Lalayan v. Garland, 4 F.4th 822, 836 (9th Cir. 2021), and all
“points on which the IJ thinks the witness is not being responsive.” Garcia v.
Holder, 749 F.3d 785, 790 (9th Cir. 2014). This notice and opportunity to explain
requirement is rooted both in the statutory command that the Agency make its
determinations based on the totality of the circumstances, see Shrestha v. Holder,
590 F.3d 1034, 1044 (9th Cir. 2010), and the due process minimums necessary to
ensure a full and fair hearing. See Ren v. Holder, 648 F.3d 1079, 1092 & n.14 (9th
Cir. 2011). Notably, the BIA has itself adopted a rule consistent with ours. See
Matter of Y-I-M-, 27 I. & N. Dec. 724, 726 (BIA 2019) (citing Rizk v. Holder, 629
F.3d 1083, 1088 (9th Cir. 2011)). Because Petitioner was not provided notice and
an opportunity to explain the remaining bases of the adverse credibility
determination, it was error for the Agency to rely on them.
2. The Agency could not rely on Petitioner’s alleged lack of corroborating
evidence in denying his asylum and withholding claims. When, as here, the
Agency’s adverse credibility determination is not supported by substantial
evidence and the lack of corroboration is provided as a basis for denial, we must
determine whether the IJ provided “an applicant notice of what evidence would
suffice” to meet his burden. Bhattarai, 835 F.3d at 1043. Here, as the
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Government acknowledged at oral argument, the IJ failed to put Petitioner on
notice.
3. In addition to relying on the adverse credibility determination, the
Agency also rejected Petitioner’s CAT claim based on evidence in the record
describing conditions in Pakistan. When evaluating a CAT claim, the Agency
“must consider ‘all evidence relevant to the possibility of future torture,’ including
country conditions evidence.” Bhattarai, 835 F.3d at 1047 (quoting Kamalthas v.
INS, 251 F.3d 1279, 1282 (9th Cir. 2001)). An IJ’s “extreme selectivity” in
analyzing such evidence can indicate that it failed to sufficiently consider it.
Davila v. Barr, 968 F.3d 1136, 1143 (9th Cir. 2020). Here, the IJ all but ignored a
detailed report on “Human Rights Violations in Kashmir” that explained that
“torture is routinely used in” Petitioner’s home state, that Petitioner’s political
party is a target of torture, and that, consistent with Petitioner’s testimony, torture
is often jointly carried out by local police, the army, and Pakistani intelligence.
This was error.
4. Given the Agency’s errors in both its adverse credibility determination
and analysis of country conditions evidence, “[w]e . . . remand on an open record
for further proceedings in accordance with this opinion.” Perez-Arceo v. Lynch,
821 F.3d 1178, 1187 (9th Cir. 2016).
PETITION GRANTED.
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