Jonatan Henrriquez-Dubon v. Merrick Garland

Court: Court of Appeals for the Ninth Circuit
Date filed: 2022-04-04
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                                                                              FILED
                            NOT FOR PUBLICATION
                                                                               APR 4 2022
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JONATAN HENRRIQUEZ-DUBON,                        No. 20-70997

              Petitioner,                        Agency No. A208-362-686

 v.
                                                 MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                       Argued and Submitted March 30, 2022
                            San Francisco, California

Before: W. FLETCHER and MILLER, Circuit Judges, and KORMAN,** District
Judge.
Dissent by Judge MILLER.

      Petitioner Jonatan Henrriquez-Dubon petitions for review of a decision of

the Board of Immigration Appeals (“BIA”) affirming an Immigration Judge’s


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
(“IJ”) denial of his application for cancellation of removal. We have jurisdiction

under 8 U.S.C. § 1252(a)(1) and grant the petition.

       “Where, as here, the BIA agrees with and incorporates specific findings of

the IJ while adding its own reasoning, we review both decisions.” Bhattarai v.

Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016). We review factual findings for

substantial evidence. Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th

Cir. 2017) (en banc). “To reverse [such a] finding we must find that the evidence

not only supports [a contrary] conclusion, but compels it.” Rizk v. Holder, 629

F.3d 1083, 1087 (9th Cir. 2011) (alteration in original) (quoting INS v. Elias-

Zacarias, 502 U.S. 478, 481 n.1 (1992).

      An applicant must, inter alia, be “a person of good moral character” to be

eligible for a cancellation of removal. 8 U.S.C. § 1229b(b)(1)(B). The

Immigration and Nationality Act precludes a finding of good moral character for

any applicant who “knowingly has encouraged, induced, assisted, abetted, or aided

any other alien to enter or to try to enter the United States in violation of law.” 8

U.S.C. § 1182(a)(6)(E)(i).

      The agency’s finding that Petitioner paid to smuggle his stepson into the

United States is not supported by substantial evidence. The IJ and BIA relied on

one statement by Petitioner that was inconsistent with the rest of his testimony,


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both before and after that statement. Petitioner’s statement, upon which the IJ and

BIA relied, responded to a question that was asked in English by the IJ and

translated into Spanish (and heard by Petitioner in headphones). Petitioner’s

answer, given in Spanish and translated to English, strongly suggests that the

inconsistency between Petitioner’s answer and his otherwise consistent testimony

was traceable to difficulties in translation. Indeed, Petitioner began his answer by

saying, “As I repeat to you.” The agency ignored Petitioner’s testimony and

conduct prior to and subsequent to the purported admission, and it failed to provide

a reasoned explanation for discounting the entire record apart from this isolated

statement. See Tamang v. Holder, 598 F.3d 1083, 1093 (9th Cir. 2010) (“[A]n IJ

cannot selectively examine evidence . . . but rather must present a reasoned

analysis of the evidence as a whole . . . .”); Soto-Olarte v. Holder, 555 F.3d 1089,

1091 (9th Cir. 2009) (internal quotation marks omitted) (“[P]assing and incomplete

mention of [Petitioner’s] explanations for the discrepancies . . . does not satisfy our

precedential requirement that in order to ensure a fair hearing, the BIA not only

identify specific inconsistencies, but also address in a reasoned manner the

explanations that [Petitioner] offers for these perceived inconsistencies.”).

      PETITION GRANTED and REMANDED.




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                                                                           FILED
Henrriquez-Dubon v. Garland, No. 20-70997                                   APR 4 2022
                                                                        MOLLY C. DWYER, CLERK
MILLER, Circuit Judge, dissenting:                                       U.S. COURT OF APPEALS


      The immigration judge had to resolve a contradiction in the record: At one

point in his testimony, petitioner stated that he paid to smuggle his wife’s son into

the United States, but at other times, he stated that he did not. I agree with the court

that petitioner’s apparent admission was most likely the product of confusion,

perhaps caused by ambiguity in translation. Had I been the immigration judge, I

would have resolved the contradiction in petitioner’s favor. Nevertheless, I am

unable to say that “any reasonable adjudicator would be compelled” to take the

same view. 8 U.S.C. § 1252(b)(4); see Garland v. Ming Dai, 141 S. Ct. 1669, 1677

(2021). I would therefore deny the petition for review.