FILED
NOT FOR PUBLICATION AUG 23 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAKANE FARAH RWARIL, No. 09-71206
Petitioner, Agency No. A095-591-660
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 6, 2010
Seattle, Washington
Before: WARDLAW and GOULD, Circuit Judges, and MILLS, District Judge.**
Makane Farah Rwaril, a citizen and national of Somalia, petitions for review
of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from an
Immigration Judge’s (“IJ”) denial of asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Richard Mills, United States District Judge for the
Central District of Illinois, sitting by designation.
U.S.C. § 1252. Because we conclude that the IJ’s adverse credibility finding is not
supported by substantial evidence, we grant the petition and remand for further
proceedings pursuant to INS v. Ventura, 537 U.S. 12 (2002).
The BIA found Rwaril not credible because he did not testify “in detail”
about the attack by members of the United Somali Congress on his home or what
happened to each family member during the attack. While the level of specificity in
an applicant’s testimony is an appropriate factor in considering credibility, Singh-
Kaur v. INS, 183 F.3d 1147, 1153 (9th Cir. 1999), the IJ clearly erred in finding
that Rwaril failed to provide detailed testimony. Neither the government attorney
nor the IJ asked Rwaril to provide more detailed testimony about his asserted past
persecution. Despite the absence of inquiry, the record shows that Rwaril provided
a detailed explanation as to his six family members. Rwaril testified that his mother
and one of his sisters were murdered during the home invasion; that his father was
beaten during the invasion and died shortly thereafter; that his brother was shot and
killed, and that he has no information about the whereabouts of his other sister.
Rwaril’s application further explained that his other brother, with whom Rwaril
escaped the home invasion, died in a refugee camp.
The BIA also based its adverse credibility finding on the omission of
information about the rape and killing of Rwaril’s mother from his asylum
2
application. However, “[i]t is well settled that an applicant’s testimony is not per se
lacking in credibility simply because it includes details that are not set forth in the
asylum application.” Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir. 1996).
Moreover, Rwaril testified that he did not prepare his application, which was
actually prepared by a member of his church. Rwaril’s current counsel, Bakary
Fansu Conteh, also admitted during oral argument that he had not known the
proper requirements for an asylum application because he was not yet a licensed
lawyer when he began working on the application. We have “recognized that
preparers, whether lawyers or non-lawyers, are not always scrupulous.”Alvarez-
Santos v. INS, 332 F.3d 1245, 1254 (9th Cir. 2003) (citing Garrovillas v. INS, 156
F.3d 1010, 1014 (9th Cir. 2003)). “Omissions from asylum applications are often
not a sufficient basis for discrediting later testimony” and therefore, these
“[i]nconsistencies due to an unscrupulous preparer, without other evidence of
dishonesty . . . do not provide a specific and cogent basis for an adverse credibility
finding.” Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir. 2003).
The BIA also erroneously relied upon the facts that Rwaril “chose to testify
in English,” and provided “no proof of his native language.” Although Rwaril
testified that he spoke Swahili, the IJ stated that “I assume you also speak
Somali,” and made no further inquiry. Rwaril was never given an opportunity to
3
explain this perceived discrepancy or to clarify the IJ’s confusion. See Campos-
Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999) (“the BIA must provide a
petitioner with a reasonable opportunity to offer an explanation of any perceived
inconsistencies that form the basis of a denial of asylum.”).
Nor is the BIA’s findings that Rwaril provided “no support for his claim . . .
that he is a practicing Christian,” and no evidence that he attended church every
Sunday supported by record evidence. To the contrary: Rwaril introduced his
Certificate of Baptism, testified that he was a Christian, and identified the church
he attended. “[W]here an applicant provides credible corroborating evidence to
buttress an aspect of his own testimony, an IJ may not base an adverse credibility
determination on the applicant’s failure to produce additional evidence that would
further support that particular claim.” Sidhu v. INS, 220 F.3d 1085, 1092 (9th Cir.
2000).
The BIA’s reliance on Rwaril’s failure to corroborate his membership in the
minority Barawa clan because he did not introduce a declaration from his wife,
who he met and married after he came to the United States, is illogical. Similarly,
that his identity document was not properly translated does not mean that it was
falsified, and there is no evidence supporting a finding that it was. Thus the BIA’s
adverse credibility finding on these bases is illegitimate. See Salaam v. INS, 229
4
F.3d 1234, 1239 (9th Cir.2000) (holding that corroboration may be required only
where there is a “legitimate reason” to question the applicant's credibility). Further,
“due process requires that an applicant be given a second opportunity to establish
eligibility for asylum where the adverse credibility determination was based,
without notice to the applicant, on a failure to produce” corroborating evidence. Zi
Lin Chen v. Ashcroft, 362 F.3d 611, 620 (9th Cir. 2004). Rwaril was not on notice
that the identity document that he provided was unacceptable. Accordingly, the
BIA could not base an adverse credibility determination on this failure.
Because the BIA's adverse credibility finding is not supported by substantial
evidence, we grant the petition and remand for further proceedings on an open
record. See Soto-Olarte v. Holder, 555 F.3d 1089, 1095-96 (9th Cir. 2009).
We further admonish counsel that compliance with our procedural rules is
expected. Failure to comply renders an appeal subject to dismissal and may lead to
disciplinary proceedings against counsel in this court. Counsel’s opening brief
failed to provide specific contentions and citation to the parts of the record on
which the petitioner relied, appears to have been cut and pasted from another
appellate brief, and does not meet this court’s standards. See generally Fed. R.
5
App. P. 28; 9th Cir. R. 28-2.1 We thus request that pro bono counsel be appointed
on remand.
PETITION GRANTED; REMANDED.
1
The panel has requested that the Ninth Circuit Appellate Commissioner
place a watch on counsel due to his performance in this case. We note that the
administrative record also suggests woefully inadequate representation by counsel
at the administrative level.
6
FILED
Rwaril v. Holder, 09-71206 AUG 23 2010
MOLLY C. DWYER, CLERK
GOULD, Circuit Judge, Dissenting: U.S. COURT OF APPEALS
I respectfully dissent, believing that a rational fact-finder could have found
that Rwaril was not credible. See INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992).
Rwaril omitted on his asylum application facts asserted in his hearing testimony to
the effect that his mother was raped and killed in the home invasion spurred by the
alleged inter-clan conflict. Not recalling such a striking fact in his application, one
that the common experience of mankind would suggest is a superordinate instance
of persecution, renders Rwaril’s story suspect. The IJ permissibly could determine
him not to be credible, thinking that this part of his story was added as an
embellishment in hearing testimony. For this and other reasons stressed by the
government, the record does not compel us to grant Rwaril’s petition. We make a
practical mistake by shifting the responsibilities of the Executive Branch, and a
part of it, the BIA, steeped in immigration lore, onto judicial shoulders.