10-2216-ag BIA
Conde v. Holder Strauss, IJ
A088 526 184
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 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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 13th day of December, two thousand eleven.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PETER W. HALL,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 ______________________________________
12
13 FATOUMATA CONDE,
14 Petitioner,
15
16 10-2216-ag
17 v.
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Andrew P. Johnson, New York, N.Y.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney General;
27 Anthony P. Nicastro, Senior Litigation
28 Counsel; Joanna L. Watson, Trial
29 Attorney, Office of Immigration
30 Litigation, Civil Division, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 GRANTED and the case is REMANDED for reconsideration.
5 Petitioner, Fatoumata Conde, a native and citizen of
6 Guinea, seeks review of a May 5, 2010, decision of the BIA
7 affirming the May 5, 2008, decision of Immigration Judge
8 (“IJ”) Michael W. Strauss denying her application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Fatoumata Conde, No. A088 526
11 184 (B.I.A. May 5, 2010), aff’g No. A088 526 184 (Immig. Ct.
12 Hartford, CT May 5, 2008). We assume the parties’ familiarity
13 with the underlying facts and procedural history of the case.
14 Under the circumstances of this case, we have reviewed
15 both the BIA’s and IJ’s opinions. See Yun-Zui Guan v.
16 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
17 standards of review are well-established. See 8 U.S.C.
18 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d
19 Cir. 2008); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.
20 2008).
21 Conde’s claim that she suffered past persecution and
22 feared future persecution because of her alleged involvement
23 with an opposition political party was rejected by the IJ
24 because he found her not credible. Although we are obliged to
25 give “particular deference” to the agency’s credibility
2
1 finding, Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,
2 335 (2d Cir. 2006), we will remand if the agency’s fact-
3 finding process was sufficiently flawed, see Cao He Lin v.
4 U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir. 2005). We
5 conclude that the fact-finding was significantly flawed in
6 this case.
7 The IJ based the adverse credibility finding primarily on
8 Conde’s responses to questions about the dates when certain
9 events occurred. First, the IJ found “puzzling” that she
10 could give December 22, 2004 as the date her passport was
11 issued but “really does not know when she was attacked at the
12 marketplace and allegedly brutally beaten.” Yet Conde
13 testified that the beating occurred in December 2004 -- “the
14 14th or 15th, something like that.” Moreover, it seems
15 obvious that the precise date the passport was issued was
16 readily ascertainable from the face of the document, whereas
17 there is nothing unremarkable about one’s inability to
18 recollect the precise date of an incident, traumatic or not,
19 that transpired in one’s life four years earlier. Second, the
20 IJ stated that the dates of the alleged beating and the
21 passport issuance “simply do not add up.” The IJ focused
22 first on the 14th or 15th of December, even though Conde had
23 said the event occurred on those dates “or something like
24 that.” Then the IJ expressed doubt that the passport could
25 have been issued so quickly after the alleged attack. The
3
1 IJ’s skepticism was perhaps attributable to some aggressive
2 and somewhat misleading questioning by the government
3 attorney, who asserted to Conde that she (Conde) had said that
4 the passport photo was taken “about two weeks after” the
5 injury. That is not what Conde had said. When asked on
6 cross-examination, “How long after your injury was the picture
7 for your passport taken?” she replied, “Almost second week,”
8 not two weeks later. Earlier Conde had explained that she was
9 lying down for one week after the injury and “The second week
10 I started walking and I could go to the market.” Thus, even
11 if the injury occurred on the 14th, there would be no
12 inconsistency in her account of obtaining the passport on the
13 22nd--during the second week after the injury. Conde had
14 explained that the photo and passport issuance occurred at the
15 same time.
16 In view of Conde’s extremely detailed accounts of the
17 fatal beating of her father and her own beating both at the
18 hands of political opponents, these flaws in the fact-finding
19 preclude our accepting the IJ’s credibility finding as
20 supportable on this record.
21 The IJ also cited Conde’s failure to produce a
22 certificate of the death of her father, and rejected the
23 reason she gave for that failure. The IJ said that the reason
24 proffered was that the hospital in Labe, where the father
25 died, “was not big.” We see no such testimony or claim in the
4
1 record. What the record does disclose is that Conde’s
2 attorney explained to the IJ that “it probably would have been
3 almost impossible to get the death certificate” because Conde
4 “had no family living in Labe.” The IJ did not consider this
5 explanation. See Li Zu Guan v. INS, 453 F.3d 129, 141 (2d
6 Cir. 2006) (adverse credibility finding may not be based on
7 absence of corroborating evidence that was not reasonable
8 available).
9 Accordingly, under all the circumstances, we will grant
10 the petition for review and remand to the agency for
11 reconsideration of Conde’s application for asylum and other
12 relief.
13 Conde’s attorney’s motion to withdraw as counsel and
14 dismiss the petition is denied.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
5