Bassene v. Holder , 723 F.3d 1036 ( 2013 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    ALPHONSE CHARLES BASSENE ,                         No. 07-75022
    Petitioner,
    Agency No.
    v.                            A076-389-204
    ERIC H. HOLDER, JR., Attorney
    General,                                             OPINION
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted
    October 12, 2012—Pasadena, California
    Filed July 23, 2013
    Before: Harry Pregerson and William A. Fletcher, Circuit
    Judges, and Lawrence L. Piersol, Senior District Judge.*
    Opinion by Judge Pregerson
    *
    The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
    District Court for the District of South Dakota, sitting by designation.
    2                      BASSENE V . HOLDER
    SUMMARY**
    Immigration
    The panel granted a petition for review of the Board of
    Immigration Appeals’ decision denying on adverse credibility
    grounds asylum, withholding of removal, and protection
    under the Convention Against Torture to a native and citizen
    of Senegal.
    The panel held that the Board erred by drawing an
    adverse inference from the low level of detail about
    persecution provided in petitioner’s mistakenly filed N-400
    citizenship application, which was not designed to elicit
    information about persecution. The panel further held that
    substantial evidence did not support the Board’s finding of
    inconsistencies between petitioner’s N-400 application and
    his later filed I-589 asylum application. The panel remanded
    for further consideration taking petitioner’s testimony as
    credible.
    COUNSEL
    Nene Thiaba Mour Samb (argued), Samb and Associates,
    LLC, Minneapolis, Minnesota, for Petitioner.
    Marion E. Guyton (argued), Trial Attorney, Office of
    Immigration Litigation Civil Division, United States
    Department of Justice, Washington, D.C., for Respondent.
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    BASSENE V . HOLDER                       3
    OPINION
    PREGERSON, Circuit Judge:
    Alphonse Charles Bassene (“Bassene”), a native and
    citizen of Senegal, petitions for review of the Board of
    Immigration Appeals (“BIA”) decision denying his
    application for asylum, withholding of removal, and relief
    under the Convention Against Torture (“CAT”).
    Bassene sought lawful status in the United States by
    mistakenly filing an N-400 citizenship application instead of
    filing an I-589 asylum application. He attached a one-page
    statement to his citizenship application explaining that he had
    expected to see questions asking if he had been persecuted for
    his ethnicity or political beliefs in Senegal, because these
    were the reasons he was seeking refuge in the United States.
    After Bassene’s N-400 citizenship application was denied, an
    Immigration and Naturalization Services Officer directed him
    to file an asylum application. In his I-589 asylum
    application, Bassene answered questions about the political
    and ethnic persecution he experienced in great detail. The
    answers in Bassene’s I-589 application were consistent with
    the testimony he gave at his removal hearing. The
    Immigration Judge (“IJ”) found that Bassene was not
    credible, however, because Bassene had not supplied the
    same level of detail about persecution when he filled out his
    mistakenly filed N-400 citizenship application. The BIA
    affirmed.
    We hold that substantial evidence does not support the
    BIA’s adverse credibility finding. The IJ should not have
    drawn an adverse inference from the low level of detail about
    persecution provided in Bassene’s N-400 citizenship
    4                   BASSENE V . HOLDER
    application, which is not designed to elicit information about
    persecution. The BIA erred when it adopted the IJ’s flawed
    reasoning. The BIA also erred when it found that Bassene
    was not credible on the ground that his citizenship and
    asylum applications were inconsistent. We have jurisdiction
    under 
    8 U.S.C. § 1252
    . We grant the petition for review,
    vacate the BIA’s adverse credibility finding, and remand to
    the BIA to determine whether Bassene is eligible for asylum.
    BACKGROUND
    A. Bassene’s Removal Proceedings
    The facts of Bassene’s case compel us to conclude that
    the BIA’s adverse credibility finding is not supported by
    substantial evidence. At his August 29, 2006 removal
    hearing, Bassene testified about the ethnic and political
    persecution he experienced while living in Senegal. Bassene
    grew up in southern Senegal’s Casamance region, in the town
    of Zinguinchor. Bassene testified that if he returns to Senegal
    he will be persecuted because of his Diola ethnicity and his
    affiliation with the armed wing of the Movement of the
    Democratic Forces of the Casamance (“MFDC”). The armed
    wing of the MFDC is a separatist organization that demands
    independence for southern Senegal’s Casamance region and
    has been in an armed conflict with the Senegalese military
    since the early 1980s.
    1. Bassene’s Diola ethnicity
    Bassene and his family are Diola, a minority ethnic group
    in Senegal. Bassene is recognizable as Diola because of his
    family name. From 1990 to 1997, Bassene attended the
    University of Dakar on a government scholarship. Bassene
    BASSENE V . HOLDER                        5
    testified that in the capital city of Dakar, the Diola people are
    not well-respected because they have a reputation for being
    instigators of rebellion. Bassene contends that he was a top
    university student studying Spanish and was set to receive a
    scholarship to study abroad in Spain, but was replaced with
    a non-Diola student at the last minute and had to remain in
    Senegal.
    2. Bassene’s affiliation with the MFDC
    In 1986, when Bassene was eighteen years old, his family
    was forcefully recruited into financially supporting the
    MFDC. Six gunmen from the movement’s armed wing
    intruded into his family’s home in the late evening hours.
    After Bassene’s mother and sisters were moved to another
    location within Bassene’s family’s home, the gunmen
    demanded that Bassene and his father join the MFDC to help
    gain greater prosperity for the region. Bassene’s father
    initially refused. The gunmen said if Bassene’s father wanted
    to live, his family needed to be involved with the MFDC in
    some way. Bassene’s family opted to contribute about $6 per
    month to the MFDC. Bassene’s mother and two sisters, who
    still live in Senegal, continue to pay this contribution under
    threat of retaliation. The Bassenes were issued a family card
    to demonstrate their affiliation with the armed wing of the
    MFDC. The MFDC also has a distinct and legal political
    wing. Bassene testified that he is sympathetic to the peaceful
    objectives of the MFDC’s political wing. He once
    participated in a large event organized by the political wing
    of the MFDC in 1992, whose purpose was to restore peace in
    Senegal.
    Several of Bassene’s family members have been killed or
    have lost their homes because of the conflict between the
    6                   BASSENE V . HOLDER
    armed wing of the MFDC and the Senegalese government.
    Two of Bassene’s male cousins joined the armed wing of the
    MFDC in 1991. After a Senegalese military raid in 1993, the
    area where the men were camping was burned, they were
    arrested by the military, and they were never heard from
    again. Bassene’s aunt’s village was burned and she lost her
    home as a result of the conflict between the Senegalese
    government and the MFDC’s armed wing. As of 2001, over
    a hundred civilians have been extrajudicially executed or
    “disappeared by” the Senegalese military, and dozens have
    been deliberately or arbitrarily killed by the armed wing of
    the MFDC.
    In 1992, Bassene was detained, arrested, and beaten by
    the Senegalese military because of his affiliation with the
    MFDC’s armed wing. Bassene was traveling home from
    school on the Thursday before the Easter holiday. While
    passing through a checkpoint, Bassene was detained and
    searched by the Senegalese military. After the soldiers found
    Bassene’s MFDC card, they escorted Bassene to a small
    building for questioning. Bassene told the soldiers that he
    was a student and that he had been forced to carry the MFDC
    card.
    The soldiers took Bassene to jail and placed him in a cell
    with five other men. The soldiers beat Bassene and made
    derogatory comments about his Diola heritage. There was no
    running water in the cell. It was not until the following
    morning, on Friday, that the men were given some food and
    allowed to go to the bathroom. The soldiers questioned
    Bassene for an additional six hours that day.
    On Saturday morning at 2:00 a.m., the soldiers placed a
    call to the University of Dakar. The University confirmed
    BASSENE V . HOLDER                       7
    that Bassene was a full-time student. Bassene paid a $30 fine
    and was subsequently released. At the time of his release,
    Bassene’s face was bleeding and swollen from being pushed
    into a wall by a soldier. The soldier escorting Bassene out of
    jail threatened him, saying the next time he was caught by the
    military, “that will be the end of it.”
    Bassene fears that if he returns to Senegal he will be
    arrested and interrogated regarding his whereabouts for the
    past nine years. Bassene also believes that if he returns to
    Senegal, the MFDC’s armed wing will attempt to recruit him
    again. He does not believe the Senegalese government will
    be able to protect him from the MFDC’s armed wing.
    3. Bassene’s immigration proceedings in the United
    States
    Bassene was legally admitted to the United States on
    November 27, 1997, on a J-1 cultural exchange visa. Bassene
    came to the United States from Senegal to participate in an
    internship program in hotel management. His visa expired a
    year-and-a-half later on June 29, 1999. Bassene wanted to
    stay in the United States legally. He feared returning to
    Senegal because he had been arrested, detained, beaten, and
    threatened by the Senegalese military. An American college
    student who was an acquaintance of Bassene’s advised
    Bassene to apply for United States citizenship. As a result,
    Bassene mistakenly believed that he could obtain lawful
    status in the United States based on his fear of persecution in
    Senegal by filing an N-400 citizenship application.
    On November 1, 1999, Bassene filed an N-400 citizenship
    application. The N-400 citizenship application requests
    information from the applicant setting forth his or her
    8                   BASSENE V . HOLDER
    eligibility for citizenship, including lawful permanent
    residency status and compliance with immigration laws.
    Question 15 asked if Bassene had been arrested for “breaking
    or violating any law or ordinance.” Bassene checked a box
    indicating that he had never been arrested for those reasons.
    Part 9 of the citizenship application asked Bassene to list his
    affiliations with “organization[s].” Bassene did not disclose
    his membership in the armed wing of the MFDC because he
    was forced to be a member of the organization.
    Bassene attached a one-page statement to his N-400
    citizenship application to convey that he feared returning to
    Senegal because he expected to see a question about
    persecution in his home country. In the one-page statement,
    Bassene elaborated, in general terms, on the turbulent
    situation in his home region of Casamance. Bassene’s N-400
    application for citizenship was denied on July 20, 2000, and
    Bassene requested a hearing on the denial.
    On February 15, 2001, Bassene met with an Immigration
    and Naturalization Service officer. The officer conducted a
    de novo review of Bassene’s N-400 citizenship application
    and found Bassene ineligible for naturalization. The officer
    told Bassene that he could apply for asylum. The officer gave
    Bassene an I-589 asylum application; a list of the countries
    whose nationals were eligible for asylum, withholding of
    removal, or CAT relief; and a list of free legal services.
    On March 8, 2001, Bassene submitted his I-589 asylum
    application that he completed without the assistance of
    counsel. In his asylum application, Bassene provided detailed
    accounts of the night in 1986 when his family was forced to
    join the armed wing of the MFDC. Bassene also described
    his 1992 arrest by the Senegalese military.
    BASSENE V . HOLDER                           9
    Several years later, on August 29, 2006, Bassene
    appeared before the IJ in San Diego at his removal hearing.
    Bassene conceded removability and asked for asylum,
    withholding of removal, and relief under CAT.1
    B. The IJ Grants the Exceptional Circumstances
    Exception for Asylum
    At the removal hearing, the Department of Homeland
    Security (“DHS”) argued that Bassene was ineligible for
    asylum because he filed his application after the one-year
    period designated by statute. See 
    8 U.S.C. § 1158
    (a)(2)(B).
    Bassene submitted his citizenship application almost two
    years after he arrived in the United States, and about six
    months after his J-1 visa expired. Bassene argued that he was
    exempted from the one year filing period under the
    “extraordinary circumstances” exception because he filed the
    N-400 citizenship application less than six months after his J-
    1 visa expired. See 
    8 U.S.C. § 1158
    (a)(2)(D). The IJ agreed.
    We agree with the IJ’s decision to treat the one-year filing
    requirement for asylum as running from the day Bassene’s J-
    1 visa expired. We also agree with the IJ’s decision to treat
    Bassene’s mistakenly filed N-400 citizenship application as
    a quasi-asylum application and we find that it was timely
    filed within the one-year period.
    1
    W e apply pre-REAL ID Act standards because Bassene filed his
    application for relief on November 1, 1999, which was before May 11,
    2005, the effective date of the REAL ID Act. See Sinha v. Holder,
    
    564 F.3d 1015
    , 1021 n.3 (9th Cir. 2009) (applying the pre-REAL ID Act
    standard).
    10                  BASSENE V . HOLDER
    C. The IJ Finds that Bassene is Not Credible
    At the removal hearing on August 29, 2006, the IJ asked
    Bassene why he had not disclosed that he was arrested by the
    Senegalese military in the one-page statement he attached to
    his N-400 citizenship application. Bassene responded: “I
    was arrested. I don’t know why I didn’t (indiscernable) but
    I was.” Moments later, the IJ notified Bassene’s attorney that
    the biggest problem in Bassene’s case was credibility.
    Bassene’s attorney argued that the purpose of the one-page
    statement attached to the N-400 citizenship application was
    to “tell our Government that [Bassene] might not be filing the
    correct form but [Bassene] didn’t want to go back to his
    country.” In its closing argument, DHS admitted that
    Bassene was credible, stating: “The government feels that
    overall he has been a very credible witness.” Nonetheless,
    DHS declined to stipulate to Bassene’s credibility.
    D. The IJ and BIA Decisions
    On August 29, 2006, the IJ denied Bassene’s claim for
    asylum, withholding of removal, and relief under CAT. The
    IJ denied asylum and withholding of removal because he
    found that Bassene was not credible. The IJ concluded that
    the one-page statement Bassene attached to the N-400
    citizenship application showed that he submitted the
    application to “convey to the United States Government the
    basis of his fear to allow him to stay in” the United States.
    The IJ stated that he was willing to excuse minor omissions
    from the N-400, but he was not willing to excuse Bassene’s
    omission “that he was arrested and detained for two or three
    days[,] and mistreated and interrogated by the Senegalese
    military.” The IJ also denied relief under CAT.
    BASSENE V . HOLDER                       11
    The BIA adopted the IJ’s adverse credibility finding and
    also found that Bassene failed to meet his burden of proof for
    relief. The BIA noted two alleged inconsistencies between
    Bassene’s N-400 citizenship application and his I-589 asylum
    application: (1) Bassene did not mention his arrest by the
    Senegalese military and explicitly denied being “arrested,
    imprisoned, or fined” in his N-400 citizenship application;
    and, (2) Bassene “failed to reveal his alleged membership in
    MFDC” in his N-400 citizenship application.
    STANDARD AND SCOPE OF REVIEW
    Credibility determinations are reviewed for substantial
    evidence. Rizk v. Holder, 
    629 F.3d 1083
    , 1087 (9th Cir.
    2011). Under the substantial evidence standard, an adverse
    credibility finding is “conclusive unless any reasonable
    adjudicator would be compelled to conclude to the contrary.”
    
    Id.
     (internal quotation marks omitted). The BIA gives
    deference to an IJ’s credibility finding because the IJ is in the
    best position to assess the trustworthiness of the applicant’s
    testimony. See Mendoza Manimbao v. Ashcroft, 
    329 F.3d 655
    , 661–62 (9th Cir. 2003). Where, as here, the BIA
    summarily affirms an IJ’s decision and does not expressly
    conduct a de novo review we may “look to the IJ’s oral
    decision as a guide to what lay behind the BIA’s conclusion.”
    Ahmed v. Keisler, 
    504 F.3d 1183
    , 1191 (9th Cir. 2007).
    12                  BASSENE V . HOLDER
    DISCUSSION
    A. The Lack of Detail in Bassene’s Mistakenly Filed N-
    400 Citizenship Application Does Not Support the
    BIA’s Adverse Credibility Finding
    The IJ and BIA drew an adverse inference from the
    omission of Bassene’s arrest and detention by the Senegalese
    military from his N-400 citizenship application. However,
    the N-400 citizenship application was not designed to elicit
    information about persecution. “[T]he IJ had no reason to
    ‘expect’ to be told of ‘persecution and assaults’ on [Bassene
    or his] family” in Bassene’s mistakenly filed N-400
    citizenship application. Joseph v. Holder, 
    600 F.3d 1235
    ,
    1242–43 (9th Cir. 2010) (internal quotation marks omitted)
    (reversing adverse credibility finding that relied on
    differences between bond hearing testimony and removal
    hearing testimony).
    In short, the IJ concluded that Bassene was not credible
    because he did not include evidence of political and ethnic
    persecution in his N-400 citizenship application, information
    that would have been relevant had he filed an I-589
    application for asylum. That Bassene filed an initial N-400
    citizenship application that “was not as complete as might be
    desired” of an I-589 asylum application “cannot, without
    more, serve as a basis for a finding of lack of credibility.’”
    Smolniakova v. Gonzales, 
    422 F.3d 1037
    , 1045 (9th Cir.
    2005) (quoting Lopez-Reyes v. INS, 
    79 F.3d 908
    , 911 (9th Cir.
    1996)) (internal quotation marks omitted). Bassene provided
    information on the ethnic and political persecution he
    experienced in Senegal in the I-589 asylum application that
    he was later instructed to file.
    BASSENE V . HOLDER                     13
    Moreover, the IJ speculated that because Bassene was an
    educated person, he should have known to mention his arrest
    and detention by the Senegalese military in his mistakenly
    filed N-400 citizenship application. But “[s]peculation and
    conjecture cannot form the basis of an adverse credibility
    finding.” Shah v. INS, 
    220 F.3d 1062
    , 1071 (9th Cir. 2000).
    We hold that the lack of detailed information related to an
    asylum claim provided in a non-asylum proceeding, when
    consistent with the requirements of the proceeding, cannot on
    its own result in an adverse credibility finding. We also hold
    that an IJ may not make an adverse credibility finding based
    solely on speculation that an asylum applicant should have
    been capable of providing more detail related to an asylum
    claim in an earlier non-asylum proceeding.
    Bassene filed the N-400 citizenship application pro se.
    We are guided by the principle that “asylum forms filled out
    by people who are unable to retain counsel should be read
    charitably, especially when it comes to the absence of a
    comprehensive and thorough account of all past instances of
    persecution.” Smolniakova, 
    422 F.3d at 1045
     (internal
    quotation marks omitted).         We recently stated that
    “[o]missions [in I-589 asylum applications] are not given
    much significance because applicants usually do not speak
    English and are not represented by counsel.” Kin v. Holder,
    
    595 F.3d 1050
    , 1056 (9th Cir. 2010). We give Bassene’s
    omission of his arrest and detention even less weight because
    he completed an N-400 citizenship application, rather than an
    I-589 asylum application, and properly complied with the
    requirements set forth in his N-400 citizenship application.
    The I-589 asylum application would have at least prompted
    Bassene to provide information on political and ethnic
    persecution, whereas the N-400 citizenship application did
    not.
    14                   BASSENE V . HOLDER
    Bassene’s mistakenly filed N-400 citizenship application
    is akin to early-stage asylum proceedings like bond hearings,
    airport interviews, and asylum interviews. The differences in
    detail between statements made during less formal
    proceedings and later formal proceedings may not be used to
    undermine an applicant’s credibility. In Joseph v. Holder, for
    example, we “rejected [an] adverse credibility finding[] that
    relied on differences between statements a petitioner made
    during removal proceedings and those made during [a] less
    formal, . . . unrecorded [bond hearing].” 
    600 F.3d at 1243
    .
    We reasoned that an IJ’s credibility finding during a removal
    hearing may not rely on statements made by the applicant
    during less formal proceedings. 
    Id. at 1244
    .
    In so holding, Joseph relied on precedent explaining that
    airport interviews and asylum interviews do not require the
    same level of detail as later formal proceedings. See
    Arulampalam v. Ashcroft, 
    353 F.3d 679
    , 688 (9th Cir. 2003)
    (holding that petitioner’s omission during an airport interview
    of specific details of torture that were revealed later at the
    removal hearing did not support a negative credibility
    finding); Singh v. INS, 
    292 F.3d 1017
    , 1021–24 (9th Cir.
    2002) (holding that an adverse credibility finding could not
    rest solely on the fact that an applicant provided less detail in
    his statements at the airport than he did at his subsequent
    hearing); see also Singh v. Gonzales, 
    403 F.3d 1081
    , 1087
    (9th Cir. 2005) (holding that a contradiction between a
    petitioner’s asylum interview, where the interview was not
    recorded and notes were taken by hand, and removal hearing
    testimony was not substantial evidence to justify an adverse
    credibility finding). The lack of detail in Bassene’s
    mistakenly filed but properly completed N-400 citizenship
    application, does not on its own undermine Bassene’s
    credibility in his asylum proceeding.
    BASSENE V . HOLDER                      15
    The lack of detail in Bassene’s N-400 citizenship
    application and speculation that Bassene was capable of
    providing information on political and ethnic persecution
    does not “bear a legitimate nexus to the [BIA’s] finding” that
    Bassene is not credible. Salaam v. INS, 
    229 F.3d 1234
    , 1238
    (9th Cir. 2000) (per curiam) (internal quotation marks
    omitted).
    B. The Purported Inconsistencies between Bassene’s N-
    400 Citizenship Application and His I-589 Asylum
    Application Do Not Support the BIA’s Adverse
    Credibility Finding
    When taking both of Bassene’s applications together,
    Bassene’s N-400 citizenship application was not inconsistent
    with his I-589 asylum application. The BIA believed that the
    two applications lacked “sufficient consistency” because
    Bassene failed to disclose his arrest and detention by the
    Senegalese military and his forced membership in the MFDC
    in his N-400 citizenship application. Viewing the purported
    inconsistencies “in light of all the evidence presented in the
    case” reveals that the applications were not inconsistent.
    Kaur v. Gonzales, 
    418 F.3d 1061
    , 1066 (9th Cir. 2005). In
    Bassene’s N-400 citizenship application, Bassene correctly
    answered that he had not been arrested for unlawful conduct
    for “breaking or violating any law or ordinance.” Here,
    Bassene was arrested because the Senegalese military
    incorrectly identified him as a member of the MFDC’s armed
    wing. Bassene was also truthful in declining to list his forced
    membership in the MFDC in his N-400 citizenship
    application. Bassene agreed to carry an MFDC membership
    card and pay a tax to the MFDC only after six gunmen
    entered his home and forcefully recruited him and his father.
    16                  BASSENE V . HOLDER
    For these reasons, the claimed inconsistency between the
    two applications is not supported by substantial evidence. In
    addition, Bassene appropriately answered his N-400
    citizenship application.
    CONCLUSION
    The BIA has not evaluated Bassene’s eligibility for
    asylum based on his fear of persecution in Senegal. We grant
    Bassene’s petition for review, vacate the BIA’s adverse
    credibility finding, and remand the case to the BIA for further
    consideration and investigation in light of our ruling that the
    petitioner is credible. Guo v. Ashcroft, 
    361 F.3d 1194
    ,
    1203–04 (9th Cir. 2004) (citing INS v. Ventura, 
    537 U.S. 12
    ,
    16 (2002)).
    PETITION           GRANTED;          REVERSED           and
    REMANDED.