12-2430 Ngassaki v. Holder BIA Montante, IJ A088 935 706 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER**  **FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER**  **IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER** **”). A PARTY CITING A SUMMARY ORDER**  **MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 13 th** **day of September, two thousand thirteen.** 4 5 **PRESENT:** 6 **BARRINGTON D. PARKER,** 7 **GERARD E. LYNCH,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **ROMAIN CHRYSOSTOME NGASSAKI,** 13 Petitioner**,** 14 15 **v. 12-2430** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Lauris Wren, Hofstra Law School** 23 **Asylum Clinic, Hempstead, NY** 24 25 **FOR RESPONDENT: Stuart F. Delery, Principal Deputy** 26 **Assistant Attorney General; Jennifer** 27 **Lightbody, Senior Litigation** 28 **Counsel; Aimee J. Carmichael, Trial** 29 **Attorney, United States Department** 30 **of Justice, Washington, D.C.** 31UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is GRANTED and the case REMANDED to the BIA. 4 Petitioner Romain Chrysostome Ngassaki, a native and 5 citizen of the Republic of Congo, seeks review of a May 22, 6 2012, decision of the BIA affirming the June 28, 2010, 7 decision of Immigration Judge (“IJ”) Philip J. Montante, 8 which denied his motion to transfer venue to New York, NY 9 and his application for asylum, withholding of removal, and 10 relief under the Convention Against Torture (“CAT”). In re 11 Romain Chrysostome Ngassaki,No. A088 935 706 (B.I.A. May 12 22, 2012),aff’gNo. A088 935 706 (Immig. Ct. Buffalo June 13 28, 2010). We assume the parties’ familiarity with the 14 underlying facts and procedural history in this case. 15 Under the circumstances of this case, we have reviewed 16 the IJ’s decision as modified by the BIA. See Yan Chen v. 17 Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). We review the 18 denial of a motion to change venue for abuse of discretion. 19
See Monter v. Gonzales, 430 F.3d 546, 558-59 (2d Cir. 2005); 20 Lovell v. INS , 52 F.3d 458, 460 (2d Cir. 1995). We find an 21 abuse of discretion here. 22

2Ngassaki argues that the BIA abused its discretion 1 because it: (1) relied on a non-existent holding by the IJ; 2 (2)erroneously found that there was no good cause for the 3 transfer; and (3) erroneously found that he was not 4 prejudiced by the denial. First, the BIA’s conclusion that 5 the IJ did not err in rejecting Ngassaki’s motion to 6 transfer venue for failure to follow the rules relies on the 7 IJ’s finding as to Ngassaki’s April 2009 motion, not his 8 subsequently filed July 2009 motion upon which his appeal 9 was based. Although a mischaracterization of the record may 10 not constitute an abuse of discretion where it is clear that 11 the BIA thoroughly reviewed the record and determined, in a 12 sufficient exercise of discretion, that a venue transfer was 13 not warranted, see Lovell , 52 F.3d at 460 , there is no 14 indication that the BIA made such a thorough review of the 15 record before upholding the denial of venue transfer. 16 Even assuming, however, that the BIA did consider the 17 good cause factors, its conclusion that those factors failed 18 to establish good cause constitutes an abuse of discretion. 19
See Monter, 430 F.3d at 559; Lovell , 52 F.3d at 461. 20 Similar to Monter, Ngassaki has shown that he resided in the 21 desired venue along with all of his witnesses and his 22

3counsel, who was unable to represent him in the original 1 venue. Moreover, he has demonstrated that the government 2 did not oppose the transfer. Finally, as to prejudice, the 3 agency’s conclusory finding that “there was no due process 4 violation” is insufficiently detailed for us to review its 5 findings and therefore constitutes an abuse of discretion. 6 “When faced with cursory, summary or conclusory statements 7 from the BIA, we cannot presume anything other than . . . an 8 abuse of discretion, since the BIA’s denial of relief can be 9 affirmed only the basis articulated in the decision . . . 10 and we cannot assume that the BIA considered factors that it 11 failed to mention in its decision.” Anderson v. McElroy, 12 853 F.2d 803, 806 (2d Cir. 1992)(citations and quotations 13 omitted); see also Ke Zhen Zhao v. U.S. Dep’t of Justice , 14 265 F.3d 83, 93 (2d Cir. 2001) (“An abuse of discretion may 15 be found . . . where the [BIA’s] decision . . . is devoid of 16 any reasoning, or contains only summary or conclusory 17 statements . . . .”). 18 Nor can we be confident that Ngassaki suffered no 19 prejudice, given the effect that the denial of the venue 20 transfer may have had on the IJ’s credibility determination. 21 Specifically, the BIA upheld the credibility determination 22

4primarily due to inconsistencies between Ngassaki’s 1 testimony and that of his witnesses, who appeared only by 2 telephone or affidavit. The location of the proceedings 3 thus may have affected the adverse credibility 4 determination. This concern is particularly acute given the 5 IJ’s statements questioning the credibility of a critical 6 witness - including his concerns that she was relying on 7 documentation rather than speaking from memory during her 8 telephonic testimony - and unavailability of other 9 witnesses. Because we cannot know whether the credibility 10 determination would survive the BIA’s review if all 11 appropriate factors were fully considered, we remand to 12 allow the BIA to determine in the first instance whether 13 Ngassaki was prejudiced by the arbitrary denial of the 14 requested change of venue. 15 For the foregoing reasons, the petition for review is 16 GRANTED and the proceedings remanded to the BIA for further 17 consideration of the motion to change venue and for any 18 additional necessary proceedings consistent with this order. 19
FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21

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