     15-2471
     Bokomba v. Sessions
                                                                                       BIA
                                                                                Montante, IJ
                                                                               A087 946 305
                           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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   5th day of May, two thousand seventeen.
 5
 6   PRESENT:
 7            BARRINGTON D. PARKER,
 8            RICHARD C. WESLEY,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   URSULE MUNDIWA BOKOMBA,
14            Petitioner,
15
16                    v.                                             15-2471
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.*
21   _____________________________________
22
23   FOR PETITIONER:                     Michael E. Marszalkowski, Buffalo,
24                                       N.Y.

     * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), United States
     Attorney General Jefferson B. Sessions III is automatically substituted
     for former United States Attorney General Loretta E. Lynch as Respondent.
     The Clerk of the Court is respectfully directed to amend the caption as
     above.
1    FOR RESPONDENT:                Benjamin C. Mizer, Principal Deputy
2                                   Assistant Attorney General; Anthony
3                                   P. Nicastro, Assistant Director;
4                                   D. Nicholas Harling, Trial Attorney,
5                                   Office of Immigration Litigation,
6                                   United States Department of Justice,
7                                   Washington, D.C.
8
9          UPON DUE CONSIDERATION of this petition for review of a

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

11   ORDERED, ADJUDGED, AND DECREED that the petition for review is

12   GRANTED.

13         Petitioner Ursule Mundiwa Bokomba, a native and citizen of

14   the Democratic Republic of Congo (“DRC”), seeks review of a July

15   8, 2015, decision of the BIA affirming a February 4, 2013,

16   decision of an Immigration Judge (“IJ”) denying Bokomba’s

17   application for asylum, withholding of removal, and relief

18   under the Convention Against Torture (“CAT”).         In re Ursule

19   Mundiwa Bokomba, No. A087 946 305 (B.I.A. July 8, 2015), aff’g

20   No. A087 946 305 (Immig. Ct. Buffalo Feb. 4, 2013).        We assume

21   the   parties’   familiarity    with   the   underlying   facts   and

22   procedural history in this case.

23         Under the circumstances of this case, we have reviewed the

24   decision of the IJ as supplemented by the BIA.        See Yan Chen

25   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).      The applicable

26   standards of review are well established.             See 8 U.S.C.


                                       2
1    § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66

2    (2d Cir. 2008).    Considering the totality of the circumstances

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

4    credibility     determination   on    “the   demeanor,    candor,   or

5    responsiveness of the applicant or witness, the inherent

6    plausibility of the applicant’s or witness’s account, the

7    consistency between the applicant’s or witness’s written and

8    oral statements . . . , [and] the consistency of such statements

9    with other evidence of record,” regardless of whether an

10   inconsistency “goes to the heart of the applicant’s claim.”

11   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.

12       Contrary to the Government’s contention, Bokomba has not

13   waived her challenges to the agency’s adverse credibility

14   determination.     In fact, as she argues, that determination is

15   not supported by a totality of the circumstances.

16       Bokomba and her witness, Nioka, claimed that police in the

17   DRC kidnapped and tortured them for exposing the widespread use

18   of rape as a weapon of war in the northeastern provinces of the

19   country, which they discovered during a government work trip

20   in 2009.   The IJ found Bokomba and Nioka repeatedly evasive when

21   testifying in support of Bokomba’s application, but of the IJ’s

22   examples   of     unresponsiveness,     only   one   is    reasonably


                                      3
1    characterized as intentionally evasive: Nioka’s refusal to

2    respond to questions about whether she asked U.S. immigration

3    officials at the Canadian border for asylum.      On all other

4    occasions when the IJ accused Bokomba or Nioka of being

5    unresponsive and evasive, the record demonstrates that they

6    either did not understand the question posed (they were

7    responsive immediately upon rephrasing of the question) or were

8    responsive, contrary to the IJ’s conclusion.

9        The IJ’s implausibility findings were also erroneous and

10   did not support the adverse credibility determination.   First,

11   the IJ found it implausible that Bokomba and Nioka did not know

12   of the widespread use of rape as a weapon of war before their

13   2009 trip because rape had been identified as a problem in State

14   Department reports for at least a decade.   This implausibility

15   finding is not sufficiently tied to the record.     The reports

16   cited by the IJ supported rather than conflicted with Bokomba’s

17   and Nioka’s testimony, with both the reports and testimony

18   indicating that rape was reported as widespread in the eastern

19   provinces of the DRC but not reported as widespread in the

20   northeastern provinces.    Furthermore, the IJ impermissibly

21   speculated when he found implausible Bokomba’s testimony that

22   Canadian officials made her wait at the border for days and held


                                    4
1    her at a place that did not seem like a detention facility.          See

2    Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 405 (2d Cir.

3    2005) (“[A]bsent record evidence of practices in foreign

4    countries, the IJ must not speculate as to the existence or

5    nature of such practices.”); see also Siewe v. Gonzales, 480

6    F.3d 160, 168-69 (2d Cir. 2007) (“The speculation that inheres

7    in inference is not bald if the inference is made available to

8    the factfinder by record facts . . . .” (internal quotation marks

9    omitted)).

10         While the IJ correctly found that Bokomba testified

11   inconsistently regarding how she obtained the photograph for

12   her   passport,   that    finding   alone   does   not     provide   the

13   substantial evidence needed to support an adverse credibility

14   determination, particularly given that Bokomba’s and Nioka’s

15   testimony, which spanned three days, was otherwise consistent.

16   See   8 U.S.C.    § 1158(b)(1)(B)(iii).          Because    we   cannot

17   confidently predict that the agency would have made the same

18   decision   absent   the   identified    errors     with    the   adverse

19   credibility determination, remand is required.             See Xiao Ji

20   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006).

21         For the foregoing reasons, the petition for review is

22   GRANTED.   As we have completed our review, any stay of removal


                                         5
1   that the Court previously granted in this petition is VACATED,

2   and any pending motion for a stay of removal in this petition

3   is DISMISSED as moot.   Any pending request for oral argument

4   in this petition is DENIED in accordance with Federal Rule of

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

6   34.1(b).

7                               FOR THE COURT:
8                               Catherine O’Hagan Wolfe, Clerk




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