                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JUL 18 2018
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

RIAD ABDULKADIR AYMO,                           No.   17-71159

                Petitioner,                     Agency No. A208-311-853

 v.
                                                MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

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

                        Argued and Submitted June 5, 2018
                              Pasadena, California

Before: WARDLAW and PAEZ, Circuit Judges, and CHHABRIA,** District
Judge.

      Riad Abdulkadir Aymo (“Aymo”), an Ethiopian citizen who is ethnically

Oromo, petitions for review of the denial of his application for asylum, withholding

of removal, and protection under the Convention Against Torture. Specifically, he



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Vince Chhabria, United States District Judge for the
Northern District of California, sitting by designation.
challenges the Board of Immigration Appeals (“BIA”) decision affirming the

Immigration Judge’s (“IJ”) adverse credibility determination. He also argues that

his due process rights were violated by incompetent translation during his removal

hearing and by the IJ’s failure to consider the totality of the evidence. We have

jurisdiction under 8 U.S.C. § 1252. We conclude that Aymo’s removal hearing did

not satisfy the requirements of due process based on incompetent translation.

Accordingly, we grant the petition and remand for a new hearing.

      1.     The Due Process Clause applies to removal hearings and requires that

a petitioner receive a full and fair hearing. Perez-Lastor v. I.N.S., 208 F.3d 773, 777

(9th Cir. 2000). A full and fair hearing includes competent translation when the

petitioner does not speak English. Id. at 777–78. We have held that a petitioner did

not receive due process where incompetent translation caused the agency to find his

testimony not credible. Id. To find a due process violation, we must find that Aymo

exhausted this claim before the BIA, that he received incompetent translation, and

that the incompetent translation prejudiced the outcome of his case. Id.

      2.     We first conclude that Aymo exhausted his due process claim. “[W]e

do not employ the exhaustion doctrine in a formalistic manner, but rather inquire

into whether the issue was before the BIA such that it had the opportunity to correct

[the] error.” Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008). Moreover,

we construe pro se claims liberally for purposes of exhaustion. Ren v. Holder, 648


                                          2
F.3d 1079, 1083 (9th Cir. 2011) (quoting Agyeman v. I.N.S., 296 F.3d 871, 878 (9th

Cir. 2002)). Thus, “a pro se petitioner is not required to use [] precise legal

terminology.” Id. at 1084.

      Although Aymo did not use the exact legalese, “due process violation,” he

emphasized in his pro se brief to the BIA that he “testified honestly and truthfully

before the court,” “answered over 400 questions that the Immigration Judge and

department attorney asked him,” and “was asked the same questions multiple times

and he answered the same each and every time. Court transcripts would prove that

[his] testimony was sincere.” Construed liberally, Aymo’s pro se brief—written in

a language he barely speaks—sufficiently put the BIA on notice by urging the BIA

to examine the hearing transcript and by emphasizing the veracity and consistency

of his testimony. Because the BIA reviewed the IJ’s decision and had a full

opportunity to address serious translation problems that plagued all stages of

Aymo’s hearing, we conclude that Aymo exhausted his due process claim.

      3.    We have no doubt that Aymo received incompetent translation during

his removal hearing. We have traditionally relied on “three types of evidence which

tend to prove that a translation was incompetent”: “direct evidence of incorrectly

translated words,” “unresponsive answers” as circumstantial evidence, and “the

witness’s expression of difficulty understanding what is said to him.” Perez-Lastor,

208 F.3d at 778 (citations omitted). The record is replete with all three kinds, and


                                         3
more.

        For example, as direct evidence of incorrectly translated words, the interpreter

during Aymo’s interview with the Customs and Border Patrol officer for his Record

of Sworn Statement (“RSS”) and his removal hearing interpreter both appear to have

mistranslated the word “escape.” The BIA found that Aymo’s testimony was

inconsistent with the RSS, and so not credible, because the RSS reflects that he told

the immigration officer that he “escaped” from detention while Aymo testified at the

hearing that he had been “released.” When asked to account for the discrepancy,

Aymo was certain: “I never said that I escaped.”1


1
  The RSS does not appear to be an accurate record of Aymo’s statements to the
Customs and Border Patrol officer in other ways as well. For example, the RSS
states that when Aymo was asked whether he knew his father’s birthday, Aymo
responded, “I don’t know her birthday.” The RSS also states that when Aymo was
asked, “Are [you] mentally capable to understand and answer my questions,” Aymo
answered, “No.” However, the interview proceeded without any further inquiry
about mental capacity. As a final example, the RSS states that Aymo said Ethiopian
police wanted to kill him because they thought “I had a master plan.” According to
the RSS, this master plan was “training the youth to turn on the Government.”
During the removal hearing, Aymo explained that the Ethiopian government had a
“master plan” related to the development of Addis Ababa. The government’s master
plan precipitated protests by Oromo youth. Aymo’s hearing testimony is
corroborated by numerous reports, declarations, and other evidence in the record.
Neither the IJ nor the BIA addressed these flaws, which raise serious concerns about
the accuracy of the other statements the RSS attributed to Aymo. We have
consistently held that the agency should not rely on inconsistencies between a
petitioner’s testimony during an informal proceeding and his testimony at a removal
hearing to make a credibility determination where the statements made at the
informal proceeding are neither transcribed nor recorded. See, e.g., Joseph v.
Holder, 600 F.3d 1235, 1243–44 (9th Cir. 2010); Singh v. I.N.S., 292 F.3d 1017,
1023–24 (9th Cir. 2002).

                                            4
      The hearing interpreter also mistranslated the word “escape.” When Aymo

was asked how frequently the guards beat him during his detention, Aymo responded

through the interpreter: “Yes, they were escaping, you know, and then coming back

in two to three days, and then questioning and beating me.” It is highly unlikely that

Aymo said the guards were escaping the military camp; more likely, he said they

were leaving or going and the interpreter mistranslated. “Given the difficulty of

identifying incorrect translations, this evidence of an incorrect translation is

persuasive.” Perez-Lastor, 208 F.3d at 779.

      The transcript is also replete with examples of the second and third categories

of evidence—Aymo’s nonresponsive answers and difficulty understanding what he

was being asked. At least three times, Aymo said directly, “I didn’t understand,

Your Honor,” when asked whether he understood a question or why he seemed to

be changing his testimony. There are also many instances where it is apparent in

context that Aymo did not understand. For example, the RSS reflects that Aymo

said the Colombian police took his passport even though he testified that he lost his

passport when escaping from armed thieves in Colombia. Incompetent translation

interfered with Aymo’s ability to explain this discrepancy. He tried to explain that

the Customs and Border Patrol officer confused Aymo’s experience in Colombia

with the individual interviewed before him, a Kenyan man whose passport was taken

by the Colombian police. The IJ pressed Aymo on how he knew what had happened


                                          5
to the Kenyan man:

      Q: My question is before you went in you were communicating with
      this person?
      A: Yes, that Kenyan person was interviewed before me.
      ...
      Q: Were you communicating with this person before that person was
      interviewed?
      A: Before my interview, yes, I spoke with him.
      Q: Not my question, sir. Before that person was interviewed did you
      communicate with that person?
      A: Yes, we were talking easily.

Although his testimony appears nonresponsive to the IJ’s questions, Aymo’s

confusion provides strong circumstantial evidence that the interpreter failed to

convey the nuance of timing to Aymo.

      Finally, there are countless examples where it is clear the interpreter’s less

than full command of English led to any perceived inconsistencies or gaps in

Aymo’s testimony.     For example, the BIA emphasized that Aymo testified

inconsistently about the number of his times his father had been arrested, first

testifying that he had been arrested twice before changing his testimony to stating

that his father had been arrested three times.          However, “the perceived

inconsistencies on which the [agency] based [its] adverse credibility determination

had more to do with the translation and transcription problems than with the

credibility of [Aymo’s] claims.” Li v. Holder, 559 F.3d 1096, 1100 n.4 (9th Cir.

2009). Aymo was asked:




                                         6
      Q: And can you tell me after 1991 the next time you or your family had
      any involvement with the Ethiopian government?
      A: In 2000 even my father was detained, yes, he was arrested. He was
      arrested for two times, for the second time.

After more questions about the 1991 and 2000 arrests, the IJ interjected to clarify

Aymo’s father’s current location:

      Q: Where is your father now?
      A: He’s in, arrested in jail.
      Q: Your father’s currently in jail? Has he been in jail since 2000?
      A: No.
      Q: You just told me he was arrested twice and you’re now telling me
      he’s currently in jail?
      A: Since I left the country, yes, he was arrested again, new, newly.
      Q: Okay, so now that you’ve changed your testimony, is it now your
      testimony he was arrested three times?
      A: Yes, including this one where he is still arrested, yes.
      Q: Okay. Well, your testimony is inconsistent, but okay.

Here, it was the interpreter’s mistake—first stating that Aymo’s father had been

arrested “two times” before correcting to say “for the second time”—that led to the

IJ’s conclusion regarding inconsistency.

      As a final example, the BIA found Aymo’s testimony internally inconsistent

because he “initially stated that he was beaten 2 weeks prior to his release from

detention, but later stated that he was beaten at the time of his release.” Again,

imprecise translation is to blame. At first, Aymo testified that “two to three weeks”

passed between his last beating and the day of his release. He was then asked

whether he was beaten at all during the last two to three weeks of his detention, to

which he replied: “During the last moments actually their beating was not, or their

                                           7
punishment was not as harsh as it was before. It was not kicking and tying and

dunking. They were just kicking me here and there at that time.” This response

confused the government, which followed up: “So in the two weeks before you were

released you were not beaten in any way, however slight?” Aymo responded: “I was

beaten slightly at that time.” When the government suggested that Aymo was not

answering the “simple question,” Aymo said, “I didn’t understand, or I didn’t get the

question.” Aymo then reiterated, “Two weeks. Two weeks.” The BIA interpreted

this confusing exchange to mean that Aymo flip-flopped between testifying that he

was beaten two weeks before his release and at the time of his release. In context,

however, “the last moments” and “at that time” refer to the final months leading up

to his release, when he was beaten less frequently than the first part of his detention,

when he was beaten every couple of days. Again, any misunderstanding here is

likely the result of the interpreter’s inability to convey nuance, especially regarding

timing.

      Despite this transcript littered with overwhelming evidence of incompetent

translation, the government contends that Aymo “answered affirmatively when

asked whether he could understand the translator.” This answer does not preclude

an incompetent translation because a translator must do more than just make sure

that the petitioner can understand him.        For example, a translation may be

incompetent because the translator relayed an inaccurate translation of a question to


                                           8
the petitioner. Or it could be incompetent because the translator inaccurately

translated the petitioner’s answers into English. Even if Aymo understood the

general gist of what was being said, there is simply too much evidence that the

hearing interpreter failed to accurately convey the questions directed to Aymo and

Aymo’s responses, mistranslated key words, and repeatedly confused both Aymo

and the IJ.

      4.      We also conclude that Aymo was prejudiced by this obviously

incompetent translation. “In the case of an incompetent translation claim, the

standard [for prejudice] is whether ‘a better translation would have made a difference

in the outcome of the hearing.’” Perez-Lastor, 208 F.3d at 780 (quoting Acewicz v.

I.N.S., 984 F.2d 1056, 1063 (9th Cir. 1993)). “This standard is onerous, but not

insurmountable.” Id. Courts have held, for example, that translation errors violate

due process where “the accuracy and scope of hearing translation [was] subject to

grave doubt.” See id. (alteration in original) (quoting Augustin v. Sava, 735 F.2d 32,

38 (2d Cir. 1984)).

      We have more than grave doubt about the accuracy and scope of Aymo’s

hearing translation. Indeed, from the BIA’s decision, it is clear that many of the

reasons for the agency’s adverse credibility determination are the direct result of

incompetent translation. For example, the BIA found Aymo not credible in part

because his testimony appeared inconsistent with the RSS. However, as explained


                                          9
above, the discrepancy regarding “release” and “escape” is clearly the result of

incompetent translation at both the interview and hearing.         The perceived

discrepancy regarding how Aymo lost his passport is due to his inability to

satisfactorily explain to the IJ how he knew that the immigration officer confused

his story with that of the Kenyan man interviewed before him. The BIA also found

that Aymo was “nonresponsive,” but again, he only appeared nonresponsive to the

frustrated IJ because he did not understand what was being asked of him and the IJ

did not understand the translated answers. In addition, the BIA found that Aymo’s

testimony was “internally inconsistent” by pointing to alleged inconsistencies like

the number of times his father had been arrested or the frequency of his beatings

leading up to his own arrest. These perceived inconsistencies were the product of

the hearing interpreter’s inability to convey the nuance of timing, sequence, and

numbers, not intentional obfuscation by Aymo.

      The BIA also found Aymo not credible for providing vague and implausible

testimony. But given how rampant the incompetent translation was in this case,

there is no telling what other details Aymo could have provided that would have

assuaged these concerns had he only been given the full and fair opportunity to

communicate effectively. For instance, the BIA found that Aymo “could not provide

clear and detailed information as to how the Ethiopian government was able to

determine his identity to provide him with an identity card, given that he did not


                                        10
have a birth certificate.” The transcript, however, reveals that Aymo tried to explain

that he used an Ethiopian identification card called a kebele ID, and that he was able

to get his kebele ID without a birth certificate because the local government conducts

a census in which it counts and registers residents. In garbled English, the interpreter

translated: “Counting, yes, counting people, coming around and registering people

on each residence. So they have our list on their file.” He continued, the “[k]ebele

office has personal [sic] file” which it uses to issue the ID. Because Aymo was born,

raised, and living in the same kebele, “the kebele office has my name.” The IJ

merely dismissed this explanation, “Okay, if that’s what you think is the way it’s

done.” Instead of allowing Aymo to clear up lingering confusion, the IJ pressed on:

“I mean, your stories or your explanations are not clear, but there’s more things that

need to be clarified.”

      In light of the clearly incompetent translation and the obvious impact that

translation had on the agency’s adverse credibility determination, we conclude

Aymo’s removal hearing did not satisfy due process. Accordingly, we remand to

the agency with instructions to provide Aymo with a new hearing on his claims.2

His previous testimony should not be considered as evidence at any future hearing

regarding his eligibility for relief because we have serious doubt as to its accuracy.


2
  In light of our disposition, we do not address whether the agency failed to consider
the totality of the evidence and whether the adverse credibility determination is
supported by substantial evidence.

                                          11
See Perez-Lastor, 208 F.3d at 783. Furthermore, a new interpreter who speaks both

Oromo and English should be provided at the hearing. Id. Finally, we suggest to

the BIA that the new hearing be held before a different immigration judge. Id.

      PETITION GRANTED and REMANDED




                                        12
                                                                     FILED
      Aymo v. Sessions, No. 17-71159                                  JUL 18 2018
                                                                  MOLLY C. DWYER, CLERK
                                                                   U.S. COURT OF APPEALS
      CHHABRIA, District Judge, concurring:

      I join the panel’s disposition, but wish to call attention to a further defect in

the asylum proceedings: the conduct of Lorraine Munoz, the immigration judge

assigned to Aymo’s case.

      Take, for example, Aymo’s testimony that when he was in custody in

Ethiopia, the authorities forced him to sign a letter acknowledging that he’d engaged

in subversive activity and stating that he would be killed if he did it again. Judge

Munoz asked: “Where’s the letter, sir?” Aymo responded: “They didn’t give me the

letter.” To which Judge Munoz replied: “Well, how would you know what you’re

supposed to do if you didn’t get the letter, sir?” When Aymo explained: “I saw the

letter when I signed [it],” Judge Munoz responded: “Well, sir, again, that doesn’t

seem logical.” It’s difficult to understand what Judge Munoz was getting at, but

there doesn’t seem to be anything illogical about a prisoner not receiving a copy of

a forced confession. Nor is there anything illogical about a prisoner reading the

confession he was forced to sign.

      The transcript is filled with similarly inapt characterizations of Aymo’s

testimony by Judge Munoz, such as: “Well sir, you keep changing your story,” or

“that’s incorrect, sir,” or “that’s kind of a circular argument,” or “[y]our story is

circular,” or “[y]ou’re not answering the question, which is very interesting, so
please answer the question.” Judge Munoz accused Aymo of being either “evasive”

or “perhaps inconsistent” because he could not recall the exact amount of money he

had in his pocket over a year earlier when he initially fled his hometown to Addis

Ababa. And when Aymo testified that he had some difficulties understanding the

translator at the interview with the Customs and Border Patrol officer, Judge Munoz

appeared to pressure Aymo into stating that he could understand the translator at that

interview.

      Consider also the exchange described in the panel’s disposition between

Judge Munoz and Aymo about the number of times Aymo’s father had been jailed.

By any objective measure, Aymo’s testimony was unclear (rather than inconsistent)

about whether his father had been jailed a grand total of twice or three times. Rather

than seeking to clear up the ambiguity (one that had apparently been created by

translation problems), Judge Munoz seemed intent solely on establishing that Aymo

had contradicted himself, saying things like, “[y]ou just told me he was arrested

twice and now you’re telling me he’s currently in jail,” and “[o]kay, so now that

you’ve changed your testimony, it’s now your testimony he was arrested three

times,” and “[w]ell, your testimony is inconsistent, but okay.”

      Any one of these exchanges, viewed in isolation, may not be cause for

concern. Viewed together, they suggest that Judge Munoz sought from the outset to

use these proceedings not to seek the truth, but to build a record that would justify a


                                          2
decision she’d already made, before actually hearing evidence, to deny the asylum

application. Indeed, at the beginning of the proceedings, Judge Munoz appeared to

express disdain for immigration judges in San Diego who apparently deny asylum

applications less often than she does (and less often than she would prefer). It thus

appears that, in addition to the incompetent translation, Aymo suffered another due

process violation—denial of the right to present his case to a judge who is a neutral

arbiter rather than a judge who believes her job is to deny asylum applications.




                                         3
