     17-768
     Ntwali v. Barr
                                                                                  BIA
                                                                           Montante, IJ
                                                                          A205 953 287
                           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.

 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 4th day of April, two thousand nineteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PIERRE N. LEVAL,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   TITO NTWALI,
14            Petitioner,
15
16                    v.                                         17-768
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Carlos E. Estrada, Boston, MA.
24
25   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
26                                    Attorney General, Civil Division;
27                                    Anthony C. Payne, Assistant
28                                    Director; Jessica D. Strokus,
29                                    Trial Attorney, Office of
30                                    Immigration Litigation, United
31                                    States Department of Justice,
32                                    Washington, DC.
1          UPON DUE CONSIDERATION of this petition for review of a

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

3    ORDERED, ADJUDGED, AND DECREED that the petition for review

4    is GRANTED.

5          Petitioner Tito Ntwali, a native and citizen of Rwanda,

6    seeks review of a February 24, 2017, decision of the BIA

7    affirming a June 3, 2015, decision of an Immigration Judge

8    (“IJ”) denying asylum, withholding of removal, and relief

9    under the Convention Against Torture (“CAT”).                 In re Tito

10   Ntwali, No. A205 953 287 (B.I.A. Feb. 24, 2017), aff’g No.

11   A205 953 287 (Immig. Ct. Buffalo June 3, 2015).                    We assume

12   the    parties’    familiarity    with    the    underlying    facts      and

13   procedural history in this case.

14         We have reviewed the IJ’s decision as modified by the

15   BIA, minus the IJ’s findings that Ntwali failed to show a

16   nexus to a protected ground or establish a well-founded fear

17   of future persecution.          See Xue Hong Yang v. U.S. Dep’t of

18   Justice, 426 F.3d 520, 522 (2d Cir. 2005).            While the BIA did

19   not address all the IJ’s bases for finding Ntwali incredible,

20   it    did   not   expressly   reject     the    findings,   and     we   have

21   therefore     reviewed    the     entirety      of   the    IJ’s     adverse

22   credibility determination.         See Xiu Xia Lin v. Mukasey, 534


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1    F.3d 162, 166 (2d Cir. 2008) (“When the BIA agrees with an

2    IJ’s adverse credibility determination and adopts particular

3    parts of the IJ’s reasoning, we review the decisions of both

4    the BIA and the IJ.”).

5        The applicable standards of review are well established.

6    See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891

7    F.3d 67, 76 (2d Cir. 2018) (reviewing adverse credibility

8    determination   for    substantial       evidence);      Chuilu    Liu    v.

9    Holder,   575   F.3d   193,   196       (2d     Cir.   2009)   (reviewing

10   corroboration    determination          under    substantial      evidence

11   standard).

12   Credibility

13       “Considering the totality of the circumstances, and all

14   relevant factors, a trier of fact may base a credibility

15   determination on . . . the consistency between the applicant’s

16   . . . written and oral statements . . . , the internal

17   consistency of each such statement, [and] the consistency of

18   such statements with other evidence of record . . . without

19   regard to whether an inconsistency, inaccuracy, or falsehood

20   goes to the heart of the applicant’s claim.”                      8 U.S.C.

21   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.                   “We

22   defer . . . to an IJ’s credibility determination unless, from


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1    the totality of the circumstances, it is plain that no

2    reasonable fact-finder could make such an adverse credibility

3    ruling.”      Xiu Xia Lin, 534 F.3d at 167.               However, “[w]here

4    an     IJ   relies      on   erroneous       bases   to   reach    an    adverse

5    credibility determination, and ‘we cannot confidently predict

6    that the IJ would reach the same conclusion in the absence of

7    the[]       deficiencies,        the         IJ’s    adverse       credibility

8    determination cannot stand.’”                Hong Fei Gao, 891 F.3d at 77

9    (quoting Pavlova v. INS, 441 F.3d 82, 88 (2d Cir. 2006)).                     We

10   conclude that the errors in the agency’s findings underlying

11   the adverse credibility determination require remand.

12          We have identified the following errors in the agency’s

13   findings.         Contrary to the IJ’s finding that Ntwali only once

14   mentioned torture, Ntwali referenced torture multiple times

15   in his application.          Certified Administrative Record (“CAR”)

16   at 460-61, 548, 554.          The IJ also erroneously found that the

17   country conditions evidence did not note any disappearances.

18   To the contrary, the State Department’s 2013 Human Rights

19   Report explicitly states that the Rwandan government engages

20   in politically motivated kidnapping.                 CAR at 385, 387, 392,

21   393.        The    IJ   stated   that    Ntwali      omitted      his   mother’s

22   disappearance from his application, when it was included.


                                              4
1    CAR    at   460-61,   548.        And   again    contrary   to    the   IJ’s

2    characterization, Ntwali did raise protected grounds for the

3    harm suffered by his family members: he testified that his

4    father was beaten and taken because he was Congolese and did

5    not want to help the Rwandan Patriotic Front, and he stated

6    that he believed that his brother was arrested for his

7    journalism and political work.              CAR at 161-167, 184-85.

8          Although the agency made additional findings that Ntwali

9    does not challenge, those findings are insufficient ground to

10   uphold the adverse credibility determination because they

11   also contain errors.         See Shunfu Li v. Mukasey, 529 F.3d 141,

12   146-47 (2d Cir. 2008).            For example, the agency overstated

13   an    inconsistency   as     to   whether     Ntwali’s   father    died   or

14   disappeared, as Ntwali’s testimony as a whole reflects that

15   his father disappeared and was presumed dead.                CAR at 161-

16   67, 176, 203, 195-96, 303-04, 505.

17   Corroboration

18         Nor do the agency’s corroboration findings provide an

19   independent basis for the denial of relief.                 Although the

20   agency may rely on a lack of corroboration to find that an

21   applicant failed to sustain his burden even absent an adverse

22   credibility determination, see 8 U.S.C. § 1158(b)(1)(B)(ii),


                                             5
1    the agency did not sufficiently separate its corroboration

2    findings from its credibility findings, CAR at 114 (IJ finding

3    that Ntwali “failed to adequately corroborate his claim for

4    the same reasons as stated above,” i.e., in the credibility

5    analysis).    As noted previously, the IJ mischaracterized the

6    country conditions evidence.   And although the IJ likely had

7    the discretion to discount letters from Ntwali’s friends, the

8    IJ did not discuss other documentary evidence in the record,

9    which included medical records and a police report.   See Y.C.

10   v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (deferring to

11   agency decision to afford little weight to an unsworn letter

12   from an interested witness); Jian Hui Shao v. Mukasey, 546

13   F.3d 138, 169 (2d Cir. 2008) (holding that agency does not

14   have to parse each piece of evidence, but must consider

15   evidence material to the claim raised).

16   Due Process

17       We find no merit to Ntwali’s due process claim.   Ntwali,

18   who was counseled, had the opportunity to present evidence

19   and testify in support of his claim.   See Burger v. Gonzales,

20   498 F.3d 131, 134 (2d Cir. 2007) (“To establish a violation

21   of due process, an alien must show that []he was denied a

22   full and fair opportunity to present h[is] claims or that [he


                                    6
1    was] otherwise deprived . . . of fundamental fairness.”

2    (internal quotation marks and citations omitted).   The record

3    reflects that he had notice of credibility requirements, and

4    there is no indication that his hearing was cut short or

5    rushed.

6        In conclusion, we remand due to errors in the adverse

7    credibility determination and the lack of an independent

8    corroboration ruling.    We intimate no view as to the outcome

9    of the case on remand.

10       For the foregoing reasons, the petition for review is

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

12   REMANDED for further proceedings consistent with this order.

13   As we have completed our review, any stay of removal that the

14   Court previously granted in this petition is VACATED, and any

15   pending motion for a stay of removal in this petition is

16   DISMISSED as moot.    Any pending request for oral argument in

17   this petition is DENIED in accordance with Federal Rule of

18   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

19   34.1(b).

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




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