Petitioner Mamadou Aliou Diallo, a native and citizen of Guinea, seeks review of a July 25, 2007 order of the Board of Immigration Appeals (“BIA”) affirming the November 14, 2005 decision of Immigration Judge (“IJ”) William Van Wyke denying Petioner’s application for asylum, withholding of rеmoval, and relief under the Convention Against Torture (“CAT”). Diallo’s claims were based on alleged political persecution, including multiple arrests and torture, that he suffered as a result of his affiliation with the Rally of the People of Guinea Party (“RPG”), a political party that opposes the government of President Lansana Conté.
The IJ found Petitioner’s testimony non-credible. On appeal to the BIA, Diallo argued that he was credible, particularly emphasizing that his testimony was consistent, responsive, and sufficiently detailed. He further argued that the State Department Country Reports (“Country Reports”) corroborated his claims, and that the IJ overemphasized small disparities between Diallo’s testimony and what was, or was not, included in those Country Reports. The BIA summarily adopted the IJ’s decision without rejecting any of the IJ’s reasoning nor specifying which of the IJ’s particular findings supported its decision.
I. Standard of Review
Where, as here, the BIA summarily affirms an IJ’s adverse credibility finding, we review the factual and lеgal findings contained in the IJ’s opinion, including those aspects not discussed by the BIA.
See Yun-Zui Guam, v. Gonzales,
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In cases of this sort, therefore, we look to see whether there are significant issues that were raised before the BIA on which the BIA made errors.
2
In
Chenery 1.
the Supreme Court held thаt in reviewing a determination or judgment which an administrative agency is alone authorized to make, the reviewing court must evaluate such a decision “solely by the grounds invoked by the agency.”
S.E. C. v. Chenery Corp.,
We have, however, held that consistent with
Chenery I
we may affirm an adverse credibility determination even when the IJ’s reasoning is deficient, provided that we can confidently predict that upon a reconsideration cleansed of errors, the agency would reach the same result.
Lin Zhong,
It is important to note that such a remand does not give a petitioner an unwarranted second bite at the apple. What materials and matters may be raised on a remand is always subject to the relevant statutes and BIA regulations. As a Court, we only look to what could be considered by the agency on remand, and deсide whether, given Chenery I and the errors made by the agency the first time, remand is useless and thus futile.
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Moreover, there is nothing in this approach that is inconsistent with the reasons for our refusal to review unexhausted issues. When we held in
Theodoropoulos v. INS,
With that in mind, we turn to the case at hand.
II. Application
In this case, we find errors in the BIA’s decision based on arguments Petitioner raised before it. On appeal to the BIA, Diallo argued that he was credible, particularly emphasizing that his testimony was consistent, responsive, and sufficiently detailed. He further argued that the Country Reports corroborated his claims, and that the IJ overemphasized small disparities between Diallo’s testimony and what was, or was not, included in those Country Reports. The Government concedes that Diallo fully exhausted this latter argument, Respondent’s Br. at 14 n. 8, and a review of the administrative record reveals that the IJ erred in his reading of the backgrоund material on conditions in Guinea and in his conclusion that the Country Reports did not corroborate Dial-lo’s testimony. For example, the IJ found that there was no corroboration for Dial-lo’s testimony that the Guinean government arrested “morе or less like sixty to seventy people” in November 2001, at the time of Diallo’s second arrest. But the 2001 Country Report stated that “over fifty protesters were arrested prior to the November 11, 2001 referendum, and more than sixty students were arrested in latе November of that year.” The Government argues that the Country Report actually undermines Petitioner’s testimony because it only refers to arrests prior to or after November 11, whereas Diallo testified to arrests on that date. But Diallo only testified that he was arrested on November 11, and there is no particular reason to think that he was referring only tо that date when discussing the arrests of the others. Instead, he mentioned the figures of sixty to seventy people in response to the IJ’s question of “[h]ow many people were arrested in November 2001?” which did not specify a particular day.
Additionally, in contrast to the IJ’s conclusion, the Country Report’s mention of two-week detentions does not undermine Petitioner’s testimony about his own prolonged incarceration or those of his uncle and father. While the Country Report specificаlly noted groups being released two weeks after the November 2001 protests, it also said that security forces “committed abuses with impunity,” “used arbitrary arrest and detention,” and “continued to hold an unknown number of political prisoners” as of the еnd of 2001. Moreover, the Report described a “parallel and covert system of justice run by unidentified uniformed personnel who conduct midnight arrests, detain suspects, and use torture in secret prisons to obtain confessions .... ”
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The IJ reasoned that because the Country Reports were particular as to many events, and because anti-government groups were vigilant about reporting abuses to human rights groups, the failure of human rights groups to mention any given arrest or abuse called into question its existence. This approach, however, places undue weight on the Country Reports, which, no matter how well-researched, cannot be expected to capture all of the details of every abuse in a given cоuntry.
See Tian-Yong Chen v. INS,
Given these errors in an issue that Diallo exhausted below, we must next consider whether it would be futile to remand this case to the BIA.
See Cao He Lin,
III. Conclusion
We hold that — given the presence of some errоrs in the BIA’s decision as to issues that were properly exhausted — we can, in determining whether remand to the BIA would be futile, consider the plausibility of other newly claimed errors, i.e., errors that were not adequately raised before the agency. Because there were sufficient exhausted flaws in the reasoning of the IJ’s adverse credibility determination to warrant a remand and because we cannot confidently predict the same outcome if there were further agency rеconsideration, we hereby GRANT the petition for review, and REMAND to the BIA for further proceedings consistent with this decision. Should the BIA determine that additional development of the record is necessary, it should remand to the IJ for that purpose. Accordingly, the order of removal is VACATED and Petitioner’s motion for a stay of removal is DISMISSED as moot.
Notes
. We note, however, that this language applies only to asylum applications, like Diallo's, filed on or after May 11, 2005, the effective date of thе REAL ID Act of 2005 ("the Act”), Pub.L. No. 109-13, 119 Stat. 231.
See
Title I, § 101(a)(3) of the Act, 119 Stat. 231, 303 (amending 8 U.S.C. § 1158);
Liang Chen v. United States Att’y Gen.,
. Because the BIA summarily adopted the IJ's decision as its own, we look to the IJ's opinion in the instant.
. In
Cao He Lin,