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Soto-Olarte v. Holder

February 23, 2009

JORGE ARTURO SOTO-OLARTE; MARIA JESUS ESTEVES-LA TORRE, PETITIONERS,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL, RESPONDENT.



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

The opinion of the court was delivered by: Gould, Circuit Judge

FOR PUBLICATION

Argued and Submitted May 9, 2008 -- Pasadena, California

Before: John T. Noonan, William A. Fletcher, and Ronald M. Gould, Circuit Judges.

OPINION

Jorge Arturo Soto-Olarte and his wife Maria Jesus EstevesLa 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 ...


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