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                                                      [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 16-10653
                       Non-Argument Calendar
                     ________________________

                      Agency No. A200-599-802



ANDREW POCHE RADIDO,

                                                                     Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.

                     ________________________

                Petition for Review of a Decision of the
                     Board of Immigration Appeals
                      ________________________

                             (June 5, 2017)
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Before JORDAN, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Andrew Poche Radido petitions for review of the decision of the Board of

Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) order

denying his application for withholding of removal and relief under the Convention

Against Torture (“CAT”). He argues that the BIA erred in affirming the IJ’s

adverse credibility determination because the determination was not supported by

substantial evidence. He contends that when his testimony is considered, he

carried his burden to show he was entitled to relief. In the alternative, he asserts

that the BIA erred in affirming the IJ’s determination that he failed to come

forward with sufficient corroborating evidence to show he was entitled to relief.

He argues that the IJ failed to consider supplemental evidence that he timely filed

with the immigration court but that was never made a part of the administrative

record. Because the BIA did not consider Radido’s argument that the IJ erred by

failing to consider his supplemental evidence, we grant the petition, vacate the

BIA’s order, and remand so that the BIA may address this argument in the first

instance.

                        I.    FACTUAL BACKGROUND

      Radido, a native and citizen of Kenya, entered the United States in 2003 on a

non-immigrant visa but remained without authorization after his visa expired.


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Several years after entering the United States, Radido applied for asylum,

withholding of removal, and protection under the CAT, claiming that he had been

persecuted in Kenya because of his political opinion and membership in a social

group.

A.    Initial Proceedings Before the IJ

      In an affidavit and testimony before the IJ, Radido described the persecution

he previously faced in Kenya and why he believed he would be murdered if he

returned there. Radido explained that in 1997 he had been elected as a councilor in

Kenya, holding a position that was similar to that of a member of the United States

House of Representatives. As a councilor, Radido supported a project to

modernize slums by demolishing shanties and replacing them with new homes that

had basic modern amenities. This project was opposed by slumlords who rented

the shanties. After Radido’s negotiations with the slumlords failed, the slumlords

aligned with the Mungiki, an ethnic terrorist group, to target Radido.

      According to Radido, the Mungiki harassed him because of his political

work. In 2001, a Mungiki member threatened Radido’s life. When Radido ran for

reelection the next year, the threats escalated. In one instance, Mungiki members

dragged Radido from his vehicle, punching and kicking him while threatening his

life. After this physical attack, Radido fled to the United States for three months.

But he returned to Kenya to continue his reelection campaign, which he lost. Even


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though Radido lost the election, the Mungiki continued to target him for physical

violence and harassment.

      In April 2003, Radido fled to the United States to escape the Mungiki.

While he was in the United States, Radido sent his family into hiding so that the

Mungiki could not harm them. Even after years in the United States, Radido

worried that the Mungiki would murder him if he returned to Kenya. He believed

that the Mungiki were still after him because in 2008 they murdered a man whom

they believed to be Radido.

      Besides his own testimony, Radido submitted corroborating evidence to

support his application. Such evidence included documents confirming that he had

been elected a councilor and medical records showing a shoulder fracture after a

physical attack. He also submitted other evidence reflecting that the Mungiki were

a violent group. He provided an affidavit from his bodyguard stating that Radido

had received death threats and in 2008 a man was murdered because the Mungiki

had mistaken him for Radido.

      At the conclusion of the hearing, the IJ issued an oral decision denying

Radido’s application. The IJ found that Radido’s asylum application was time

barred. In the alternative, the IJ rejected Radido’s asylum claim on the merits,

determining that he had failed to establish that his life would be in danger if he

returned to Kenya. The IJ made an adverse credibility determination and rejected


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Radido’s testimony. Because Radido was ineligible for asylum, the IJ also found

that he failed to carry his burden to establish he was eligible for withholding of

removal or relief under the CAT.

B.        The BIA’s Initial Decision

          Radido appealed to the BIA, which dismissed his appeal in part and

remanded in part. The BIA found that Radido was ineligible for asylum relief

because his asylum application was untimely and dismissed the asylum portion of

his appeal. But the BIA concluded that the IJ’s analysis of Radido’s eligibility for

withholding of removal and protection under the CAT was so cursory and

conclusory that it precluded meaningful review of the merits of the decision. The

BIA remanded the case to the IJ so that the IJ could make clear factual findings

and explain the basis for the decision. The BIA also directed the IJ to further

evaluate Radido’s credibility.

     C.      The IJ’s Second Decision

          Upon remand, the IJ allowed Radido to submit additional evidence. Radido

claims that he filed additional evidence with the immigration court. But when the

IJ subsequently denied Radido’s application for withholding of removal and relief

under the CAT, the IJ indicated that Radido had submitted no new evidence after

the remand and never acknowledged or considered Radido’s supplemental filing.




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        With regard to the merits of Radidio’s applications, the IJ concluded that

Radido failed to meet his burden in connection with his application for withholding

of removal or CAT relief. Again, the IJ made an adverse credibility determination.

With respect to past persecution, the IJ found that Radido had proven that he had

been elected to the legislature and that the Mungiki were a powerful gang, but that

he submitted insufficient corroborating evidence to show that he had been

personally targeted or that his persecutors were the Mungiki. The IJ further found

that Radido had failed to show he would face persecution or harm if he returned to

Kenya and pointed to reports showing that Kenya had cracked down on the

Mungiki and recently held peaceful elections.

   D.      The BIA’s Second Decision

        Radido again appealed the IJ’s decision to the BIA. As an initial matter,

Radido argued to the BIA that the IJ had erred by failing to consider the

supplemental materials that he had filed after the remand. He also asserted that the

IJ’s credibility determination lacked support and that in any event his corroborating

evidence showed that he was entitled to relief.

        The BIA dismissed the appeal, explicitly adopting and affirming the IJ’s

conclusion that Radido had failed to carry his burden to prove he was eligible for

withholding of removal or protection under the CAT. The BIA explained that the

IJ’s credibility determination was not clearly erroneous. The BIA also adopted the


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IJ’s reasons for rejecting Radido’s argument that he had proven he was entitled to

relief through corroborating evidence. But the BIA failed to address Radido’s

argument that the IJ had erred by failing to consider the supplemental materials

that he had filed. Radido has petitioned our court for review.

                        II.      STANDARD OF REVIEW

      We review only the BIA’s decision except to the extent that it expressly

adopts the IJ’s opinion or reasoning. Shi v. U.S. Att’y Gen., 707 F.3d 1231, 1234

(11th Cir. 2013). Because the BIA expressly adopted some of the IJ’s reasoning,

we must review both the IJ’s and BIA’s decisions. See Ayala v. U.S. Att’y Gen.,

605 F.3d 941, 948 (11th Cir. 2010).

      We review factual determinations, including credibility determinations,

under a substantial evidence standard. Chen v. U.S. Att’y Gen., 463 F.3d 1228,

1230-31 (11th Cir. 2006). But when the BIA or IJ “has failed to give reasoned

consideration or make adequate findings, we remand for further proceedings

because we are unable to review the decision.” Mezvrishvili v. U.S. Att’y Gen.,

467 F.3d 1292, 1295 (11th Cir. 2006) (internal quotation marks and citations

omitted).

                              III.    LEGAL ANALYSIS

      In his petition for review, Radido argues that he was entitled to withholding

of removal and relief under the CAT. He presents two main arguments why the


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BIA and IJ erred. First, he argues that his testimony was sufficient to establish that

he was entitled to relief. Although the BIA and IJ found that he was not credible,

he argues that substantial evidence does not support this finding. Second, he

asserts that regardless of his credibility, he submitted corroborative evidence that

was sufficient to satisfy his burden, including the supplemental materials that he

filed with the immigration court after remand.

      Radido argues in his petition, like he argued to the BIA, that the IJ failed to

consider the entire record because the IJ ignored the supplemental, corroborating

evidence that he filed with the immigration court after the remand. He contends

that his supplemental materials were never made a part of the administrative record

or considered by the IJ. The BIA ignored this argument and failed to address it.

As a result, we are unable to review this issue. See Mezvrishvili, 467 F.3d at 295.

We acknowledge that neither the BIA nor the IJ is required to specifically address

each claim raised by a petitioner or each piece of evidence he presented, but they

must consider the issues raised and render a decision in terms sufficient to enable a

reviewing court to perceive that they have “heard and thought and not merely

reacted.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006) (internal

quotation marks omitted). Because the BIA failed to render a reasoned decision

addressing, or even acknowledging, Radido’s argument about the supplemental




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evidence, we must remand. 1

                                  IV.     CONCLUSION

       For the reasons set forth above, we GRANT Radido’s petition, VACATE the

decision of the BIA, and REMAND for further proceedings consistent with this

opinion.

       PETITION GRANTED; VACATED AND REMANDED.




       1
         We have recognized an exception to the remand rule that applies in “rare
circumstances” when the undecided question involves a purely legal issue that is procedural in
nature. Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1330 (11th Cir. 2004) (internal quotation marks
omitted). We cannot say such circumstances are present in this case, which involves the factual
question of whether Radido actually filed the supplemental materials.
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