18-2532 Alexandre v. Garland BIA Mulligan, IJ A209 866 675 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 18th day of March, two thousand twenty-one.

PRESENT: BARRINGTON D. PARKER, REENA RAGGI, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

JODE ALEXANDRE, Petitioner,

v. 18-2532 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. 1 _____________________________________

FOR PETITIONER: Hagit Muriel Elul, Esq., Hughes Hubbard & Reed LLP, New York, NY;

1Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted for former Attorney General William P. Barr as Respondent. Elizabeth Rieser-Murphy, Esq., The Legal Aid Society, New York, NY.

FOR RESPONDENT: Brian M. Boynton, Acting Assistant Attorney General; Nancy E. Friedman, Senior Litigation Counsel; Andrew Jacob Oliveira, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is GRANTED.

Petitioner Jode Alexandre, a native and citizen of Haiti,

seeks review of an August 15, 2018, decision of the BIA

affirming a February 21, 2018, decision of an Immigration

Judge (“IJ”) denying Alexandre’s application for asylum,

withholding of removal, and protection under the Convention

Against Torture (“CAT”). In re Jode Alexandre, No. A 209 866

675 (B.I.A. Aug. 15, 2018), aff’g No. A 209 866 675 (Immigr.

Ct. N.Y.C. Feb. 21, 2018). We assume the parties’ familiarity

with the underlying facts and procedural history.

We have reviewed the IJ’s decision as supplemented by

the BIA. See Yan Chen v. Gonzales,

(2d

2 Cir. 2005). “Considering the totality of the circumstances,

and all relevant factors, a trier of fact may base a

credibility determination on . . . the consistency between

the applicant’s or witness’s written and oral statements

. . . , the internal consistency of each such statement, the

consistency of such statements with other evidence of record

. . . and any inaccuracies or falsehoods in such statements,

without regard to whether an inconsistency, inaccuracy, or

falsehood goes to the heart of the applicant’s claim, or any

other relevant factor.”

(b)(1)(B)(iii). We

review adverse credibility determinations for substantial

evidence. See Hong Fei Gao v. Sessions,

(2d

Cir. 2018). Given the lack of explanation in the agency’s

decision, as well as the possible consideration of an

unsubstantiated allegation regarding a matter outside the

record, we cannot conclude that the findings relied upon by

the agency provide substantial evidence for the adverse

credibility determination. While the agency may rely on any

omission or inconsistency in making an adverse credibility

determination, see Xiu Xia Lin v. Mukasey,

(2d Cir. 2008), not all omissions and inconsistencies deserve

3 the same weight, see Hong Fei Gao,

. The agency

must “evaluate each inconsistency or omission in light of

‘the totality of the circumstances, and all [the] relevant

factors.’”

at 79 (quoting

(b)(1)(B)(iii)).

In finding Alexandre not credible, the IJ relied on his

border interview statement that he was coming to the United

States to find work and did not fear returning to Haiti.

Alexandre did not dispute making this statement, but

explained that he was told by an individual “who works that

route” not to disclose his fear of return at the border as

doing so would make him “eligible for immediate deportation.”

Certified Admin. Rec. at 166. Although an IJ is not required

to accept an asylum applicant’s explanation for record

inconsistencies, the IJ must engage or evaluate an

applicant’s explanation. A “summary conclusion that the

Court does not accept [petitioner’s] explanation [does] not

meet this requirement.” Hong Fei Gao,

(internal quotation marks omitted). This is particularly so

when, as here, the inconsistency pertains to a border-

interview statement. See Latifi v. Gonzales,

(2d Cir. 2005) (identifying error in IJ’s reliance on

4 applicant’s statement during airport interview that he did

not fear return where IJ did not consider explanation that

applicant was “afraid and pressured”). Here, the IJ rejected

Alexandre’s explanation, stating that he found it “more

likely” that Alexander later fabricated an asylum claim to

avoid deportation. Certified Admin. Rec. at 97. But the IJ

did not explain why he found this more likely. Absent some

explanation as to why the IJ thought Alexandre likely

fabricated his asylum claim, a due process issue arises as to

whether the IJ relied on the Department of Homeland Security’s

(“DHS”) assertion—unsubstantiated in the record—that Haitians

have a pattern of fabricating asylum claims. See Burger v.

Gonzales,

, 132–33 (2d Cir. 2007) (Due process

requires “if the [BIA] intends to take administrative notice

of potentially dispositive facts, it must warn a petitioner

and provide the petitioner with an opportunity to respond

before it . . . enters a final order of removal on the basis

of those facts.”); cf. Brown v. Ashcroft,

(2d Cir. 2004) (submission of conviction record did not

violate due process because alien had opportunity to contest

evidence at the hearing).

5 Because the IJ gave significant weight to this initial

finding of likely fabrication, we cannot determine whether he

would have reached the same adverse credibility determination

based only on the other identified inconsistencies. The IJ

correctly noted inconsistency between Alexandre’s border-

interview statement that he left his passport in Brazil and

his testimony that his passport was stolen in Nicaragua. But

it is not apparent on the record before us how that

inconsistency relates to the rationale for his asylum claim.

See Hong Fei Gao,

. Also, the IJ did not engage

with or, on the record, evaluate Alexandre’s explanation that

he initially said he left his passport in Brazil to avoid

deportation directly to Haiti. See

at 81–82 (requiring

IJ to “engage or evaluate the explanation” (internal

quotation marks omitted)); see also Pavlova v. INS,

(2d Cir. 2006) (remand appropriate where not

apparent on the face of record that agency considered

explanation).

The IJ also found Alexandre’s credibility undermined by

his inability to remember the month or time of year in 2013

when his mother told him over the phone that his sister had

6 died. This lack of detail concerns an event unrelated to

Alexandre’s own past persecution, though supportive of his

professed continuing fear if returned. In his brief to this

Court, Alexandre submits that his inability to pinpoint the

season is less telling of credibility because he was living

in the Domincan Republic where there is little seasonal

variation. We do not ourselves assess this explanation but,

instead, leave it for agency determination on remand.

Finally, the IJ’s finding that the testimonies of

Alexandre’s brothers were vague related primarily to details

following their sister’s death. They gave consistent

accounts as to Alexandre’s political activities and the harm

that he suffered.

In sum, we cannot conclude on the record before us that

the IJ’s adverse credibility finding is supported by

substantial evidence. Accordingly, we are obliged to remand

for further proceedings consistent with this order. See

Gurung v. Barr,

(2d Cir. 2019) (“When the

agency has denied asylum and related relief on credibility

grounds, we can (and we will) affirm only if (a) the agency

offered a clearly independent and sufficient ground for its

7 ruling, one that is not affected by any erroneous adverse

credibility findings, or (b) the evidentiary record includes

statements that are so inconsistent that we can be confident

that the agency would not accept any kind of explanation.”).

For the foregoing reasons, the petition for review is

GRANTED, the BIA’s decision is VACATED, and the case is

REMANDED for further proceedings. All pending motions and

applications are DENIED and stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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