         12-2430
         Ngassaki v. Holder
                                                                                        BIA
                                                                                Montante, IJ
                                                                              A088 935 706
                               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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 13th day of September, two thousand thirteen.
 5
 6       PRESENT:
 7                BARRINGTON D. PARKER,
 8                GERARD E. LYNCH,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       ROMAIN CHRYSOSTOME NGASSAKI,
14                Petitioner,
15
16                            v.                                12-2430
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Lauris Wren, Hofstra Law School
24                                      Asylum Clinic, Hempstead, NY
25
26       FOR RESPONDENT:                Stuart F. Delery, Principal Deputy
27                                      Assistant Attorney General; Jennifer
28                                      Lightbody, Senior Litigation
29                                      Counsel; Aimee J. Carmichael, Trial
30                                      Attorney, United States Department
31                                      of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is GRANTED and the case REMANDED to the BIA.

 5       Petitioner Romain Chrysostome Ngassaki, a native and

 6   citizen of the Republic of Congo, seeks review of a May 22,

 7   2012, decision of the BIA affirming the June 28, 2010,

 8   decision of Immigration Judge (“IJ”) Philip J. Montante,

 9   which denied his motion to transfer venue to New York, NY

10   and his application for asylum, withholding of removal, and

11   relief under the Convention Against Torture (“CAT”).     In re

12   Romain Chrysostome Ngassaki, No. A088 935 706 (B.I.A. May

13   22, 2012), aff’g No. A088 935 706 (Immig. Ct. Buffalo June

14   28, 2010).   We assume the parties’ familiarity with the

15   underlying facts and procedural history in this case.

16       Under the circumstances of this case, we have reviewed

17   the IJ’s decision as modified by the BIA.     See Yan Chen v.

18   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    We review the

19   denial of a motion to change venue for abuse of discretion.

20   See Monter v. Gonzales, 430 F.3d 546, 558-59 (2d Cir. 2005);

21   Lovell v. INS, 52 F.3d 458, 460 (2d Cir. 1995).    We find an

22   abuse of discretion here.


                                   2
 1       Ngassaki argues that the BIA abused its discretion

 2   because it: (1) relied on a non-existent holding by the IJ;

 3   (2) erroneously found that there was no good cause for the

 4   transfer; and (3) erroneously found that he was not

 5   prejudiced by the denial.   First, the BIA’s conclusion that

 6   the IJ did not err in rejecting Ngassaki’s motion to

 7   transfer venue for failure to follow the rules relies on the

 8   IJ’s finding as to Ngassaki’s April 2009 motion, not his

 9   subsequently filed July 2009 motion upon which his appeal

10   was based.   Although a mischaracterization of the record may

11   not constitute an abuse of discretion where it is clear that

12   the BIA thoroughly reviewed the record and determined, in a

13   sufficient exercise of discretion, that a venue transfer was

14   not warranted, see Lovell, 52 F.3d at 460, there is no

15   indication that the BIA made such a thorough review of the

16   record before upholding the denial of venue transfer.

17       Even assuming, however, that the BIA did consider the

18   good cause factors, its conclusion that those factors failed

19   to establish good cause constitutes an abuse of discretion.

20   See Monter, 430 F.3d at 559; Lovell, 52 F.3d at 461.

21   Similar to Monter, Ngassaki has shown that he resided in the

22   desired venue along with all of his witnesses and his


                                   3
 1   counsel, who was unable to represent him in the original

 2   venue.   Moreover, he has demonstrated that the government

 3   did not oppose the transfer.   Finally, as to prejudice, the

 4   agency’s conclusory finding that “there was no due process

 5   violation” is insufficiently detailed for us to review its

 6   findings and therefore constitutes an abuse of discretion.

 7   “When faced with cursory, summary or conclusory statements

 8   from the BIA, we cannot presume anything other than . . . an

 9   abuse of discretion, since the BIA’s denial of relief can be

10   affirmed only the basis articulated in the decision . . .

11   and we cannot assume that the BIA considered factors that it

12   failed to mention in its decision.”   Anderson v. McElroy,

13   853 F.2d 803, 806 (2d Cir. 1992)(citations and quotations

14   omitted); see also Ke Zhen Zhao v. U.S. Dep’t of Justice,

15   265 F.3d 83, 93 (2d Cir. 2001) (“An abuse of discretion may

16   be found . . . where the [BIA’s] decision . . . is devoid of

17   any reasoning, or contains only summary or conclusory

18   statements . . . .”).

19       Nor can we be confident that Ngassaki suffered no

20   prejudice, given the effect that the denial of the venue

21   transfer may have had on the IJ’s credibility determination.

22   Specifically, the BIA upheld the credibility determination


                                    4
 1   primarily due to inconsistencies between Ngassaki’s

 2   testimony and that of his witnesses, who appeared only by

 3   telephone or affidavit.   The location of the proceedings

 4   thus may have affected the adverse credibility

 5   determination.   This concern is particularly acute given the

 6   IJ’s statements questioning the credibility of a critical

 7   witness - including his concerns that she was relying on

 8   documentation rather than speaking from memory during her

 9   telephonic testimony - and unavailability of other

10   witnesses.   Because we cannot know whether the credibility

11   determination would survive the BIA’s review if all

12   appropriate factors were fully considered, we remand to

13   allow the BIA to determine in the first instance whether

14   Ngassaki was prejudiced by the arbitrary denial of the

15   requested change of venue.

16       For the foregoing reasons, the petition for review is

17   GRANTED and the proceedings remanded to the BIA for further

18   consideration of the motion to change venue and for any

19   additional necessary proceedings consistent with this order.

20                                FOR THE COURT:
21                                Catherine O’Hagan Wolfe, Clerk




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