Soto-Olarte v. Holder ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE ARTURO SOTO-OLARTE; 
MARIA JESUS ESTEVES-LA TORRE, No. 06-71822
Petitioners, Agency Nos.
v.  A097-875-480
ERIC H. HOLDER, Jr., Attorney A097-875-481
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
May 9, 2008—Pasadena, California
Filed February 23, 2009
Before: John T. Noonan, William A. Fletcher, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould
2113
SOTO-OLARTE v. HOLDER 2115
COUNSEL
Edgardo Quintanilla, Quintanilla Law Firm, Sherman Oaks,
California, for the petitioners.
2116 SOTO-OLARTE v. HOLDER
Joshua P. Jones, United States Department of Justice, Wash-
ington, D.C., for the respondent.
OPINION
GOULD, Circuit Judge:
Jorge Arturo Soto-Olarte and his wife Maria Jesus Esteves-
La Torre petition for review of the Board of Immigration
Appeals’ (“BIA”) opinion dismissing their appeal of an immi-
gration judge’s (“IJ”) denial of their petitions for asylum,
withholding of removal, and protection under the United
Nations Convention Against Torture (“CAT”). We grant the
petition for review and remand this case to the BIA for further
proceedings, but we hold that on remand the BIA need not
necessarily deem Soto-Olarte credible.
I
Jorge Arturo Soto-Olarte (“Soto-Olarte”), and his wife
Maria Esteves-La Torre (“La Torre”), natives and citizens of
Peru, sought asylum and withholding of removal based on
alleged persecution by the terrorist organization Shining Path.
The incident central to Soto-Olarte’s claim occurred on June
19, 2003. According to Soto-Olarte’s testimony, two members
of the Shining Path broke into his house in Peru, while two
other Shining Path members remained outside. Soto-Olarte
fired his gun in the air, triggering his car alarm, and the four
individuals fled.
Soto-Olarte submitted a police report mentioning this inci-
dent, but the report as produced by the police differs from
Soto-Olarte’s account of the incident. The police report stated
that Soto-Olarte was awakened by his car alarm, and when he
went outside two security guards told him they saw two indi-
viduals fleeing over the wall. The report said nothing about
SOTO-OLARTE v. HOLDER 2117
two other people entering Soto-Olarte’s house, about a gun
being fired, or about any involvement by the Shining Path.
Finally, the police report recited that Soto-Olarte had said
items were stolen from his car, while Soto-Olarte’s own
account in his testimony and in his declaration mentions no
property loss.
Soto-Olarte and La Torre were charged as removable in
2004. They conceded removability but sought relief in the
form of asylum, withholding of removal, and protection under
the CAT. At the IJ hearing Soto-Olarte’s direct examination
testimony focused on the June 2003 incident. Neither the gov-
ernment nor the IJ asked Soto-Olarte about the contents of the
police report. Before testifying, in a written declaration filed
with the immigration court, Soto-Olarte had explained that the
police report did not mention the Shining Path because, as he
put it, the police “did not want to get involved with allega-
tions of the Shining Path.” Soto-Olarte did not explain in his
written declaration, nor in his hearing testimony, why the
police report did not mention the home invasion or gunfire
that he described in his hearing testimony.
The IJ denied Soto-Olarte’s and La Torre’s petition, finding
that Soto-Olarte was not credible because his testimony about
the June 2003 incident differed from the account in the police
report. The IJ then held alternatively that even if Soto-Olarte’s
testimony was credible, she would still have denied relief on
the ground that Soto-Olarte failed to show past persecution or
a well-founded fear of future persecution because “[t]he June
2003 incident appears to be a criminal robbery.” The BIA
affirmed the IJ’s ruling and alternate holding, citing the same
inconsistencies between Soto-Olarte’s testimony and the
police report.
II
A
We review the IJ and BIA’s adverse credibility finding for
substantial evidence. See Kaur v. Ashcroft, 379 F.3d 876, 884
2118 SOTO-OLARTE v. HOLDER
(9th Cir. 2004). The IJ based her adverse credibility finding
on the inconsistencies between Soto-Olarte’s account, during
his immigration proceeding, of the June 2003 incident as a
terrorist home invasion and the police report describing the
same event as a car burglary. These inconsistencies go to the
heart of the petitioners’ claim. See Desta v. Ashcroft, 365 F.3d
741, 745 (9th Cir. 2004). However, Soto-Olarte gave a plausi-
ble explanation in his declaration for one of these
inconsistencies—the police report’s failure to mention the
Shining Path. The IJ “did not comment on [this] explanation
[in her decision], nor suggest any reason that [she] found his
explanation not credible.” Garrovillas v. INS, 156 F.3d 1010,
1013 (9th Cir. 1998). This lack of consideration given to
Soto-Olarte’s proffered explanation was error and prevents
the underlying inconsistency from serving as substantial evi-
dence to support the IJ’s adverse credibility finding. See, e.g.,
Kaur, 379 F.3d at 884 (“An adverse credibility finding is
improper when an IJ fails to address a petitioner’s explanation
for a discrepancy or inconsistency.”); Guo v. Ashcroft, 361
F.3d 1194, 1201 (9th Cir. 2004) (holding that an alleged
inconsistency in a petitioner’s testimony could not serve as
substantial evidence for an adverse credibility finding where
the IJ “did not address at all [the petitioner’s] reasonable and
plausible explanation” for the inconsistency).
[1] The BIA made only passing and incomplete mention of
Soto-Olarte’s explanations for the discrepancies, noting that
“[t]he respondents argue that this was a minor inconsistency
or no consistency [sic] at all” but concluding that “[w]e dis-
agree.” Because the BIA’s opinion does not refer to the expla-
nation that Soto-Olarte gave, to the effect that police in Peru
are reluctant to mention the Shining Path, and does not give
the BIA’s reasons for considering that explanation unpersua-
sive, the BIA’s treatment of Soto-Olarte’s explanation does
not satisfy our precedential requirement that “in order to
ensure a fair hearing, the BIA not only identify specific incon-
sistencies, but also ‘address in a reasoned manner the expla-
nations that [the petitioner] offers for these perceived
SOTO-OLARTE v. HOLDER 2119
inconsistencies.’ ” Campos-Sanchez v. INS, 164 F.3d 448, 450
(9th Cir. 1999) (quoting Osorio v. INS, 99 F.3d 928, 933 (9th
Cir. 1996)). We hold that where Soto-Olarte gave an explana-
tion of inconsistencies between his account of the June 2003
incident at his home and the account of that incident in the
police report, those inconsistencies cannot serve as substantial
evidence for a finding that Soto-Olarte was not credible when
neither the IJ nor the BIA addressed Soto-Olarte’s explanation
“in a reasoned manner.” Id.[2] Soto-Olarte’s explanatory statement does not account
for all of the inconsistencies between the police report and
Soto-Olarte’s testimony. His explanation does not suggest
why the police report did not mention that there were two
intruders inside the house as well as two outside of it, nor
does it suggest that Soto-Olarte shot his gun to scare the men
away. Moreover, his explanation sheds no light on why the
police would report that a bag containing sales slips and toys
was stolen from Soto-Olarte’s car when Soto-Olarte in his
written statement and during his testimony did not mention
any property being taken. However, Soto-Olarte was never
asked about any of these inconsistencies at his hearing before
the IJ. It is speculative at this juncture, but certainly possible
that Soto-Olarte may have had good explanations for the
remaining differences between his testimonial report and that
filed by the police and also possible that the BIA might have
good reasons to reject his explanations. It may be that Soto-
Olarte’s explanation that the police don’t like to mention the
Shining Path also explains why they would not mention his
use of a gun or the home invasion, because these points were
part of his story about the Shining Path. In any event, the IJ
could not properly base her adverse credibility determination
on the inconsistencies between Soto-Olarte’s testimony and
the police report that Soto-Olarte did not explain in his decla-
ration, when she did not ask Soto-Olarte about these discrep-
ancies or give him an opportunity to reconcile them. See Don
v. Gonzales, 476 F.3d 738, 741 (9th Cir. 2007) (“[T]he IJ
‘must provide a petitioner with a reasonable opportunity to
2120 SOTO-OLARTE v. HOLDER
offer an explanation of any perceived inconsistencies that
form the basis of a denial of asylum.’ ” (quoting Ordonez v.
INS, 345 F.3d 777, 786 (9th Cir. 2003))); Chen v. Ashcroft,
362 F.3d 611, 618 (9th Cir. 2004) (finding that the petitioner
“was denied a reasonable opportunity to explain what the IJ
perceived as an inconsistency in her testimony” and conclud-
ing that “[t]he IJ’s doubt about the veracity of her story, there-
fore, cannot serve as a basis for the denial of asylum”).1
Because the IJ did not offer Soto-Olarte an opportunity to
explain the inconsistencies on which she later relied in finding
him not credible and did not address the explanation he gave
for some of those inconsistencies, the IJ’s adverse credibility
finding, which was subsequently adopted by the BIA, was not
supported by substantial evidence.
[3] The IJ and BIA alternately held that even if Soto-Olarte
were deemed credible, he and his wife still had not met their
burden of establishing eligibility for asylum or withholding of
removal. Despite the asserted independence of this conclu-
sion, however, neither the IJ nor the BIA took all of Soto-
Olarte’s testimony as true for the purposes of determining his
and La Torre’s eligibility for asylum, as they are required to
do when deeming a petitioner to be credible in an alternate
holding. See Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir.
2004) (“Testimony must be accepted as true in the absence of
an explicit adverse credibility finding.”). In reaching the con-
1
Although we conclude that the absence of an opportunity to explain
inconsistencies was one reason that the IJ’s adverse credibility finding was
not supported by substantial evidence, we reject Soto-Olarte’s related
argument that the lack of inquiry about those inconsistencies at the hearing
violated due process, given that Soto-Olarte had an opportunity to offer
explanations for those inconsistencies or otherwise dispute the adverse
credibility finding in his appeal to the BIA. Cf. Campos-Sanchez, 164 F.3d
at 450 (holding in the context of a due process analysis that “[w]hen the
BIA decides a case based on an independent, adverse, credibility determi-
nation, contrary to that reached by the IJ, it must give the petitioner an
opportunity to explain any alleged inconsistencies that it raises for the first
time.” (emphasis added)).
SOTO-OLARTE v. HOLDER 2121
clusion that the experiences Soto-Olarte had suffered in Peru
did not rise to the level of persecution on the basis of a pro-
tected ground, both the IJ and BIA referred to the June 2003
incident as a “criminal robbery,” thus crediting the police
report’s version of what happened that night instead of
accepting the version offered by Soto-Olarte that his home
was invaded by Shining Path terrorists who were motivated to
threaten or harm Soto-Olarte because of his political views.
This alternate holding of the BIA and IJ is not controlling,
because its explicit reasoning relied on an adverse credibility
determination that we have determined is not supported by
substantial evidence.
B
[4] There have been cases in our circuit in which, after
determining that an adverse credibility finding is not sup-
ported by substantial evidence, we have directed the BIA on
remand to make additional determinations, but required the
agency to accept the petitioner’s testimony as true. See, e.g.,
Guo, 361 F.3d at 1203-04 (“Where an appellate court has held
that an IJ’s or BIA’s adverse credibility finding is not sup-
ported by substantial evidence . . . the proper procedure is to
remand the case to the BIA for further consideration and
investigation in light of the ruling that the petitioner is credi-
ble.”); He v. Ashcroft, 328 F.3d 593, 604 (9th Cir. 2003).
However, no other circuit has adopted this “deemed credible”
rule.2 See, e.g., Castaneda Castillo v. Gonzales, 488 F.3d 17,
2
Our deemed credible rule is distinct from a closely related procedure
that we follow when the BIA or IJ finds the petitioner not credible and
then makes an alternate holding that even if the petitioner’s testimony
were true he or she still should be denied relief for some other reason,
such as a failure to establish past persecution. In those cases, if we hold
that the adverse credibility finding was not supported by substantial evi-
dence, we deem the petitioner credible for the limited purpose of review-
ing the alternate holding, as did the agency in making that holding. See,
e.g., Zhu v. Mukasey, 537 F.3d 1034, 1043 (9th Cir. 2008); Mousa v.
Mukasey, 530 F.3d 1025, 1029 (9th Cir. 2008); Singh v. Gonzales, 439
2122 SOTO-OLARTE v. HOLDER
24-25 (1st Cir. 2007) (en banc) (“The suggestion may be
made . . . [citing He] that remand gives the agency a second
bite at the apple. The short answer is that, outside criminal
prosecutions governed by double jeopardy principles, second
bites are routine in litigation. If the agency decision is flawed
by mistaken legal premises, unsustainable subsidiary findings,
or doubtful reasoning, remanding to give the agency an
opportunity to cure the error is the ordinary course.”); Li v.
INS, 453 F.3d 129, 136 (2d Cir. 2006) (“[W]hen we find fault
with an adverse credibility finding, we will not substitute our
own judgment for the agency’s, but ordinarily will remand to
the agency for additional explanation or investigation.” (inter-
nal quotation marks omitted)); Elzour v. Ashcroft, 378 F.3d
1143, 1154 (10th Cir. 2004) (“[W]e are not finding [Peti-
tioner] credible. Rather, we are concluding . . . that because
of the lack of substantial evidence to support the adverse cred-
ibility determination, we will remand in order for the agency
to further explain or supplement the record.” (quoting Dia v.
Ashcroft, 353 F.3d 228, 260 (3d Cir. 2003))).
Our deemed credible rule has never been described by us
as being absolute in its application, nor has it been practically
applied in that fashion. Before our decision in He v. Ashcroft,
we often remanded an adverse credibility finding on an open
record to allow the BIA to reconsider a petitioner’s credibil-
ity. E.g., Paramasamy v. Ashcroft, 295 F.3d 1047, 1054-55
F.3d 1100, 1111 (9th Cir. 2006); Guo, 361 F.3d at 1202-03; Bandari v.
INS., 227 F.3d 1160, 1168 (9th Cir. 2000). Otherwise, we could not accept
the alternate holding and deny the petition, because a denial would be
based in part on the erroneous adverse credibility finding. If we reject the
BIA’s alternate holding, only then do we remand and possibly apply the
deemed credible rule. E.g., Zhu, 537 F.3d at 1045; Mousa, 530 F.3d at
1030. Nothing in our analysis of the deemed credible rule, which we
sometimes apply on remand, impacts this related practice, which we apply
only when reviewing an alternate holding. Our holding today is not incon-
sistent with this line of cases, which presents an analytically distinct pos-
ture.
SOTO-OLARTE v. HOLDER 2123
(9th Cir. 2002) (“We cannot uphold the adverse credibility
finding . . . [and] remand for a new hearing, with an individu-
alized determination of credibility.”); Campos-Sanchez, 164
F.3d at 450 (“This matter is remanded for proceedings at
which [the petitioner] may respond to the perceived inconsis-
tencies, offer explanations, and be heard on his credibility.”).
Before He, we also had some cases applying the deemed cred-
ible rule on remand. See, e.g., Akinmade v. INS, 196 F.3d 951,
958 (9th Cir. 1990) (“As in other similar cases, under these
circumstances, we deem the petitioner’s testimony credible.”);
Aguilera-Cota v. INS, 914 F.2d 1375, 1383 (“Other than the
minor omission and the other insignificant reasons given by
the IJ, there is in the case before us a total absence of contra-
dictory evidence in the record as a whole that potentially
undermines [the petitioner’s] credibility. Under these circum-
stances, we accept the testimony as true.”); Damaize-Job v.
INS, 787 F.2d 1332, 1338 (9th Cir. 1986) (“We presume that
if the IJ had any additional reasons to doubt [the petitioner’s]
credibility, the IJ would have stated so in the decision below.
Because the IJ expressed no further concerns, and the only
explicitly articulated reasons rested on impermissible factors,
then we conclude from the IJ’s opinion that [the petitioner]
was an otherwise credible witness.”). After He, we have still
in appropriate cases declined to apply that rule when we have
concluded that the total circumstances favored remanding on
an open record for a new determination of credibility. For
example, we have allowed the BIA on remand to reconsider
a petitioner’s credibility in a new hearing when an IJ “denied
Petitioner a reasonable opportunity to present evidence on her
behalf.” Kaur v. Ashcroft, 388 F.3d 734, 737 (9th Cir. 2004).
In such cases “[w]e do not suggest that the agency was or is
required to credit Petitioner’s version of events uncritically”
on remand. Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1059
(9th Cir. 2005).
We applied the deemed credible rule in He because the BIA
“should not have repeated opportunities to show that [the peti-
tioner] is not credible any more than [the petitioner], had he
2124 SOTO-OLARTE v. HOLDER
lost, should have an opportunity for remand and further pro-
ceedings to establish his credibility.” He, 328 F.3d at 604. He,
however, did not involve a situation where the IJ or BIA
failed to ask the petitioner about inconsistencies going to the
heart of the petitioner’s claim, or failed to address the expla-
nations a petitioner offered for inconsistencies. Instead, in He
we rejected the IJ and BIA’s adverse credibility findings, stat-
ing that “[the IJ] was impatient, hostile, and hectoring in his
questions, and he was careless and unjustified in his conclu-
sions” and “the BIA’s reason [for finding adverse credibility]
is no stronger than any of the IJ’s.” Id. at 603.
In He, the IJ provided three reasons ostensibly supporting
his adverse credibility finding. On appeal, the BIA added a
fourth reason. Id. We held that all four reasons were unsup-
ported by the evidence in the record. The circumstances of He
suggest that the deemed credible rule may apply when it is
evident that the IJ and BIA have both strained to provide rea-
sons properly supporting an adverse credibility finding, but
despite their best efforts have been unable to do so. Here,
however, there are inconsistencies that go to the heart of Soto-
Olarte’s claim and the crux of the question is whether Soto-
Olarte can satisfactorily explain those inconsistencies.
[5] Because the three-judge decision in He could not have
overruled our prior precedents in which we did not apply the
deemed credible rule, following those prior precedents and
the later precedents with open record remands after He
remains an option: He represents one instance in which we
decided the deemed credible rule was desirable, but He does
not require us to apply the deemed credible rule in all future
cases, whatever their circumstances. Our precedent grants us
discretion to apply the deemed credible rule in appropriate
cases like He and its predecessors, or not to apply the deemed
credible rule by remanding on an open record when we con-
clude that is the more sensible result under all the circum-
stances.
SOTO-OLARTE v. HOLDER 2125
Stated another way, we can see some differences in the fact
patterns presented in cases where we remanded with direc-
tions that the petitioner be deemed credible, and those where
we remanded for unbounded determinations on an open
record. If it is apparent from the record before us that the IJ
and BIA have listed all possible reasons to support an adverse
credibility determination, and they are inadequate in law or
not supported by substantial evidence, then there may be
cases where on remand we can sensibly say that a petitioner
should be deemed credible. But, conversely, if there is a rea-
sonable prospect from the administrative record that there
may be additional reasons upon which the IJ or BIA could
rely, then it is appropriate to remand in a way that permits the
agency to provide those reasons. In all of this we are some-
what hemmed in by our limited role in administrative review
of agency decisions, so that in any case in which there are
doubts about whether there may be other grounds for rejecting
credibility, we should not restrict the BIA or an IJ.
We do not in this case attempt to articulate a definitive and
all-encompassing rule as to when the deemed credible rule
may be applied and when it must be rejected. After the normal
common-law process of inclusion and exclusion that occurs
over many cases, we may want to fashion a more definitive
statement. It is sufficient for our purposes here to conclude
that both the option of deeming a petitioner credible and the
option of remanding on an open record remain viable in an
appropriate case.
[6] Here, we conclude that it is appropriate that the BIA be
allowed on remand to reexamine Soto-Olarte’s credibility.
Applying the deemed credible rule when the IJ and BIA did
not allow Soto-Olarte the opportunity to explain inconsisten-
cies going to the heart of his claim would grant excessive def-
erence to Soto-Olarte’s future and now unknown explanations
of the perceived inconsistencies. If the BIA were forced to
deem Soto-Olarte’s testimony credible on remand, whatever
he says, Soto-Olarte would never have to give plausible
2126 SOTO-OLARTE v. HOLDER
explanation for the inconsistences between his testimony and
the police report, even though these inconsistences go to the
heart of his claim. And if we apply a deemed credible rule and
Soto-Olarte then gives an implausible explanation of these
inconsistencies, the BIA would have to accept it as true. We
see no valid reason to hold that the BIA erred in not giving
Soto-Olarte a chance to explain inconsistencies, yet then order
the agency on remand to credit Soto-Olarte whatever he says.
In our view, it will most assuredly lead to a more rational
implementation of immigration law and policy if the peti-
tioner is required to explain inconsistencies and if the BIA can
then make credibility determinations in light of the supple-
mented record. We hold that the BIA need not necessarily
deem credible Soto-Olarte’s explanation of the as-yet-
unexplained inconsistencies between his testimony and the
police report of the June 2003 incident.
Applying the deemed credible rule also makes little sense
when we reject a ground for adverse credibility because the
IJ did not address a petitioner’s explanation of an inconsis-
tency that goes to the heart of the petitioner’s claim. The BIA
and IJ erred when they did not explain why they rejected
Soto-Olarte’s explanation for the police report’s failure to
mention the Shining Path. To apply the deemed credible rule,
however, would deny the agency an opportunity to answer
with its view of Soto-Olarte’s explanation. If the BIA had a
valid reason for rejecting Soto-Olarte’s explanation and
merely neglected to include it in its decision, then we should
allow the agency to present that reason on remand rather than
flatly decree that Soto-Olarte is credible. See INS v. Ventura,
537 U.S. 12, 16 (2002) (stating that when reversing the BIA,
“the proper course, except in rare circumstances, is to remand
to the agency for additional investigation or explanation”
(emphasis added)).
[7] Considering all of the circumstances, we have con-
cluded that applying the deemed credible rule in this case
would create illogical results on remand and preclude a deci-
SOTO-OLARTE v. HOLDER 2127
sion on the basis of the full record that will be presented to
the BIA after further proceedings on remand. Accordingly, we
hold that the BIA on remand need not necessarily deem credi-
ble the petitioner’s testimony when we have remanded
because the petitioner was not asked about inconsistencies, or
because the IJ did not address the petitioner’s explanation of
perceived inconsistencies.
III
The IJ and BIA’s adverse credibility determination was not
supported by substantial evidence. We remand on an open
record to give the agency the opportunity to evaluate Soto-
Olarte’s credibility while allowing him to explain as-yet-
unexplained inconsistencies concerning the June 2003 inci-
dent and while considering the explanations that he has
already provided. Because the BIA has not evaluated Soto-
Olarte’s and La Torre’s eligibility for asylum or withholding
of removal independently from its adverse credibility finding,
we also remand to give the agency an opportunity to make
those determinations in the first instance. We do not remand
the petitioners’ CAT claim, because that claim was not pre-
sented as part of this appeal. See Smith v. Marsh, 194 F.3d
1045, 1052 (9th Cir. 1999) (“[O]n appeal, arguments not
raised by a party in its opening brief are deemed waived.”).
PETITION FOR REVIEW GRANTED; CASE
REMANDED IN PART.