Sylvester Morfaw v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 31 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SYLVESTER A. MORFAW, No. 21-70450
Petitioner, Agency No. A213-186-758
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 8, 2022
Phoenix, Arizona
Before: PAEZ, CLIFTON, and WATFORD, Circuit Judges.
Petitioner Sylvester Morfaw, a citizen of Cameroon, petitions for review of
the decision of the Board of Immigration Appeals (“BIA”) affirming the
Immigration Judge’s denial of asylum, withholding of removal, and Convention
Against Torture (“CAT”) relief. We have jurisdiction pursuant to 8 U.S.C. § 1252.
We grant the petition and remand to the agency for further proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
“We review factual findings, including adverse credibility determinations,
for substantial evidence.” Mukulumbutu v. Barr, 977 F.3d 924, 925 (9th Cir. 2020)
(citation omitted). We review those reasons “explicitly identified by the BIA” and
“the reasoning articulated in the IJ’s oral decision in support of those reasons,” but
not “those parts of the IJ’s adverse credibility finding that the BIA did not identify
as most significant and did not otherwise mention.” Lai v. Holder, 773 F.3d 966,
970 (9th Cir. 2014) (quotation marks and citations omitted). Legal questions are
reviewed de novo. Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010).
Morfaw alleges that he escaped Cameroon after being detained and jailed by
the police for more than a month because of his suspected membership in an
Anglophone advocacy organization (the Southern Cameroons National Council, or
SCNC), an episode that furnished the basis for his persecution and torture claims.
The IJ found Morfaw not credible, pointing to inconsistencies between his
testimony and the documentary evidence submitted to the IJ, his testimony during
the credible fear interview, and answers he gave to a Customs and Border Patrol
Officer (“CBP”) officer immediately following his entry into the United States at
the San Ysidro Port of Entry. “[A]n adverse credibility determination must be
made after considering ‘the totality of circumstances, and all relevant factors.’” Id.
at 1040 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). “[R]elevant factors will include
demeanor, candor, responsiveness of the applicant or witness, the inherent
2
plausibility of the applicant or witness’s account, consistency between the
applicant or witness’s written and oral statements, internal consistency of each
statement, and consistency of statements with other evidence.” Id.Informal interviews, such as the border interview, may be considered in an
adverse credibility determination if they have “sufficient indicia of reliability.”
Mukulumbutu, 977 F.3d at 926. Here, the border interview was conducted in
English. Morfaw, however, speaks Cameroonian Pidgin English, a distinct
language, and he utilized the services of an interpreter throughout the rest of the
proceedings. He has challenged the agency’s reliance on the border interview on
the grounds that, among other reasons, the lack of language assistance rendered the
interview insufficiently reliable to constitute substantial evidence in support of an
adverse credibility determination.
The lack of interpreter assistance at the border interview raises serious
concerns about whether Morfaw’s answers could be used to impeach his later
testimony, during which he did have language assistance.1 See Singh v. Gonzales,
1
Moreover, while the BIA noted that Morfaw had “signed the sworn [border
interview] statement after initialing each page, attesting under oath that he had
read, or had it read back to him and that it accurately reflected what was said
during his interrogation,” the jurat Morfaw signed only reflected he reviewed and
attested to a brief 1-page, 4-question statement, not the full 10-page border
interview notes. Indeed, the IJ had not commented on the attestation in the
decision. At the hearing, the IJ explicitly declined to conclude that Morfaw had
attested to the contents of each page, and the government withdrew its questions on
the matter.
3
403 F.3d 1081, 1088 (9th Cir. 2005). At oral argument, the government disclaimed
reliance on the border interview. In view of that disclaimer, we conclude that the
reasons supporting the adverse credibility determination that were predicated on
the border interview are not supported by substantial evidence. This specifically
includes inconsistencies about what happened to Morfaw’s passport (albeit not to
the extent that Morfaw testified inconsistently and evasively on this matter at the
hearings before the IJ), inconsistencies about the length of his detention (except
insofar as his wife’s declaration was inconsistent with his later testimony,
addressed below), and inconsistencies about his SCNC membership.2
Discounting the border interview does not eliminate all of the reasons
supporting the adverse credibility determination. The BIA also relied on his
inconsistent testimony at the merits hearing and in the documentary evidence about
his release from prison, and on the issue of what happened to his passport. But here
2
The government contends that Morfaw “never challenged the credibility
finding regarding his inconsistent testimony that he did, or did not, attend SCNC
meetings or distribute flags at rallies,” a supposed discrepancy between the
credible fear interview and the merits hearing upon which the IJ relied. We see no
discrepancies between the asylum interview and the merits hearing on the matter of
Morfaw’s participation in SCNC activities. But even if Morfaw waived that
argument, the SCNC activities would not factor into our holding. Our review is
limited to those grounds upon which the BIA relied, Lai, 773 F.3d at 970, and the
BIA only held that there were inconsistencies between the border interview and
Morfaw’s later testimony at the asylum interview and hearings before the IJ as to
his SCNC activities—not, as the IJ had held, between the asylum interview and
merits hearings.
4
too, the BIA gave imprecise treatment to some aspects of Morfaw’s testimony and
failed to consider his explanation for certain inconsistencies. Specifically, both the
IJ and the BIA conflated the time of Morfaw’s release from prison with the time
that he left for Douala. While the agency held that he gave inconsistent answers
about the former event, the record shows that at least some of those answers
referred to the latter event. The IJ and the BIA also failed to discuss Morfaw’s
facially plausible explanation for the inconsistency between his wife’s declaration
and his testimony about his release date from prison.
“There is no bright-line rule under which some number of inconsistencies
requires sustaining or rejecting an adverse credibility determination—our review
will always require assessing the totality of the circumstances.” Alam v. Garland,
11 F.4th 1133, 1134 (9th Cir. 2021) (en banc). The inconsistencies discussed above
were sufficiently important that we cannot be confident that the agency would have
reached the same result had it not relied on them. Accordingly, based on the
totality of the circumstances, we grant the petition for review and “remand to the
BIA to determine in the first instance whether the remaining factors—considered
on their own—suffice to support an adverse credibility determination.” Kumar v.
Garland, 18 F.4th 1148, 1156 (9th Cir. 2021).
PETITION GRANTED; REMANDED.
5