Thursday, August 1, 2019
Majority of Three-Judge Panel Says Determination by Immigration Judge, Accepted by Appeals Board,
That Applicant Lacks Credibility, Requires Reversed; Judge Randy Smith Files Vigorous Dissent
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday reversed a determination that a Mexican citizen seeking asylum in the United States was not credible in his account of oppression in his home country, based on his being gay, because three incidents which he claimed, in an interview had occurrred, were not later mentioned in his application.
Judges Ryan D. Nelson and Paul J. Watford wrote a memorandum opinion which reinstates Mateo Carranza-Albarran’s appeal from an adverse determination by an immigration judge (“IJ”). The Board of Immigration Appeals (“BIA”) dismissed based on its agreement with the IJ that Carranza-Albarran lacked credibility.
An adamant dissent was authored by Senior Judge Randy Smith who accused his colleagues of overstepping their proper bounds.
Acts of Discrimination
Mateo Carranza-Albarran, who was in custody, claimed in a credible-fear interview with an asylum officer that in Mexico, he had been raped by police, sexually abused by his brother, and harassed by classmates during a seventh-grade field trip based on their perception of his sexual orientation. However, he did not mention these incidents in his asylum application and, at his hearing on his petition, had to be prompted by the IJ to discuss the matters.
The applicant, aside from seeking asylum, is asking for a withholding of removal and relief under the Convention Against Torture (“CAT”). The majority’s opinion finds that substantial evidence does not support the finding of a lack of credibility and orders that the BIA reconsider the claims on their merits.
Nelson and Watford said:
“The facts of this case illustrate why we frequently discount omissions from asylum applications. Carranza-Albarran does not understand English and filled out his asylum application (in English) with the help of a preparer who is not a lawyer….Carranza-Albarran testified that he had to communicate with the preparer, who did not speak Spanish, through an interpreter. The preparer appears to have not understood how to fill out the asylum application, as he failed to discuss in any detail the instances of persecution that Carranza-Albarran had described during his credible-fear interview. This is therefore not a case in which an asylum applicant omitted significant incidents from an otherwise detailed asylum application.”
The majority continued:
“We further discount the significance of the alleged omissions from Carranza-Albarran’s asylum application because he had already mentioned all three of the incidents at issue during his credible-fear interview. This case is therefore distinguishable from cases in which asylum applicants testify about significant incidents or details for the first time during their removal hearings, often at the prompting of their lawyers.”
The opinion goes on to say that it is not clear that Carranza-Albarran did omit from his application mention of being raped by police, noting that it says police “extort, rape, assault” gays and that he had experienced that.
Carranza-Albarran was given an inadequate opportunity at the hearing to explain why he had omitteed reference to the field trip, the opinion says.
“Petitioner here requested only the review of an adverse credibility determination. The standard for reviewing an adverse credibility finding of the Board of Immigration Appeals (BIA) is substantial evidence….
“Rather than applying this required standard of review—whether substantial evidence supported the BIA’s decision—the majority substitutes its findings of fact (never mind that those findings are contrary to those of the immigration judge (IJ); the majority then concludes that a different result is compelled (never mind that to do so, the majority itself must find Carranza-Albarran credible).”
The senior judge continued:
“Obviously sympathetic to Carranza-Albarran, the majority concludes that Carranza-Albarran’s story must be true, because he relayed a similar story to an asylum officer during a credible fear interview and, eventually, to an IJ. However, the BIA concluded Carranza-Albarran was not credible, because he failed to make those same claims in his asylum application and failed to assert two of the claims to the IJ until he was finally confronted with the assertions (following at least six different questions about the harm he suffered in Mexico). Instead of determining whether substantial evidence exists to support the BIA’s conclusions, the majority makes its own factual findings in its opinion and makes excuses as to why Carranza-Albarran failed to make the same allegations in his asylum application and to the IJ as he voluntarily made to the asylum officer.”
Smith recited in detail questions asked at the hearing. During oral argument on May 14, the jurist summarized the prompting by saying that the IJ asked:
“C’mon. Aren’t you going to tell me about this? Aren’t you going to tell me about this?”
He maintained in his opinion that reversal is permissible only if a different conclusion is compelled and, he said, it is not.
The case is Carranza-Albarran v. Barr, 17-70250.
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