                                                                          FILED
                                                                           NOV 26 2019
                            NOT FOR PUBLICATION
                                                                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                    UNITED STATES COURT OF APPEALS

                           FOR THE NINTH CIRCUIT



ANGEL MENJIVAR,                        )      No. 16-72128
                                       )
             Petitioner,               )      Agency No. A070-060-360
                                       )
             v.                        )      MEMORANDUM*
                                       )
WILLIAM P. BARR, Attorney              )
General,                               )
                                       )
             Respondent.               )
                                       )

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

                     Argued and Submitted November 12, 2019
                               Pasadena, California

Before: FERNANDEZ and M. SMITH, Circuit Judges, and OTAKE,** District
Judge.

      Angel Menjivar, a native and citizen of El Salvador, petitions for review of

the Board of Immigration Appeals’ (“BIA”) determination that he was not eligible

      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
       The Honorable Jill Otake, United States District Judge for the District of
Hawaii, sitting by designation.
for special rule cancellation of removal pursuant to the Nicaraguan Adjustment and

Central American Relief Act (“NACARA”).1 We grant the petition and remand.

      Menjivar asserts that the BIA erred when it decided that he was not credible

and, therefore, denied relief on the basis that Menjivar failed to meet his burden of

showing that he was not a persecutor. See 8 U.S.C. § 1231(b)(3)(B)(i); see also 8

U.S.C. § 1229a(c)(4)(B). We agree.

      The Immigration Judge (“IJ”) recognized the substantial inconsistencies

between Menjivar’s testimony at the hearing before the IJ and his previous sworn

statements before the asylum officer. However, while noting these substantial

inconsistencies, the IJ did not consider them because, the IJ said, Menjivar did not

have an opportunity to explain them. As a result, the IJ did not decide whether

Menjivar was actually credible—the IJ did not even “reach a finding that

[Menjivar] had lied under oath,” even though he lacked candor.

      We agree that an alien must be given an opportunity to explain

inconsistencies before an adverse credibility determination is made on account of

those inconsistencies. See Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011); see

also Garcia v. Holder, 749 F.3d 785, 790 (9th Cir. 2014). But, as the BIA decided,



      1
          Pub. L. No. 105-100, 111 Stat. 2160, 2193 (1997).


                                           2
the IJ’s determination that Menjivar had not been given the opportunity was clearly

erroneous as were the IJ’s conclusions that followed thereafter.2 However, the BIA

erred when it made its own credibility findings on appeal rather than remanding to

the IJ to make that factual determination in the first instance. See 8 C.F.R. §

1003.1(d)(3); Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012); Mendoza

Manimbao v. Ashcroft, 329 F.3d 655, 661 (9th Cir. 2003); cf. Recinos de Leon v.

Gonzales, 400 F.3d 1185, 1194 (9th Cir. 2005). On the record, that leaves gaps in

the reasoning of the IJ and BIA which must be filled in order for the BIA to

properly decide whether the government carried its burden to show that Menjivar

“may” be subject to the persecutor bar,3 and, if so, whether Menjivar had carried

his burden to show that he was not a persecutor.4 We, therefore, remand to the

BIA for further proceedings after either determining that Menjivar will be deemed


      2
        The BIA had the authority and grounds to make those determinations. See
8 C.F.R. § 1003.1(d)(3); see also Tekle v. Mukasey, 533 F.3d 1044, 1051–52 (9th
Cir. 2008). We note that counsel made it plain that Menjivar did “not want to
testify” about the inconsistencies, even though he was advised of his opportunity to
do so.
      3
       See 8 C.F.R. § 1240.8(d); see also 8 U.S.C. § 1231(b)(3)(B)(i); Miranda
Alvarado v. Gonzales, 449 F.3d 915, 928, 930 (9th Cir. 2006); cf. Budiono v.
Lynch, 837 F.3d 1042, 1048 (9th Cir. 2016).
      4
       See 8 C.F.R. § 1240.8(d); see also 8 U.S.C. § 1231(b)(3)(B)(i); 8 C.F.R.
§ 1240.64(a); Budiono, 837 F.3d at 1047.



                                          3
credible or remanding to the IJ to make findings regarding credibility.

      Petition GRANTED and REMANDED.




                                          4
Menjivar v. Barr                                                           FILED
No. 16-72128
                                                                           NOV 26 2019
M. Smith, Circuit Judge, dissenting:                                    MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


      I respectfully dissent, and would deny the petition for review.

      At oral argument, both parties’ counsel stipulated that the IJ found petitioner’s

testimony to be credible. Thus, the BIA acted in accordance with applicable

regulations when it determined that the IJ’s credibility finding was clearly erroneous.

8 C.F.R. § 1003.1(d)(3)(i).

      In his NACARA interviews and live testimony before the IJ, petitioner made

inconsistent statements related to whether he “ordered, incited, assisted or otherwise

participated in the persecution of an individual” based on their political opinion, and

was thus ineligible for cancellation of removal under 8 U.S.C. § 1231(b)(3)(B)(i).

In particular, he was inconsistent about the following facts concerning his tenure in

the Salvadoran military:

          • the length of his service in Battalion Cazadores, a division of the
            Salvadoran military associated with human rights abuses;
          • whether he killed guerillas in combat; and
          • whether he arrested guerillas and turned them over to interrogators.

      Because the evidence in the record indicated that the persecutor bar might

apply, 8 C.F.R. § 1240.8(d) required petitioner to prove by a preponderance of the

evidence that it did not. The burden-shifting threshold in this setting is low: the
record need only “raise the inference,” Miranda Alvarado v. Gonzales, 449 F.3d 915,

930 (9th Cir. 2006), or contain “at least some evidence,” Budiono v. Lynch, 837 F.3d

1042, 1049 (9th Cir. 2016), that petitioner persecuted others based on a protected

ground, a burden clearly met here.

      Nevertheless, despite the inconsistent NACARA interview testimony

introduced by the agency, petitioner’s counsel did not ask the agency’s witness

questions on re-direct examination to clarify the inconsistencies. Moreover, when

the IJ provided petitioner an opportunity to explain the inconsistencies, he twice

declined to do so. Given petitioner’s complete failure to address the indicia of

persecution in the record, the BIA’s denial of relief was proper.

      Mendoza Manimbao v. Ashcroft, cited by the majority, does not aid petitioner,

who received a positive, if clearly erroneous, credibility determination before the IJ.

329 F.3d 655, 662 (9th Cir. 2003) (finding error where BIA “impl[ied]” a credibility

finding after the IJ “failed to make a sufficient credibility determination”); see also

Rodriguez v. Holder, 683 F.3d 1164, 1176 (9th Cir. 2012) (noting that a “reviewing

body may find clear error in a fact-finder’s credibility determination if a witness’s

story is . . . internally inconsistent”); Recinos de Leon v. Gonzales, 400 F.3d 1185,

1194 (9th Cir. 2005) (remanding where BIA relied on IJ’s “indecipherable

explanation”). Furthermore, the due process concerns implicated by Manimbao are

completely inapplicable here, where petitioner was represented by counsel, and
twice refused opportunities to testify to address the inconsistencies between his live

testimony and the statements he made in his NACARA interviews.

      In my opinion, this is a non-controversial case that should have resulted in a

denial of the petition for review.
