Soto-Olarte v. Mukasey
Soto-Olarte v. Mukasey
Opinion of the Court
MEMORANDUM
Jorge Arturo Soto-Olarte (“SotoOlarte”) and his wife Maria Jesus Esteves-La Torre (“La Torre”), natives and citizens of Peru, petition for review of the Board of Immigration Appeals (“BIA”)’s opinion dismissing their appeal of an immigration judge (“IJ”)’s denial of their petitions for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252. Because the BIA conducted its own analysis but also relied in large part on the IJ’s reasoning, we review the BIA’s opinion as well as that of the IJ. See Plasencia-Ayala v. Mukasey, 516 F.3d 738, 743 (9th Cir. 2008). Reviewing for substantial evidence both the IJ’s and BIA’s adverse credibility findings and their determinations of the petitioners’ ineligibility for asylum and withholding of removal, see Kaur v. Ashcroft, 379 F.3d 876, 884 (9th Cir. 2004), we grant the petition for review and remand this case to the BIA for further proceedings.
The IJ based her finding that Soto-Olarte was not credible
However, Soto-Olarte offered a persuasive explanation in his declaration for one of these inconsistencies—the police report’s failure to mention anything about Shining Path. His explanation was that “[t]he police treated the incident as an attempted burglary [because they] did not want to get involved with allegations of the Shining Path.” The IJ “did not comment on [this] explanation [in her decision], nor suggest any reason that [she] found his explanation not credible.” Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir. 1998). Under our case law, this lack of consideration given to Soto-Olarte’s proffered explanation was error and prevents the underlying inconsistency from serving as substantial evidence to support the IJ’s adverse credibility finding. See Kaur v. Ashcroft, 379 F.3d 876, 887 (9th Cir. 2004) (“An adverse credibility finding is improper when an IJ fails to address a petitioner’s explanation for a discrepancy or inconsistency.”); Guo v. Ashcroft, 361 F.3d 1194, 1201 (9th Cir. 2004) (holding that an alleged inconsistency in a petitioner’s testimony could not serve as substantial evidence for an adverse credibility finding where the IJ “did not address at all [the petitioner’s] reasonable and plausible explanation” for the inconsistency); Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001) (concluding that “[w]e do not find the IJ’s reasoning persuasive” where the IJ made an adverse credibility finding based on inconsistencies between the petitioner’s testimony and his passport, because the petitioner “provided an explanation for this discrepancy, but neither the BIA nor the IJ addressed [his] explanation”).
The statement in Soto-Olarte’s declaration that “the police did not want to get involved with allegations of the Shining Path” does not account for all of the inconsistencies between the police report and Soto-Olarte’s testimony. For example, this explanation does not suggest why the police did not mention in their report that there were two intruders inside the house as well as two outside and that SotoOlarte shot off a gun to scare the men away. Moreover, this explanation sheds no light on why the police would report that a bag containing sales slips and toys was stolen from Soto-Olarte’s car while Soto-Olarte did not mention any property being taken. However, Soto-Olarte was never asked about any of these inconsistencies at his hearing before the IJ; instead, the only discussion of the police report at that hearing concerned its existence and the date on which it was filed. The IJ could not properly base her adverse credibility determination on the inconsistencies between Soto-Olarte’s testimony and the police report that SotoOlarte did not attempt to explain in his declaration when she did not ask SotoOlarte about these discrepancies and give him an opportunity to try to reconcile them. See Don v. Gonzales, 476 F.3d 738, 741 (9th Cir. 2007) (“[T]he IJ ‘must provide a petitioner with a reasonable opportunity to offer an explanation of any perceived inconsistencies that form the basis of a denial of asylum.’ ”) (quoting Ordonez v. INS, 345 F.3d 777, 786 (9th Cir. 2003)); Chen v. Ashcroft, 362 F.3d 611, 618 (9th Cir. 2004) (finding that the petitioner “was denied a reasonable opportunity to explain what the IJ perceived as an inconsistency in her testimony” and concluding that “[t]he IJ’s doubt about the veracity of her story, therefore, cannot serve as a basis for the denial of asylum”); He v. Ashcroft, 328 F.3d 593, 602-03 (9th Cir. 2003) (holding that an adverse credibility finding was not supported by substantial evidence where neither the IJ nor the government lawyer “expressed any doubts” during the hearing about the aspect of the petitioner’s story later used to deem him not credible and where he “was not cross-examined about [the relevant] events, [and so] had no reason or opportunity to explain what he meant”).
In addition, the IJ and BIA relied on the inconsistencies between SotoOlarte’s testimony and the June 27, 2003 police report as grounds for a negative credibility finding without appearing to give any consideration
“Our review [of an adverse credibility finding] focuses only on the actual reasons relied upon by the IJ.” Marcos v. Gonzales, 410 F.3d 1112, 1116 (9th Cir. 2005). “ ‘When each of the IJ’s or BIA’s proffered reasons for an adverse credibility finding fails, we must accept a petitioner’s testimony as credible.’ ” Id. (quoting Kaur v. Ashcroft, 379 F.3d at 890). Here, both the IJ and BIA purported to make an alternative holding that even if SotoOlarte were deemed credible, he and his
Because the BIA has not evaluated Soto-Olarte’s and La Torre’s eligibility for asylum or withholding of removal independently from the adverse credibility finding that we hold not to be supported by substantial evidence, we remand to give the agency the opportunity to make those determinations in the first instance while accepting Soto-Olarte’s testimony as credible. See INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2000) (per curiam) (“Within broad limits the law entrusts the agency to make the basic asylum eligibility decision here in question.”). However, we do not remand the petitioners’ CAT claim to the BIA, as that claim was not presented as part of this appeal and was therefore waived. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[0]n appeal, arguments not raised by a party in its opening brief are deemed waived.”).
PETITION FOR REVIEW GRANTED; CASE REMANDED IN PART.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. Because Soto-Olarte’s and La Torre's petitions for asylum and withholding of removal were filed before May 4, 2005, the provisions of the REAL ID act regarding adverse credibility determinations do not apply. See Kaur v. Gonzales, 418 F.3d 1061, 1064 n. 1 (9th Cir. 2005).
. Although we find the absence of an opportunity to explain inconsistencies to be one reason that the IJ's adverse credibility finding was not supported by substantial evidence, we
. The IJ's opinion mentioned Soto-Olarte's political activities and the threats he said he received in its summary of the facts but made no reference to these matters in the section entitled "Analysis of Facts and Law.”
Dissenting Opinion
Dissenting:
The adverse credibility finding of the Immigration Judge (IJ) is supported by substantial evidence. There are substantial discrepancies between the police report of the incident on June 19, 2003, on the one hand, and petitioner’s written statement and testimony, on the other hand. Petitioner was on notice of the discrepancies between his narrative of the incident and the narrative in the police report, and of the need to explain the discrepancies. Petitioner’s explanation for the discrepancies only accounted for the police report’s failure to mention the Shining Path. The other material discrepancies also go to the heart of petitioner’s claim. Petitioner did not explain those discrepancies. Because substantial evidence supports the IJ’s finding that petitioner’s testimony was not credible, I would deny the petition. See Kohli v. Gonzales, 473 F.3d 1061, 1071 (9th Cir. 2007); Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir. 2004).
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