Angel Menjivar v. William Barr, 16-72128

Background

Angel Menjivar, a Salvadoran national, petitioned for review of the BIA’s denial of NACARA special-rule cancellation of removal on the basis that he was subject to the persecutor bar.
The IJ noted substantial inconsistencies between Menjivar’s live testimony and prior sworn NACARA/asylum statements but declined to make an adverse credibility finding because, the IJ said, Menjivar was not given an opportunity to explain the inconsistencies.
The BIA found the IJ’s conclusion that Menjivar lacked an opportunity to explain was clearly erroneous and reached its own adverse credibility findings on appeal.
The Ninth Circuit majority held the BIA erred by making credibility findings on appeal rather than remanding to the IJ to resolve credibility in the first instance, leaving factual gaps about whether the persecutor bar was raised and whether Menjivar proved he was not a persecutor.
The court remanded to the BIA to either deem Menjivar credible or remand to the IJ for credibility findings and further proceedings to determine the persecutor-bar question.
Judge M. Smith dissented, arguing the IJ had actually found Menjivar credible (per counsel’s stipulation), Menjivar declined opportunities to explain inconsistencies, and the BIA properly denied relief.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an alien must be given an opportunity to explain inconsistencies before an adverse credibility determination	Menjivar: IJ denied credibility determination without letting him explain; adverse credibility required opportunity to explain	Government/BIA: IJ had given opportunity; IJ’s contrary view was clearly erroneous	Court: An alien must be given an opportunity; IJ’s and BIA’s handling left gaps requiring remand
Whether the BIA may make new credibility findings on appeal instead of remanding to the IJ	Menjivar: BIA should not make factual credibility findings on appeal; credibility should be resolved by the factfinder first	BIA/Govt: Regulations allow BIA to review and correct clear error	Court: BIA erred by making its own credibility findings on appeal; must remand to IJ to make findings or otherwise resolve credibility first
Whether the record raised the persecutor bar and who bears the burden to disprove it	Menjivar: Because credibility unresolved, persecutor-bar question not properly decided	Government: Record raised inference of persecution; burden shifted to Menjivar to prove by preponderance he was not a persecutor	Court: Record leaves open whether government met its low threshold to raise persecutor bar; BIA must decide after credibility is resolved
Proper remedy when credibility findings are unclear	Menjivar: Remand for the IJ to make findings or deem petitioner credible and proceed	BIA: Deny relief based on its appellate credibility assessment	Court: Remand to BIA to either deem Menjivar credible or remand to IJ to resolve credibility and then determine persecutor-bar issues

Key Cases Cited

Rizk v. Holder, 629 F.3d 1083 (9th Cir. 2011) (alien must be afforded opportunity to explain inconsistencies before adverse credibility finding)
Garcia v. Holder, 749 F.3d 785 (9th Cir. 2014) (same principle on credibility explanation requirement)
Rodriguez v. Holder, 683 F.3d 1164 (9th Cir. 2012) (limitations on BIA’s making new factual findings on appeal)
Mendoza Manimbao v. Ashcroft, 329 F.3d 655 (9th Cir. 2003) (remand required where IJ failed to make adequate credibility findings)
Recinos de Leon v. Gonzales, 400 F.3d 1185 (9th Cir. 2005) (BIA may not rely on indecipherable IJ explanation; remand required)
Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006) (low threshold for government to raise inference of persecution)
Budiono v. Lynch, 837 F.3d 1042 (9th Cir. 2016) (record need only contain some evidence to raise persecutor inference)
Tekle v. Mukasey, 533 F.3d 1044 (9th Cir. 2008) (BIA has authority to find clear error in IJ determinations)