                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       MAY 19 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

FALILOU GASTON BONNAIRE, AKA                    No.    17-72966
Falilou Bonnaire,
                                                Agency No. A209-870-023
                Petitioner,

 v.                                             MEMORANDUM*

WILLIAM P. BARR, Attorney General,

                Respondent.

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

                               Submitted May 15, 2020**
                               San Francisco, California

Before: FRIEDLAND and BENNETT, Circuit Judges, and RAKOFF,*** District
Judge.

      Petitioner Falilou Gaston Bonnaire (“Bonnaire”), a native and citizen of

Senegal, petitions for review of a decision of the Board of Immigration Appeals


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
(“BIA”) affirming the decision of an Immigration Judge (“IJ”) denying Bonnaire’s

applications for withholding of removal and relief under the Convention Against

Torture (“CAT”) based on an adverse credibility determination.1 We have

jurisdiction under 8 U.S.C. § 1252. Reviewing questions of law de novo and the

agency’s factual findings for substantial evidence, Bhattarai v. Lynch, 835 F.3d

1037, 1042 (9th Cir. 2016), we grant the petition for review.

      The IJ deemed Bonnaire not credible because (1) he gave some “vague and

non-responsive” answers when cross-examined, and (2) the letters of support he

submitted from his mother and brother did not corroborate certain aspects of his

testimony. The BIA affirmed the IJ’s adverse credibility finding and identified

five specific instances of what the BIA characterized as Bonnaire’s non-

responsiveness. Because “the BIA reviewed the IJ’s credibility-based decision for

clear error and ‘relied upon the IJ’s opinion as a statement of reasons’ but ‘did not

merely provide a boilerplate opinion,’” we “review here the reasons explicitly

identified by the BIA, and then examine the reasoning articulated in the

IJ’s . . . decision in support of those reasons.” Lai v. Holder, 773 F.3d 966, 970

(9th Cir. 2014) (quoting Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008)).

      1. Substantial evidence does not support the BIA’s conclusion that Bonnaire

lacked credibility. Two of the five instances that the BIA characterized as non-


      1
          Bonnaire does not challenge the BIA’s denial of his application for asylum.

                                           2
responsive were attributable to technical problems with the videoconference by

which Bonnaire’s hearing was conducted.2 First, when Bonnaire was asked how

long he had been in a particular relationship, the interpreter conveyed Bonnaire’s

response as “27 – 22 until I was 28.” But when Government counsel asked

Bonnaire to confirm that answer, he immediately clarified: “The interpreter might

have . . . misheard me, but I said I was 21 until I turned 22.” “[I]nconsistencies in

testimony that possibly resulted from mistranslation or miscommunication do not

support an adverse credibility finding.” Perez-Lastor v. I.N.S., 208 F.3d 773, 781

(9th Cir. 2000).

      Second, when Bonnaire was asked whether he had attended a Muslim

naming ceremony—a basic fact about which he had testified consistently

throughout his proceedings—the transcript’s initial indication that he gave “[No

audible response]” before answering “Yes” was plainly a reflection of a delay in

the videoconference transmission. Indeed, when the transcript recorded “[No

audible response]” from Bonnaire with respect to another question earlier in the

hearing, the interpreter explained to the IJ, “I think there’s a delay in [the

transmission].”

      As to the third instance characterized as non-responsive by the BIA,


      2
        Bonnaire appeared pro se at the hearing via videoconference from an
immigration detention center, and the transcript indicates that the hearing
participants had difficulty hearing each other throughout.

                                           3
Bonnaire took some time in answering a question about the name of the hospital to

which he was taken after he was stabbed by his father. But he later provided an

explanation for his delayed response—that he remembered only the colloquial

name of the hospital, and was trying to recall “the exact name on the papers, the

official name.” The agency did not address that seemingly plausible explanation,

which was error. See Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011).

      The fourth instance characterized as non-responsive by the BIA was the

result of Bonnaire’s being asked a confusing question about a supposed

inconsistency between two statements that were not actually inconsistent. During

his credible fear interview, when asked whether he had reported his stabbing to the

police, Bonnaire responded that he had not, but that the police had interviewed him

nonetheless. During his hearing, Bonnaire explained that the police had spoken to

him because his mother reported the stabbing. Although these two statements were

not contradictory, Government counsel pressed Bonnaire on why he had not

specified at his credible fear interview that it was his mother who had called the

police. Instead of answering that question directly, Bonnaire repeated that he had

not personally contacted the police, and that it was his mother’s report that had

prompted the police to interview him. This attempt by Bonnaire to explain that his

statements were consistent was not a refusal to respond, but rather reflected the

confusing question he was asked. See Shrestha v. Holder, 590 F.3d 1034, 1044


                                          4
(9th Cir. 2010) (instructing that “an adverse credibility determination must be

assessed under a rule of reason” that “recognize[s] . . . the normal limits of human

understanding”).

        Finally, we agree with the BIA that Bonnaire’s fifth cited answer was

initially non-responsive, but because he then answered the question, we conclude

that this one instance was not actually an example of non-responsiveness when

viewed in context. Bonnaire gave an answer that was a non sequitur when first

asked how his father would find out if Bonnaire were to be deported to Senegal.

When the question was repeated, however, he provided a fully responsive answer.

This was not an “instance of blatant and unexplained unresponsiveness.” See id. at

1045.

        2. The second rationale the BIA provided for its adverse credibility

determination—that Bonnaire failed to produce evidence corroborating certain

aspects of his testimony—was also erroneous. “[A]n IJ cannot articulate for the

first time in her decision denying relief that key corroborative evidence is

missing.” Bhattarai, 835 F.3d at 1043. Yet that is precisely what the IJ did here.

The IJ gave Bonnaire no indication that the letters from his family lacked certain

corroborating details before issuing the decision denying his claims. As a result,

Bonnaire was not given “notice of the corroboration that [was] required and an

opportunity either to produce the requisite corroborative evidence or to explain


                                          5
why that evidence [was] not reasonably available.” Ren v. Holder, 648 F.3d 1079,

1093 (9th Cir. 2011).3

      We reject the Government’s contention that the IJ’s error was rendered

harmless because Bonnaire “was given an opportunity to explain” the omissions in

his family’s letters when he appealed to the BIA. Bonnaire was entitled not just to

an opportunity to explain the omissions, but also to “an opportunity . . . to produce

the requisite corroborative evidence.” Id. at 1093 (emphasis added). And it is the

IJ, not the BIA, that would need to evaluate any additional evidence from Bonnaire

and make corresponding findings about the strength of his claims in the first

instance. See Vitug v. Holder, 723 F.3d 1056, 1063 (9th Cir. 2013); see also 8

C.F.R. § 1003.1(d)(3)(iv) (“[T]he Board will not engage in factfinding in the

course of deciding appeals.”).

      “Because the BIA and IJ’s non-corroboration reasons for the adverse

credibility determination fail, we consider [Bonnaire] ‘otherwise credible.’”

Bhattarai, 835 F.3d at 1046. Accordingly, we grant the petition for review and

remand for consideration of the merits of Bonnaire’s withholding and CAT




      3
         Contrary to the Government’s contention, Bonnaire adequately exhausted
this issue before the agency by explicitly arguing in his brief to the BIA that the IJ
erred in finding him not credible based on the omissions in his family’s letters. See
Moreno-Morante v. Gonzales, 490 F.3d 1172, 1173 n.1 (9th Cir. 2007).

                                          6
claims.4 If the agency determines on remand that Bonnaire’s credible testimony is

insufficient to meet his burden of proof without additional corroborating evidence,

the IJ must give Bonnaire “an opportunity to provide that evidence or explain why

he cannot reasonably obtain it.” See id. at 1048.

      PETITION GRANTED.




      4
        We note that the BIA erred in stating that Bonnaire failed to challenge the
IJ’s denial of his CAT claim. Bonnaire’s brief to the BIA made clear that he was
“appeal[ing] the Immigration Judge’s (IJ) decision denying . . . withholding of
removal[] and protection under the Convention Against Torture due to . . . an
adverse credibility finding.” Bonnaire therefore adequately exhausted his CAT
claim before the agency. See Ren, 648 F.3d at 1083-84.

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