United States Court of Appeals For the First Circuit

No. 17-1867

MIRIAM IXCUNA-GARCIA,

Petitioner,

v.

MERRICK B. GARLAND,* Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Thompson and Kayatta, Circuit Judges, and Katzmann,** Judge.

Nancy J. Kelly, with whom John Willshire Carrera, Harvey Kaplan, and Harvard Immigration & Refugee Clinic were on brief, for petitioner. M. Jocelyn Lopez Wright, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, with whom Chad A. Readler, Acting Assistant Attorney General, Civil Division, and Melissa Neiman-Kelting, Assistant Director, Office of Immigration Litigation, were on brief, for respondent. Mark C. Fleming, Arjun K. Jaikumar, Cristina Salcedo, and Wilmer Cutler Pickering Hale and Dorr LLP on brief for Harvard

* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Merrick B. Garland has been substituted for former Attorney General Jefferson B. Sessions, III. ** Of the United States Court of International Trade, sitting by designation. Program in Refugee Trauma and Dr. F. Barton Evans III, amici curiae.

February 8, 2022 KAYATTA, Circuit Judge. Miriam Ixcuna-Garcia is a

Guatemala-born indigenous K'iche' woman who came to the United

States when she was sixteen. After being detained in a workplace

raid in 2007, Ixcuna-Garcia applied for relief that included asylum

and withholding of removal. Her case wound its way back and forth

between an immigration judge (IJ) and the Board of Immigration

Appeals (BIA) before arriving at this court on the present

petition. As relevant here, the IJ and the BIA found that Ixcuna-

Garcia was ineligible for asylum because she exceeded the one-year

deadline for applying for such relief, and they denied her

application for withholding of removal. They also questioned

Ixcuna-Garcia's credibility, in part due to her failure to provide

evidence from her mother corroborating her claim that she had been

sexually assaulted as a child.

Before this court, the government concedes that Ixcuna-

Garcia's application for withholding of removal should be remanded

due to the failure of the IJ and the BIA to consider pertinent

aspects of Ixcuna-Garcia's claims of past persecution. And we

agree with Ixcuna-Garcia that the IJ and the BIA also erred in

failing to provide her with, at the very least, an opportunity to

explain why she could not provide certain corroborating evidence

in connection with her request for withholding. Accordingly, we

vacate the denial of Ixcuna-Garcia's application for withholding

from removal. As to her request for asylum, however, we agree

- 3 - with the government that we lack jurisdiction to review the denial

of that application. Our reasoning follows.

I.

We begin with the circumstances that prompted this

petition. Ixcuna-Garcia was born in Guatemala to an indigenous

K'iche' Mayan family. She came to the United States in 2002 at

the age of sixteen and settled into a K'iche' community in New

Bedford, Massachusetts. Ixcuna-Garcia did not apply for asylum

when she first arrived in the United States.

On March 6, 2007, Ixcuna-Garcia was detained during a

raid on the Michael Bianco factory in New Bedford and placed into

removal proceedings under

(a)(6)(A)(i). After

conceding removability, Ixcuna-Garcia applied for both asylum and

withholding of removal.1 In her initial hearings, Ixcuna-Garcia

testified that she had been mistreated in Guatemala due to her

indigenous Mayan identity and that she and her family had been

threatened with sexual assault by Ladino men.2 She also submitted

1 Ixcuna-Garcia also applied for relief under the Convention Against Torture and for voluntary departure. The IJ granted her application for voluntary departure but only until January 3, 2012. Ixcuna-Garcia did not press these separate claims before the BIA in her most recent proceedings and those issues are not before this court on the present petition. 2 Ladino refers to an ethnic group within Guatemala comprised of non-Indigenous persons.

- 4 - written and oral testimony regarding the impact of Guatemala's

long and violent civil war on her family.

Thus began a years-long administrative process through

which Ixcuna-Garcia's removal proceedings twice went before an IJ

and the BIA before arriving at this court. First, in 2011, an IJ

rendered an oral decision denying Ixcuna-Garcia's applications for

asylum and withholding of removal. The IJ found that Ixcuna-

Garcia's asylum claim was time-barred because she failed to file

her application within one year of entering the country as required

by statute. The IJ also explained that Ixcuna-Garcia had not

demonstrated either past persecution or a likelihood of future

persecution, noting that there was "no evidence that [Ixcuna-

Garcia] would be subjected to torture or persecution if she were

to be returned to Guatemala based on her purported fear."

Accordingly, the IJ found no basis for granting Ixcuna-Garcia's

application for withholding of removal. Ixcuna-Garcia timely

appealed the IJ's decision to the BIA.

In 2013, the BIA issued a decision dismissing in part

and sustaining in part Ixcuna-Garcia's appeal. With respect to

asylum, the BIA upheld the IJ's decision, agreeing that Ixcuna-

Garcia's application was time-barred. Although the BIA observed

that Ixcuna-Garcia's age when she entered the country (sixteen)

might have provided extraordinary circumstances warranting an

exception to the one-year filing deadline, the BIA noted that

- 5 - Ixcuna-Garcia turned eighteen in September 2004 but did not apply

for asylum until October 2007. The BIA therefore found that

Ixcuna-Garcia had not filed her asylum application "within a

reasonable time after she reached the age of 18 years old." The

BIA likewise rejected Ixcuna-Garcia's other explanations for the

delay in filing, explaining that they did not suffice to establish

changed circumstances that excused the delay.

As to withholding of removal, the BIA remanded Ixcuna-

Garcia's claim back to the IJ for further consideration of whether

Ixcuna-Garcia was more likely than not to face future persecution

upon return to Guatemala. The BIA rejected the IJ's conclusion

that there was "no evidence" that Ixcuna-Garcia would be subjected

to future persecution, observing that the record "contain[ed] an

abundance of documentary evidence" on that point and that the IJ

had failed to provide a "detailed analysis of the specific facts

of [Ixcuna-Garcia's] case in relation to the controlling law."

Accordingly, the BIA ordered the IJ to conduct further proceedings

and issue a "new decision." The BIA further ordered that the

parties should be provided with an opportunity to update the record

and present additional arguments.

In the remanded proceedings before the IJ, Ixcuna-Garcia

submitted new evidence in support of her applications, including

her own supplemental affidavit, affidavits from two cousins,

updated country conditions documentation, and a psychiatric

- 6 - evaluation prepared by Marguerita Reczycki, a clinical nurse

specialist who examined Ixcuna-Garcia. In her supplemental

affidavit in support of her request for relief, Ixcuna-Garcia

stated for the first time that she had been raped as a child by a

Ladino man and that Ladino men had attacked her and her cousin.

She also explained in her supplemental affidavit her difficulties

in applying for asylum when she first arrived in the United States.

Reczycki, in turn, opined in a written report that Ixcuna-Garcia

met the criteria for chronic and severe major depression and

chronic post-traumatic stress disorder based on the traumatic

experiences she had endured in Guatemala. Reczycki's report

indicated that, in her professional opinion, past trauma prevented

Ixcuna-Garcia from speaking about her history of persecution in

Guatemala, particularly her rape, and from seeking assistance in

applying for asylum within the first year of her entering the

United States.

Based on this new evidence, Ixcuna-Garcia requested

reconsideration of both her eligibility for a waiver of the one-

year asylum application deadline and eligibility for withholding

of removal. The IJ conducted further hearings on four separate

days spread out over almost two years, ending on April 14, 2016.

Finally, on June 23, 2016, the IJ issued a written

decision again denying Ixcuna-Garcia's applications for asylum and

withholding of removal. As a threshold matter, the IJ addressed

- 7 - Ixcuna-Garcia's credibility, declining to fully credit her written

and oral testimony regarding her rape by a Ladino man from when

she was a child. The IJ noted that Ixcuna-Garcia had not revealed

the rape either in her initial application or during her first

hearings and that there were inconsistencies between her prior

testimony and the testimony she offered in support of her claim

that she had been raped. The IJ also declined to give much weight

to Reczycki's psychiatric evaluation, observing that Reczycki was

a nurse rather than a psychologist or psychiatrist and that

Reczycki spent "only three hours" evaluating Ixcuna-Garcia.

Additionally, the IJ noted that Ixcuna-Garcia failed to provide an

affidavit from her mother corroborating the described rape.

The IJ next found that Ixcuna-Garcia's eligibility for

asylum was not properly before the IJ on remand because the BIA

had upheld the IJ's earlier determination that Ixcuna-Garcia was

not eligible for a waiver of the one-year timing requirement. The

IJ then concluded that, even if he could consider the claim, the

new evidence submitted on remand, including the evidence Ixcuna-

Garcia provided regarding her psychological trauma, did not

reflect changed conditions directly related to Ixcuna-Garcia's

delay in filing.

As to withholding of removal, the IJ found that he lacked

jurisdiction to consider any new claims on remand based on

mistreatment Ixcuna-Garcia had failed to allege in her initial

- 8 - filings or testimony, including Ixcuna-Garcia's described rape.

The IJ went on to conclude that, even if he could consider the new

evidence and arguments, Ixcuna-Garcia still would fail to

establish past persecution or a clear likelihood of future

persecution in Guatemala on account of a protected ground.

Ixcuna-Garcia again filed a timely appeal to the BIA.

This time, the BIA upheld all aspects of the IJ's

decision. First, the BIA agreed with the IJ's denial of

reconsideration as to Ixcuna-Garcia's asylum application. The BIA

explained that the new evidence Ixcuna-Garcia submitted on remand

regarding her psychological trauma was not "dispositive to

establish the veracity of all aspects of [her] claims" relating to

her failure to apply for asylum in the required timeframe. The

BIA similarly found that Ixcuna-Garcia's other new evidence of

changed conditions in Guatemala did not "materially affect

[Ixcuna-Garcia's] eligibility for asylum."

The BIA also upheld the IJ's credibility finding. The

BIA explained that although it gave "less weight than the

Immigration Judge to the inconsistencies concerning why [Ixcuna-

Garcia] did not mention her rape, it [wa]s relevant that she did

modify her explanation to some extent." The BIA further noted

that "the lack of an affidavit from [Ixcuna-Garcia's] mother

concerning the rape is indicative of a lack of credibility."

- 9 - The BIA likewise affirmed the IJ's rejection of Ixcuna-

Garcia's application for withholding of removal. The BIA found

that Ixcuna-Garcia had failed to establish that her indigenous

identity was a central reason for the rape and other mistreatment

she testified to on remand. Thus, she could not establish past

persecution. As to future persecution, the BIA reasoned that

Ixcuna-Garcia's proffered evidence on remand failed to show a

pattern and practice of mistreatment of indigenous women in

Guatemala. Notably, both the IJ and the BIA only addressed the

persecution claims that were introduced on remand and did not

attend to the claims Ixcuna-Garcia had made in her initial

proceedings and renewed on remand. After the BIA issued its latest

decision, Ixcuna-Garcia filed this timely petition for review.

Before this court, Ixcuna-Garcia raises three principal

contentions. First, she argues that the IJ and the BIA erred in

finding her ineligible for an exemption to the statutory timeline

for seeking asylum. Second, she asserts that the IJ and the BIA

erred in their credibility determinations, including by failing to

give her notice of a need to obtain (or explain the absence of)

corroborating evidence and by rejecting the testimony of an expert

concerning her failure to report previously a claim of rape.

Finally, she contends that the IJ and the BIA erred in finding

that she had failed to meet her burden of proof for withholding of

removal.

- 10 - II.

We begin with the government's contention that we lack

jurisdiction to review the denial of Ixcuna-Garcia's asylum

application as untimely. To qualify for asylum, a noncitizen

generally must file her application within one year of arriving in

the United States. See

(a)(2)(B). An applicant

may be excused from this statutory deadline by establishing "either

the existence of changed circumstances which materially affect the

applicant's eligibility for asylum or extraordinary circumstances

relating to the delay in filing an application within the period

specified."

§ 1158(a)(2)(D). Ixcuna-Garcia concedes that

she failed to file her asylum application within the one-year

statutory deadline but insists that she qualifies for an exemption

due to extraordinary circumstances, which include her age upon

entry, her inability to speak English or fluent Spanish, her

isolation in an insular Mayan community in New Bedford, and the

psychological trauma she suffered due to her experiences in

Guatemala. She urges this court to review the IJ and the BIA's

determination that her asylum claim is nonetheless barred.

Congress has "carefully circumscribed the scope of

judicial review with respect to timeliness determinations in

asylum cases." Pan v. Gonzales,

(1st Cir. 2007).

The relevant statutory provision provides that "[n]o court shall

have jurisdiction to review any determination of the Attorney

- 11 - General" concerning, among other things, whether an asylum

applicant has complied with the one-year filing deadline.

(a)(3). This jurisdictional limitation, however,

does not apply to "review of constitutional claims or questions of

law raised upon a petition for review."

§ 1252(a)(2)(D).

Accordingly, we have held that we lack "jurisdiction to

review the agency's determination regarding the timeliness of [an]

asylum application or its application of the 'extraordinary

circumstances' exception, unless the petitioner identifies a legal

or constitutional defect in the decision." El-Labaki v. Mukasey,

(1st Cir. 2008) (citing

(a)(3),

1252(a)(2)(D)); accord Pan,

. The key that unlocks

federal court review in such cases is a "colorable" constitutional

or legal question that is not simply a "thinly-veiled challenge to

the IJ's factfinding." Pan,

; see also Lutaaya v.

Mukasey,

, 69–70 (1st Cir. 2008).

Ixcuna-Garcia contends that her petition raises

precisely the kind of issue that is exempted from the jurisdiction-

stripping provision: a constitutional challenge alleging a due

process violation. By Ixcuna-Garcia's telling, the IJ and the

BIA's refusal to consider her proffered psychiatric evaluation as

evidence of extraordinary conditions justifying a waiver of the

filing deadline impinged upon her right to due process and resulted

in proceedings that were fundamentally unfair.

- 12 - But Ixcuna-Garcia's claim cannot be read so broadly as

to constitute the kind of colorable constitutional challenge that

section 1252(a)(2)(D) places within our jurisdiction. As we have

consistently explained, a challenge that merely "takes issue with

the evidentiary basis for the BIA's finding that 'circumstances'

did not excuse [a petitioner's] untimely application for asylum"

is not a colorable constitutional or legal claim that falls within

our jurisdiction. Rodriguez-Palacios v. Barr,

(1st Cir. 2019); see also Ramirez-Matias v. Holder,

(1st Cir. 2015) ("[A] challenge to the way in which the agency

weighed the evidence and balanced negative and positive factors is

not a claim that raises a legal question."); Lutaaya, 535 F.3d at

69–70 (concluding that assertions about improperly overlooking or

weighing evidence are not colorable due process claims).

Although clothed in the language of a due process

challenge, Ixcuna-Garcia's claim is more appropriately read as a

challenge to the manner in which the IJ and the BIA weighed the

evidence she submitted in support of her asylum application.

Ixcuna-Garcia does not meaningfully contend that the IJ and the

BIA declined to consider her evidence of psychiatric trauma at

all; rather, she asserts that the IJ and the BIA failed to accord

her proffered evidence the weight she thought it should be due.

This is precisely the kind of "thinly-veiled challenge to the IJ's

factfinding" that our precedent recognizes as outside the

- 13 - exception to section 1158(a)(3)'s jurisdiction-stripping rule.

Pan,

. We, therefore, lack jurisdiction to review

Ixcuna-Garcia's challenge to the denial of her asylum application

on timeliness grounds.3

III.

We next consider Ixcuna-Garcia's challenge to the

credibility determinations in connection with the denial of her

request for withholding of removal. Where, as here, the BIA adopts

and adds its own gloss to an IJ's conclusions, we examine the

relevant portions of both decisions. Molina-Diaz v. Wilkinson,

(1st Cir. 2021). We review legal conclusions de

novo and factual findings under the deferential "substantial

evidence" standard. Soeung v. Holder,

(1st Cir.

2012).

Ixcuna-Garcia's arguments train on three aspects of the

IJ's and the BIA's credibility determinations. First, Ixcuna-

Garcia asserts that the IJ and the BIA erred in basing their

credibility findings on the lack of an affidavit from her mother

corroborating her rape without giving Ixcuna-Garcia either notice

that such an affidavit would be required or an opportunity to

3Given that the IJ did in the alternative consider and reject Ixcuna-Garcia's renewed challenge to the timeliness ruling on the merits, we need not determine whether the IJ was required to consider that challenge in the remanded proceedings.

- 14 - explain her inability to produce the required evidence.4 Second,

Ixcuna-Garcia contends that the IJ's and the BIA's credibility

determinations were flawed because they failed to give due weight

to the report submitted by Reczycki establishing Ixcuna-Garcia's

psychological trauma. Third, she contends that even without

Reczycki's report, the record compelled a finding that Ixcuna-

Garcia was credible. We consider each argument in turn.

A.

Ixcuna-Garcia first contends that the BIA erred in

upholding the IJ's decision to require Ixcuna-Garcia to produce an

affidavit from her mother corroborating Ixcuna-Garcia's rape by a

Ladino man without either notice of the need for specific

corroborating evidence or an opportunity to explain her inability

to produce the required evidence. Ixcuna-Garcia's argument keys

on the final sentence of

(b)(1)(B)(ii), 5 which

states:

Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the

4 Ixcuna-Garcia does not present this argument as raising a constitutional or legal error applicable to her asylum claim. 5 Because Ixcuna-Garcia's application post-dates the enactment of the REAL ID Act of 2005,

Stat. 302 (2005), its provisions apply to the credibility determinations at issue here. See

(b)(3)(C) (applying

(b)(1)(B)(ii), (iii) to credibility determinations regarding withholding of removal).

- 15 - applicant does not have the evidence and cannot reasonably obtain the evidence.

Ixcuna-Garcia asserts that this statutory language requires an IJ

to provide advance notice to the applicant of the need for specific

corroborating evidence, or, at the very least, an opportunity for

the applicant to explain why such evidence cannot reasonably be

provided. After all, absent notice or an opportunity to explain,

an applicant could not comply with the statute's command that "such

evidence must be provided unless the applicant does not have the

evidence and cannot reasonably obtain the evidence."

Several of our sister circuits have weighed in with

divergent views on whether section 1158(b)(1)(B)(ii) imposes an

advance notice requirement. Compare Ren v. Holder,

,

1091–92 (9th Cir. 2011) (requiring advance notice), and Saravia v.

Att'y Gen.,

, 737–38 (3rd Cir. 2018) (same), with Liu

v. Holder,

(2d Cir. 2009) (declining to require

advance notice), Gaye v. Lynch,

, 528–30 (6th Cir.

2015) (same), and Rapheal v. Mukasey,

(7th Cir.

2008) (same). To resolve the present appeal, however, we need not

pick a side. Here, the IJ and the BIA committed the more

fundamental error of failing to provide Ixcuna-Garcia with even an

opportunity to explain why she could not reasonably obtain the

required evidence, a procedure that is mandated by both the BIA's

and this court's precedent.

- 16 - The BIA's decision in Matter of L-A-C- explains that if

an IJ "determines that specific corroborating evidence should have

been submitted, the applicant should be given an opportunity to

explain why he could not reasonably obtain such evidence."

(BIA 2015); see also

at 521 n.4 ("Permitting

the applicant to state the reasons why the corroborating evidence

could not be obtained is consistent with both the language of the

REAL ID Act and the [BIA]'s longstanding practice."). Indeed,

Matter of L-A-C- requires an IJ to "ensure that the applicant's

explanation is included in the record" and to "clearly state for

the record whether the explanation is sufficient."

at 521–

22.

Matter of L-A-C-'s requirement is also "consistent with

our own precedent." Molina-Diaz,

(citing Soeung,

). In Soeung, we held that "before the failure to

produce corroborating evidence can be held against an applicant,"

the IJ must make "explicit findings that . . . the applicant's

failure to [produce that evidence] was not adequately explained."

. Of course, an IJ cannot make this finding if the

IJ does not first provide the applicant with an opportunity to

explain the inability to produce the corroborating evidence. We

reaffirmed this requirement in Molina-Diaz, explaining that

Soeung's holding regarding corroboration remains good law even

- 17 - though it predated the passage of the REAL ID Act. Molina-Diaz,

n.2.

This rule fits logically within the statutory scheme

governing corroborating evidence. Under the relevant provision,

when an IJ "determines that the applicant should provide

[corroborating evidence], such evidence must be provided unless

the applicant does not have the evidence and cannot reasonably

obtain the evidence."

(b)(1)(B)(ii). An IJ could

not follow the dictates of the statute and find that an applicant

"cannot reasonably obtain [corroborating] evidence" without first

providing her some chance to explain why such evidence cannot be

provided.6

Turning to the facts in this case, the IJ plainly failed

to provide Ixcuna-Garcia with such an opportunity to set the record

straight. The BIA seemingly excused the IJ's error because

Ixcuna-Garcia had "yet to supply either an explanation or an

affidavit." But it would be odd to expect Ixcuna-Garcia to produce

the required evidence or explanation for the first time on appeal

6Contrary to the government's belief, this rule does not necessarily require the "unusual" procedure of allowing additional hearings or continuances. The IJ could simply ask in the initial hearing why the applicant does not have the required corroborating evidence. Section 1158(b)(1)(B)(ii) and Matter of L-A-C- then requires that the IJ evaluate the applicant's explanation and state on the record whether that explanation suffices. See 26 I. & N. Dec. at 521–22. The IJ need not always hold a second hearing or grant a continuance to allow the applicant to obtain that evidence.

- 18 - to the BIA without any prompting. After all, the BIA reviews

findings of fact determined by the IJ, including credibility

determinations, under a "clearly erroneous" standard and not de

novo.

(d)(3)(i). Moreover, as explained

earlier, Matter of L-A-C- requires an IJ to "ensure that the

applicant's explanation is included in the record and . . .

clearly state for the record whether the explanation is

sufficient." 26 I. & N. Dec. at 521–22. It is the IJ -- not the

BIA -- that must enter this explanation into the record.

The government's response relies on the mistaken belief

that an IJ need never provide an applicant with an opportunity to

explain a failure to produce specific corroborating evidence when

the IJ finds the applicant's testimony not credible. As the

government would have it, so long as the IJ makes an express

adverse credibility finding, the IJ can escape the mandates of

Matter of L-A-C- and this court's precedent.

We need take no position on whether the government's

argument would have force if the IJ's adverse credibility finding

did not rest at all on any unexplained absence of corroboration.

Here, the IJ and the BIA did not treat Ixcuna-Garcia's lack of

corroboration as an independent or alternative basis for the

credibility finding; rather, it was one of the factors -- along

with the noted inconsistencies -- on which the IJ and the BIA

relied to reach the challenged conclusions. Indeed, the

- 19 - government concedes this very point in its brief, stating that

"[u]nder the totality of the circumstances analysis, the

immigration judge and the Board appropriately relied on [the lack

of corroboration] to support the adverse credibility

determination."

The government contends that our decision in Zeru v.

Gonzales nevertheless blesses its proposed framework. See

(1st Cir. 2007). Specifically, the government points to

language in Zeru explaining that a noncitizen is not owed a

presumption of credibility and that it is always the noncitizen's

burden to "put forth sufficiently credible testimony or other

evidence to establish her eligibility for [relief]."

.

But it takes quite a leap in logic to bound from that general

statement on credibility to the rule the government proposes,

especially as the IJ in Zeru appears to have provided the applicant

with precisely the opportunity to explain the lack of corroboration

that is missing here. See, e.g.,

(explaining that the

IJ had directed Zeru at a prior hearing "to obtain news reports or

other information to substantiate" the testimony but that Zeru

"neither produced the documents nor had an explanation for her

failure to do so");

(noting that Zeru was "advised by an

IJ to obtain [specific corroborating] documents" yet "was able

neither to produce the [relevant] records nor to explain why she

did not produce them").

- 20 - To be sure, section 1158(b)(1)(B)(ii) specifies that the

applicant's testimony must be "otherwise credible." However, as

explained previously, there is nothing in the IJ's or the BIA's

decisions to indicate that Ixcuna-Garcia's testimony was not

"otherwise credible" absent the lack of corroboration. Where it

is unclear whether the IJ and BIA would have found the applicant

not "otherwise credible" notwithstanding the required

corroboration, we have held that the IJ must give the applicant

"the necessary opportunity to explain why she did not provide

corroborating evidence." Molina-Diaz,

. So, too,

in this case. Absent some statement by the IJ or the BIA

indicating that Ixcuna-Garcia would not be credible even if she

had proffered the necessary corroborating evidence, we can have no

confidence that the IJ or the BIA would have come to the same

credibility determination had Ixcuna-Garcia been provided an

opportunity to either produce the required corroboration or

explain why she reasonably could not.

Accordingly, we hold that the IJ erred in failing to

provide Ixcuna-Garcia with such an opportunity, as required by

Matter of L-A-C- and Molina-Diaz, and the BIA erred in failing to

correct this mistake. In the remanded proceedings, Ixcuna-Garcia

should be given an opportunity to explain (should she still not

produce the required corroboration) why she has not been able to

do so.

- 21 - B.

Ixcuna-Garcia's second argument is less availing. She

contends that the IJ and the BIA failed to meaningfully consider

the psychiatric evaluation prepared by Reczycki, which Ixcuna-

Garcia cited to clarify the perceived inconsistencies in her

testimony and explain why she had not disclosed her sexual assault

in the prior proceedings. Ixcuna-Garcia asserts that the decision

to not credit Reczycki's report was arbitrary and capricious

because it was based solely on the IJ's personal perceptions about

Reczycki's credentials (noting that she was a nurse rather than a

doctor) and the time necessary to complete a reliable diagnosis of

psychological trauma (noting that she spent "only three hours"

with Ixcuna-Garcia). As support, Ixcuna-Garcia and the amici tout

Reczycki's qualifications and the merits of Reczycki's

methodology. In essence, Ixcuna-Garcia suggests that no rational

decisionmaker would have rejected her explanation of the apparent

inconsistencies in her testimony given Reczycki's report.

Our review of such factual findings is under the

"deferential substantial evidence standard," not de novo. Soeung,

. As such, "we will reverse only if the record is

such as to compel a reasonable factfinder to reach a contrary

determination." Chen v. Holder,

(1st Cir. 2012).

That Reczycki's psychiatric evaluation "supports a conclusion"

which differs from that reached by the IJ and the BIA "is not

- 22 - enough to warrant upsetting [their] view of the matter." Lopez

de Hincapie v. Gonzales,

(1st Cir. 2007). And

while we might well regard Reczycki's evaluation with less

skepticism than that expressed by the IJ, Ixcuna-Garcia points us

to nothing in the record before the agency compelling the IJ or

the BIA to adopt that evaluation as fact.

Moreover, as we explained above, this is not a case where

the IJ or the BIA failed to consider or declined to admit relevant

evidence entirely. Rather, the IJ noted that it did not give the

report much weight due both to Reczycki's professional background

and the length of time Reczycki took to conduct the evaluation.

The BIA then accepted the IJ's conclusion that "the real reason

[Ixcuna-Garcia] did not include certain incidents [in her prior

statements] was because they did not happen rather than that they

were omitted for the reasons she gave."

Of course, on remand, the overall mix of the evidence

may be different, depending on what Ixcuna-Garcia does to address

the matter of corroboration by her mother. How Reczycki's

testimony might be assessed and weighed in those circumstances

remains to be seen.

C.

We need not tarry long with Ixcuna-Garcia's contention

that the record compelled a finding that she was credible, even

without considering the expert's evaluation. The fact is that she

- 23 - told different stories on different occasions. And while she

marshals cogent explanations for the inconsistencies in her

testimony, nothing compels an IJ or the BIA to agree.

IV.

As to her last argument, which concerns only the denial

of her application for withholding, Ixcuna-Garcia and the

government largely agree that remand is necessary. The government

concedes that the IJ and the BIA failed to assess Ixcuna-Garcia's

claims of past persecution based on her mistreatment at the hands

of her classmates and the effect of the civil war on her family,

which Ixcuna-Garcia had raised in her initial hearing. While the

IJ ruled on those aspects of the withholding of removal claim in

his 2011 decision, the government acknowledges that that decision

did not survive Ixcuna-Garcia's first BIA appeal. In the remanded

proceedings, neither the IJ nor the BIA addressed these aspects of

Ixcuna-Garcia's claim. Because the IJ's and the BIA's

consideration of Ixcuna-Garcia's claim of past persecution may

also impact the assessment of future persecution, the government

admits that remand is required so that these components of Ixcuna-

Garcia's claim may be included in the agency's overall assessment

of her application for withholding. We agree.

- 24 - V.

For the foregoing reasons, we grant in part and deny in

part Ixcuna-Garcia's petition for review, and remand for further

proceedings in accord with this decision.

- 25 -