20-3230
Pomavilla-Zaruma v. Garland




                       United States Court of Appeals
                          For the Second Circuit

                                    August Term 2022

                                   Argued: June 9, 2023
                                 Decided: August 30, 2023

                                       No. 20-3230



                              ROSA ELVIRA POMAVILLA-ZARUMA,

                                        Petitioner,

                                            v.

              MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

                                       Respondent.



                   Appeal from the Board of Immigration Appeals,
           In re Pomavilla-Zaruma, No. A 206 506 589 (B.I.A. Aug. 24, 2020).
Before:     PÉREZ, NATHAN, and MERRIAM, Circuit Judges.

       Petitioner applied for asylum, withholding of removal, and protection
under the Convention Against Torture. An immigration judge found Petitioner
not credible and denied her application, relying in part on inconsistencies between
Petitioner’s statements during a border interview and later testimony regarding
her fear of persecution. However, the immigration judge failed to consider various
factors that may have affected the reliability of the border interview record.
Petitioner claims that she was frightened during the interview because a border
patrol officer hit her and yelled at her upon her arrival to the United States.
Petitioner may also have been reluctant to reveal information about persecution
because authorities in her home country were allegedly unwilling to help her due
to her indigenous status. Moreover, the questions asked during Petitioner’s
border interview generally were not designed to elicit the details of an asylum
claim. In Ramsameachire v. Ashcroft, 

 (2d Cir. 2004), we cautioned
immigration judges to consider these factors and others before relying on a border
interview to find an asylum applicant not credible. Consistent with Ramsameachire
and subsequent precedent, we hold that immigration judges are required to take
such precautions, provided the record indicates that the Ramsameachire factors may
be implicated. Accordingly, we GRANT the petition for review in part, VACATE
the BIA’s decision, and REMAND the case for further proceedings consistent with
this opinion.

                                    ________

                                      REUBEN S. KERBEN, ESQ., Kerben Law Firm,
                                      P.C., Kew Gardens, NY, for Petitioner.

                                      LIZA S. MURCIA (Brian M. Boynton, Acting
                                      Assistant Attorney General, Anthony C.
                                      Payne, Assistant Director, on the brief), Office
                                      of Immigration Litigation, Civil Division,
                                      United States Department of Justice,
                                      Washington, DC, for Respondent.
                                      ________




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NATHAN, Circuit Judge:

      For almost two decades, this Court has recognized inherent limitations in

asylum applicants’ willingness and ability to express their fear of persecution

during border interviews. Persons fleeing state-sponsored abuse in their home

countries may travel weeks to seek asylum in the United States, arriving travel-

worn, apprehensive of governmental authorities, and lacking English fluency,

access to legal counsel, or knowledge of our immigration laws. It is therefore

unsurprising that some asylum seekers feel intimidated, reluctant, or confused

during the interviews with border patrol officers that occur immediately after their

arrival. Moreover, because a border interview is not an interview for asylum, the

interviewing officers might not pose questions aimed at developing the details of

an asylum claim or record a verbatim transcript of the interviewee’s responses.

See Ramsameachire v. Ashcroft, 

, 179–80 (2d Cir. 2004) (citing

Balasubramanrim v. I.N.S., 

, 162–63 (3d Cir. 1998), and Senathirajah v.

I.N.S., 

, 218–20 (3d Cir. 1998)).

      In Ramsameachire v. Ashcroft, we cautioned immigration judges to keep these

considerations in mind before relying on statements an asylum applicant made



                                           3
during a border interview in assessing the applicant’s credibility. Applying that

precedent, we hold that an immigration judge may not rely on a border interview

to find an asylum applicant not credible without first considering the

Ramsameachire factors, if the record indicates that those factors may be relevant.

Because the immigration judge reviewing Petitioner Rosa Elvira Pomavilla-

Zaruma’s asylum application did not take such precautions, we grant her petition

for review.

                                BACKGROUND

      Rosa Elvira Pomavilla-Zaruma fled her home country of Ecuador in 2013,

when she was nineteen years old. After spending a month travelling north, she

rafted across the Rio Grande and entered Texas, where she was apprehended by

U.S. border patrol without valid entry documents.           Pomavilla-Zaruma later

described the encounter with border patrol as “frighten[ing].”            Certified

Administrative Record (CAR) 145. When she and four other individuals reached

the riverbank, they began running, but stopped when a border patrol agent yelled

at them. By her account, “[a]fter he caught us, he started hitting us on the back

with . . . something they carry on their belts.” CAR 145.



                                         4
       The following day, on May 5, 2013, border patrol agents interviewed

Pomavilla-Zaruma. The record of that interview is not in the form of a transcript,

although it includes questions and answers that appear to record the conversation

verbatim. When asked the “purpose for [her] entry into the United States,” she

answered “[t]o reside and seek employment and continue my education.” CAR

135. When asked whether she feared persecution or torture if she was sent back

to Ecuador, Pomavilla-Zaruma answered “[n]o.” CAR 136. She was placed in

removal proceedings, conceded removability, and timely applied for asylum,

withholding of removal, and relief under the Convention Against Torture.

      The following year, in 2014, Pomavilla-Zaruma completed a credible fear

interview—that is, a screening interview conducted by an asylum officer to

determine whether Pomavilla-Zaruma’s asylum application would receive “full

consideration” by an immigration judge (IJ).            Dep’t of Homeland Sec. v.

Thuraissigiam, 

 (2020) (quoting 

(f)). During the

interview, she alleged that a man in her home country, whom she identified by

name, began pursuing her and trying to inappropriately touch her when she was

a child, and that he began raping her when she was a teenager. Until Pomavilla-



                                          5
Zaruma left Ecuador, the man continued to rape, harass, and physically assault

her. He threatened her not to tell anyone, and when her mother found out, he also

threatened and harassed her mother. Pomavilla-Zaruma claimed that the police

would not protect her because she was indigenous, and although she reported the

man to authorities and he was convicted of rape, the sentence against him was

never carried out. Moreover, she explained that she could not simply relocate

elsewhere in Ecuador because indigenous people are unable to move freely.

      After hearing these allegations, the asylum officer asked Pomavilla-Zaruma

whether she remembered indicating during the border interview that she was not

afraid to return to Ecuador. She answered that she “couldn’t really understand”

the border patrol officer because “[m]ost of it was in English.” CAR 29. She also

told the asylum officer about her experience entering the United States the day

before the border interview, explaining that she was “very scared” because “one

officer had hit [her].” CAR 29. The asylum officer then found Pomavilla-Zaruma

to have a credible fear of persecution.

      In 2018, Pomavilla-Zaruma testified at a hearing before an IJ, with the

assistance of an interpreter.    Echoing her account during the credible fear



                                          6
interview, she described racism against the indigenous population in Ecuador, the

years of repeated sexual abuse by her assaulter, the Ecuadorian authorities’ failure

to protect her and enforce her assaulter’s sentence, and her fear of persecution and

torture were she to return to Ecuador. She also shared additional details, including

that her assaulter had continued to threaten her mother in Ecuador. She testified

that as recently as three months before the IJ hearing, her assaulter warned her

mother that he would one day find Pomavilla-Zaruma again.

      The government cross-examined Pomavilla-Zaruma about the border

interview. First, it asked whether “everything [she] told the officer [was] true and

correct,” and she answered “yes.” CAR 122. Then, the government asked about

her statement that she had come to the United States for employment and

education, and that she did not fear persecution upon return. She explained,

“Well, to be honest with you, that day I was very nervous. I couldn’t really

understand much, and they were only talking in English.” CAR 123. After the IJ

expressed skepticism of Pomavilla-Zaruma’s explanation, her counsel added that

“she is somewhat confused and was confused at the time of the [border]

interview.” CAR 129.



                                         7
      The IJ denied all relief because he found Pomavilla-Zaruma to be incredible

on two grounds. First, the responses she gave during the border interview about

coming to the United States for employment and education and not fearing

persecution were inconsistent with her later account of fleeing to the United States

to escape persecution. Second, her testimony that the interview was conducted in

English was “simply unbelievable” because the record of the interview stated that

it was conducted in Spanish and because border interviews are generally

conducted in the interviewee’s native language. CAR 87–88.

      Pomavilla-Zaruma appealed to the Board of Immigration Appeals (BIA),

which affirmed the IJ’s credibility decision on similar grounds in 2020. In addition

to challenging the adverse credibility finding, Pomavilla-Zaruma claimed for the

first time that the border interview record was improperly admitted into evidence

at the IJ hearing. The BIA rejected that argument as waived and also rejected it on

the merits. Pomavilla-Zaruma timely petitioned this Court for review.

                           STANDARD OF REVIEW

      Where, as here, the BIA adopts the IJ’s reasoning and supplements its

decision, we review the IJ’s decision as supplemented by the BIA. Chen v. Gonzales,



                                          8


 (2d Cir. 2005). “Our review of the IJ’s decision includes the

portions not explicitly discussed by the BIA.” Hong Fei Gao v. Sessions, 

 (2d Cir. 2018) (cleaned up).

       We review factual findings, including adverse credibility findings, for

substantial evidence, meaning we require “that they be supported by reasonable,

substantial and probative evidence in the record when considered as a whole.” 

(cleaned up).   Although we treat factual findings as “conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary,” 

(b)(4)(B), we do not “defer to unreasoned rulings, or those based on legal

error, faulty analysis, or misreadings of the record,” Gao v. Bd. of Immigr. Appeals,

 (2d Cir. 2007) (quoting Li Zu Guan v. I.N.S., 

 (2d

Cir. 2006)).

                                   DISCUSSION

I.   Adverse Credibility Finding

       In making a credibility finding, an IJ must consider “the totality of the

circumstances, and all relevant factors” and may base the determination on,

among other things, “consistency between the applicant’s or witness’s written and



                                          9
oral statements (whenever made and whether or not under oath, and considering

the circumstances under which the statements were made)” and “the consistency

of such statements with other evidence of record.” 

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

that end, when the inconsistencies underlying an adverse credibility finding arise

from an applicant’s statements in a border interview, the IJ “must closely examine”

the border interview to ensure it is sufficiently reliable “to merit consideration.”

Ramsameachire, 

.       As we observed in Ramsameachire, border

interviews take place shortly after applicants arrive in the United States, often after

significant travel. If an applicant was fleeing persecution in her home country, she

may be wary of governmental authorities and perceive questions from border

patrol officers as coercive or threatening.         The interviewee may also be

unrepresented by counsel, unknowledgeable of U.S. asylum law, and unable to

understand aspects of the proceedings conducted in English. Moreover, the officer

conducting the interview may not endeavor to solicit the information needed to

establish an asylum claim or record a verbatim account of the interview. See 

 at

179–80 (citing Balasubramanrim, 143 F.3d at 162–63, and Senathirajah, 157 F.3d at

218–20).



                                           10
      In Ramsameachire, we recognized these limitations and set forth four non-

exhaustive factors that “provide the analytical framework for assessing the

reliability” of border interviews: A border interview record is “inherently less

reliable” if (1) the record “merely summarizes or paraphrases the [noncitizen’s]

statements” rather than include “a verbatim account or transcript,” (2) “the

questions asked are not designed to elicit the details of an asylum claim, or the . . .

officer fails to ask follow-up questions that would aid the [noncitizen] in

developing his or her account,” (3) “the [noncitizen] appears to have been

reluctant to reveal information to INS officials because of prior interrogation

sessions or other coercive experiences in his or her home country,” or (4) "the

[noncitizen’s] answers to the questions posed suggest that the [noncitizen] did not

understand English or the translations provided by the interpreter.” 

(cleaned up).

      We stated in Ramsameachire that “[i]n all cases,” “[t]hese aspects of the

interview must be deemed reliable before the [agency] uses the interview to assess

the [applicant’s] credibility.” 

 (emphasis added). However, statements in some

of our subsequent cases have left some uncertainty around whether consideration



                                           11
of the Ramsameachire factors is actually required of immigration judges or simply

best practice.

      In Latifi v. Gonzales, an IJ found an asylum applicant not credible in reliance

on an inconsistency between the applicant’s airport interview and later testimony,

without considering the applicant’s explanation “that he was afraid and

pressured, and did not know whether any harm would come to him if he

mentioned his political situation.” 

 (2d Cir. 2005). Observing that

the applicant’s explanation for the inconsistency “falls squarely within the

category of reasons which, as we stated in Ramsameachire, require that airport

interviews be viewed with caution,” we held that the IJ’s failure to “evaluate this

explanation” amounted to error. 

 In various nonprecedential decisions, panels

of this Court have similarly found reversible error where the agency appeared not

to have examined the Ramsameachire factors despite their apparent relevance. See,

e.g., Zhen Hui Ye v. U.S. Dep’t of Just., 

 (2d Cir. 2005); Yu Qiao

Wang v. Gonzales, 

 (2d Cir. 2006); Hui Mei Li v. Bd. of Immigr.

Appeals, 

 (2d Cir. 2006).




                                           12
      But in Yun-Zui Guan v. Gonzales, we held that where the Ramsameachire

factors simply are not relevant, it is not “essential [for them] to be assessed,”

reasoning that “[r]eviewing a factfinder’s determination of credibility is ill-suited

to attempts to fashion rigid rules of law.” 

 (2d Cir. 2005). Yun-

Zui Guan distinguished Latifi, explaining that when a petitioner has “provided an

explanation for the inconsistencies” between a border interview and later

testimony that falls “squarely within” the Ramsameachire factors, and the IJ “failed

to ‘evaluate’ that explanation,” the inconsistencies can “not support the IJ’s

adverse credibility finding.” 

 at 399 (quoting Latifi, 

).

      Considering Ramsameachire, Latifi, and Yun-Zui Guan together, we hold that

an IJ is required to consider the Ramsameachire factors before relying on a border

interview for an adverse credibility determination if the record indicates the

factors may be relevant. Here, the record contains various indications that the

Ramsameachire factors would be relevant to assessing the reliability of Pomavilla-

Zaruma’s border interview record.

      For example, the second factor is implicated because the border interview

questions generally were not “designed to elicit the details of an asylum claim”



                                           13
and the interviewing officer failed “to ask follow-up questions that would aid

[Pomavilla-Zaruma] in developing . . . her account.” Ramsameachire, 

 (cleaned up).   Pomavilla-Zaruma was asked one question about fear of

persecution and torture, but those terms were not defined, and she was not asked

about any harm she had experienced in Ecuador. And unlike the applicant in

Ramsameachire, Pomavilla-Zaruma was not warned that she should be fully

forthcoming about any fear or history of persecution lest she lose her chance to

obtain asylum. See 

. The agency appears not to have considered this

factor before finding Pomavilla-Zaruma not credible.

      The record also indicates that the third Ramsameachire factor may have been

implicated—Pomavilla-Zaruma may “have been reluctant to reveal information”

because of prior “coercive experiences.” 

. Pomavilla-Zaruma explained

at the credible fear interview that she was “really frightened” because one of the

border patrol officers had hit her and yelled at her when she arrived at the U.S.

border. CAR 145. Then, when asked during the IJ hearing about inconsistencies,

Pomavilla-Zaruma repeated that she had been “very nervous” during the border

interview. CAR 123. Moreover, the governmental authorities whom Pomavilla-



                                         14
Zaruma was accustomed to dealing with in Ecuador were allegedly biased against

her and reluctant to help her because of her indigenous status. The agency seemed

not to consider that under these combined circumstances, Pomavilla-Zaruma

might have been reluctant to share her alleged history of persecution with a border

patrol officer.

      Because the second and third Ramsameachire factors would have been

relevant to assessing the reliability of Pomavilla-Zaruma’s border interview

record, the IJ erred in relying on the border interview without considering these

factors.   Absent such consideration, the inconsistencies between Pomavilla-

Zaruma’s statements in her border interview and later testimony cannot provide

substantial evidence in support of an adverse credibility finding.

      Granted, the agency did not base its adverse credibility finding solely on

Pomavilla-Zaruma’s inconsistent statements about her reason for coming to the

United States and fear of persecution. The agency also relied on a statement

Pomavilla-Zaruma made during the IJ hearing implying that the border interview

was conducted in English, which contradicted record evidence that it was

conducted in Spanish by a translator. On appeal to the BIA, Pomavilla-Zaruma



                                         15
submitted an affidavit clarifying that while the officer conducting the border

interview asked her questions through a translator, “[her] attorney and the

government officers only spoke in English with each other” and “there was a lot

of talking going on that wasn’t translated,” which was “[w]hat [she] meant” when

she stated at the IJ hearing that “they were only talking in English.” CAR 50.

      We may decline to remand “despite error” when an adverse credibility

determination “is otherwise supported by substantial evidence and we can state

with confidence that the same decision would be made on remand.” Xiao Ji Chen

v. U.S. Dep’t of Just., 

 (2d Cir. 2006). But remand is warranted if

we have “doubts whether, absent the errors identified . . . the IJ would have

reached the same conclusion based upon [its] remaining [reasons].” Malets v.

Garland, 

, 56–57 (2d Cir. 2023). In this case, we cannot state with

confidence that on remand, the IJ would find Pomavilla-Zaruma not credible

solely based on her statement about the language of the border interview. It is

difficult to predict how much weight the IJ placed on Pomavilla-Zaruma’s

inconsistent statements in her border interview and whether, in light of the

Ramsameachire factors discussed above, the IJ would reach the same adverse



                                          16
credibility conclusion on remand. Therefore, we vacate the agency’s adverse

credibility determination and remand for further consideration.

II. Admission of the Border Interview Record

      In addition to contesting the agency’s adverse credibility finding,

Pomavilla-Zaruma’s petition for review challenges the admission of the border

interview record into evidence. Regardless of the merits of this challenge, it is

waived. When the BIA declines to consider an issue because it is waived, “this

Court’s review is limited to whether the BIA erred in deeming the argument

waived.” Prabhudial v. Holder, 

, 555–56 (2d Cir. 2015). “[T]he BIA may

refuse to consider an issue that could have been, but was not, raised before an IJ,”

and here, the BIA was correct as a factual matter that neither Pomavilla-Zaruma

nor her counsel objected to the border interview record’s admission. 

.

Therefore, the BIA did not err in deeming Pomavilla-Zaruma’s evidentiary

argument waived. Moreover, Pomavilla-Zaruma did not address the BIA’s waiver

finding in her petition to this Court and thereby abandoned any challenge to it.

See Yueqing Zhang v. Gonzales, 

, 545 n.7 (2d Cir. 2005). Accordingly,




                                          17
we deny Pomavilla-Zaruma’s petition in part as it pertains to the IJ’s admission of

the border interview record into evidence.

                                 CONCLUSION

      For the foregoing reasons, Pomavilla-Zaruma’s petition for review is

GRANTED in part and DENIED in part, the BIA’s decision is VACATED, and the

case is REMANDED for further consideration consistent with this opinion.




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