Pabrigui Kaga v. Merrick Garland ( 2021 )

FILED
NOT FOR PUBLICATION
MAY 24 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PABRIGUI P. KAGA, No. 18-72341
Petitioner, Agency No. A213-089-423
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 3, 2021
Pasadena, California
Before: KLEINFELD, WARDLAW, and GOULD, Circuit Judges.
Pabrigui Kaga petitions for review of the Board of Immigration Appeals’
decision denying his application for asylum, withholding of removal, and
protection under the Convention Against Torture, and denying his motion to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
reopen on the basis of ineffective assistance of counsel. We grant the petition and
remand for proceedings consistent with this disposition.
Substantial evidence does not support the Board’s adverse credibility
determination. The Board relied on inconsistencies between Kaga’s testimony and
the State Department Country Report concerning the date of Kaga’s arrest and
when the Red Cross visited him in prison, but these inconsistencies are manifestly
trivial. See Ren v. Holder, 648 F.3d 1079, 1085–86 (9th Cir. 2011). Moreover,
there is no reason to think that the Country Report writer focused on the details of
this kitchen worker’s arrest and imprisonment. Kaga testified almost nine years
after his arrest, and “[t]he ability to recall precise dates of events years after they
happen is an extremely poor test of how truthful a witness’s substantive account
is.” Singh v. Gonzales, 403 F.3d 1081, 1090–91 (9th Cir. 2005).
The Board also relied on an inconsistency between Kaga’s testimony and the
Country Report concerning whether Togo’s military retaliated against him for
challenging his unlawful imprisonment. That supposed “inconsistency” is between
what Kaga says the military did and what Togo’s constitution and laws say they
should have done. It cannot be assumed that Togo’s military obeys those laws, and
the same report notes rampant corruption and abuses of authority within Togo’s
security forces.
2
Finally, the Board relied on an inconsistency between Kaga’s testimony that
he was never charged with a crime and a State Department report describing
charges brought against other people arrested along with Kaga. But the report does
not clearly state that everyone arrested was charged with a crime, nor does it
reference Kaga.
Considering the totality of the circumstances, substantial evidence does not
support the conclusion that Kaga did not testify credibly. See Ren, 648 F.3d at1084–85.1
GRANTED and REMANDED.
1
The Board also applied the wrong legal standard when it denied Kaga’s
motion to reopen on the basis of ineffective assistance of counsel. To show
prejudice, an alien must show that his counsel’s inadequate performance “may
have affected the outcome of the proceedings.” Iturribarria v. I.N.S., 321 F.3d
889, 900 (9th Cir. 2003) (quoting Ortiz v. I.N.S., 179 F.3d 1148, 1153 (9th Cir.
1999)). He need not make out a prima facie case for relief—he must merely
demonstrate that his “asserted ground for relief is at least plausible.”
Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir. 2015) (citing
Morales Apolinar v. Mukasey, 514 F.3d 893, 898 (9th Cir. 2008)). The evidence
that Kaga submitted in support of his motion corroborates his testimony
concerning the date of his arrest, explains the strange phraseology in the statements
from his wife, brother, and coworker, and resolves the inconsistency between his
testimony and his wife’s statement. If Kaga’s attorney had properly submitted this
evidence, it may have affected the outcome of the proceedings.
3