Malenge v. Holder , 552 F. App'x 70 ( 2014 )

12-1486-ag
Malenge v. Holder
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 Thurgood Marshall United
StatesthCourthouse, 40 Foley Square, in the City of New York, on
the 24 day of January, two thousand fourteen.
PRESENT: DENNY CHIN,
SUSAN L. CARNEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
- - - - - - - - - - - - - - - - - - - -x
LINDA A. MALENGE, AKA Linda A. Muamufiya,
NONO BORA MALENGE,
Petitioners,
-v- 12-1486-ag
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
- - - - - - - - - - - - - - - - - - - -x
FOR PETITIONERS: BRIAN D. O'NEILL, Brian D. O'Neill,
Attorney at Law, LLC, Morristown,
New Jersey.
FOR RESPONDENT: DAVID H. WETMORE, Trial Attorney,
and Mary Jane Candaux, Assistant
Director, Office of Immigration
Litigation, for Stuart F. Delery,
Principal Deputy Assistant Attorney
General, 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 and the case is REMANDED to the BIA for further findings.
Petitioners Linda A. Malenge ("Linda") and her husband
Nono Bora Malenge ("Nono"), both natives and citizens of the
Democratic Republic of the Congo (the "DRC"), seek review of a
March 16, 2012 order of the BIA affirming the April 20, 2010
decision of Immigration Judge ("IJ") Michael W. Straus, denying
their application for asylum, withholding of removal, and relief
under the Convention Against Torture ("CAT"). In re Linda A.
Malenge, Nono Bora Malenge, Nos. A098 929 549, A097 852 128
(B.I.A. Mar. 16, 2012), aff'g Nos. A 098 929 549, A097 852 128
(Immig. Ct. Hartford Apr. 20, 2010). We assume the parties'
familiarity with the facts and procedural history of this case.
1. Applicable Law
"When the BIA does not expressly 'adopt' the IJ's
decision, but 'its brief opinion closely tracks the IJ's
reasoning,' [we] may consider both the IJ's and the BIA's
opinions 'for the sake of completeness.'" Zaman v. Mukasey, 514
F.3d 233, 237 (2d Cir. 2008) (quoting Wangchuck v. DHS, 448 F.3d
524, 528 (2d Cir. 2006)). We review the IJ's factual findings
"under the substantial evidence standard, which requires that
they be supported by 'reasonable, substantial and probative
evidence in the record when considered as a whole.'" Castro v.
Holder, 597 F.3d 93, 99 (2d Cir. 2010) (quoting Iouri v.
Ashcroft, 487 F.3d 76, 81 (2d Cir. 2007)). Under this standard
2
the IJ must engage in a "minimum level of analysis" and there
must be "some indication that the IJ considered material evidence
supporting a petitioner's claim." Id. (internal quotation marks
omitted). We will vacate and remand for new findings if the
agency's "reasoning or [ ] fact-finding process was sufficiently
flawed." Zaman, 514 F.3d at 237.
Pursuant to the REAL ID Act of 2005 (the "Act"), an
adverse credibility determination may be based on inconsistencies
and inaccuracies without regard to whether they go "to the heart
of the applicant's claim." 8 U.S.C. § 1158(b)(1)(B)(iii); see
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008) (per
curiam). This standard applies to asylum applications filed
after May 11, 2005, the effective date of the Act. See Xiu Xia
Lin, 534 F.3d at 167. In contrast, for asylum applications
submitted prior to the passage of the Act, an adverse credibility
determination must be based on "specific, cogent reasons" that
"bear a legitimate nexus to the finding and must be valid grounds
for disregarding an applicant's testimony." Secaida-Rosales v.
I.N.S., 331 F.3d 297, 307 (2d Cir. 2003), superseded by the Real
ID Act as recognized in Xiu Xia Lin, 534 F.3d at 163 (citation
and internal quotation marks omitted).
While we will ordinarily defer to an IJ's findings
concerning the authenticity of submitted evidence, "we have
refused to credit the IJ's finding that submitted documents were
false when we have determined that the IJ based his conclusion on
unjustified assumptions and engaged in unsupported speculation."
3
Niang v. Mukasey, 511 F.3d 138, 146 (2d Cir. 2007) (citing Li Zu
Guan v. INS, 453 F.3d 129, 139 (2d Cir. 2006)).
2. Application
We hold that the agency's "reasoning or [ ] fact-finding
process was sufficiently flawed" that we must vacate and remand
for further proceedings. Zaman, 514 F.3d at 237.
As an initial matter, Nono filed his asylum application
in October 2003, and thus the BIA erred in concluding that Nono's
application was governed by the credibility standard of the Act.
See Xiu Xia Lin, 534 F.3d at 167. Further, the IJ did not
explain what credibility standard he applied in making his
adverse credibility determination. While these legal errors
alone arguably might not require remand, here, in light of the
evidence that the IJ relied on and failed to address in making
his credibility determination, we cannot "confidently predict
that the IJ would reach the same decision absent the errors that
were made." Lin v. U.S. Dep't of Justice, 453 F.3d 99, 107 (2d
Cir. 2006) (internal quotation marks omitted). Whether we apply
the pre- or post-Act credibility standards, we conclude that the
IJ's factual findings, in the circumstances here, are not
"supported by 'reasonable, substantial and probative evidence in
the record when considered as a whole.'" Castro, 597 F.3d at 99
(quoting Iouri v. Ashcroft, 487 F.3d 76, 81 (2d Cir. 2007)).
In finding petitioners not credible, the IJ first
relied on a Department of Homeland Security identification report
that indicated that an individual with an "apparent[ ]"
fingerprint match with Nono attempted to enter the United States
4
from Canada on December 17, 2000. In re Linda A. Malenge, Nono
Bora Malenge, Nos. A 098 929 549, A097 852 128, at 13. The IJ
found that if the report were accurate, petitioners' testimony
could not be true. The IJ concluded that the fingerprint
evidence supported an adverse credibility determination because
it was bolstered by the fact that the photographs of the
individual whose fingerprints were taken in 2000 bore a likeness
to Nono.
The IJ's conclusion was not based on reasonable or
substantial evidence in the record. First, the fingerprint
report itself only noted that there was a "probable match" and
that the "match status" was "?". Joint App'x at 720. As a
report from a fingerprint expert explained, "these results do not
provide evidence of a fingerprint match. They simply show a
match in 'probable' status that has not been confirmed by a
qualified fingerprint examiner." Id. at 708-09 (emphasis
deleted). Second, the asylum officer who testified about the
report acknowledged that he was not a fingerprint expert and that
he was not "qualified to determine whether [the prints] were a
match or not." Id. at 360. Third, while the asylum officer
relied on the photographs, his testimony regarding the likeness
of the person in the photo to Nono was equivocal: "It didn't
seem dissimilar to the applicant." Id. at 359. The IJ also
failed to adequately address the evidence in the record that Nono
has an identical twin brother whose whereabouts have been unknown
since 1999 and whose existence could explain the resemblance
between Nono and the individual photographed at the U.S. border.
5
Indeed, there was no "indication that the IJ considered [this]
evidence supporting [ ] petitioner[s]' claim." Castro, 597 F.3d
at 99; see also Diallo v. Gonzales, 445 F.3d 624, 629 (2d Cir.
2006) (recognizing that an IJ may err when he "fails to engage or
evaluate an asylum applicant's explanations for apparent
inconsistencies in the record." (internal quotation marks and
citations omitted)). The IJ's failure to adequately address this
explanation is particularly problematic given the limited value
of the fingerprint evidence.
The IJ's adverse credibility determination was also
based on his concerns about the authenticity of a newspaper
article that documented the beating Linda suffered in the DRC.
While we typically defer to the IJ concerning the authenticity of
evidence, we find that "the record does not provide a substantial
basis for concluding that [the newspaper article] undermine[s]
[petitioners'] credibility." Niang, 511 F.3d at 146.
The IJ questioned the authenticity of the article, in
part, because the accompanying photograph did not, in his view,
reveal injuries to Linda's face and head. The IJ's finding was
impermissibly speculative, however, as this was a photograph in a
newspaper taken two days after the alleged beating. See Siewe v.
Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) ("[W]e will reject
a deduction made by an IJ [ ] when there is a complete absence of
probative facts to support it –- that is, when the speculation is
bald" (internal quotation marks omitted)). Moreover, the IJ did
not address evidence that supported Linda's claim: she testified
that the photo showed that her mouth was swollen; the photograph,
6
which showed her wearing a cast and using crutches, corroborated
her testimony that she was beaten severely and repeatedly with
the butt of a gun on her ankle; and she submitted medical
evidence that she received surgery in a New York hospital to
repair an untreated ankle fracture and dislocation shortly after
entering the United States.
The IJ also had questions about the reference numbers
and dates on the pages of the newspaper as well as the color and
texture of the paper of the different pages. Although the IJ may
have had a reasonable basis for questioning the authenticity of
the article about Linda, the IJ did not make any definitive
findings and merely noted his "serious concerns." These
concerns, which were not fully explored by the parties, are not
findings, and they did not, by themselves, provide substantial
evidence for finding petitioners not credible. Moreover, these
concerns related only to Linda's claim, and accordingly they were
insufficient to support a determination that Nono was not
credible under the pre-Act standard applicable to his case. See
Secaida-Rosales, 331 F.3d at 307.
We conclude, based on the totality of the
circumstances, that the IJ's concerns about the authenticity of
the newspaper article do not provide substantial evidence to
support his credibility determination. See Xiu Xia Lin, 534 F.3d
at 164 ("[A]n IJ may rely on . . . inconsistencies that do not
directly relate to the applicant's claim of persecution as long
as the totality of the circumstances establish that the applicant
is not credible."); see also Niang, 511 F.3d at 147
7
(acknowledging fact that more than one typewriter appeared to
have been used to create identity document provided basis for
doubting authenticity of document, but holding that it alone was
insufficient to find applicant not credible based on totality of
circumstances). This is particularly true where, as here, the IJ
did not make any findings as to the credibility of petitioners'
testimony or demeanor, cf. Niang, 511 F.3d at 147 (noting "given
the tenuousness of the[ ] suspicions [of the authenticity of the
documents submitted], they cannot ground an adverse credibility
determination, where petitioner's testimony was otherwise
convincing and consistent"), or consider material evidence
supporting Linda's claim, see Castro, 597 F.3d at 99-100.
Accordingly, because the agency did not provide any
alternative grounds for denying petitioners' applications, we
cannot confidently predict that the agency would have made the
same decision absent the identified errors and remand is thus
required. See Lin, 453 F.3d at 107.
Finally, we deny petitioners' request for an order
assigning the case to a different IJ on remand, as the record
does not demonstrate that the IJ was biased against Nono.
For the foregoing reasons, the petition for review is
GRANTED and the case is REMANDED to the BIA for further findings.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
8