                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             JAN 7 2020
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


PIERRE DAVID BOSSA,                              No.   18-70202

              Petitioner,                        Agency No. A209-391-310

 v.
                                                 MEMORANDUM*
WILLIAM P. BARR, Attorney General,

              Respondent.


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

                        Argued and Submitted June 4, 2019
                               Seattle, Washington

Before: D.W. NELSON, RAWLINSON, and BEA, Circuit Judges.

      Pierre Bossa, a native and citizen of Haiti, petitions for review of the Board

of Immigration Appeals’ (“BIA”) order dismissing his appeal of the immigration

judge’s (“IJ”) decision denying Bossa’s application for asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252(a). We deny Bossa’s petition for review.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      We review the BIA’s credibility finding for substantial evidence. See Guo v.

Sessions, 897 F.3d 1208, 1212 (9th Cir. 2018). Under the substantial evidence

standard, the court treats the agency’s determination as “conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). The court

affords IJs particular deference in the area of adverse credibility determinations

because the IJ is, “by virtue of his acquired skill, uniquely qualified to decide

whether an alien’s testimony has about it the ring of truth.” Sarvia-Quintanilla v.

INS, 767 F.2d 1387, 1395 (9th Cir. 1985).

      Substantial evidence supports the agency’s adverse credibility decision. The

IJ identified multiple inconsistences between Bossa’s testimony at his hearing

before the IJ, his prior sworn statement, and his statements in his initial interview.

Particularly, in his initial interview with a border patrol agent, Bossa stated he did

not fear returning to Haiti and that he would not be harmed if returned. At his

hearing, Bossa claimed fear based on sexual orientation and described incidents he

experienced in his native Haiti and in Brazil, where he lived for nearly two years

before arriving in the United States. Further, Bossa discuss an important incident

at a soccer game in his credible fear interview, but did not mention it in his written

asylum application, and then included information about this incident in his


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declaration with more detail than he provided in the credible fear interview.

      The IJ questioned Bossa about the inconsistencies, but he provided shifting

explanations. Bossa explained that he gave false information to the border patrol

agent because there were many other Haiti immigrants in the room and it was too

public, but later stated it was because he had difficulty with the interpreter. The IJ

pointed out that the sworn statement expressly notes the interview may be the only

opportunity for an alien to explain his fear of returning and that he did not mention

any concerns related to the interpreter at the time. Bossa first explained that no one

read had read him the notices but later stated that he had difficulty working with

the interpreter. The IJ did not find these explanations credible, noting that Bossa

had completed other portions of the form correctly. The IJ was not required to

accept Bossa’s explanations for these inconsistencies. See Zamanov v. Holder, 649

F.3d 969, 974 (9th Cir. 2011).

      In affirming the IJ’s adverse credibility finding, the BIA relied on multiple

inconsistencies, particularly Bossa’s statements at the border that he did not fear

returning to Haiti and would not be harmed, in contrast to his claims in his hearing.

The BIA also found Bossa’s explanations for these inconsistencies unpersuasive,

including Bossa’s statements that he had difficulty working with the interpreter

because his interview was conducted in a language other than Creole, though Form


                                           3
I-867A shows that his interview was conducted in Creole.

      Though the BIA relied on multiple inconsistencies, the court must uphold

the determination if one basis is supported by substantial evidence. See Rizk v.

Holder, 629 F.3d 1083, 1088-89 (9th Cir. 2011). Substantial evidence supports the

BIA’s determination Bossa was not credible, therefore the record does not compel

reversal. See 8 U.S.C. § 1252(b)(4)(B). Bossa failed to establish past persecution.

      Substantial evidence also supports the agency’s determination that Bossa

failed to demonstrate a well-founded fear of future persecution. See Lolong v.

Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007) (en banc). To establish a

well-founded fear of future persecution, the applicant must establish that his fear

“is both subjectively genuine and objectively reasonable.” Id. Bossa failed to

satisfy the subjective component by not testifying credibly. Id. at 1178-79.

      Absent credible testimony or evidence, Bossa’s asylum and withholding of

removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

      Substantial evidence supports the BIA’s denial of CAT relief. Because

Bossa’s CAT claim is based on the same testimony that the IJ found not credible,

and because Bossa presented no other evidence of torture, his CAT claim fails as

well. See Farah, 348 F.3d at 1157.

PETITION FOR REVIEW DENIED.


                                          4
Pierre Bossa v. William Barr, 18-70202
                                                                         FILED
                                                                           JAN 7 2020
D.W. NELSON, Circuit Judge, dissenting:                               MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS

      The majority affirms the Immigration Judge (IJ) and Board of Immigration

Appeals (BIA)’s adverse credibility finding on the basis of Bossa’s failure to

disclose his sexual orientation at the border patrol interview. In my view, neither

the IJ nor the BIA provided a specific and cogent reason to disregard Bossa’s

explanation regarding his fear of disclosing his sexual orientation in public during

the border patrol interview. See Manes v. Sessions, 875 F.3d 1261, 1263 (9th Cir.

2017). Accordingly, I will dissent.

      Bossa explained that he did not express his fear of persecution to the border

patrol agent during the September 2016 interview because the interview was

conducted in a public location, with many other Haitians present, and he was afraid

to disclose his sexual orientation given the persecution he had experienced from

Haitians in the past. As Bossa later put it to the asylum officer, “I was worried and

afraid to give the reasons why I am afraid.” The IJ rejected that explanation as

“unconvincing,” but the IJ never provided a cogent reason to disbelieve it. The IJ

only suggested the explanation was somehow implausible given “the two-month

journey to reach the United States for protection.” If anything, Bossa’s reluctance

to publicly divulge his sexual orientation after a lengthy journey simply confirms

the intensity of his fear. Given the hostility he experienced from his family,

homophobia from Haitians in Haiti and Brazil, and particularly after being attacked
and injured by a mob in Haiti, it seems reasonable for Bossa to be afraid that if a

large group of Haitians found out that he was gay, he would be attacked. Cf.

Paramasamy v. Ashcroft, 295 F.3d 1047, 1053 (9th Cir. 2002) (“That a woman

who has suffered sexual abuse at the hands of male officials does not

spontaneously reveal the details of that abuse to a male interviewer does not

constitute an inconsistency from which it could reasonably be inferred that she is

lying.”). Because the “IJ fail[ed] to address [Bossa’s] explanation for a

discrepancy or inconsistency,” the adverse credibility finding is improper. Kaur v.

Ashcroft, 379 F.3d 876, 887 (9th Cir. 2004).

      In affirming the BIA, the majority relies on Bossa’s statements that he had

difficulty working with the interpreter during the border patrol interview, but the

record supports Bossa’s explanation. The BIA emphasized that Bossa’s sworn

statement “did not indicate that he had trouble understanding the interpreter.” Not

true. For example, Bossa repeatedly answered the border patrol’s open-ended

questions with a non-sensical “yes” or “no.” Such “unresponsive answers by the

witness provide circumstantial evidence of translation problems.” Perez-Lastor v.

I.N.S., 208 F.3d 773, 778 (9th Cir. 2000). The BIA also took issue with Bossa’s

contention that the border interview “was eventually conducted by someone else in

a language other than Creole.” The IJ and BIA doubted that a portion of the border

patrol interview was conducted by someone other than the telephonic interpreter in


                                          2
light of a “presumption of regularity” they afforded the border proceedings. See

Kohli v. Gonzales, 473 F.3d 1061, 1068 (9th Cir. 2007). Initially, I doubt such a

presumption should extend to an apparent contractor with AT&T who offered

telephonic interpretation services, especially in light of the language difficulties

noted above. Cf. Del Norte Cty. v. United States, 732 F.2d 1462, 1468 (9th Cir.

1984) (“[C]ourts presume that public officers properly discharge their duties.”

(emphasis added)). In any event, Bossa’s consistent testimony on this point during

his credible fear interview, and his declaration and testimony before the IJ provides

“clear evidence” to overcome that presumption. Id.

      The majority construes these as “shifting” rather than simply additional

explanations for Bossa’s omission. But it was not contradictory for Bossa to

consistently explain that—in addition to his fear of persecution—these language

barriers provided an additional impediment to him publicly disclosing his sexual

orientation. Bossa’s explanation for his omission is grounded in the same fear of

persecution on which his asylum application relies. Lacking a specific and cogent

reason to reject that explanation, the BIA’s adverse credibility determination is not

supported by substantial evidence. See Manes, 875 F.3d at 1263.

      Accordingly, I DISSENT.




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