Agustin Mendoza v. Loretta E. Lynch

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 29 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
AGUSTIN MENDOZA MENDOZA, Nos. 12-70550, 12-72544
Petitioner, B.I.A. No. A099-338-194
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Argued and Submitted July 8, 2015
San Francisco, California
Before: GRABER and WATFORD, Circuit Judges, and FRIEDMAN,** District
Judge.
Agustin Mendoza Mendoza petitions for review of (1) the Board of
Immigration Appeals’ (BIA) order dismissing his appeal from the immigration
judge’s (IJ) denial of his application for asylum, withholding of removal, and relief
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Paul L. Friedman, District Judge for the U.S. District
Court for the District of Columbia, sitting by designation.
Page 2 of 5
under the Convention Against Torture (CAT); and (2) the BIA’s order denying his
motion to reopen. We grant the petitions and remand to the BIA to reconsider
Mendoza’s credibility and his eligibility for asylum, withholding, and relief under
CAT.
1. Substantial evidence does not support the IJ’s adverse credibility
determination. Under the REAL ID Act, an IJ may base an adverse credibility
determination on any relevant factor that reasonably may be said to bear on a
petitioner’s veracity. See Shrestha v. Holder, 590 F.3d 1034, 1040–41, 1043–44
(9th Cir. 2010). But “trivial inconsistencies that under the total circumstances have
no bearing on a petitioner’s veracity should not form the basis of an adverse
credibility determination,” id. at 1044, and we have cautioned that our “analysis on
review . . . should recognize that the normal limits of human understanding and
memory may make some inconsistencies or lack of recall present in any witness’s
case,” id. at 1044–45.
The BIA upheld the IJ’s finding that Mendoza testified inconsistently about
whether his parents were perceived to be affiliated with the guerrillas during the
Guatemalan civil war and why they were released from the church. Mendoza
consistently testified that his parents provided food to the guerrillas and attended
some guerrilla meetings but did not “actually go with them,” though he was not
Page 3 of 5
clear about whether his parents had thereby “joined” the guerrillas. He testified
that he did not know why the soldiers did not set fire to the church, but speculated
that it was because “other soldiers called to stop that,” or because the soldiers
selectively killed only those villagers whose names appeared on a list of accused
guerrillas.
Significantly, Mendoza testified that he learned about these events from his
parents when he was ten years old. In other words, he based his testimony at the
hearing on what his parents had told him as a child fifteen years earlier about
traumatic events that happened to them another fourteen years beforehand—i.e.,
four years before Mendoza was born. We do not doubt that, as a general rule,
inconsistencies in relating the details of hearsay statements may form the basis for
an adverse credibility determination. In light of the attenuated chain of
transmission between the events of 1982 in Todos Santos and Mendoza’s
testimony, however, any discernable inconsistencies in Mendoza’s testimony about
these events are so “manifestly trivial” as to “have no bearing on [his] veracity.”
Ren v. Holder, 648 F.3d 1079, 1089 (9th Cir. 2011); cf. Lai v. Holder, 773 F.3d
966, 973–74 (9th Cir. 2014) (omissions relating to events that happened only to
third parties are less probative of credibility).
Page 4 of 5
2. The adverse credibility determination cannot be sustained on the
ground that Mendoza inadequately disclosed, or testified inconsistently about, his
alcohol use or criminal record. The BIA stated that “the [IJ] likewise properly
relied on the respondent’s failure to disclose his convictions for driving without a
license and driving while under the influence of alcohol.” But the IJ stated that she
was “reluctant to find the respondent not credible based solely on this fact alone,”
and the BIA did not independently identify this ground as sufficient to support an
adverse credibility determination. Cf. Pal v. INS, 204 F.3d 935, 938–39 (9th Cir.
2000). Although neither the IJ nor the BIA identified Mendoza’s declaration or
testimony regarding his alcohol use or criminal record as a freestanding basis for
deeming him not credible, the administrative record nevertheless presents at least a
“reasonable prospect” that the agency could do so. Soto-Olarte v. Holder, 555
F.3d 1089, 1095 (9th Cir. 2009). We therefore remand to the BIA to reexamine
Mendoza’s credibility. See id. at 1095–96.
3. The BIA initially held that even if Mendoza were credible, he would
not have established past persecution. After the BIA’s initial decision, our court
decided Mendoza-Pablo v. Holder, 667 F.3d 1308 (9th Cir. 2012), which calls into
question the correctness of the BIA’s alternative holding. The BIA denied
Mendoza’s motion to reopen in light of Mendoza-Pablo solely on the ground that
Page 5 of 5
he was not credible. The government does not defend the BIA’s alternative
holding on appeal, and that holding cannot stand given our reversal of the IJ’s
adverse credibility determination.
4. Substantial evidence does not support the BIA’s finding that Mendoza
had “not presented individualized evidence related to his claim for protection under
the Convention Against Torture.” Mendoza produced testimony that he would
likely be beaten, soaked in a fountain, and imprisoned in a jail cell were he to
return to Guatemala. That is “individualized evidence,” and it is “related” to the
CAT claim. Accordingly, we remand the CAT claim for reconsideration. We
express no view on the merits of the CAT claim, which the BIA must consider in
the first instance. INS v. Orlando Ventura, 537 U.S. 12 (2002) (per curiam).
PETITIONS GRANTED and REMANDED.