          United States Court of Appeals
                      For the First Circuit

No. 13-2271

                    JUAN CARLOS SHUL-NAVARRO,

                           Petitioner,

                                v.

              ERIC H. HOLDER, JR., ATTORNEY GENERAL,

                           Respondent.


              PETITION FOR REVIEW OF AN ORDER OF THE

                   BOARD OF IMMIGRATION APPEALS


                              Before

                   Howard, Thompson and Barron,

                         Circuit Judges.


     Michael Haven and Genzale & Haven, LLP on brief for
petitioner.
     C. Frederick Sheffield, Office of Immigration Litigation,
Civil Division, Department of Justice, Stuart F. Delery, Assistant
Attorney General, Civil Division, and John W. Blakeley, Senior
Litigation Counsel, on brief for respondent.



                         August 11, 2014
           BARRON, Circuit Judge.      Petitioner Juan Carlos Shul-

Navarro, a native and citizen of El Salvador, seeks review of a

Board of Immigration Appeals decision that dismissed his appeal

from an Immigration Judge's order that would remove him from the

United States.1   The key issue concerns whether Shul showed that he

qualifies for a special status that -- due to a determination the

Attorney General made about unsafe conditions in his home country

-- would afford him protection from being sent back to El Salvador.

Because neither the Board nor the Immigration Judge provided a

sufficient explanation for finding that Shul failed to make that

necessary showing, we vacate and remand for further proceedings.

                                 I.

           Shul entered the United States without inspection at an

unconfirmed time, and on May 14, 2001 he submitted an application

for what is known as "temporary protected status."      That status

affords aliens protection from removal from the United States upon

a determination by the Attorney General that conditions in the

alien's home country prevent the alien's safe return.    8 U.S.C. §

1254a.   The Attorney General made the triggering designation about

Shul's home country, El Salvador, after two large earthquakes


     1
       The Board also dismissed Shul's "motion to reconsider,"
which it treated as a motion to remand given the motion's
submission during the pendency of the appeal. In his petition to
this Court, Shul failed to address the Board's rationale in denying
the motion or even to mention the motion at all. The issue is
therefore waived. See Dawoud v. Holder, 561 F.3d 31, 37 (1st Cir.
2009).

                                 -2-
struck that country.           Designation of El Salvador Under Temporary

Protected Status Program, 66 Fed. Reg. 14,214 (Mar. 9, 2001).

              As a result of that designation, Shul may qualify for

temporary protected status by showing, among other things, that he

has ties to the United States that started to run from certain

dates    that    had    been    set   by    the      Attorney    General.       More

specifically, Shul must show (1) that he has been continuously

physically present in the United States since the effective date of

the Attorney General's designation of El Salvador as a country

whose nationals may qualify for temporary protected status, and (2)

that he has continuously resided in the United States as of a

separate date that the Attorney General also designated.                    8 U.S.C.

§   1254a(c)(1)(A);      Designation       of   El    Salvador   Under   Temporary

Protected Status Program, 66 Fed. Reg. 14,214 (Mar. 9, 2001).                     By

virtue   of     the    Attorney    General's         designations   regarding     El

Salvador, Shul must prove continuous presence in this country as of

March 9, 2001 and continuous residence as of February 13, 2001.

              Before deciding whether to grant Shul temporary protected

status, the Department of Homeland Security requested that he

provide additional supporting documentation.                Shul did so, but the

Department denied Shul's application on November 13, 2003.                     Shul

was then not served with a Notice to Appear for removal proceedings

until 2009.      At that point, Shul filed a renewed application for

temporary protected status with the immigration court.                      Although


                                       -3-
Shul provided new evidence at that time, the Immigration Judge,

like the Department, found his showing insufficient.2                      Shul thus

appealed to the Board of Immigration Appeals, which reached the

same result.

                                             II.

                  Neither the Immigration Judge nor the Board set forth as

precisely as we might wish the exact basis for their judgment that

Shul       does     not    qualify     for   temporary      protected   status.      The

ambiguity, such as it is, concerns the scope of that judgment.                        We

first must decide, therefore, what the agency decided so we can

determine what we must review.                     Specifically, we must resolve

whether the Immigration Judge and the Board determined only that

Shul failed to show he was in the United States early enough to

qualify      for     temporary       protected     status   or   whether   they   also

determined that, even if he was in the United States in time, he

failed to show that he maintained a sufficient connection to the

country in the months and years that followed.                     We thus begin by

parsing the agency's decisions with this question in mind. See SEC

v. Chenery Corp., 332 U.S. 194, 197 (1947) ("If the administrative

action is to be tested by the basis upon which it purports to rest,

that       basis    must    be   set    forth      with   such   clarity   as   to   be


       2
      The Immigration Judge also denied Shul's voluntary departure
claim, citing to Shul's conviction for marijuana possession,
numerous arrests between 2003 and 2007, and association with a
violent street gang. Shul does not challenge this discretionary
decision.

                                             -4-
understandable. . . . In other words, 'We must know what a decision

means before the duty becomes ours to say whether it is right or

wrong.'") (quoting United States v. Chicago, M., St. P. & P.R. Co.,

294 U.S. 499, 511 (1935)).

                                       A.

            We start with the opinion of the Immigration Judge

because the Board affirmed her decision "for the reasons" that she

provided.   See Matovu v. Holder, 577 F.3d 383, 386 (1st Cir. 2009).

The introduction to the Immigration Judge's analysis makes clear

she made at least one finding: namely, that, in her view, the

earliest "reliable" evidence "showing [Shul] in the United States

is his filing of" his initial application for temporary protected

status "on May 14, 2001."          In our view, the rest of her analysis

most naturally reads as an explanation of why she believes the

evidence Shul submitted fails to support a contrary finding on that

one key point.       And, for that reason, we read her opinion -- as

well as the Board's opinion affirming it -- to rest solely on that

factual finding and not on an additional and independent finding

that, even if Shul were in the country earlier, his ties to this

country thereafter were insufficiently continuous.                Cf. Waweru v.

Gonzales, 437 F.3d 199, 204 (1st Cir. 2006) (explaining that

"clarity    is   a   matter   of   degree,"   and,   as   such,    "the   normal

question[s]" upon review of agency action are "whether the evidence




                                      -5-
supports the conclusion and whether the agency's basic rationale is

clear enough to permit review").

            The structure of the Immigration Judge's opinion supports

this reading.        She begins the introduction to her analysis by

stating that the Department of Homeland Security's "finding" that

Shul does not qualify for temporary protected status should be

affirmed.      She also states that, in her view, Shul's initial

application for temporary protected status represents the "earliest

evidence that is reliable" about his presence in this country. She

then notes that Shul did testify that he arrived in the United

States earlier.       Specifically, she explains that Shul testified

that he entered the United States in September 1999 -- "exact date

unknown" -- and that "he never left."              But she concludes the

introduction    to    her   analysis    by   stating   that   Shul   "has   no

documentary proof of such" and that "conflicting evidence in the

record" leads her to "have some concerns about the credibility of

his testimony."

            In light of this set up, the paragraphs that follow in

the Immigration Judge's opinion appear to represent an effort to

detail the deficiencies in Shul's evidence of being in the United

States prior to May 14, 2001.            In the first several of those

paragraphs, for example, the Immigration Judge focuses on her

concerns about Shul's effort to provide documentation for his

contention.


                                       -6-
            The    Immigration      Judge       begins    with   a     paragraph   that

describes    two     letters     Shul     submitted       from    the    East    Boston

Neighborhood Health Center.               One letter, dated June 18, 2003,

states that Shul initially registered with the health center on May

31, 2002.     It lists no additional dates of service on which Shul

was "subsequently . . . seen" by the health center.                      But the other

letter is, on its face, more helpful to Shul's effort to show he

was in the United States earlier than May 14, 2001. Dated June 23,

2011, this letter lists August 16, 2000 as when Shul initially

registered with the health center. In addition, it states Shul was

"subsequently . . . seen" by the health center once in each 2001,

2002, 2003, 2004, 2005, and 2010.

            The Immigration Judge concludes in the next paragraph,

however,    that     Shul    was     "unable      to     adequately      explain    the

inconsistencies" in the two letters.               Furthermore, she notes that

the letters do not accord with other parts of Shul's testimony.

Despite Shul testifying that he had appendix surgery in or around

2007, for example, the Immigration Judge observes that neither

letter lists an entry near that date.              And while she notes that "it

is possible [Shul] was seen elsewhere," she states that "if his

treatment was at the [health center] it should have appeared on

this form."

            In     the    very     next   paragraph       of     the    opinion,    the

Immigration       Judge   expresses       the    further       concern    that     "[n]o


                                          -7-
underlying medical records were presented to corroborate [Shul]

having registered as the health center in August 2000 or having

been seen in July 2001."            And she adds that Shul "gave the

impression" that he had informed the health center that "he needed

information regarding earlier dates than had been placed in the

first letter issued by the health center," although the Immigration

Judge   did    acknowledge   that   "Shul   was   somewhat   vague   in    his

testimony on that point."

              These inconsistencies, and other concerns, thus seem to

be set forth in order to support the Immigration Judge's decision

to discount the significance of the 2011 letter.         And because that

letter, if credited, would constitute reliable evidence that Shul

was in the United States before May 14, 2001, the Immigration Judge

appears to be pointing to this "conflicting evidence in the record"

as a reason to doubt Shul's testimony that he actually arrived in

the United States much earlier than May of that year.

              The next to last paragraph of the Immigration Judge's

analysis once again appears to focus on what the evidence shows

about where Shul was during the period prior to May of 2001.              This

paragraph discusses the absence of corroborating evidence for

Shul's testimony -- testimony about which, the Immigration Judge

states, she has "serious doubts."          In particular, the Immigration

Judge points to the fact that Shul had failed to introduce evidence

from either his mother (with whom he allegedly lived in 2001) or


                                     -8-
brother (with whom he allegedly entered the country in 1999) to

corroborate his claims.     She also explains that Shul submitted no

rent checks or other evidence to support his claim that he began

paying rent in Boston in 2001.      Finally, she notes that no medical

or tax records were introduced that substantiated Shul's claim to

having been in the United States in 2001.

          The Immigration Judge concludes her discussion of Shul's

application by stating that Shul had not met his burden to prove

"that he was residing in the United States on February 13, 2001,

and maintained continuous physical presence since March 9, 2001."

In isolation, that sentence might be read to suggest that the

Immigration Judge was actually making two independent findings --

first, that Shul was not residing in the United States as of

February 13, 2001, and second, that even if he was, he failed to

show that he "maintain[ed] continuous physical presence" in the

country from   March   9,   2001   on.   But   in the   context   of   the

Immigration Judge's analysis as a whole, we do not believe that is

a fair reading.   We instead conclude that the sentence must be read

to have a more limited scope.

          The sentence sets forth a conclusion that necessarily

follows from the one factual finding that the Immigration Judge did

clearly make -- namely, that Shul offered no reliable evidence to

show that he was even in the United States prior to May 14, 2001.

After all, May 14 comes after both February 13 and March 9.        Thus,


                                   -9-
if the Immigration Judge is right that no reliable evidence shows

Shul to have been in the United States before May 14, then Shul

necessarily failed to show both that he was resident in the United

States as of February 13, 2001 and that he maintained a continuous

physical presence from March 9 on.

           The Board's decision affirming the Immigration Judge

lends additional support to our reading.              Its three-paragraph

opinion begins by stating the basic facts of the case.                    The

introductory paragraph also states that the Immigration Judge

"determined that the respondent did not satisfy his burden of proof

that he was residing in the United States on February 13, 2001, and

maintained continuous physical presence since March 9, 2001."             But

in the next and only paragraph of the opinion that addresses the

merits of the Immigration Judge's analysis, the Board focuses

solely on the finding that Shul was "unable to establish having

resided in the United States as of February 13, 2001."           The Board

thus   makes   no   separate   assessment   of   whether,   if    Shul    had

established that fact, his evidence would have been enough to show

the kind of continuous ties the law requires of those seeking

temporary protected status.

                                    B.

           Having    determined   that   the   only   finding    before    us

concerns Shul's proof about whether he was in the country before

May 14, 2001, we now examine whether the Board erred in making it.


                                  -10-
In doing so, we are mindful that we owe deference to an agency's

factual determinations.        See Waweru, 437 F.3d at 203.           But we are

also mindful that, in reviewing for "substantial evidence," we

still must consider the "whole record."              Gailius v. I.N.S., 147

F.3d 34, 44 (1st Cir. 1998).          We do not look, therefore, only to

the   evidence    that   supports    the     agency's   conclusion     and   then

determine whether it, standing alone, is "substantial."                Instead,

we consider that evidence alongside evidence that may point towards

a contrary conclusion and then determine whether, considered as

whole, the record supports the agency's finding. See Mukamusoni v.

Ashcroft, 390 F.3d 110, 119 (1st Cir. 2004).

           In light of these principles, we cannot say that the

finding below is supported by substantial evidence. In addition to

the June 2003 and June 2011 letters discussed above, Shul submitted

another letter from the East Boston Neighborhood Health Center.

Dated September 19, 2000, this letter states that it is accompanied

by Shul's health plan card, and the letter directs Shul to call the

health center should he have any questions or concerns.3                     This

letter thus plainly seems to indicate not only that Shul was in

Boston as of September 2000, but also that he was sufficiently

established      there   to   have   sought    out   and   received    a   formal



      3
       The original version of the September 19, 2000 letter is in
Spanish. Pursuant to immigration court rules of procedure, Shul
submitted to the immigration court a notarized English translation
in addition to the original. See 8 C.F.R. § 1003.33.

                                      -11-
connection    to   this    health   care   provider.      But    neither   the

Immigration Judge nor the Board mentioned, let alone discussed,

this letter.       And they failed to do so even though it plainly

appears to contradict the only finding made below: that Shul was

not in the United States before May 2001.

          Perhaps     both    the   Immigration   Judge    and    the   Board

consciously disregarded the September 2000 letter and did so for a

sufficient reason.        If so, they provided no explanation of their

reasoning -- or even an indication that they considered the letter

at all.      We thus cannot conclude that the record as a whole

supports the one finding on which the agency appears to have based

its judgment.4      See Gailius, 147 F.3d at 44 (agency must "'set

forth'" basis for its decision "'with such clarity as to be

understandable,'" and reviewing court "'must judge the propriety of


     4
       The Immigration Judge's opinion could be read to imply that
the health center's record-keeping is insufficiently reliable to
provide a reason to trust the June 2011 letter. But even if we
assume that is so, the 2000 letter is not a reconstruction of past
events. Rather, it was sent to Shul contemporaneously with his
receipt of a health card.      Unlike the 2003 and 2011 letters,
therefore, it reflects a real-time artifact of a tie to the health
center that Shul had apparently just then established. In fact, if
anything, the 2000 letter -- delivered to Shul before he had even
initiated his application for temporary protected status -- would
seem to corroborate the June 2011 letter's listing of August 2000
as the date of Shul's registration. That timing for his initial
registration would seem to comport with the health center sending
him a health plan card in early September. That said, whatever the
fair import of the 2000 letter might be, including what it may
suggest about the reliability of the 2011 letter, is not for us to
say in the first instance. See Hernandez-Barrera v. Ashcroft, 373
F.3d 9, 22 (1st Cir. 2004) (agency must decide factual issues "in
the first instance").

                                    -12-
[administrative] action solely by the grounds invoked by the

agency'") (quoting Chenery, 332 U.S. at 196); cf. Turcios v.

I.N.S., 821 F.2d 1396, 1399 (9th Cir. 1987) (immigration judges

should "offer 'a specific, cogent reason for [their] disbelief'")

(quoting Damaize-Job v. I.N.S., 787 F.2d 1332, 1338 (9th Cir.

1986)).

           In     reaching     this    conclusion,     we   accept   that   the

Immigration Judge had "serious doubts" about the credibility of

Shul's testimony. The Immigration Judge occupies "the best vantage

point   from    which   to    assess    the   witnesses'     testimonies    and

demeanors," and "we accord significant respect to these witness

credibility determinations." Cuko v. Mukasey, 522 F.3d 32, 37 (1st

Cir. 2008).      But we do not see why the Immigration Judge's doubts

about Shul's credibility -- "serious" though they were -- provide

a   sufficient     basis     for   discounting   the    reliability    of   the

information contained in a letter sent directly by the health

center.

           The 2000 letter, like the one sent in 2011, appears on

health center letterhead, and the health center appears in the

signature block. Neither the Board nor the Immigration Judge raise

any doubts about its authenticity, nor does the record provide the

basis for any.     And while the Immigration Judge's opinion could be

read to raise the concern that the 2011 letter was produced only

upon Shul asking for some indication of earlier ties to the health


                                       -13-
center than the 2003 letter from the health center showed, that

same concern would not apply to the 2000 letter.           That letter was,

as we have noted, sent before Shul had even applied for temporary

protected status.    It thus appears to have been sent for reasons

entirely unrelated to Shul's effort to prove residency.                As a

consequence, this case would seem to be one in which, contrary to

the Immigration Judge's and the Board's finding, the petitioner's

testimony "did appear to be corroborated by specific documentary

evidence."   Gailius, 147 F.3d at 45.

                                 III.

          In short, both the Immigration Judge and the Board failed

to explain adequately the only finding they expressly made in

considering Shul's application for temporary protected status: that

Shul failed to provide "reliable" information that he was even "in"

the United States as of May 14, 2001.          For that reason, we must

vacate the Board's decision affirming the Immigration Judge's order

and remand to the Board for further proceedings consistent with

this opinion.

          On    remand,   the   Board    may   seek   to   explain   why   --

notwithstanding the September 2000 letter and the corroboration of

it that the 2011 letter seems to provide -- Shul was not in the

country soon enough to be eligible for temporary protected status.

Alternatively, the Board may address the distinct issue of whether,

even if Shul was in the country at that time, he failed to show the


                                  -14-
kind of continuous ties thereafter that the law requires of those

applying for temporary protected status.           Such a determination

would need to rest on a review of the evidence that bears on that

distinct issue. That determination would also need to consider the

evidence in light of the fact that "brief, casual, and innocent

absences from the United States" do not disrupt continuity of

presence or residence.       8 U.S.C. § 1254a(c)(4)(A), (B).            But

however the Board chooses to proceed, "[i]t is not the role of this

court to determine in the first instance whether [Shul] met his

burden"   to   prove   eligibility    for   temporary   protected   status.

Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 22 (1st Cir. 2004).           We

instead must confine our review to the reasons the agency itself

actually gave for its decision -- reasons which, we have explained,

were not adequate in this instance.         Accordingly, the decision of

the Board is vacated and remanded.




                                     -15-
