10-1991-ag
Kone v. Holder
BIA
Abrams, IJ
A093 397 414
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 12th day of April, two thousand eleven.
PRESENT:
ROBERT A. KATZMANN,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
SALIOU KONE, A.K.A. YACOUBA BAKALA,
Petitioner,
v. 10-1991-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL
Respondent.
______________________________________
FOR PETITIONER: Gary J. Yerman, Yerman & Associates,
LLC, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; William C. Peachey,
Assistant Director; Mona Maria
Yousif, Attorney, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is GRANTED.
1 Petitioner Saliou Kone, a native and citizen of the
2 Ivory Coast, seeks review of an April 22, 2010, order of the
3 BIA affirming the May 21, 2008, decision of Immigration
4 Judge (“IJ”) Steven R. Abrams denying Kone’s application for
5 asylum, withholding of removal, and relief under the
6 Convention Against Torture (“CAT”). In re Saliou Kone, No.
7 A093 397 414 (B.I.A. Apr. 22, 2010), aff’g No. A093 397 414
8 (Immig. Ct. N.Y. City May 21, 2008). We assume the parties’
9 familiarity with the underlying facts and procedural history
10 of this case.
11 Because the BIA adopted and affirmed the IJ's decision,
12 we review the two decisions in tandem. Yan Chen v.
13 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We will uphold
14 the IJ's factual findings if they are supported by
15 “reasonable, substantial and probative evidence in the
16 record,” Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104,
2
1 116 (2d Cir. 2007) (internal quotation marks omitted). In
2 contrast, “[w]e review de novo questions of law and the
3 [BIA's] application of law to undisputed fact.” Bah v.
4 Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). We grant the
5 petition for review and remand for further consideration, as
6 we cannot conclude that the agency would reach the same
7 result absent the error that we identify in its adverse
8 credibility determination.
9 The IJ indicated that Kone’s inability to state the
10 full name of the “RDR” (Rassemblement des Républicains or
11 Rally of Republicans), the political party that he claimed
12 to support, was “the most telling” basis for denying his
13 application for relief. We have held that an asylum
14 applicant’s ignorance of the actual name of the political
15 party to which he claimed to belong, and on whose behalf he
16 claimed to have suffered persecution, can undermine the
17 applicant’s credibility. Sanusi v. Gonzalez, 445 F.3d 193,
18 200 (2d Cir. 2006) (per curiam).
19 In this case, however, the agency failed to address
20 whether Kone’s evidence documenting his membership in the
21 RDR - a letter from the party and a membership card -
22 rehabilitated his testimony. See Biao Yang v. Gonzales, 496
3
1 F.3d 268, 273 (2d Cir. 2007) (per curiam) (explaining that
2 an applicant’s corroborating evidence may rehabilitate
3 otherwise questionable testimony). Because the agency did
4 not explain why its finding that Kone was not credible as to
5 his membership in the RDR was not rebutted by his
6 corroborating evidence, the finding was “based on flawed
7 reasoning” and “will not satisfy the substantial evidence
8 standard.” Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d
9 391, 400 (2d Cir. 2005) (internal quotation marks omitted).
10 Our conclusion that the IJ failed to give appropriate
11 weight to Kone’s corroborating evidence does not end our
12 inquiry. Remand is appropriate only if “there is no
13 realistic possibility that, absent the error [we have
14 identified], the IJ or BIA would have reached a different
15 conclusion” regarding Kone's credibility. Id. at 401. As a
16 general matter, however, “[t]he more central an errant
17 finding was to the IJ’s adverse credibility determination,
18 . . . the less confident we can be that remand would be
19 futile.” Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99,
20 111 (2d Cir. 2006).
21 In affirming the IJ’s finding that Kone’s claims of
22 past persecution were incredible and therefore did not
4
1 warrant relief from removal, the BIA relied on three
2 purported inconsistencies in addition to the statements
3 regarding the RDR discussed above. First, the BIA asserted
4 that Kone “did not convincingly explain the discrepancies
5 cited by the Immigration Judge regarding the amount paid for
6 [his] release from detention.” During his hearing before
7 the IJ, Kone testified, with the assistance of a translator,
8 that he was forced to pay 20,000 CFA after being detained by
9 Ivory Coast police in 2000. In an earlier written
10 statement, however, he indicated that the amount was 100,000
11 CFA. When the IJ questioned him about the inconsistency,
12 Kone explained that “20,000 in Dioula is equal to 100,000 in
13 French” and that the discrepancy was due to the fact that,
14 while he had provided his written statement in French, he
15 was testifying in Dioula. The translator supported Kone’s
16 explanation, a fact that the IJ acknowledged at the time.
17 Nevertheless, in his oral decision, the IJ cited this
18 exchange as one of a series of instances in which Kone had
19 “made mistakes as far as his testimony was concerned” and
20 then attempted “to blame it on the interpreter or [] the
21 Dioula and the French language.”
22 Although the IJ was not required to accept Kone’s
5
1 explanation for the conflict between his statements, he was
2 “required to present specific, cogent reasons for rejecting
3 it.” Zhi Wei Pang v. Bureau of Citizenship & Immigration
4 Servs., 448 F.3d 102, 108 (2d Cir. 2006). Here, the IJ
5 justified his conclusion that no translation error had
6 occurred by pointing out that Kone had testified
7 consistently about the amount he paid for documents to enter
8 the United States. But the fact that the translator
9 rendered Kone’s statements properly in another context is a
10 weak basis for concluding that, in this instance, a
11 misunderstanding had not occurred. This is particularly
12 true given that the translator supported Kone’s explanation,
13 a fact that the IJ did not address in his analysis.
14 The other inconsistencies cited by the BIA - relating
15 to whether Kone fled to Burkina Faso in the company of his
16 wife and whether he was beaten with a whip – were similarly
17 founded on a highly technical parsing of statements that
18 were mediated by translation and subject to the
19 idiosyncratic vagaries of English, Dioula and French. In at
20 least one of these instances, moreover, Kone’s explanation
21 was again supported by the translator. Although the agency
22 may base its credibility assessment on inconsistencies in an
6
1 applicant’s statements without regard to whether they “go[]
2 to the heart of [his] claim,” 8 U.S.C. § 1158(b)(1)(B)(iii),
3 inconsistencies with regard to peripheral issues or details
4 alone will often be insufficient to support an adverse
5 credibility finding. This is particularly true where, as
6 here, the probative force of the inconsistencies is undercut
7 by evidence that they were the result of translation errors.
8 We therefore cannot conclude that, absent the inference
9 that the IJ described as “the most telling aspect” of the
10 case, the agency would necessarily have concluded that
11 Kone’s petition lacked merit. Li Hua Lin, 453 F.3d at 111.
12 Accordingly, we remand the case for the agency to reevaluate
13 Kone’s credibility and particularly determine whether Kone’s
14 evidence corroborating his membership in the RDR
15 rehabilitated his testimony. We express no opinion as to
16 the ultimate outcome on remand.
17 For the foregoing reasons, the petition for review is
18 GRANTED, and the case REMANDED for further proceedings
19 consistent with this order. As we have completed our
20 review, any pending motion for a stay of removal in this
21 petition is DISMISSED as moot.
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
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