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NOT FOR PUBLICATION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,
2
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.
3
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.
Jonatan Henrriquez-Dubon v. Merrick Garland
Combined Opinion