12-1486-ag
Malenge v. Holder

                    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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
StatesthCourthouse, 40 Foley Square, in the City of New York, on
the 24 day of January, two thousand fourteen.

PRESENT:    DENNY CHIN,
            SUSAN L. CARNEY,
            CHRISTOPHER F. DRONEY,
                      Circuit Judges.

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LINDA A. MALENGE, AKA Linda A. Muamufiya,
NONO BORA MALENGE,
                    Petitioners,

                    -v-                                       12-1486-ag

ERIC H. HOLDER, JR., United States
Attorney General,
                    Respondent.

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FOR PETITIONERS:                     BRIAN D. O'NEILL, Brian D. O'Neill,
                                     Attorney at Law, LLC, Morristown,
                                     New Jersey.

FOR RESPONDENT:                      DAVID H. WETMORE, Trial Attorney,
                                     and Mary Jane Candaux, Assistant
                                     Director, Office of Immigration
                                     Litigation, for Stuart F. Delery,
                                     Principal Deputy Assistant Attorney
                                     General, Civil Division, United
                                     States Department of Justice,
                                     Washington, D.C.
          UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals ("BIA") decision, IT IS HEREBY

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

GRANTED and the case is REMANDED to the BIA for further findings.

          Petitioners Linda A. Malenge ("Linda") and her husband

Nono Bora Malenge ("Nono"), both natives and citizens of the

Democratic Republic of the Congo (the "DRC"), seek review of a

March 16, 2012 order of the BIA affirming the April 20, 2010

decision of Immigration Judge ("IJ") Michael W. Straus, denying

their application for asylum, withholding of removal, and relief

under the Convention Against Torture ("CAT").   In re Linda A.

Malenge, Nono Bora Malenge, Nos. A098 929 549, A097 852 128

(B.I.A. Mar. 16, 2012), aff'g Nos. A 098 929 549, A097 852 128

(Immig. Ct. Hartford Apr. 20, 2010).   We assume the parties'

familiarity with the facts and procedural history of this case.
1.   Applicable Law

          "When the BIA does not expressly 'adopt' the IJ's

decision, but 'its brief opinion closely tracks the IJ's
reasoning,' [we] may consider both the IJ's and the BIA's

opinions 'for the sake of completeness.'"    Zaman v. Mukasey, 514

F.3d 233, 237 (2d Cir. 2008) (quoting Wangchuck v. DHS, 448 F.3d

524, 528 (2d Cir. 2006)).   We review the IJ's factual findings

"under the substantial evidence standard, which requires that

they be supported by 'reasonable, substantial and probative

evidence in the record when considered as a whole.'"   Castro v.

Holder, 597 F.3d 93, 99 (2d Cir. 2010) (quoting Iouri v.

Ashcroft, 487 F.3d 76, 81 (2d Cir. 2007)).   Under this standard


                                 2
the IJ must engage in a "minimum level of analysis" and there

must be "some indication that the IJ considered material evidence

supporting a petitioner's claim."     Id. (internal quotation marks

omitted).    We will vacate and remand for new findings if the

agency's "reasoning or [ ] fact-finding process was sufficiently

flawed."    Zaman, 514 F.3d at 237.

            Pursuant to the REAL ID Act of 2005 (the "Act"), an

adverse credibility determination may be based on inconsistencies

and inaccuracies without regard to whether they go "to the heart

of the applicant's claim."    8 U.S.C. § 1158(b)(1)(B)(iii); see

Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008) (per

curiam).    This standard applies to asylum applications filed

after May 11, 2005, the effective date of the Act.    See Xiu Xia

Lin, 534 F.3d at 167.    In contrast, for asylum applications

submitted prior to the passage of the Act, an adverse credibility

determination must be based on "specific, cogent reasons" that

"bear a legitimate nexus to the finding and must be valid grounds

for disregarding an applicant's testimony."    Secaida-Rosales v.
I.N.S., 331 F.3d 297, 307 (2d Cir. 2003), superseded by the Real

ID Act as recognized in Xiu Xia Lin, 534 F.3d at 163 (citation

and internal quotation marks omitted).

            While we will ordinarily defer to an IJ's findings

concerning the authenticity of submitted evidence, "we have

refused to credit the IJ's finding that submitted documents were

false when we have determined that the IJ based his conclusion on

unjustified assumptions and engaged in unsupported speculation."




                                  3
Niang v. Mukasey, 511 F.3d 138, 146 (2d Cir. 2007) (citing Li Zu

Guan v. INS, 453 F.3d 129, 139 (2d Cir. 2006)).
2.   Application

     We hold that the agency's "reasoning or [ ] fact-finding

process was sufficiently flawed" that we must vacate and remand

for further proceedings.   Zaman, 514 F.3d at 237.

          As an initial matter, Nono filed his asylum application

in October 2003, and thus the BIA erred in concluding that Nono's

application was governed by the credibility standard of the Act.

See Xiu Xia Lin, 534 F.3d at 167.    Further, the IJ did not
explain what credibility standard he applied in making his

adverse credibility determination.    While these legal errors

alone arguably might not require remand, here, in light of the

evidence that the IJ relied on and failed to address in making

his credibility determination, we cannot "confidently predict

that the IJ would reach the same decision absent the errors that

were made."   Lin v. U.S. Dep't of Justice, 453 F.3d 99, 107 (2d

Cir. 2006) (internal quotation marks omitted).    Whether we apply

the pre- or post-Act credibility standards, we conclude that the

IJ's factual findings, in the circumstances here, are not

"supported by 'reasonable, substantial and probative evidence in

the record when considered as a whole.'"    Castro, 597 F.3d at 99
(quoting Iouri v. Ashcroft, 487 F.3d 76, 81 (2d Cir. 2007)).

          In finding petitioners not credible, the IJ first

relied on a Department of Homeland Security identification report

that indicated that an individual with an "apparent[ ]"

fingerprint match with Nono attempted to enter the United States



                                 4
from Canada on December 17, 2000.       In re Linda A. Malenge, Nono

Bora Malenge, Nos. A 098 929 549, A097 852 128, at 13.        The IJ

found that if the report were accurate, petitioners' testimony

could not be true.    The IJ concluded that the fingerprint

evidence supported an adverse credibility determination because

it was bolstered by the fact that the photographs of the

individual whose fingerprints were taken in 2000 bore a likeness

to Nono.

            The IJ's conclusion was not based on reasonable or

substantial evidence in the record.       First, the fingerprint

report itself only noted that there was a "probable match" and

that the "match status" was "?".       Joint App'x at 720.   As a

report from a fingerprint expert explained, "these results do not

provide evidence of a fingerprint match.       They simply show a

match in 'probable' status that has not been confirmed by a

qualified fingerprint examiner."       Id. at 708-09 (emphasis
deleted).    Second, the asylum officer who testified about the

report acknowledged that he was not a fingerprint expert and that

he was not "qualified to determine whether [the prints] were a
match or not."    Id. at 360.   Third, while the asylum officer

relied on the photographs, his testimony regarding the likeness

of the person in the photo to Nono was equivocal:        "It didn't

seem dissimilar to the applicant."       Id. at 359.   The IJ also

failed to adequately address the evidence in the record that Nono

has an identical twin brother whose whereabouts have been unknown

since 1999 and whose existence could explain the resemblance

between Nono and the individual photographed at the U.S. border.


                                   5
Indeed, there was no "indication that the IJ considered [this]

evidence supporting [ ] petitioner[s]' claim."   Castro, 597 F.3d

at 99; see also Diallo v. Gonzales, 445 F.3d 624, 629 (2d Cir.

2006) (recognizing that an IJ may err when he "fails to engage or

evaluate an asylum applicant's explanations for apparent

inconsistencies in the record." (internal quotation marks and

citations omitted)).   The IJ's failure to adequately address this

explanation is particularly problematic given the limited value

of the fingerprint evidence.

          The IJ's adverse credibility determination was also

based on his concerns about the authenticity of a newspaper

article that documented the beating Linda suffered in the DRC.

While we typically defer to the IJ concerning the authenticity of

evidence, we find that "the record does not provide a substantial

basis for concluding that [the newspaper article] undermine[s]

[petitioners'] credibility."   Niang, 511 F.3d at 146.
          The IJ questioned the authenticity of the article, in

part, because the accompanying photograph did not, in his view,

reveal injuries to Linda's face and head.    The IJ's finding was

impermissibly speculative, however, as this was a photograph in a

newspaper taken two days after the alleged beating.   See Siewe v.
Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) ("[W]e will reject

a deduction made by an IJ [ ] when there is a complete absence of

probative facts to support it –- that is, when the speculation is

bald" (internal quotation marks omitted)).   Moreover, the IJ did

not address evidence that supported Linda's claim:    she testified

that the photo showed that her mouth was swollen; the photograph,



                                 6
which showed her wearing a cast and using crutches, corroborated

her testimony that she was beaten severely and repeatedly with

the butt of a gun on her ankle; and she submitted medical

evidence that she received surgery in a New York hospital to

repair an untreated ankle fracture and dislocation shortly after

entering the United States.

          The IJ also had questions about the reference numbers

and dates on the pages of the newspaper as well as the color and

texture of the paper of the different pages.   Although the IJ may

have had a reasonable basis for questioning the authenticity of

the article about Linda, the IJ did not make any definitive

findings and merely noted his "serious concerns."   These

concerns, which were not fully explored by the parties, are not

findings, and they did not, by themselves, provide substantial

evidence for finding petitioners not credible.   Moreover, these

concerns related only to Linda's claim, and accordingly they were

insufficient to support a determination that Nono was not

credible under the pre-Act standard applicable to his case.    See

Secaida-Rosales, 331 F.3d at 307.

          We conclude, based on the totality of the

circumstances, that the IJ's concerns about the authenticity of

the newspaper article do not provide substantial evidence to

support his credibility determination.   See Xiu Xia Lin, 534 F.3d

at 164 ("[A]n IJ may rely on . . . inconsistencies that do not

directly relate to the applicant's claim of persecution as long

as the totality of the circumstances establish that the applicant

is not credible."); see also Niang, 511 F.3d at 147



                                7
(acknowledging fact that more than one typewriter appeared to

have been used to create identity document provided basis for

doubting authenticity of document, but holding that it alone was

insufficient to find applicant not credible based on totality of

circumstances).    This is particularly true where, as here, the IJ

did not make any findings as to the credibility of petitioners'

testimony or demeanor, cf. Niang, 511 F.3d at 147 (noting "given

the tenuousness of the[ ] suspicions [of the authenticity of the

documents submitted], they cannot ground an adverse credibility

determination, where petitioner's testimony was otherwise

convincing and consistent"), or consider material evidence

supporting Linda's claim, see Castro, 597 F.3d at 99-100.
            Accordingly, because the agency did not provide any

alternative grounds for denying petitioners' applications, we

cannot confidently predict that the agency would have made the

same decision absent the identified errors and remand is thus

required.    See Lin, 453 F.3d at 107.

            Finally, we deny petitioners' request for an order

assigning the case to a different IJ on remand, as the record

does not demonstrate that the IJ was biased against Nono.

            For the foregoing reasons, the petition for review is
GRANTED and the case is REMANDED to the BIA for further findings.

                           FOR THE COURT:
                           Catherine O'Hagan Wolfe, Clerk




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