15-2471
Bokomba v. Sessions
BIA
Montante, IJ
A087 946 305
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 APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 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 TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 5th day of May, two thousand seventeen.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 URSULE MUNDIWA BOKOMBA,
14 Petitioner,
15
16 v. 15-2471
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.*
21 _____________________________________
22
23 FOR PETITIONER: Michael E. Marszalkowski, Buffalo,
24 N.Y.
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), United States
Attorney General Jefferson B. Sessions III is automatically substituted
for former United States Attorney General Loretta E. Lynch as Respondent.
The Clerk of the Court is respectfully directed to amend the caption as
above.
1 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
2 Assistant Attorney General; Anthony
3 P. Nicastro, Assistant Director;
4 D. Nicholas Harling, Trial Attorney,
5 Office of Immigration Litigation,
6 United States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review is
12 GRANTED.
13 Petitioner Ursule Mundiwa Bokomba, a native and citizen of
14 the Democratic Republic of Congo (“DRC”), seeks review of a July
15 8, 2015, decision of the BIA affirming a February 4, 2013,
16 decision of an Immigration Judge (“IJ”) denying Bokomba’s
17 application for asylum, withholding of removal, and relief
18 under the Convention Against Torture (“CAT”). In re Ursule
19 Mundiwa Bokomba, No. A087 946 305 (B.I.A. July 8, 2015), aff’g
20 No. A087 946 305 (Immig. Ct. Buffalo Feb. 4, 2013). We assume
21 the parties’ familiarity with the underlying facts and
22 procedural history in this case.
23 Under the circumstances of this case, we have reviewed the
24 decision of the IJ as supplemented by the BIA. See Yan Chen
25 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
26 standards of review are well established. See 8 U.S.C.
2
1 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66
2 (2d Cir. 2008). Considering the totality of the circumstances
3 and all relevant factors, the trier of fact may base a
4 credibility determination on “the demeanor, candor, or
5 responsiveness of the applicant or witness, the inherent
6 plausibility of the applicant’s or witness’s account, the
7 consistency between the applicant’s or witness’s written and
8 oral statements . . . , [and] the consistency of such statements
9 with other evidence of record,” regardless of whether an
10 inconsistency “goes to the heart of the applicant’s claim.”
11 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
12 Contrary to the Government’s contention, Bokomba has not
13 waived her challenges to the agency’s adverse credibility
14 determination. In fact, as she argues, that determination is
15 not supported by a totality of the circumstances.
16 Bokomba and her witness, Nioka, claimed that police in the
17 DRC kidnapped and tortured them for exposing the widespread use
18 of rape as a weapon of war in the northeastern provinces of the
19 country, which they discovered during a government work trip
20 in 2009. The IJ found Bokomba and Nioka repeatedly evasive when
21 testifying in support of Bokomba’s application, but of the IJ’s
22 examples of unresponsiveness, only one is reasonably
3
1 characterized as intentionally evasive: Nioka’s refusal to
2 respond to questions about whether she asked U.S. immigration
3 officials at the Canadian border for asylum. On all other
4 occasions when the IJ accused Bokomba or Nioka of being
5 unresponsive and evasive, the record demonstrates that they
6 either did not understand the question posed (they were
7 responsive immediately upon rephrasing of the question) or were
8 responsive, contrary to the IJ’s conclusion.
9 The IJ’s implausibility findings were also erroneous and
10 did not support the adverse credibility determination. First,
11 the IJ found it implausible that Bokomba and Nioka did not know
12 of the widespread use of rape as a weapon of war before their
13 2009 trip because rape had been identified as a problem in State
14 Department reports for at least a decade. This implausibility
15 finding is not sufficiently tied to the record. The reports
16 cited by the IJ supported rather than conflicted with Bokomba’s
17 and Nioka’s testimony, with both the reports and testimony
18 indicating that rape was reported as widespread in the eastern
19 provinces of the DRC but not reported as widespread in the
20 northeastern provinces. Furthermore, the IJ impermissibly
21 speculated when he found implausible Bokomba’s testimony that
22 Canadian officials made her wait at the border for days and held
4
1 her at a place that did not seem like a detention facility. See
2 Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 405 (2d Cir.
3 2005) (“[A]bsent record evidence of practices in foreign
4 countries, the IJ must not speculate as to the existence or
5 nature of such practices.”); see also Siewe v. Gonzales, 480
6 F.3d 160, 168-69 (2d Cir. 2007) (“The speculation that inheres
7 in inference is not bald if the inference is made available to
8 the factfinder by record facts . . . .” (internal quotation marks
9 omitted)).
10 While the IJ correctly found that Bokomba testified
11 inconsistently regarding how she obtained the photograph for
12 her passport, that finding alone does not provide the
13 substantial evidence needed to support an adverse credibility
14 determination, particularly given that Bokomba’s and Nioka’s
15 testimony, which spanned three days, was otherwise consistent.
16 See 8 U.S.C. § 1158(b)(1)(B)(iii). Because we cannot
17 confidently predict that the agency would have made the same
18 decision absent the identified errors with the adverse
19 credibility determination, remand is required. See Xiao Ji
20 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006).
21 For the foregoing reasons, the petition for review is
22 GRANTED. As we have completed our review, any stay of removal
5
1 that the Court previously granted in this petition is VACATED,
2 and any pending motion for a stay of removal in this petition
3 is DISMISSED as moot. Any pending request for oral argument
4 in this petition is DENIED in accordance with Federal Rule of
5 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
6 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
6