Aldana v. Ashcroft

MEMORANDUM **

Substantial evidence does not support the Immigration Judge’s (“IJ’s”) adverse credibility finding. Although Pereira Aldana misidentified his persecutors in his original asylum application, the IJ failed to consider his plausible explanations for the inconsistency. Osorio v. INS, 99 F.3d 928, 932 (9th Cir.1996). Pereira Aldana credibly explained that the preparer of the asylum application did not read the contents of the application to him. As Pereira Aldana could not read English at the time, he was unaware of any discrepancy. Pereira Aldana’s attorney also suggested that the preparer was a rather notorious “notario,” an explanation corroborated in Alvarez-Santos v. INS, 332 F.3d 1245, 1247-48, 1254 (9th Cir.2003), involving the same document preparer, Maurice Castellón. There, we noted “[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.” Id. at 1254 (citations omitted). Because the IJ found Pereira Aldana’s testimony consistent with his supplemental statement for asylum and his asylum interview, and no other credible basis was cited to support the credibility determination, it cannot stand.

Once Pereira Aldana credibly testified about his fear of the Guatemalan military, the IJ erred by requiring production of corroborating evidence. Salaam v. INS, 229 F.3d 1234, 1239 (9th Cir.2000). Even if corroborating evidence were somehow required, it was unreasonable for the IJ to expect Pereira Aldana to produce documents from family members in Guatemala and Mexico. Sidhu v. INS, 220 F.3d 1085, 1091-92 (9th Cir.2000) (evidence from outside the U.S. “is almost never easily available,” and thus not required to corroborate asylum claim).

The IJ also determined that changed country conditions in Guatemala justify denial of Pereira Aldana’s claim. Because the IJ did not provide the required individualized analysis of how changed conditions will affect the specific petitioners’ situation, see Garrovillas v. INS, 156 F.3d 1010, 1017 (9th Cir.1998), we remand to the BIA for a proper determination of this issue.

Petitioners’ argument that streamlining credibility determinations violates Due Process is foreclosed by Falcon Carriche v. Ashcroft, 350 F.3d 845, 851 (9th Cir.2003).

PETITION FOR REVIEW GRANTED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.