               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ANTONIO PEREZ-ARCEO,                     No. 12-70635
                         Petitioner,
                                         Agency No.
                v.                      A091-704-485

LORETTA E. LYNCH, Attorney
General,                                  OPINION
                      Respondent.


       On Petition for Review of an Order of the
           Board of Immigration Appeals

        Argued and Submitted March 18, 2016
              San Francisco, California

                 Filed May 12, 2016

      Before: John T. Noonan, Ronald M. Gould,
      and Michelle T. Friedland, Circuit Judges.

               Opinion by Judge Gould
2                    PEREZ-ARCEO V. LYNCH

                           SUMMARY*


                           Immigration

    The panel granted Antonio Perez-Arceo’s petition for
review of the Board of Immigration Appeals’ decision finding
him removable for participating in an attempt to smuggle his
wife’s mother and sister-in-law into the United States.

    The panel held that the BIA erred in failing to address the
Immigration Judge’s seemingly inconsistent credibility
findings. The panel also held that the IJ erred in failing to
make an explicit finding that Perez-Arceo engaged in “an
affirmative act of help, assistance, or encouragement” of
smuggling, as this court’s case law requires. The panel
remanded on an open record for the IJ to reconsider his
ruling, provide further explanation, and engage in further
factfinding if necessary.


                            COUNSEL

Jorge I. Rodriguez-Choi, Oakland, California, for Petitioner.

Ada E. Bosque, Yamileth Davila, and Ashley Martin
(argued), Office of Immigration Litigation, 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.
                  PEREZ-ARCEO V. LYNCH                        3

                          OPINION

GOULD, Circuit Judge:

    Antonio Perez-Arceo petitions for review of a decision of
the Board of Immigration Appeals (BIA) finding him
removable under 8 U.S.C. § 1182(a)(6)(E)(i). That statute
provides that “[a]ny alien who at any time knowingly has
encouraged, induced, assisted, abetted, or aided any other
alien to enter or to try to enter the United States in violation
of law is inadmissible.” Antonio was charged as removable
along with his son Juan and his wife Micaela for allegedly
participating in an attempt to smuggle Micaela’s
undocumented sister-in-law and mother into the United States
in a van. The Immigration Judge (IJ) held a joint hearing in
which all three testified that Micaela was solely responsible
for the smuggling attempt. But while the IJ found Micaela
credible, the IJ also found Juan and Antonio’s testimony not
credible, and the IJ held that all three were removable.

    We grant Antonio’s petition for review. The BIA did not
address the IJ’s seemingly inconsistent credibility findings.
Nor did the IJ make a finding that Antonio engaged in “an
affirmative act of help, assistance, or encouragement” of
smuggling as our case law requires for a violation of
§ 1182(a)(6)(E)(i). Altamirano v. Gonzales, 427 F.3d 586,
592 (9th Cir. 2005). We remand on an open record for the IJ
to reconsider his ruling, provide further explanation, and
engage in further factfinding if necessary.

                               I

    Antonio Perez-Arceo is a Mexican citizen who became a
legal permanent resident of the United States in 1986. His
4                 PEREZ-ARCEO V. LYNCH

wife Micaela Perez de Pacheco and his son Juan Perez-
Pacheco were also legal permanent residents. In early June
2004, the family drove from the United States to Mexico to
take Antonio’s ill daughter to the doctor. On June 6, 2004,
the family attempted to return to the United States in a van
through the port of entry in Otay Mesa, California. Juan was
driving the van and Antonio was in the front passenger seat.
Micaela sat in the far back row with her mother Maria Garcia
and her sister-in-law Maria Rodriguez. Antonio and
Micaela’s other children were in the middle row. The
family’s ride to the border from the home where they had
been staying in Mexico lasted 20–30 minutes.

    When the family reached the port of entry, Border Patrol
suspected that Garcia and Rodriguez “were not the rightful
owners of the documents they presented,” and the van was
held for inspection. Antonio, Juan, and Micaela were each
interviewed separately by a Border Patrol officer. Antonio
told Border Patrol that he knew Garcia and Rodriguez did not
have the proper documents to enter the United States, but he
“did not realize they were in the vehicle till he woke up while
being in line to cross the border.” When he realized the
undocumented women were in the van, he “got into an
argument with his wife and son,” but he did not leave the van
“because it was to [sic] late and he was near the officers [sic]
booth.”

   Micaela told Border Patrol a similar story. Micaela
explained that “she made arrangements with her brother” to
smuggle Garcia and Rodriguez into the United States and
                     PEREZ-ARCEO V. LYNCH                              5

“her husband [Antonio] had no idea.”1 She further stated that
she “paid a lady” $150 to get documents for her mother and
sister-and-law to cross the border. She stated that she
“regret[ted] doing it” and would “never do it again.”

    When Juan was questioned at the border, he told a
different story. He said that Antonio made the arrangements
to bring Rodriguez and Garcia into the United States. And he
said that Juan’s uncle was going to pay Antonio $1500 for the
service. Juan stated that Antonio gave Rodriguez and Garcia
false immigration documents to use at the border.

    Juan, Antonio, and Micaela were each charged with
removability for smuggling under 8 U.S.C.
§ 1182(a)(6)(E)(i), and the proceedings were consolidated.
On March 19, 2007, Juan submitted an affidavit under oath
stating,

         I retract the statements made to the
         Immigration Officer on or about June 6, 2004
         at the border inspection point in Otay Mesa.
         I was driving the van, but when I was
         interviewed by the immigration officer, I was
         scared. I saw my mother holding the children,
         and was afraid what would happen to my two
         younger sisters and younger brother, if the

  1
    Micaela’s I-213 form summarizing this interview was admitted into
evidence at the joint hearing with Antonio, Micaela, and Juan, but it was
not included in Antonio’s Certified Administrative Record on appeal. We
located this document in the Certified Administrative Record for Juan and
Micaela’s petitions for review, Ninth Circuit No. 12-73202, which were
dismissed in 2013. Although the I-213 form was not in the CAR for
Antonio’s appeal, the IJ had it before him when making a decision on all
three cases at the same hearing.
6                    PEREZ-ARCEO V. LYNCH

         Immigration [Officer] detained my mother.
         Out of panic and fear I said that it was my
         father who made the arrangements. I did not
         want my younger sisters to be without a
         mother.

         I did not participate in the making of any
         plans to smuggle Mrs. Garcia and Mrs.
         Rodriguez to the United States. The one who
         made all the arrangements was my mother and
         her brother. My mother agreed with her
         brother that her brother would pay my mother
         $1,500. . . . I was aware that Mrs. Garcia and
         Mrs. Rodriguez were in the car. However, it
         was my mother who asked them to get in the
         van.

Juan reiterated, “I am certain that my father was not involved
in making the arrangements.”2

    The IJ held a joint hearing for Antonio, Micaela, and Juan
on October 22, 2009. One attorney represented all three
respondents. The government initially noted that Micaela had
conceded removability. Juan then testified and explained that
his mother had arranged for smuggling Garcia and Rodriguez.
He testified that his March 2007 statement implicating his
mother was accurate; he claimed to have lied during his June
2006 interview when placing the blame on Antonio because
the Border Patrol had threatened to take the children away
from Micaela if he did not implicate someone.



  2
    Juan’s I-213 form and retraction letter were also erroneously omitted
from Antonio’s Certified Administrative Record. See note 1, supra.
                  PEREZ-ARCEO V. LYNCH                      7

    Antonio then testified consistent with his I-213 post-
detention statements, explaining that the smuggling was his
wife’s idea and that he had no knowledge of it until they were
near the border. Antonio testified that he had been drinking
the night before and first learned that the women were in the
backseat right before reaching the border when they “were
passing the documents” to present to Border Patrol and he
said “oh my God, why so many?” That, according to
Antonio’s testimony, is when he “turned around and saw”
Garcia and Rodriguez in the far back row of the van; he had
not heard them speak during the trip. Antonio surmised that
his wife had not told him about the women in the backseat
because she had pitched a smuggling plan to him two months
earlier and he “did not agree.”

    The government then rested, and the respondents called
Micaela to the stand. Micaela testified consistent with her I-
213 that the smuggling had been entirely her idea and
Antonio had no knowledge of it until they neared the border.
She explained that she had hidden it from him because he had
previously said no when she brought up the idea. Micaela
explained that she had kept the women hidden from Antonio
by seating them in the back row of the van behind the “high”
seats in the middle row. Micaela also echoed Juan’s
testimony that Border Patrol told her they would take her kids
away if she didn’t tell the truth.

    The government then called Border Patrol Officer Jesus
Lopez, Jr., who had interviewed all three respondents at the
border. Lopez testified via telephone that he did not
remember this particular case but there was “no possible
way” he had threatened to take anyone’s kids away and he
would “never” ask questions or make statements before
turning on the video recording.
8                 PEREZ-ARCEO V. LYNCH

     The IJ ruled from the bench on October 29, 2009. The IJ
first held that the burden was on the government to prove
removability by clear and convincing evidence. The IJ
recognized that to prove removability for smuggling, the
government must show an “affirmative act” to attempt or aid
in smuggling beyond mere knowledge. See Altamirano v.
Gonzales, 427 F.3d 586, 592 (9th Cir. 2005). The IJ
concluded that Micaela was removable because of her
testimony that she “obtained the documents and was going to
be paid $1,500 by her brother” to smuggle her sister-in-law
and mother into the United States. The IJ also relied on
Micaela’s admission of guilt in her I-213 form. The IJ then
turned to Juan and found that his “affirmative act” was
driving the van and handing Rodriguez and Garcia’s
documents to the immigration officials, as well as making a
false statement to Border Patrol regarding Rodriguez and
Garcia’s intended length of stay.

    Finally, the IJ addressed the issue of Antonio’s
removability and stated that he did not believe Juan’s
changed story that absolved Antonio of guilt, nor did he
believe Antonio’s testimony. The IJ pointed to five apparent
inconsistencies to support his negative credibility
determinations about Juan and Antonio’s testimony. First,
the IJ reasoned that Antonio said that he was going to Mexico
to take his son to the doctor, but Juan and Micaela said they
went for a daughter. Second, the IJ said that Juan testified
that he and Antonio talked in the van on the way to the
border, but Antonio testified that they did not. Third, Micaela
and Juan both testified that they were threatened with the
kids’ removal if they did not blame someone, but the IJ
credited the Border Patrol Officer’s testimony that he would
“never say that in any case.” Fourth, the IJ noted that Juan
claimed to have “made . . . up” the $1500 smuggling fee in
                  PEREZ-ARCEO V. LYNCH                      9

his statement at the border, but Micaela also stated this same
amount in her interview at the border. Finally, the IJ relied
on an apparent discrepancy that Antonio told Border Patrol
that he was asleep in the van when Garcia and Rodriguez
entered, while Antonio testified that he was the last to enter
the van. The IJ also noted that Antonio had a prior charge of
removability for alien smuggling for which he had received
cancellation of removal under 8 U.S.C. § 1229b(a). In sum,
the IJ believed that it was “not plausible that the mother
would risk her son and husband in this way without their
knowledge,” nor was it “plausible that the father who already
had [a] waiver [from past smuggling charges] would risk his
son and his wife this way without their knowing.”

    The BIA dismissed the appeal, ruling that the IJ’s
decision to credit Juan’s “more contemporaneous statements”
at the border, rather than Juan’s retraction and Antonio’s
testimony, was “not clearly erroneous.”

                             II

    When the government charges a lawfully-admitted alien
with removability for smuggling, it “must prove by clear and
convincing evidence that [the respondent] took actions . . .
that amount to ‘knowingly encouraging, inducing, assisting,
abetting, or aiding’ their unlawful entry into the United
States.” Santiago-Rodriguez v. Holder, 657 F.3d 820, 830
(9th Cir. 2011) (alterations omitted) (quoting 8 U.S.C.
§ 1227(a)(1)(E)(i)). “‘[M]ere presence and knowledge’ that
an accompanying alien is attempting to enter the country
illegally” is insufficient. Id. at 833 (quoting Altamirano,
427 F.3d at 592). The charge of alien smuggling “requires an
affirmative act of help, assistance, or encouragement.” Id.
10                    PEREZ-ARCEO V. LYNCH

    Here, the only record evidence of an “affirmative act” by
Antonio was Juan’s initial statement to Border Patrol that
Antonio made the arrangements to get documents for
Rodriguez and Garcia, and that Antonio was going to receive
money for the service. But in a supplemental letter and his
in-court testimony, Juan disavowed that statement. To find
Antonio removable, the immigration judge had to find Juan’s
second story implicating his mother to be not credible. The
immigration judge also had to find not credible Antonio and
Micaela’s testimony that Micaela was responsible for
arranging the smuggling and procuring the false documents.

    We review an immigration judge’s credibility
determination for substantial evidence. Shrestha v. Holder,
590 F.3d 1034, 1039 (9th Cir. 2010).3 Immigration judges
must consider the “totality of the circumstances, and all
relevant factors,” including inconsistencies and falsehoods.
Id. at 1040. Inconsistencies need not “‘go to the heart’ of the
petitioner’s claim to form the basis of an adverse credibility


 3
   It is not clear whether the provisions of the REAL ID Act that govern
credibility determinations in removal proceedings, 8 U.S.C.
1229a(c)(4)(C), apply to this case because it is unclear whether Antonio’s
motion to terminate proceedings is an “[a]pplication[] for relief from
removal” within the meaning of the statute. Compare, e.g., Matter of
Manuela Norma Mendiola-Salgado, 2009 WL 773177, *1 (B.I.A. Feb. 27,
2009) (unpublished) (suggesting that it is) with, e.g., Matter of George
Araujo-Malagon, 2009 WL 4899061, *1 (B.I.A. Nov. 30, 2009)
(unpublished) (suggesting that it is not) and 8 C.F.R. § 1240.8(d)
(suggesting that applications for relief are claims on which the alien bears
the burden of proving he should not be removed because he is entitled to
a “benefit or privilege”). As our result in this case is the same whether or
not the REAL ID Act provisions apply, we do not reach this question. We
will assume the REAL ID Act applies here because even under its more
deferential standards, the IJ’s decision is not supported by substantial
evidence.
                  PEREZ-ARCEO V. LYNCH                     11

determination.” Id. at 1043. But “trivial inconsistences that
under the total circumstances have no bearing on a
petitioner’s veracity should not form the basis of an adverse
credibility determination.” Id. at 1044.

                             III

    Antonio contends that the immigration judge erred in
concluding that there were sufficient discrepancies to
discredit Juan and Antonio’s testimony that Antonio did not
participate in the smuggling. The immigration judge relied
on five inconsistences or omissions. Antonio challenges,
while the government defends, each. We conclude that three
of these five alleged problems identified by the IJ were
insufficient or inaccurate and cannot support a negative
credibility determination.

                              A

    First, the immigration judge relied on the inconsistency
that Antonio said they went to Mexico to take his son to the
doctor, but Juan and Micaela both said they went to take his
daughter. The IJ was correct that Antonio’s I-213 states that
Antonio said he went to Tijuana “because he wanted to take
his son to see a doctor.” But like Juan and Micaela, Antonio
also testified that he went to Tijuana to take his daughter to
the doctor. The IJ simply ignored Antonio’s testimony that
his daughter was the sick child. And the government did not
question any witness about the discrepancy between the I-213
and the testimony, so we have no explanation for why the I-
213 says what it does. On the record here, the inconsistency
with Antonio’s I-213 cannot support a negative credibility
finding because the IJ did not ask Antonio about the
inconsistency. See Soto-Olarte v. Holder, 555 F.3d 1089,
12                PEREZ-ARCEO V. LYNCH

1091–92 (9th Cir. 2009) (holding that BIA must inquire about
and consider the respondent’s explanations for
inconsistencies).

    Second, the immigration judge relied on a purported
inconsistency that Juan testified that he talked to Antonio in
the van on the way to the border, but Antonio testified that
they did not talk. But it is unclear that there was any
inconsistency at all. The government first asked Antonio,
“And then you got up and you got in the car?” Antonio said
yes. The government then asked if Antonio fell asleep, and
he said he was just leaning on the seat. The government
asked, “Were you talking to your son?” and Antonio
answered, “Pretty much we didn’t exchange words.” The IJ
interpreted this to mean that Antonio and Juan did not speak
at all during the entire trip, but instead, this quoted exchange
could plausibly suggest that they did not speak much but
spoke a little, and it could plausibly refer only to the initial
part of the trip when Antonio had just gotten into the van. In
fact, Antonio had told Border Patrol that he “got into an
argument” with Juan once he discovered Garcia and
Rodriguez were in the vehicle, so clearly his statement
“Pretty much we didn’t exchange words” did not mean they
were silent for the full trip. Juan, on the other hand, was not
asked the same question—Juan was asked the very general
question whether they talked “during the trip,” to which he
responded yes. Juan did not say how much they spoke, i.e.,
whether it was only a few words, which would be consistent
with Antonio’s testimony. And Juan did clarify that they did
not talk about the smuggling, which is what really matters.
The IJ should not have placed significant weight on this
apparent discrepancy absent development of the testimony to
clarify whether the statements were truly inconsistent.
Shrestha, 590 F.3d at 1044 (holding that IJ should consider
                  PEREZ-ARCEO V. LYNCH                       13

petitioner’s explanation for a perceived inconsistency to
“shed[] light on whether there is in fact an inconsistency at
all”).

    Third, the immigration judge noted that Antonio testified
that he got into the van after Garcia and Rodriguez, but the IJ
said that Antonio’s statement at the border was that he was
asleep in the van when the women entered the van. The IJ
misread Antonio’s border statements in the I-213 form. The
form says that Antonio stated that he “he was asleep when
GARCIA and RODRIGUEZ got into the vehicle.” This does
not, however, necessarily mean that he was asleep in the van.
The IJ may have made this assumption from the following
sentence in the I-213 form, which indicated that Antonio did
not realize the women were in the backseat until he “woke
up” when the van was near the border. But Antonio’s
statement itself says nothing about where he was asleep when
the women entered the van.

     Indeed, other evidence in the record suggests that Antonio
was asleep or otherwise in the house when the women got
into the van. Juan testified that Antonio was asleep when
Garcia arrived at the house, and he explained that when
Antonio got in the front seat of the van fifteen minutes later,
Antonio did not see the two women already in the backseat.
It is clear from context that Juan was saying Antonio was
asleep in the house. Micaela testified a little differently, but
she was still clear that Antonio was in the house; she stated
that when Antonio “got out of his bedroom, he went into the
bathroom, and that’s when they [Garcia and Rodriguez] got
into the car.” Antonio’s testimony was also consistent on this
point; he testified that he was sleeping in the house, and then
he “got up and . . . got in the car.” We conclude that the IJ’s
14                PEREZ-ARCEO V. LYNCH

reading of the I-213 was erroneous, and that there was no
inconsistency on the timing of entry at all.

                              B

    While the IJ erred in these three respects when
determining that Juan and Antonio were not credible, we
disagree with Antonio that the IJ erred in the two other
respects that Antonio identifies in his brief. One legitimate
reason the IJ gave to support the negative credibility
determinations—though as to Juan, not Antonio—was that he
concluded that Juan and Micaela falsely testified that they
were threatened by Border Patrol Officer Lopez with removal
of Micaela’s children if they did not blame someone. The IJ
instead gave dispositive weight to Lopez’s testimony that he
would “never” make such a threat in any case, although he
did not remember this specific case. Substantial evidence
supports the IJ’s conclusion that Juan’s and Micaela’s later
testimony that they were threatened by Border Patrol was a
lie or embellishment. When Juan retracted his statement to
Border Patrol in March 2007, he did not say anything about
a threat that his mother’s children would be taken—he
explained only that he had been “afraid what would happen
to my two younger sisters and younger brother, if the
Immigration detained my mother.” He made no suggestion
of a threat.

    The second valid reason the IJ gave to discredit Juan was
that it was suspicious that Micaela and Juan had both testified
to the same $1500 smuggling fee even though they claimed
that they never spoke about the fee. Substantial evidence
supports the IJ’s conclusion that Juan was lying that he
“invented” this fee amount because it could reasonably seem
                  PEREZ-ARCEO V. LYNCH                      15

that Micaela and Juan had coordinated this aspect of their
stories.

                              IV

    We need not decide whether the three errors by the IJ in
his reasoning to discredit Antonio and Juan were sufficient by
themselves for us to grant Antonio’s petition for review.
There is a fundamental contradiction in the IJ’s reasoning that
leads us to grant Antonio’s petition and remand for further
explanation.

     As explained above, removability for smuggling requires
the respondent to have taken an affirmative act in the
smuggling attempt. See Altamirano, 427 F.3d at 592. The IJ
here made no explicit finding that Antonio engaged in any
affirmative act—he ruled only that “the Court finds that the
father, Antonio Perez-Arceo was aware of the smuggling.”
The only evidence in the record that could have supported a
finding of an affirmative act on Antonio’s part is Juan’s
initial statement to Border Patrol that it was Antonio who
made the arrangements to bring Rodriguez and Garcia into
the United States. To credit Juan’s initial statement would
require discrediting Micaela’s testimony and I-213
statements, in which she took sole responsibility for the
smuggling attempt. It would also require discrediting Juan’s
later recantation and Antonio’s testimony, all of which was
consistent with Micaela’s testimony and I-213 statements that
she alone was responsible.

    Far from discrediting Micaela’s statements, however, the
IJ explicitly relied on them in ordering her removal, holding
that “through [Micaela’s] testimony and information in the I-
213 in her case, the Department of Homeland Security has
16                PEREZ-ARCEO V. LYNCH

met their burden by proving by clear and convincing evidence
both the allegations and that charge, and I will sustain both.”
Yet when it came to Antonio’s case, the IJ ignored Micaela’s
testimony and I-213 stating that she was the sole guilty party
and that Antonio “had no idea” she made the smuggling
arrangements. The IJ instead found Antonio responsible
without explaining this inconsistency at all.

    When an IJ makes seemingly inconsistent findings with
respect to an adverse credibility determination, it is necessary
to remand the record for more factfinding and clarification.
Stated another way, absent a sufficient explanation, the IJ in
this case could not credit one part of the witness Micaela’s
testimony to remove her, while at the same time discrediting
the same part of her testimony to remove Antonio. See
Shrestha, 590 F.3d at 1043 (explaining the IJ must give
“cogent reasons” for credibility determinations); Soto-Olarte,
555 F.3d at 1094 (explaining general rule to remand for
further explanation when adverse credibility determination is
flawed); cf. Arthur R. Miller, 9C Fed. Prac. & Proc. Civ.
§ 2579 n.9 (3d ed. 2016) (“Factual findings that are internally
inconsistent . . . are clearly erroneous.”).

    In sum, the IJ’s conclusion that Antonio was complicit in
the smuggling attempt required more than a determination
that Antonio and Juan were untruthful in laying sole
responsibility on Micaela. The IJ also needed to explain why
Micaela’s I-213 and testimony were not credible. Instead, the
IJ actually credited Micaela’s testimony and I-213 in which
she took responsibility for the smuggling attempt. A negative
credibility determination must be supported by “specific and
cogent reasons,” Shrestha, 590 F.3d at 1042, but the IJ did
not give any reasons undermining Micaela’s statements that
she took responsibility for arranging the smuggling efforts
                      PEREZ-ARCEO V. LYNCH                             17

and procuring false documents. The IJ cannot “cherry pick
solely facts favoring an adverse credibility determination
while ignoring facts that undermine that result.” Id. at 1040.
The IJ’s failure to discuss Micaela’s testimony and I-213 and
why Micaela was not credible requires us to remand for
further explanation.4

                                    V

   We grant Antonio’s petition for review and remand on an
open record for further proceedings in accordance with this
opinion. See Soto-Olarte, 555 F.3d at 1094–96.

    GRANTED and REMANDED.




   4
     The IJ may have thought that all family members knew about the
attempt to smuggle Garcia and Rodriguez into the United States. But
whether or not the evidence supports this speculation, this finding is
insufficient to sustain the charge against Antonio because mere knowledge
of the smuggling attempt is insufficient for removability under
§ 1182(a)(6)(E)(i). See Altamirano, 427 F.3d at 592. As mentioned
before, the IJ made no explicit finding that Antonio engaged in any
affirmative act, instead ruling only that “the Court finds that the father,
Antonio Perez-Arceo was aware of the smuggling.”
