Elhadji Toure v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELHADJI OMAR TOURE, Nos. 20-70369
20-72920
Petitioner,
Agency No. A209-169-468
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 2, 2021
Pasadena, California
Before: PAEZ, CALLAHAN, and OWENS, Circuit Judges.
Dissent by Judge CALLAHAN
Petitioner Elhadji Omar Toure, a native and citizen of Senegal, petitions for
review of the Board of Immigration Appeal’s (“BIA”) orders (1) dismissing his
appeal of an immigration judge’s (“IJ”) denial of asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”); and (2) denying his
motion to reopen. Toure’s first petition (No. 20-70369) challenges the agency’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
adverse credibility determination and its denial of CAT relief. The second petition
(No. 20-72920) challenges the BIA’s denial of Toure’s motion to reopen. We have
jurisdiction under 8 U.S.C. § 1252. We grant Toure’s first petition, remand, and
deny Toure’s second petition as moot.
Toure argues that the agency’s adverse credibility determination is not
supported by substantial evidence. We agree. 1
We review an adverse credibility finding for substantial evidence. Qiu v.
Barr, 944 F.3d 837, 842 (9th Cir. 2019). “Although that standard is deferential,
there must be a ‘specific cogent reason’ for [such a] finding.” Id. (citation
omitted). “We review those parts of the IJ’s adverse credibility findings on which
the BIA relied.” Id.; see also Iman v. Barr, 972 F.3d 1058, 1064 (9th Cir. 2020).
The BIA affirmed the IJ’s adverse credibility determination on a single
ground. It concluded that the IJ did not clearly err in finding an inconsistency
between Toure’s initial written statements, which explained that he was persecuted
in Senegal because he worked as a tailor for gay clientele, and his later testimony
that he is himself gay. But the IJ’s finding is belied by the record, as the purported
inconsistency is not an inconsistency at all. See Perez-Arceo v. Lynch, 821 F.3d
1The government’s waiver and exhaustion arguments are meritless. Toure’s
opening brief did not waive his claims for asylum and withholding of removal, and
all Toure’s claims were properly exhausted before the BIA, see Diaz-Jimenez v.
Sessions, 902 F.3d 955, 959-60 (9th Cir. 2018).
2
1178, 1184-85 (9th Cir. 2016) (holding the IJ’s noted inconsistency “cannot
support a negative credibility determination” because “there was no inconsistency
. . . at all”). There is no inherent inconsistency between Toure’s superseding I-589
application, which explained that he was persecuted for catering to the gay and
bisexual community in Senegal, and his testimony at the hearing that he is gay.
See id. at 1185.
Moreover, Toure’s application specifically stated that the government and
his uncle persecuted him because they believe he is gay. And Toure’s written
statement explained that, when his younger uncle saw him in Brazil, the uncle
“told everybody” that Toure is gay, that he worked for the gay and bisexual
community in Senegal, and that he was a shame to their religion. Thus, the
purported inconsistency was not “a ‘specific cogent reason’ for [the] adverse
credibility finding.”2 Qiu, 944 F.3d at 842 (citation omitted).
We grant Toure’s first petition on this basis and remand his claims for
asylum, withholding of removal, and CAT protection.3 See Diaz-Reynoso v. Barr,
968 F.3d 1070, 1089 (9th Cir. 2020) (explaining that “CAT’s implementing
regulations require the agency to consider ‘all evidence relevant to the possibility
2
We express no opinion on whether the IJ’s other findings adequately supported
the adverse credibility determination. See Iman, 972 F.3d at 1064.
3
In light of this disposition, we need not address Toure’s other arguments
concerning his CAT claim. Toure may raise those arguments in any future
petition, if necessary.
3
of future torture’” (citation omitted)). In light of our disposition of the first
petition, we dismiss Toure’s second petition as moot.
Additionally, Toure’s motion for a stay of removal is granted. Toure’s
removal is stayed pending issuance of the mandate.
Petitions for review GRANTED IN PART, DISMISSED IN PART, and
REMANDED.
4
FILED
Toure, Nos. 20-70369 & 20-72920 OCT 19 2021
MOLLY C. DWYER, CLERK
CALLAHAN, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I dissent. The majority does not deny that Toure first stated that he worked
as a tailor for gay clientele and later testified that he was himself gay. Indeed, the
BIA commented that the IJ “found that [Toure] initially testified that he had
problems because he worked as a tailor for gay clientele, but later changed his
testimony to say that he was actually gay himself” and that Toure did not “address
this discrepancy on appeal.” The majority opines that this “is not an inconsistency
at all,” but offers no authority for this conclusion. One might argue as to the
consequences of Toure’s inconsistent testimony, but the record fully supports the
IJ’s and BIA’s finding of an inconsistency. Furthermore, a review of the entire
record reveals that in his initial interview with an immigration officer, Toure stated
that he left Senegal because his town was burned down in 2013, he wanted to go to
New York to work, and could not return to Senegal because “people lent me
money in Senegal and I don’t have money to pay them back.” Because there is
substantial evidence to support the agency’s adverse credibility determination, I
would deny Toure’s first petition for review. 1
1
Because the majority dismisses Toure’s second petition as moot, I do not
address its merits.