    10-1991-ag
    Kone v. Holder
                                                                                  BIA
                                                                            Abrams, IJ
                                                                          A093 397 414
                       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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 12th day of April, two thousand eleven.

    PRESENT:
                     ROBERT A. KATZMANN,
                     RICHARD C. WESLEY,
                     GERARD E. LYNCH,
                          Circuit Judges.

    _______________________________________

    SALIOU KONE, A.K.A. YACOUBA BAKALA,
             Petitioner,

                      v.                                   10-1991-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL
             Respondent.

    ______________________________________

    FOR PETITIONER:                Gary J. Yerman, Yerman & Associates,
                                   LLC, New York, New York.

    FOR RESPONDENT:                Tony West, Assistant Attorney
                                   General; William C. Peachey,
                                   Assistant Director; Mona Maria
                           Yousif, Attorney, Office of
                           Immigration Litigation, Civil
                           Division, United States Department
                           of Justice, Washington, D.C.
         UPON DUE CONSIDERATION of this petition for review of a

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

     ORDERED, ADJUDGED, AND DECREED that the petition for review

     is GRANTED.

 1       Petitioner Saliou Kone, a native and citizen of the

 2   Ivory Coast, seeks review of an April 22, 2010, order of the

 3   BIA affirming the May 21, 2008, decision of Immigration

 4   Judge (“IJ”) Steven R. Abrams denying Kone’s application for

 5   asylum, withholding of removal, and relief under the

 6   Convention Against Torture (“CAT”).    In re Saliou Kone, No.

 7   A093 397 414 (B.I.A. Apr. 22, 2010), aff’g No. A093 397 414

 8   (Immig. Ct. N.Y. City May 21, 2008).     We assume the parties’

 9   familiarity with the underlying facts and procedural history

10   of this case.

11       Because the BIA adopted and affirmed the IJ's decision,

12   we review the two decisions in tandem.     Yan Chen v.

13   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     We will uphold

14   the IJ's factual findings if they are supported by

15   “reasonable, substantial and probative evidence in the

16   record,” Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104,


                                  2
 1   116 (2d Cir. 2007) (internal quotation marks omitted).       In

 2   contrast, “[w]e review de novo questions of law and the

 3   [BIA's] application of law to undisputed fact.”     Bah v.

 4   Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).    We grant the

 5   petition for review and remand for further consideration, as

 6   we cannot conclude that the agency would reach the same

 7   result absent the error that we identify in its adverse

 8   credibility determination.

 9       The IJ indicated that Kone’s inability to state the

10   full name of the “RDR” (Rassemblement des Républicains or

11   Rally of Republicans), the political party that he claimed

12   to support, was “the most telling” basis for denying his

13   application for relief.    We have held that an asylum

14   applicant’s ignorance of the actual name of the political

15   party to which he claimed to belong, and on whose behalf he

16   claimed to have suffered persecution, can undermine the

17   applicant’s credibility.     Sanusi v. Gonzalez, 445 F.3d 193,

18   200 (2d Cir. 2006) (per curiam).

19       In this case, however, the agency failed to address

20   whether Kone’s evidence documenting his membership in the

21   RDR - a letter from the party and a membership card -

22   rehabilitated his testimony.     See Biao Yang v. Gonzales, 496


                                     3
 1   F.3d 268, 273 (2d Cir. 2007) (per curiam) (explaining that

 2   an applicant’s corroborating evidence may rehabilitate

 3   otherwise questionable testimony).     Because the agency did

 4   not explain why its finding that Kone was not credible as to

 5   his membership in the RDR was not rebutted by his

 6   corroborating evidence, the finding was “based on flawed

 7   reasoning” and “will not satisfy the substantial evidence

 8   standard.”     Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d

 9   391, 400 (2d Cir. 2005) (internal quotation marks omitted).

10       Our conclusion that the IJ failed to give appropriate

11   weight to Kone’s corroborating evidence does not end our

12   inquiry.     Remand is appropriate only if “there is no

13   realistic possibility that, absent the error [we have

14   identified], the IJ or BIA would have reached a different

15   conclusion” regarding Kone's credibility.     Id. at 401.   As a

16   general matter, however, “[t]he more central an errant

17   finding was to the IJ’s adverse credibility determination,

18   . . . the less confident we can be that remand would be

19   futile.”     Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99,

20   111 (2d Cir. 2006).

21       In affirming the IJ’s finding that Kone’s claims of

22   past persecution were incredible and therefore did not


                                     4
 1   warrant relief from removal, the BIA relied on three

 2   purported inconsistencies in addition to the statements

 3   regarding the RDR discussed above.      First, the BIA asserted

 4   that Kone “did not convincingly explain the discrepancies

 5   cited by the Immigration Judge regarding the amount paid for

 6   [his] release from detention.”      During his hearing before

 7   the IJ, Kone testified, with the assistance of a translator,

 8   that he was forced to pay 20,000 CFA after being detained by

 9   Ivory Coast police in 2000.     In an earlier written

10   statement, however, he indicated that the amount was 100,000

11   CFA.    When the IJ questioned him about the inconsistency,

12   Kone explained that “20,000 in Dioula is equal to 100,000 in

13   French” and that the discrepancy was due to the fact that,

14   while he had provided his written statement in French, he

15   was testifying in Dioula.     The translator supported Kone’s

16   explanation, a fact that the IJ acknowledged at the time.

17   Nevertheless, in his oral decision, the IJ cited this

18   exchange as one of a series of instances in which Kone had

19   “made mistakes as far as his testimony was concerned” and

20   then attempted “to blame it on the interpreter or [] the

21   Dioula and the French language.”

22          Although the IJ was not required to accept Kone’s


                                     5
 1   explanation for the conflict between his statements, he was

 2   “required to present specific, cogent reasons for rejecting

 3   it.”    Zhi Wei Pang v. Bureau of Citizenship & Immigration

 4   Servs., 448 F.3d 102, 108 (2d Cir. 2006).    Here, the IJ

 5   justified his conclusion that no translation error had

 6   occurred by pointing out that Kone had testified

 7   consistently about the amount he paid for documents to enter

 8   the United States.    But the fact that the translator

 9   rendered Kone’s statements properly in another context is a

10   weak basis for concluding that, in this instance, a

11   misunderstanding had not occurred.    This is particularly

12   true given that the translator supported Kone’s explanation,

13   a fact that the IJ did not address in his analysis.

14          The other inconsistencies cited by the BIA - relating

15   to whether Kone fled to Burkina Faso in the company of his

16   wife and whether he was beaten with a whip – were similarly

17   founded on a highly technical parsing of statements that

18   were mediated by translation and subject to the

19   idiosyncratic vagaries of English, Dioula and French.       In at

20   least one of these instances, moreover, Kone’s explanation

21   was again supported by the translator.    Although the agency

22   may base its credibility assessment on inconsistencies in an


                                    6
 1   applicant’s statements without regard to whether they “go[]

 2   to the heart of [his] claim,” 8 U.S.C. § 1158(b)(1)(B)(iii),

 3   inconsistencies with regard to peripheral issues or details

 4   alone will often be insufficient to support an adverse

 5   credibility finding.   This is particularly true where, as

 6   here, the probative force of the inconsistencies is undercut

 7   by evidence that they were the result of translation errors.

 8       We therefore cannot conclude that, absent the inference

 9   that the IJ described as “the most telling aspect” of the

10   case, the agency would necessarily have concluded that

11   Kone’s petition lacked merit.       Li Hua Lin, 453 F.3d at 111.

12   Accordingly, we remand the case for the agency to reevaluate

13   Kone’s credibility and particularly determine whether Kone’s

14   evidence corroborating his membership in the RDR

15   rehabilitated his testimony.     We express no opinion as to

16   the ultimate outcome on remand.

17       For the foregoing reasons, the petition for review is

18   GRANTED, and the case REMANDED for further proceedings

19   consistent with this order.     As we have completed our

20   review, any pending motion for a stay of removal in this

21   petition is DISMISSED as moot.

22                                 FOR THE COURT:
23                                 Catherine O’Hagan Wolfe, Clerk
24
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