     10-2216-ag                                                                      BIA
     Conde v. Holder                                                           Strauss, IJ
                                                                            A088 526 184




                        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 Daniel Patrick Moynihan
 3   United States Courthouse, 500 Pearl Street, in the City of
 4   New York, on the 13th day of December, two thousand eleven.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PETER W. HALL,
 9            GERARD E. LYNCH,
10                     Circuit Judges.
11   ______________________________________
12
13   FATOUMATA CONDE,
14            Petitioner,
15
16                                                           10-2216-ag
17                     v.
18
19   ERIC H. HOLDER, JR., UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   ______________________________________
23
24   FOR PETITIONER:                Andrew P. Johnson, New York, N.Y.
25
26   FOR RESPONDENT:                Tony West, Assistant Attorney General;
27                                  Anthony P. Nicastro, Senior Litigation
28                                  Counsel; Joanna L. Watson, Trial
29                                  Attorney,    Office   of    Immigration
30                                  Litigation, Civil Division, United
31                                  States    Department     of    Justice,
32                                  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 is
 4   GRANTED and the case is REMANDED for reconsideration.

 5          Petitioner, Fatoumata Conde, a native and citizen of
 6   Guinea, seeks review of a May 5, 2010, decision of the BIA
 7   affirming the May 5, 2008, decision of Immigration Judge

 8   (“IJ”) Michael W. Strauss denying her application for asylum,
 9   withholding    of   removal,   and       relief   under   the    Convention

10   Against Torture (“CAT”). In re Fatoumata Conde, No. A088 526

11   184 (B.I.A. May 5, 2010), aff’g No. A088 526 184 (Immig. Ct.
12   Hartford, CT May 5, 2008). We assume the parties’ familiarity

13   with the underlying facts and procedural history of the case.

14          Under the circumstances of this case, we have reviewed
15   both the BIA’s and IJ’s opinions.                 See Yun-Zui Guan v.

16   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).               The applicable

17   standards of review are well-established.                  See 8 U.S.C.

18   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d
19   Cir. 2008); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.
20   2008).

21          Conde’s claim that she suffered past persecution and
22   feared future persecution because of her alleged involvement
23   with an opposition political party was rejected by the IJ

24   because he found her not credible. Although we are obliged to
25   give    “particular   deference”     to     the   agency’s      credibility
                                          2
 1   finding, Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,
 2   335 (2d Cir. 2006), we will remand if the agency’s fact-

 3   finding process was sufficiently flawed, see Cao He Lin v.
 4   U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir. 2005).               We

 5   conclude that the fact-finding was significantly flawed in
 6   this case.
 7       The IJ based the adverse credibility finding primarily on

 8   Conde’s responses to questions about the dates when certain
 9   events occurred.         First, the IJ found “puzzling” that she

10   could give December 22, 2004 as the date her passport was

11   issued but “really does not know when she was attacked at the
12   marketplace     and     allegedly   brutally    beaten.”      Yet   Conde

13   testified that the beating occurred in December 2004 -- “the

14   14th or 15th, something like that.”               Moreover, it seems
15   obvious that the precise date the passport was issued was

16   readily ascertainable from the face of the document, whereas

17   there    is   nothing    unremarkable   about    one’s     inability   to

18   recollect the precise date of an incident, traumatic or not,
19   that transpired in one’s life four years earlier. Second, the
20   IJ stated that the dates of the alleged beating and the

21   passport issuance “simply do not add up.”                The IJ focused
22   first on the 14th or 15th of December, even though Conde had
23   said the event occurred on those dates “or something like

24   that.”    Then the IJ expressed doubt that the passport could
25   have been issued so quickly after the alleged attack.                  The
                                         3
 1   IJ’s skepticism was perhaps attributable to some aggressive
 2   and    somewhat      misleading    questioning        by   the   government

 3   attorney, who asserted to Conde that she (Conde) had said that
 4   the passport photo was taken “about two weeks after” the

 5   injury.      That is not what Conde had said.                 When asked on
 6   cross-examination, “How long after your injury was the picture
 7   for your passport taken?” she replied, “Almost second week,”

 8   not two weeks later. Earlier Conde had explained that she was
 9   lying down for one week after the injury and “The second week

10   I started walking and I could go to the market.”                 Thus, even

11   if    the   injury    occurred    on    the   14th,   there    would   be   no
12   inconsistency in her account of obtaining the passport on the

13   22nd--during the second week after the injury.                    Conde had

14   explained that the photo and passport issuance occurred at the
15   same time.

16         In view of Conde’s extremely detailed accounts of the

17   fatal beating of her father and her own beating both at the

18   hands of political opponents, these flaws in the fact-finding
19   preclude     our     accepting    the   IJ’s    credibility      finding    as
20   supportable on this record.

21         The    IJ    also   cited    Conde’s      failure    to    produce     a
22   certificate of the death of her father, and rejected the
23   reason she gave for that failure.             The IJ said that the reason

24   proffered was that the hospital in Labe, where the father
25   died, “was not big.”       We see no such testimony or claim in the
                                             4
 1   record.    What    the    record   does    disclose     is    that   Conde’s
 2   attorney explained to the IJ that “it probably would have been

 3   almost impossible to get the death certificate” because Conde
 4   “had no family living in Labe.”           The IJ did not consider this

 5   explanation.     See Li Zu Guan v. INS, 453 F.3d 129, 141 (2d
 6   Cir. 2006) (adverse credibility finding may not be based on
 7   absence of corroborating evidence that was not reasonable

 8   available).
 9         Accordingly, under all the circumstances, we will grant

10   the   petition    for    review    and    remand   to   the    agency   for

11   reconsideration of Conde’s application for asylum and other
12   relief.

13         Conde’s attorney’s motion to withdraw as counsel and

14   dismiss the petition is denied.
15                                      FOR THE COURT:
16                                      Catherine O’Hagan Wolfe, Clerk
17
18




                                         5
