Kalulu v. Garland

94 F.4th 1095

Milly KALULU, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 21-895

United States Court of Appeals, Ninth Circuit

Argued and Submitted April 20, 2023 San Francisco, California

Filed March 11, 2024

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX2-589

Claire Weintraub (argued) and Natalie Kaliss (argued), Certified Law Students; Amalia Wille (argued) and Judah Lakin, Supervising Attorneys; University of California, Berkeley School of Law, Berkeley, California; for Petitioner.

Robert D. Tennyson, Jr. (argued), Trial Attorney, and Paul Fiorino, Senior Litigation Counsel, Office of Immigration Litigation; Brian Boynton, Principal Deputy Assistant Attorney General, Civil Division; United States Department of Justice, Washington, D.C.; for Respondent.

Before: Lawrence VanDyke and Gabriel Sanchez, Circuit Judges, and Stephen J. Murphy, III, District Judge.^*

Opinion by Judge VanDyke;

Partial Concurrence and Partial Dissent by Judge Sanchez

OPINION

VANDYKE, Circuit Judge:

Milly Kalulu petitions for review of a Board of Immigration Appeals (BIA) decision dismissing her appeal of a removal order. We have jurisdiction under 8 U.S.C. § 1252 and grant her petition. Even though substantial evidence supports the agency's adverse credibility determination, the agency did not properly evaluate documents Kalulu introduced into the record to support her claims of past persecution in her native Zambia on account of her sexual orientation. We grant the petition and remand this case with instructions for the agency to consider whether those documents, when properly read, independently prove those claims.

I. BACKGROUND¹

Kalulu is a native of Zambia who identifies as a lesbian. Homosexual activity is illegal in Zambia, and Kalulu says she began to experience persecution on account of her sexual orientation after brothers of her girlfriend discovered their relationship in 2019. She recounts two episodes when those brothers attacked her in her hometown, and then another episode when they harried her from a restaurant in Zambia's capital city after she fled there.

Shortly after the last alleged attack, Kalulu entered the United States on a tourist visa to attend a world scouting jamboree in West Virginia with her Zambian girl scout troop. Her visa permitted her to remain in the United States for up to six months at a time, renewable for up to three years, and Kalulu chose to reside in California with her naturalized aunt for approximately five months after the jamboree ended. She then took an extended weekend trip to Mexico so that on reentry she could reset the six-month clock on her stay in the United States.

Kalulu legally reentered without difficulty at a California port of entry. But when she then tried to extend her visa in person at the port, she was directed to a building where her wallet and phone were inspected. That inspection uncovered a California public health benefits card and WhatsApp messages describing her paid babysitting work in California. Her tourist visa did not permit receipt of those benefits or earned income, so border officials cancelled her visa and placed her in removal proceedings. Kalulu did not mention any past persecution or fear of future persecution to border officials during her interactions with them.

Roughly a month after her removal proceedings had begun, Kalulu mentioned past persecution and future fears for the first time in a credible fear interview. She recounted the three abovementioned attacks, which she said had been motivated by her sexual orientation. She said she feared that unnamed "people" or government officials in Zambia might kill her upon her return to the country because of her sexual orientation. And she said she feared future persecution not only because of her sexual orientation, but also because of her ethnicity, nationality, membership in the country's dominant religion, an undescribed political opinion, and her appearance. The asylum officer deemed only Kalulu's testimony about fear of persecution due to her sexual orientation to be credible, even as the officer recognized that it was inconsistent with her earlier silence at the border.

By the time Kalulu applied for asylum, withholding of removal, and CAT relief about three months later, she no longer claimed to have suffered past persecution (or to fear future persecution) on any basis other than her sexual orientation. She offered various documents into the record before her hearing to support her claims of past persecution, including purported declarations from eyewitnesses to the three alleged attacks described above and a purported medical report describing injuries from the second attack. To support her claims of a well-founded fear of future persecution, Kalulu offered news articles and a State Department report on Zambia that described ongoing persecution of homosexuals there.

At her removal hearing, Kalulu initially offered her own testimony in support of her asylum application. But when the IJ began to question her about her story, the IJ found some of her testimony evasive and contradictory. After detailed examination of the perceived inconsistencies and evasiveness, the IJ determined that they rendered her testimony not credible. And because the IJ did not believe that the testimony from Kalulu's other witnesses or supporting documents rehabilitated her credibility, independently established her claims of past persecution, or demonstrated that she was more likely than not to be tortured if she returned to Zambia, the IJ entered an order denying asylum, withholding of removal, and CAT relief.

On appeal, the BIA found no clear error in the IJ's adverse credibility determination or in the IJ's determination that Kalulu's supporting documents did not rehabilitate her credibility or independently establish her claims of past persecution. The BIA explained:

The affidavits from the respondent's cousin, neighbor, and friend are not signed or sworn . . . , which undermines their evidentiary value. The respondent's cousin's letter does not mention any reason for the June 2019 attack on the respondent. The neighbor's statement also does not mention any underlying reason for the attack. The friend's statement indicates that the respondent would be in danger if she returned to Zambia but does not mention whether she was aware of the respondent's sexuality.

The BIA likewise found no clear error in the IJ's determination that Kalulu's medical report failed to rehabilitate her testimony or support even the second purported attack because the report (1) had been signed by a police officer even though Kalulu testified that she did not report that attack to police and (2) omitted injuries Kalulu had testified to during her hearing.

The BIA thus concluded that Kalulu could not meet her burden to establish eligibility for asylum. A fortiori, it reasoned, she could not meet the higher burden of proof of persecution to establish eligibility for withholding of removal. The BIA similarly upheld the IJ's denial of CAT relief because Kalulu had offered only her noncredible testimony as to the likelihood that the Zambian government would persecute her or acquiesce to her persecution by a private party.

II. STANDARD OF REVIEW

This court's review of an agency order denying asylum, withholding of removal, and CAT relief "is limited to the BIA's decision, except to the extent that the IJ's opinion is expressly adopted." Singh v. Garland, 57 F.4th 643, 651 (9th Cir. 2022) (internal quotation marks omitted). Such adoption occurs when "the BIA reviewed the IJ's credibility-based decision for clear error and relied upon the IJ's opinion as a statement of reasons but did not merely provide a boilerplate opinion." Dong v. Garland, 50 F.4th 1291, 1296 (9th Cir. 2022) (internal quotation marks omitted). In such cases, this court reviews the grounds and reasoning in both decisions. De Leon v. Garland, 51 F.4th 992, 999 (9th Cir. 2022).

The agency's factual findings are reviewed for substantial evidence, which exists when the agency's conclusions "are supported by reasonable, substantial, and probative evidence in the record." Gutierrez-Alm v. Garland, 62 F.4th 1186, 1194 (9th Cir. 2023) (cleaned up). Under that extremely deferential standard of review, this court may not independently weigh the evidence and reverse the agency unless "the evidence compels a conclusion contrary to the BIA's." Umana-Escobar v. Garland, 62 F.4th 1223, 1228 (9th Cir. 2023). As this court oftentimes phrases the same point in the inverse, we must accept agency factual findings "as conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." Antonio v. Garland, 58 F.4th 1067, 1073 (9th Cir. 2023) (cleaned up); 8 U.S.C. § 1252(b)(4)(B).

The agency may deny asylum, withholding of removal, and CAT relief because it deems an applicant's testimony, under the totality of the circumstances, not to be credible, and the lack of credible testimony renders the applicant unable to meet her burden. Iman v. Barr, 972 F.3d 1058, 1064-65 (9th Cir. 2020). Such an adverse credibility determination may be based on inconsistencies in an applicant's testimony even if no uncovered inconsistency goes to the heart of the applicant's claim. 8 U.S.C. § 1158(b)(1)(B)(iii); Lalayan v. Garland, 4 F.4th 822, 835 (9th Cir. 2021). It also may be based on a finding that a petitioner's demeanor undermined her credibility. 8 U.S.C. § 1158(b)(1)(B)(iii); Munyuh v. Garland, 11 F.4th 750, 758 (9th Cir. 2021).

III. DISCUSSION

Even though substantial evidence supports the agency's adverse credibility determination in this case, the agency misread some of Kalulu's supporting documents. Because that mistake prevented the agency from properly evaluating whether the documents independently prove Kalulu's claim of past persecution, this court remands with instructions for the agency to reexamine their evidentiary value...