Soto-Olarte v. Holder

• Decision Date: 23 February 2009
• Docket Number: No. 06-71822.,06-71822.
• Citation: 555 F.3d 1089
• Parties: Jorge Arturo SOTO-OLARTE; Maria Jesus Esteves-La Torre, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

555 F.3d 1089

Jorge Arturo SOTO-OLARTE; Maria Jesus Esteves-La Torre, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 06-71822.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 9, 2008.

Filed February 23, 2009.

Edgardo Quintanilla, Quintanilla Law Firm, Sherman Oaks, CA, for the petitioners.

Joshua P. Jones, United States Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A097-875-480, A097-875-481.

Before: JOHN T. NOONAN, WILLIAM A. FLETCHER, and RONALD M. GOULD, Circuit Judges.

GOULD, Circuit Judge:

Jorge Arturo Soto-Olarte and his wife Maria Jesus Esteves-La Torre petition for review of the Board of Immigration Appeals' ("BIA") opinion dismissing their appeal of an immigration judge's ("IJ") denial of their petitions for asylum, withholding of removal, and protection under the United Nations Convention Against Torture ("CAT"). We grant the petition for review and remand this case to the BIA for further proceedings, but we hold that on remand the BIA need not necessarily deem Soto-Olarte credible.

I

Jorge Arturo Soto-Olarte ("Soto-Olarte"), and his wife Maria Esteves-La Torre ("La Torre"), natives and citizens of Peru, sought asylum and withholding of removal based on alleged persecution by the terrorist organization Shining Path. The incident central to Soto-Olarte's claim occurred on June 19, 2003. According to Soto-Olarte's testimony, two members of the Shining Path broke into his house in Peru, while two other Shining Path members remained outside. Soto-Olarte fired his gun in the air, triggering his car alarm, and the four individuals fled.

Soto-Olarte submitted a police report mentioning this incident, but the report as produced by the police differs from Soto-Olarte's account of the incident. The police report stated that Soto-Olarte was awakened by his car alarm, and when he went outside two security guards told him they saw two individuals fleeing over the wall. The report said nothing about two other people entering Soto-Olarte's house, about a gun being fired, or about any involvement by the Shining Path. Finally, the police report recited that Soto-Olarte had said items were stolen from his car, while Soto-Olarte's own account in his testimony and in his declaration mentions no property loss.

Soto-Olarte and La Torre were charged as removable in 2004. They conceded removability but sought relief in the form of asylum, withholding of removal, and protection under the CAT. At the IJ hearing Soto-Olarte's direct examination testimony focused on the June 2003 incident. Neither the government nor the IJ asked Soto-Olarte about the contents of the police report. Before testifying, in a written declaration filed with the immigration court, Soto-Olarte had explained that the police report did not mention the Shining Path because, as he put it, the police "did not want to get involved with allegations of the Shining Path." Soto-Olarte did not explain in his written declaration, nor in his hearing testimony, why the police report did not mention the home invasion or gunfire that he described in his hearing testimony.

The IJ denied Soto-Olarte's and La Torre's petition, finding that Soto-Olarte was not credible because his testimony about the June 2003 incident differed from the account in the police report. The IJ then held alternatively that even if Soto-Olarte's testimony was credible, she would still have denied relief on the ground that Soto-Olarte failed to show past persecution or a well-founded fear of future persecution because "[t]he June 2003 incident appears to be a criminal robbery." The BIA affirmed the IJ's ruling and alternate holding, citing the same inconsistencies between Soto-Olarte's testimony and the police report.

II

A

We review the IJ and BIA's adverse credibility finding for substantial evidence. See Kaur v. Ashcroft, 379 F.3d 876, 884 (9th Cir.2004). The IJ based her adverse credibility finding on the inconsistencies between Soto-Olarte's account, during his immigration proceeding, of the June 2003 incident as a terrorist home invasion and the police report describing the same event as a car burglary. These inconsistencies go to the heart of the petitioners' claim. See Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir.2004). However, Soto-Olarte gave a plausible explanation in his declaration for one of these inconsistencies — the police report's failure to mention the Shining Path. The IJ "did not comment on [this] explanation [in her decision], nor suggest any reason that [she] found his explanation not credible." Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir.1998). This lack of consideration given to Soto-Olarte's proffered explanation was error and prevents the underlying inconsistency from serving as substantial evidence to support the IJ's adverse credibility finding. See, e.g., Kaur, 379 F.3d at 884 ("An adverse credibility finding is improper when an IJ fails to address a petitioner's explanation for a discrepancy or inconsistency."); Guo v. Ashcroft, 361 F.3d 1194, 1201 (9th Cir.2004) (holding that an alleged inconsistency in a petitioner's testimony could not serve as substantial evidence for an adverse credibility finding where the IJ "did not address at all [the petitioner's] reasonable and plausible explanation" for the inconsistency).

The BIA made only passing and incomplete mention of Soto-Olarte's explanations for the discrepancies, noting that "[t]he respondents argue that this was a minor inconsistency or no consistency [sic] at all" but concluding that "[w]e disagree." Because the BIA's opinion does not refer to the explanation that Soto-Olarte gave, to the effect that police in Peru are reluctant to mention the Shining Path, and does not give the BIA's reasons for considering that explanation unpersuasive, the BIA's treatment of Soto-Olarte's explanation 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 [the petitioner] offers for these perceived inconsistencies.'" Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999) (quoting Osorio v. INS, 99 F.3d 928, 933 (9th Cir. 1996)). We hold that where Soto-Olarte gave an explanation of inconsistencies between his account of the June 2003 incident at his home and the account of that incident in the police report, those inconsistencies cannot serve as substantial evidence for a finding that Soto-Olarte was not credible when neither the IJ nor the BIA addressed Soto-Olarte's explanation "in a reasoned manner." Id.

Soto-Olarte's explanatory statement does not account for all of the inconsistencies between the police report and Soto-Olarte's testimony. His explanation does not suggest why the police report did not mention that there were two intruders inside the house as well as two outside of it, nor does it suggest that Soto-Olarte shot his gun to scare the men away. Moreover, his explanation sheds no light on why the police would report that a bag containing sales slips and toys was stolen from Soto-Olarte's car when Soto-Olarte in his written statement and during his testimony did not mention any property being taken. However, Soto-Olarte was never asked about any of these inconsistencies at his hearing before the IJ. It is speculative at this juncture, but certainly possible that Soto-Olarte may have had good explanations for the remaining differences between his testimonial report and that filed by the police and also possible that the BIA might have good reasons to reject his explanations. It may be that Soto-Olarte's explanation that the police don't like to mention the Shining Path also explains why they would not mention his use of a gun or the home invasion, because these points were part of his story about the Shining Path. In any event, the IJ could not properly base her adverse credibility determination on the inconsistencies between Soto-Olarte's testimony and the police report that Soto-Olarte did not explain in his declaration, when she did not ask Soto-Olarte about these discrepancies or give him an opportunity to reconcile them. See Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.2007) ("[T]he IJ `must provide a petitioner with a reasonable opportunity to offer an explanation of any perceived inconsistencies that form the basis of a denial of asylum.'" (quoting Ordonez v. INS, 345 F.3d 777, 786 (9th Cir.2003))); Chen v. Ashcroft, 362 F.3d 611, 618 (9th Cir.2004) (finding that the petitioner "was denied a reasonable opportunity to explain what the IJ perceived as an inconsistency in her testimony" and concluding that "[t]he IJ's doubt about the veracity of her story, therefore, cannot serve as a basis for the denial of asylum").¹ Because the IJ did not offer Soto-Olarte an opportunity to explain the inconsistencies on which she later relied in finding him not credible and did not address the explanation he gave for some of those inconsistencies, the IJ's adverse credibility finding, which was subsequently adopted by the BIA, was not supported by substantial evidence.

The IJ and BIA alternately held that even if Soto-Olarte were deemed credible, he and his wife still had not met their burden of establishing eligibility for asylum or withholding of removal. Despite the asserted independence of this conclusion, however, neither the IJ nor the BIA took all of Soto-Olarte's testimony as true for the purposes of determining his and La Torre's eligibility for asylum, as they are required to do when deeming a petitioner to be credible in an alternate holding. See Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir.2004) ("Testimony must be accepted as true in the absence of an explicit adverse credibility finding."). In reaching the conclusion that the experiences Soto-Olarte had suffered in Peru did not rise to...