Mboowa v. Lynch

United States Court of Appeals
For the First Circuit

No. 13-1367

HENRY MBOOWA,

Petitioner,

v.

LORETTA E. LYNCH, Attorney General of the United States,*

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS

Before

Howard, Chief Judge,
Lynch and Thompson, Circuit Judges.

William P. Joyce and Joyce & Associates P.C. on brief for
petitioner.
Stuart F. Delery, Assistant Attorney General, and Erica B.
Miles and James A. Hunolt, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, Department of Justice, on
brief for respondent.

July 21, 2015

*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr. as respondent.
 HOWARD, Chief Judge. Petitioner Henry Mboowa, a native

and citizen of Uganda, asks us to review a Board of Immigration

Appeals ("BIA") order denying his claims for asylum, withholding of

removal, and protection under the United Nations Convention Against

Torture ("CAT"). The BIA upheld an Immigration Judge's ("IJ")

finding that Mboowa's testimony was not credible and, thus, that he

was unable to establish eligibility for relief. After careful

review, however, we conclude that the record does not support two

of the purported discrepancies that the agency considered critical

in discrediting Mboowa's account. In light of that finding, we

grant Mboowa's petition, vacate the BIA's order, and remand for

additional proceedings.1

I.

Mboowa was born in Kampala, Uganda in 1976. He entered

the United States through Newark, New Jersey on June 5, 2002, to

work as a summer camp counselor as part of an exchange program.

Although his J-1 visa authorized only a temporary stay until

September 15, 2002, he has remained in the United States without

authorization ever since.

On February 27, 2003, Mboowa applied pro se for asylum

but an asylum officer denied his application. No further action

was taken until February 13, 2008, when the Department of Homeland

1
Neither the IJ nor the BIA addressed the substantive merits
of Mboowa's claims. Although those claims were briefed before this
court, we decline to address them in the first instance.

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Security served Mboowa with a Notice to Appear in immigration

removal proceedings. Mboowa appeared with legal counsel at an

initial hearing on July 3, 2008, and conceded that the Notice to

Appear's factual allegations were accurate. Nevertheless, Mboowa

indicated that he would seek asylum, withholding of removal, and

protection under CAT, and he proffered his original, 2003 asylum

application as support for his claims.

Beyond his 2003 asylum application, Mboowa has recounted

the events underlying his claims on several occasions. At the

initial hearing on July 3, 2008, in addition to submitting his

original application, he provided several documents purporting to

corroborate his recollection of events and describing the political

conditions in Uganda. Mboowa also filed additional corroborating

documents and an affidavit on June 30, 2009. Mboowa then testified

before the IJ on December 14, 2010, and once again filed additional

supporting documentation.

The political situation in Uganda, where incumbent

President Yoweri Museveni has remained in office since 1986,

supplies the backdrop for Mboowa's claims. Mboowa alleges that he

joined a "youth pressure group" called the Youth Unity Peace

Initiative ("YUPI") in 2000. Although initially focused on certain

policy issues, the group become directly involved in electoral

politics as the 2001 Ugandan presidential election approached.

YUPI ultimately supported the opposition candidate, Colonel

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Besigye, whom Museveni would defeat in March 2001. Mboowa alleges

that his membership in YUPI -- and the group's support of Besigye

-- left Mboowa and his family vulnerable to persecution by those

loyal to President Museveni, including the Ugandan military and

intelligence services.

Mboowa's claims rest primarily on four incidents that

took place between 2001 and 2002: a 2001 beating, a 2001 home

invasion, the 2002 death of Mboowa's father, and the 2002 beheading

of Mboowa's cousin. We briefly describe the facts central to those

events according to Mboowa's testimony although, as discussed

later, the agency identified certain purported inconsistencies in

Mboowa's accounts.

On January 26, 2001, Mboowa and a YUPI colleague, Moses

Sekibuule, were accosted and beaten in Kampala. Mboowa alleges

that, while the two men were hanging campaign posters supporting

Colonel Besigye, more than a dozen soldiers dressed in camouflage

suddenly approached in a pick-up truck. They demanded that Mboowa

and Sekibuule cease hanging the posters and ordered the two men to

lie on the ground. The soldiers proceeded to whip, kick, and beat

the two men for twelve to fifteen minutes. As a result of the

beating Mboowa maintains that his injuries -- a broken pelvis, deep

wounds on his shins, cuts to his knees, and several cuts and a deep

gash along the side of his head -- required a three-week hospital

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stay. Sekibuule allegedly lost several teeth and sustained either

a broken hand or a broken arm.

A second politically-motivated incident followed on

February 28, 2001. Mboowa recalls that while he was sleeping

several armed men broke into his residence, blindfolded him,

ransacked his house, vandalized his property, and struck him on the

jaw with the butt of a gun. Before departing, the men allegedly

stole several YUPI files and Mboowa's membership card. Mboowa

testified that he gathered the men were from the military

intelligence agency because they warned him that "this was the

price to pay for not supporting the incumbent president."

The following month, President Museveni defeated Colonel

Besigye in the 2001 presidential election. According to Mboowa,

however, the consequences of supporting Besigye did not end with

Museveni's successful reelection. One such consequence, Mboowa

alleges, was the mysterious death of his father in March 2002. His

father also had been politically active and, at the time of his

death, was the Mobilizing Secretary for a second group, "Reform

Agenda," which also had supported Colonel Besigye. Mboowa asserts

that, after not hearing from his father for several days, his

family suspected that his father was "detained" (although he does

not specify by whom). At some point, a local dispensary contacted

the family and informed them that it was providing care for a man

identifying himself as Mboowa's father. Upon finding his father

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malnourished and in poor condition, Mboowa moved him to a hospital.

By the time they arrived at the hospital, Mboowa's father's tongue

had turned entirely black, and his body was "cold and sweating."

Although the medical staff did not know "exactly what was wrong,"

Mboowa testified that the hospital concluded his father "had signs

of poisoning." His father subsequently died during surgery.

Finally, Mboowa testified that his cousin, also an active

member of YUPI, disappeared in April 2002 along with another

colleague. The family lost contact with the cousin for a number of

days but, upon reading a newspaper account of a man who had been

shot, Mboowa testified that the family "started piecing things

together." The family later learned that Mboowa's cousin and his

colleague had been beheaded, and when Mboowa's aunts "went to

identify the bodies," they could only do so based on a distinctive

"birthmark" on his cousin's body. This act of violence was "the

last straw" for Mboowa, prompting him to leave Uganda until "the

dust settles."

Primarily on the basis of these four incidents Mboowa

testified that he fears he would be detained or killed if forced to

return to Uganda. The IJ determined that "the acts of harm

described are plausible in light of country conditions, and would

rise to the level of past persecution if established." But the IJ

deemed Mboowa not credible and was thus "unable to make a finding

that these events actually occurred as described." After

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cataloging "numerous internal inconsistencies and inconsistencies

between his asylum application, affidavits and testimony and

supporting documentation," the IJ discredited Mboowa's testimony in

its entirety. "[M]ost troubling" to the IJ was that "significant

portions of [Mboowa's] testimony, especially his broken pelvis,

three week hospital stay, and the beheading of his cousin" were

omitted "from his original [2003] application, written only about

a year after the events." Without such evidence, the IJ concluded

Mboowa had "not demonstrated past persecution on account of a

statutorily protected ground." The adverse credibility finding

likewise doomed Mboowa's requests for asylum based on the fear of

future persecution, withholding of removal, and protection under

CAT.

The BIA affirmed, finding that the discrepancies

"identified are present and provide specific cogent reasons" for

the IJ's adverse credibility determination. The BIA primarily

recounted the inconsistencies surrounding Mboowa's description of

the 2001 beating, and faulted Mboowa for failing to mention in his

supplemental statement2 (filed as part of his 2003 initial asylum

application) that he "was beaten with the guns of the soldiers but

2
As explained below, the statement consisted of additional
allegations and was attached to Mboowa's application for asylum
(the I-589 Form) as the application form directs. Although the IJ
and BIA referred to this supplement as Mboowa's "first affidavit,"
Mboowa did not label it as such. We refer to this document as the
"supplemental statement," which more accurately portrays the
document's purpose and content.

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not whipped, that he sustained broken ribs and a broken hip, or

that he was hospitalized for 3 weeks." The BIA concluded that

Mboowa failed to adequately explain these discrepancies as well as

"the other discrepancies that the Immigration Judge identified."

The BIA also remarked that several "material inconsistencies that

we do not mention here . . . provide further support [for] the

[IJ's] adverse credibility determination," and that Mboowa failed

to rehabilitate his credibility with corroborating evidence. This

petition timely followed.

II.

Mboowa challenges the adverse credibility determination

and resulting denial of his asylum, withholding of removal, and CAT

claims. "To qualify for asylum, an applicant must establish that

[he] has a 'well-founded fear of persecution on account of race,

religion, nationality, membership in a particular social group, or

political opinion.'" Jin Lin v. Holder, 561 F.3d 68, 71 (1st Cir.

2009) (quoting 8 U.S.C. § 1101(a)(42)(A)). The testimony of the

applicant, alone, can suffice to meet this burden.3 Id. But where

3
Although we need not consider Mboowa's corroborating
evidence here because, as explained below, we conclude that the
adverse credibility determination, itself, was problematic, we
pause to make one observation. We would not endorse the BIA's
statement that "[Mboowa] also did not provide reasonably available
corroborative evidence to support his claims" to the extent that
statement could be read to provide an independent ground for
denying the asylum claim. To be sure, a complete "lack of
corroboration, easily obtainable were the petitioner's tale true,
[may] support[] the adverse credibility determination." Muñoz-
Monsalve v. Mukasey, 551 F.3d 1, 8 (1st Cir. 2008). But any

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the agency determines that the testimony is not credible, that

testimony "may be discounted or completely disregarded." Id.

Where, as here, "the BIA has written separately while deferring to

and affirming the decision of an IJ, we review both the BIA's

decision and the relevant portions of the IJ's decision." Lutaaya

v. Mukasey, 535 F.3d 63, 70 (1st Cir. 2008).

We review the BIA's and IJ's credibility determination

"under the deferential substantial evidence standard." Dhima v.

Gonzales, 416 F.3d 92, 95 (1st Cir. 2005). That standard "requires

us to uphold the ruling unless the record would compel a reasonable

adjudicator to reach a contrary determination." Jin Lin, 561 F.3d

at 72. Our deference to the agency's determination is not

unbounded, however. The "IJ must provide a 'specific, cogent, and

supportable explanation for rejecting an alien's testimony.'"

Abdelmalek v. Mukasey, 540 F.3d 19, 22-23 (1st Cir. 2008) (quoting

Teng v. Mukasey, 516 F.3d 12, 16 (1st Cir. 2008)). Under the

"heart of the matter" rule, the discrepancies relied upon to

support an adverse credibility determination "must pertain to facts

holding that an otherwise credible claim is doomed because the
petitioner failed to provide corroborating evidence directly
conflicts with the applicable regulations. See 8 C.F.R. §
208.13(a) ("The testimony of the applicant, if credible, may be
sufficient to sustain the burden of proof without corroboration.");
see also, e.g., Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir. 2007)
("An alien's credible testimony may suffice to sustain his burden
of proof even without corroboration.").

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central to the merits of the alien's claims."4 Zheng v. Gonzales,

464 F.3d 60, 63 (1st Cir. 2006). Discrepancies that relate "merely

to peripheral or trivial matters" are insufficient, alone, to

support an adverse credibility determination. Id.

Accordingly, we are compelled to uphold the IJ's and

BIA's adverse credibility determination in this case only if:

(1) the discrepancies and omissions underlying
the determination are actually present in the
record; (2) those discrepancies and omissions
provide specific and cogent reasons to
conclude that the petitioner's testimony was
incredible with regard to facts central to the
merits of [his] asylum claim; and (3) the
petitioner has failed to provide a convincing
explanation for the discrepancies and
omissions.

Jin Lin, 561 F.3d at 72.

The BIA's and IJ's opinions here fail on the first prong

of this inquiry. After detailing a litany of purported

inconsistencies, the IJ found "most troubling the omission of

significant portions of [Mboowa's] testimony, especially his broken

pelvis, three week hospital stay, and the beheading of his cousin,

from his original application, written only about a year after the

events." And the BIA subsequently adopted that credibility

determination. The IJ's recounting of the record evidence is only

4
Because Mboowa filed his asylum petition on February 27,
2003, Mboowa and the government agree that the "heart of the
matter" rule applies to the BIA's and IJ's credibility
determination here. That rule has since been abrogated by the REAL
ID Act of 2005. See Seng v. Holder, 584 F.3d 13, 18 n.2 (1st Cir.
2009).

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partially accurate, however. After a careful review, we conclude

that although the IJ classified Mboowa's allegations of a broken

pelvis and the beheading of his cousin as purported omissions, both

claims were consistently present in the record.

What the IJ referred to generally as Mboowa's "initial

application" in fact consists of two documents that were filed

concurrently. The first is Mboowa's I-589 Form for asylum.

Entitled "Application for Asylum and for Withholding of Removal,"

the I-589 Form is a pre-printed government application form that

asks a series of specific questions and provides limited space in

which the alien may write or type an answer. Mboowa's form

contains handwritten answers to the various questions. The I-589

Form also instructs an applicant to "attach additional sheets of

paper as needed to complete [the applicant's] responses." Mboowa

did so here. He supplied a typed statement accompanying his I-589

Form that provides further detail regarding some of his claims. In

our view, the I-589 Form and the supplemental statement are best

viewed as a collective whole.

With that understanding in mind, we proceed to the

inconsistencies the IJ purported to identify. The IJ is correct

that one portion of Mboowa's initial application -- the

supplemental statement -- discusses neither his pelvic injury nor

his hospital stay and makes only passing reference to "los[ing] a

cousin after being trailed by the military." But the attached I-

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589 Form does disclose his hip injury and describes, in some

detail, his cousin's beheading. On page 5 of the I-589 Form, in

response to a question asking whether "you, your family, or close

friends or colleagues [have] ever experienced harm or mistreatment

or threats in the past by anyone," Mboowa hand wrote that he

"sustained cuts on the head and a broken hip" during the 2001

beating. On the following page, in response to a question asking

whether any family members had been "accused, charged, arrested,

detained, interrogated, convicted and sentenced, or imprisoned in

any country other than the United States," Mboowa hand wrote: "On

April 3, 2002, my cousin and his colleagues were detained at an

undisclosed location. They were interrogated and tortured, in

their own country, without notifying any relatives. Their bodies

only surfaced three days later, with two of them beheaded."

In concluding that these allegations were absent from

Mboowa's initial application, the agency appears to have placed

talismanic weight on Mboowa's supplemental statement to the

exclusion of the I-589 Form that statement accompanied. But the

agency supplied no rationale justifying its focus on the

supplemental statement, leaving us with a firm sense that the I-589

Form itself was overlooked.

With these allegations as contained in Mboowa's I-589

Form in mind, it is not accurate to characterize Mboowa's claims of

a hip injury and his cousin's beheading as fabrication or

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embellishment when those significant details are contained in one

portion of Mboowa's initial application (the filing that, as the

IJ pointed out, set forth Mboowa's account closest in time to the

underlying events themselves). To be sure, the supplemental

statement attached to the I-589 Form does not go on to reiterate

these factual details, although it does repeat or elaborate on

certain events that were described in the I-589 Form. By the same

token, the supplemental statement describes several additional

episodes not included in the first instance in the I-589 Form's

limited space. Fairly viewed on this record, however, any

differences among the two contemporaneously-filed documents appear

to be elaborations, not internal inconsistencies. Thus, contrary

to the IJ's and BIA's characterization, the record reflects that,

beginning with his very first filing, Mboowa consistently alleged

his hip was injured and his cousin was beheaded. These purported

omissions are not "actually present in the record." Jin Lin, 561

F.3d at 72.

Because two of the three central planks of the agency's

credibility determination are not supported by the record, we will

remand to allow the agency to revisit its credibility determination

in the first instance. See Castañeda-Castillo v. Gonzales, 488

F.3d 17, 24-25 (1st Cir. 2007) (en banc) (remanding to permit

agency to reconsider credibility determination); see also I.N.S. v.

Orlando Ventura, 537 U.S. 12, 16 (2002) ("[T]he proper course,

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except in rare circumstances, is to remand to the agency for

additional investigation or explanation." (quoting Fla. Power &

Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). We note that the

absence of Mboowa's three-week hospital stay from both his I-589

Form and his supplemental statement persists from among the three

omissions the IJ found "most troubling." That allegation goes to

the heart of Mboowa's claims because it concerns the extent to

which Mboowa was physically harmed for backing President Museveni's
5
political opponent. At the same time, Mboowa's hospital stay is

more plausible in light of his consistent allegation of a broken

hip, and it might now be understood as an additional detail, rather

than an inconsistency. See Kartasheva v. Holder, 582 F.3d 96, 106

(1st Cir. 2009) (noting that an "added . . . detail about [an]

event during [a claimant's] testimony" might not be "implausible

given [his] previous descriptions of the incident").

While the agency identified certain other

inconsistencies, we are unpersuaded that two of those lingering

inconsistencies go to the heart of the matter or amount to

5
We note that the corroborating documents that Mboowa
submitted also undermine the allegations regarding his hospital
stay. Because Mboowa claimed in his testimony that the hospital
where he was treated lost his records, he provided a letter from
his treating physician allegedly reconstructing -- over five years
later -- Mboowa's treatment from memory. But the letter describes
only seven days of treatment (rather than three weeks). While (as
Mboowa protests) this discrepancy might be explained by the lapse
in time, that explanation is difficult to square with the letter's
specific medication dosages.

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discrepancies at all. First, the agency emphasized Mboowa's

varying descriptions of the 2001 beating. But Mboowa's accounts

diverge only slightly and only with respect to the method of that

beating. Mboowa initially alleged that he and his colleague were

both whipped during the encounter; his later accounts specified

that the soldiers used both cow-hide whips and guns to whip and

beat the men. Mboowa ultimately testified that he was beaten with

the soldiers' guns, while his colleague, Sekibuule, was whipped

with cow-hide whips. These differences strike us as "too

immaterial to support a finding that no attack occurred at all,"

Wiratama v. Mukasey, 538 F.3d 1, 6 (1st Cir. 2008) (finding adverse

credibility determination unsupported where the record reflected a

"disagreement over whether [the petitioner] had been stabbed or

merely slashed").

Second, the IJ discredited Mboowa's claim that he was

hospitalized for three weeks following the 2001 beating, in part,

because he "repeatedly stated that he had never taken time off from

his employment." We are unconvinced that there is a discrepancy in

this account, however. Despite Mboowa's explanation that he only

meant vacation time, the IJ did not "credit this explanation as he

consistently said 'a single day' and never specified vacation

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time." Our review of the record, however, indicates Mboowa did at

least imply that he meant vacation time.6

III.

In the ordinary course we do not to attempt to read the

tea leaves. See Castañeda-Castillo, 488 F.3d at 25. The IJ

determined that "the acts of harm [Mboowa] described are plausible

in light of country conditions, and would rise to the level of past

persecution if established," but found his account incredible. On

remand it is within the agency's purview to evaluate what, if any,

impact Mboowa's consistent allegations of his hip injury and his

cousin's beheading have on its adverse credibility determination

and determine whether any of the remaining purported

inconsistencies are sufficient to discredit a portion or all of his

account. The BIA's order is vacated and this matter is remanded

for further proceedings consistent with this opinion.

6
In his supplemental statement Mboowa claimed: "I had never
taken off a single day, that my vacation was long overdue." In his
2009 affidavit he reiterated: "In the three years I had worked with
Corpcom, I had never taken a single day off, and therefore my
vacation was long overdue."

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