F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

A N T O N I O P E R E Z -A R C E O , P etitioner
,

v

.

L O R E T T A E. L Y

N C H , Attorney General, Respondent. N o. 12-70635

Ag ency No. A091-704-485

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg ued and Submitted March 18, 2016 San F rancisco, California

F iled May

12, 2016

B e fore: J ohn T. Noonan, Ronald M. Gould, and Michelle T. F riedland, Circuit J udg es.

O pinion by

J udg e GouldP E R E Z

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SUMMARY *

Im m igration

The panel g ranted Antonio Perez

- Arceo’s petition for review of the B oard of I mmig ration Appeals’ decision finding him removable for participating in an attempt to smug g le his wife’s mother and sister-in-law into the United States.

The panel held that the B I A e rred in failing to address the I mmigration J udg e’s seeming ly inconsistent credibility finding s. The B I A also h e l d t h at the I J erred in f ailing to make an ex plicit finding that P e r ez -Arceo eng ag ed in “an affirmative a ct of help, assistance, or e n c o urag ement” o f
smug g ling

, as this court’s case law r e q u ires. The panel remanded on an open r e c ord for the I J t o r e c onsider his ruling

, provide f

urther ex planation, and eng ag e in f urther factfindingif necessary

.

COUNSEL

J org e I

. Rodrig uez -Choi, Oakland, California, for Petitioner.

Ada E. B osque, Yamileth Davila, a nd Ashl e y Martin (argued), Office of I mmig ration L itig ation, U nited States Department of J ustice, W ashing ton, D.C., for Respondent.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.P E R E Z

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OP INION

GOUL D, Circuit J udg e :

Antonio Perez -Arceo petitions for review of a decision o f the B oard of I mmig ration A ppeals (B I A) fin d ing him removable u nder 8 U.S.C. § 1182(a)(6)(E)(i). That s tatute provid e s t h at “[ a ] ny alien who at any time knowing ly has
encourag ed, induced, assisted, abetted, or a ided any other alien to ent er or to try to enter the United States in violation of law is inadmissible.” Antonio was charg ed as r emovable along with his son J uan and his wife Micaela f o r alleg edly parti c i p a t i n g i n a n attempt to smug g le Micaela’s undocumented s i s t e r

- in-law a nd mother into the United States in a van. T he I mmig r ation J udg e (I J ) held a joint hearing in which all thre e testified that Micaela was solely responsible for the smug g ling attempt. B ut while the I J found Micaela credible, the I J also found J uan a nd Antonio’s testimony not credible, and the I J held that all three were removable.

W e g rant Antonio’s petition f or review. The B I A did not address the I J ’s seeming ly incons i s t e nt credibility finding s. Nor did the I J make a finding that Antonio eng ag ed in “an affirmative a ct of help, assistance, or enc o u r ag ement” o f

sm u ggl i n g as our case law requires for a violation o f § 1182(a)(6)(E)(i). Altamirano v

. Gonzales

, 427 F .3d 586, 592 (9th Cir. 2005). We remand on an open record for the I J
to reconsider his ruling

, p rovide further ex planation, a nd
eng ag e in further factfinding if necessary

.

I

Antonio Perez -Arceo is a Mex ican citiz en who b ecame a leg al permanent resident of the U nited States in 1986. H isP E R E Z

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wife Micaela Perez de Pacheco and his son J uan Pere z

Pacheco were also leg al permanent r e s i d e nts. I n early J u ne 2 0 0 4
, the f

amily drove from the United States to Mex ico t o ta k e A n t o nio’s ill daug hter to the doctor. On J une 6, 2004, the family attempted to return to the United States in a v a n throug h the p ort o f entry in Otay Mesa, California. J uan was driving the van and Antonio was in the f ront passeng er seat. Micaela sat in the far back row with her mother Maria Garcia and her sister-in-law Maria Rodrig u ez

. Antoni o a nd Micaela’s other children w ere in the middle row. The family ’s r ide t o the border f rom the home where they h ad been stay ing in Mex ico lasted 20–30 minutes.

W h en the family r eached the port o f entry , B order Patrol suspected that Garcia a

n d Rodrig uez “were n o t the rig htful

owners o f the documents they p resented,” and the van was held for inspection. Antonio, J uan, and M i c a ela were e ach interviewed separately by a B o rder Patrol off i c e r

. Antonio told B order Patrol that he knew Garcia and Rodrig uez did not have the proper documents to e nter the United States, but he “did not realiz e they were in the vehicle till he woke up while being in line to cross the border.” When h e r e aliz ed the undocumented women were in the van, he “g ot into an arg ument with his wife and son,” but he did not leave the v an “because it was to [ sic] late and he was near the officers [ sic] booth.”

Micael a told B order Patrol a similar story

. Micaela

ex p lained that “she made arra ng ements with her brother” to smug g le Garcia and Rodrig uez into the Unit ed States a ndP E R E Z

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“her husband [ Antonio] h ad no idea.” 1 She further stated that

s h e “paid a lady ” $150 to g et documents for her mother a n d sister-and-law to cross the b order. She stated that she “reg r et[ ted] doing it” and would “never do it ag ain.”

W h en J uan was questioned a t t h e b o r der, he told a different story

. H e said that Antonio made the arrang ements to bring Rodrig uez and Garcia into the United States. And he said that J uan’s uncle was g oing to pay Antonio $1500 f or the service. J uan stated that A ntonio g ave Rodrig uez and Garcia false immig ration documents to use at the border.

J u a n , A ntonio, and Micaela were each charg ed with

r e m o v a b i l i t y f o r s m u g g l i n g u n d e r 8 U

. S

. C

. § 1182(a)(6)(E)(i), a

nd the proceeding s wer e c onsolidated. On March 19, 2007, J u an submitted a n a f f idavit under o ath stating

,

I retract t h e statements made to the I mmig r ation O fficer o n or about J une 6, 2004
at the border inspection point in Otay Mesa. I was driv ing the van, but when I was interviewed by the immig ration o fficer, I was scared. I saw my mother h olding the children, and was afraid what would h a p pen to my two
y oung er sisters and y o ung er brother, if the

1 Micaela’ s I- 2 1 3 f

o rm su m m arizin g th is in terv iew w as ad m itted in to

ev id en ce at t

h e j o in t h earin g w ith

A n to n io , Micaela, an d J u an , b u t it w as

n o t in clu d ed in A n to n io ’ s Certif i ed A d m in istrativ e Reco rd o n ap p eal. W e lo cated th is d o cu m en t in t

h e Certif ied A d m in istrativ e Reco rd f o r J u an an d Micaela’ s p etitio n s f

o r rev i ew , Nin t h C ircu it No

. 1 2

- 7 3 2 0 2
, w h ich w ere d ism isse d in 2 01 3

. A lth o u g h t h e I- 2 1 3 f

o rm w as n o t in th e CA R f or A n to n io ’ s ap p eal, th e IJ h ad it b ef o re h im w h en m ak in g a d ecisio n on all th ree cases at th e sam e h earin g

.P E R E Z

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I mmig r ation [ Officer] d e tained my mother. O u t of panic and f

ear I said that it was m y father who made the arrang ement s

. I did not want my y oung er sisters to be without a mother.

I did n ot partici pate in the making of any plans to smug g le Mrs. Garcia a nd Mrs. Rodrig uez to the United States. The one who made all the arrang ements was my mother a nd her brother. M y mother ag reed w ith her brother that her brother would pay my mother $1,500.

. . . I was aware that Mrs. Garcia a nd Mrs. Rodrig uez were i n t he car. However, it

was my mother who a s k e d them to g et in the

van.

J uan reiterated, “I a m certain that my father was not involved in making the arrang ements.” 2

The I J held a joint hearing for Antonio, Micaela, a nd J u an

on O ctober 22, 2009. One a ttorney represented a l l three respondents. The g overnment initially noted that Micaela h ad conceded removability

. J uan then testified and ex plained that his mother had arrang ed for smug g ling Garcia and Rodrig uez

. He testified that his March 2 007 statement implicating his mother was a ccurate; he claimed to have lied during h is J u ne 2006 interview when placing the blame on Antonio because the B order Patrol had threate n e d t o take the children away from Micaela if he did not implicate someone.

2 J u an ’ s I- 2 1 3 f

orm an d retractio n letter w ere also erro n eo u s ly o m i tted f ro m A n to n io ’ s Certif

ied A d m in istrativ e Reco rd

. S ee n o te 1
, su

p ra

.P E R E Z

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Antonio then testified c onsis t e n t with his I -213 postdetention statements, ex plaining t h at t he smug g ling was his wife’s idea and that he had no knowledg e of it until they were near the border. Antonio testified that h e had been drinking the nig ht before a

nd f irst learned that the women were in the backseat rig ht before r ea c h i n g the b order when they “ were passing the documents” to p r es e n t to B order Patrol a nd he said “oh my God, why s o m a n y ? ” That, according to Antonio’s testimony

, is when h e “turned around a n d s a w” Garcia a nd Rodrig uez in the far back row of the van; he h ad
not heard them speak during the trip. Antonio surmised that his wife had not told h im about the women in the backseat because she h ad p itched a smug g ling plan to him two months earlier and he “did not ag ree.”

The g overnment then rested, a nd the respondents called Micaela to the stand. Micaela testified consistent with her I

213 that the smug g ling h ad been entirely her idea a nd Antonio had no knowledg e of it until they neared the border. She ex p lained that she h ad h idden it from him because h e h ad previously said no when she b roug h t up t h e i d e a. Micaela

ex p lained that she had k ept the women hidden from Antonio by seating them in the back row o f the van behind the “hig h”
seats in the m i d d l e row. Micaela also echoed J uan’s testimony that B order Patrol told her they would take h er kids
away if she didn’t tell the truth.

Th e go v ernment then called B order Patrol Officer J e sus L o pez , J r., who had interviewed all three respondents at t h e border. L opez t e s t ified via telephone that he did not remember this particular case but there was “no possible
way ” he had threatened t o t a k e any one’s kids away a nd he would “never” a sk que s t i o ns or make statements before turning on the video recording

.P E R E Z

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The I J ruled from the bench o n October 29, 2009. The I J first held that the burden was on the g overnment to prove removability by clear and convincing eviden c e

. The I J
recog niz ed that to prove removability for smug g lin g, the
g overnment must show an “affirmative act” to attempt or aid in smug g li n g b e y ond mere knowledg e. See Altamirano v

. Gonzales

, 427 F .3d 5 86, 592 ( 9th Cir. 2005). The I J concluded that Micaela w as remova b l e because of her testimony that she “obtained the documents and was g oing to be paid $1 ,500 by her brother” to smug g le her sister-in-law and mother into the U nited Sta t e s

. The I J also relied on Micaela’s a dmission of g uilt in her I

- 213 form. The I J then turned to J u a n a nd found that his “affirmative act” was driving the van and handing Rodrig uez and Garcia’s d ocuments to the immig ration officials, as well as mak i n g a false statement to B order Patr o l reg arding Rodrig uez a nd Garcia’s intended leng

th of stay

.

F inally

, the I J address ed the issue of Antonio’s

r e m o v a bility and stated that he did not believe J uan’s chang ed story that a

bsolved Antonio o f g uilt, n o r did he believe Antonio’s testimony

. The I J pointed to five apparent i n c o n s i s t e n c i e s t o s u p p o r t h i s n e ga t i v e c re d i b i l i t y determinations about J uan and A ntonio’s testimony

. F irst, the I J reasoned that Antonio said that he was g oing to Mex ico
to ta ke h is son to the doctor, but J uan and Micaela said they

w ent for a d aug hter. Second, the I J said that J uan testifi e d that he and Antonio talked in th e v an on the way to the border, but A ntonio testified that they d id not. Third, Micaela and J u an both testified that t hey were threatened with the kids’ removal if they did not blame someone, b u t the I J credited the B order Patrol Officer’s testimony that he would “never say that i n a n y c ase.” F ourth, the I J noted that J u an claimed to have “made

. . . up” the $1500 smug g ling fee inP E R E Z

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his statement at the border, but Micaela also stated this same amount in her interview at the b o r d e r

. F inally

, the I J relied

on an apparent discrepancy that Antonio told B order Pat r ol that he was asleep in t h e v a n when G arcia and Rodrig uez ent e r ed, while Antonio testified that he was the last to enter the van. The I J also noted that Antonio had a prior c harg e o f removability for alien smug g ling for w hich he had r e ceived cancellation of removal u nder 8 U.S.C. § 1229b(a). I n sum, the I J believed that it was “not p lausible that the mother would risk h e r son and husband in this way without their knowledg e,” nor was it “plausible that the father who already had [ a] waiver [ from past smug g ling c harg es] would risk his son and his wife this way without their knowing .”

The B I A dismissed the appea l

, r u l ing that the I J ’s decision to c redit J uan’s “more contemporaneous sta t e ments”
at the border, rather than J u an’s retract i o n a n d Antonio’s testimony , was “not clearly erroneous.”

II

W h en the g overnment c h arg es a lawfully -admitted alien with removability for smug g ling

, it “must prove by c lear a nd convincing evidence th a t [the respondent] took actions

. . . that a mount to ‘knowing ly encourag ing

, inducing

, a ssisting

, abetting

, o r aiding ’ their u n lawful e ntry int o t h e United States.” S

antiago-Rodriguez v. Holder

, 657 F

. 3 d 820, 830 (9th Cir. 2011) ( alterations omi tted) (quoting 8 U .S.C. § 1227(a)(1)(E)(i)). “‘[ M] e r e presence and k nowledg e’ that

an accompany

ing a l ien is attempting to e nter the country illeg ally ” is insufficient. Id. at 833 (quoting Altamirano

, 427 F .3d at 592). T he c harg e of alien smug g ling “requires an affirmative act of help, assistance, or encourag ement.” Id.P E R E Z

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Here, the only record evidence of an “affirmative act” b y A n t onio was J uan’s initial statement to B order Patrol th at Antonio made the arrang ements to g et documents f o r Rodrig uez and Garcia, and that Antonio was g oing to receive
money f or the service. B ut in a supplemental letter and h is in-court testimony

, J u a n disavowed that statement. To find Antonio removable, the immig ration judg e had to find J uan’s second story implicating his mother to b e not credible. The immig ration judg e also had to find not credible Antonio and Micaela’s testim o n y that Micaela was responsible for
arrang ing the smug g ling and procuring the false documents.

W e review an immig ration judg e’s credibility determinatio n f

o r substantial evidence. Shrestha v. H older

, 5 9 0 F .3d 1034, 1039 (9th Cir. 2 010). 3 I mmig ration j u d g e s must consider the “totality of the c i r cumstances, and all relevant factors,” including inconsistencies and falsehoo ds. Id

. at 1040. I n consistencies n eed not “‘g o to the heart’ of the
p e t i t i oner’s claim to form the basis o f an adverse credibility

3 It i s n ot clear w

h eth er th e p ro v isio n s o f th e REA L ID A ct th at g o v ern

c r e d i b i l i ty d eterm in atio n s in r e m o va l p r o c e e d i n g s , 8 U

. S

. C

. 1 2 2 9 a(c)(4 )(C), ap p ly to th is case b ecau se it is u n clear w h eth er A n to n io ’ s

m o tio n to term i n a t e p r o ceed in g s is an “ [a]p p l icatio n [] f o r relief f

ro m

rem o v al” w i th i n th e m ean in g o f t h e s t a t u te. Co mp a re, e.g

. , Ma t t er o f Ma n u ela No rma Men d io l a -S a lg a d o , 20 0 9 W L 7 7 3 1 7 7
, * 1 ( B. I

. A

. F eb

. 2 7
, 2 0 0 9 ) (u n pu b lish ed ) (su g g estin g th at it is) wit h

, e.g

. , Ma t ter o f Geo r g e Ara u jo -Ma la g o n , 2 0 0 9 W L 48 9 90 6 1
, * 1 (B .I.A

. N o v

. 3 0, 20 0 9) (u n p u b lish ed ) (su g g estin g th at it is n ot) a n d 8 C.F.R. § 1 2 4 0 .8 (d ) (su g g estin g th at ap p licatio n s f o r relief are claim s o n w

h ich th e alien b ears th e b u rd en of p ro v in g h e sh o u l d n o t be rem ov ed b ecau se h e is en titled to

a “ b en ef it o r p riv i leg e”). A s ou r resu lt in th is case is th e sam e w h eth er or

n o t th e REA L ID A ct pro v isio n s ap p ly

, w e do n o t reach t h is q u estio n

. W e

w i l l assu m e th e REA L ID A ct ap p lies h ere b ecau se ev en u n d er its m o r e d ef eren tial stan d ar d s , t h e IJ ’ s d ecisio n is n ot su p p orted b y su

b stan tial

ev id en ce.P E R E Z

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determination.” Id. at 1 043. B u t “trivial inconsistences that under the total circumstances ha v e no bearing on a petitioner’s veracity should not form the ba sis of an adverse credibility

determination.” I

d

. a t 1044.

III

Antonio contends that the immig ration judg e er r e d in concluding that there were suff i c ient discrepancies to discredit J uan and Antonio’s testimony that Antonio did not partici p a t e in the smug g ling

. The immig ration judg e relied

on five inconsistences o r omiss i o n s

. Antonio c halleng es, while the g overnment defends, e ach. We conclude that three of these five alleg ed problems identified by the I J were insufficient or inaccurate a n d cannot support a neg ative credibility

determination.

A

F irst, the immig ration judg e r elied on the i n c onsistency that A ntonio said they went to Mex ico to take his son to the doctor, but J uan and Micaela both said they went to take his daug hter. The I J was correct that Antonio’s I -213 states that Antonio said he went to Tijuana “ because he wanted to take his son to see a doctor.” B ut like J uan and Micaela, Antonio also testified that he went to Tijuana to take his daug hter to the doctor. The I J s imply ig nored A ntonio’s testimony that his d a ug h ter was the sick child. And the g overnment did not question any witness about the d iscrepancy between the I -213 and the testimony

, so we have no e x planation for w hy the I

213 say s what it does. On the r ecord here, the i n c o n sistency with Antonio’s I -213 canno t support a neg ative credibility finding b e c a

use the I J d id not ask Antonio about the inconsistency

. See Soto-Olarte v. Holder

, 555 F .3d 1 0 8 9
,P E R E Z

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1091–92 ( 9th Cir. 2009) (holding that B I A must inquire about

a n d c o n s i d e r t h e r e s p o n d e n t ’ s e x p l a n a t i o n s f o r inconsistencies).

Second, the immig ration judg e r elied o n a pur p o rt e d inconsistency that J uan testified that h e talked to Antonio in the van o n the way to the border, but Antonio t e s t i fied that they d i d n o t talk. B ut it is unclear that there w as any inconsistency at all. T he g overnment first asked Antonio, “And then y ou g ot up a

nd y ou g ot in the car? ” Antonio said
y es. T h e g overnment then asked if A ntonio fell a sleep, a nd he said he was jus t l e a n ing o n the seat. The g overnment asked, “W e re y ou talking to y our son? ” and Anto nio answered, “Pretty

much we d idn’t ex chang e words.” The I J interpreted this to mean that Antonio and J uan did not speak
at a ll d uring the entire trip, but instead, this quoted ex chang e could plausibly sug g est that they d i d not speak much but spoke a little, and it could plausib l y r efer only to the initial part of the trip when Antonio had just g otten into the v an. I n fact, Antonio had told B o rder Patrol th a t h e “ g ot into an arg ument” with J uan once he d iscovered Ga r cia a nd Ro d r i guez were in the vehicle, so clearly his statement “Pretty much we didn’t ex chang e words” did n ot mean t h ey

were silent for the full trip. J uan, o n the other hand, was not asked the same qu e s t i on—J uan was asked the very g eneral question whether they t a l k e d “during the trip,” to which he responded y es. J uan did not say how much they spoke, i.e., whether it was only a few words, which would be consistent with Antonio’s testimony

. And J uan did clarify that they did
not talk a b o u t the smug g ling

, which is what really matters. The I J should not h a v e p l a ced sig nificant weig ht on this apparent discrepancy absent development of the testimony to clarify whether the statements were truly inconsistent. S h r estha

, 5 90 F

. 3d at 1044 ( holding that I J should consi d e rP E R E Z

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petitioner’s ex planation for a p erceived inconsistency to “shed[ ] lig ht on whether there is in fact an incons istency at all”).

Third, the immig ration judg e noted that Antonio testified that he g ot into the van after Garcia and Rodrig uez , but the I J said that Antonio’s s t a t e m ent at the border was that he was asleep in the van when the w o m en e n tered the van. The I J misread Antonio’s border statements in the I -213 form. The form say s that Antonio stated t h at he “he was asleep when GARCI A and RODRI GUEZ g ot into the vehicle.” This does not, however, necessarily mean that h e was asleep in the van

. The I J may h a v e m a d e this assumption from the following
sentence in the I -213 form, which indicated that Antonio did
not realiz e the women were in the b a c k s eat until he “woke up” when the van was near the b o r d e r

. B ut Antonio’s
statement itself say s nothing about where he was asleep when the women entered the van.

I ndeed, other evidence in the r ecord sug g ests that Antonio

was a sleep o r otherwise in the house when the w omen go t into the van. J uan testified that A n t o n i o w as asleep when Garcia a r rived a t the house, and he ex plained that when Antonio g o t in the f

ront seat of the van fifteen minutes later, Antonio did not see the two women a l r e ady in the backseat. I t is clear from contex t that J uan was say ing Antonio was asleep in the house. Micaela testified a little differently , but she was still c lear that Antonio w as in the house; she stated that when A ntonio “g ot out of his b edroom, he w e nt into the bathroom, and that’s when they [ Garcia and Rodrigu e z ] g ot into the car.” Antonio’s testimony was a lso consistent on this point; he testified that he was sleeping in the house, and then he “g ot up and

. . . g ot in the car.” W e c onclude that the I J ’sP E R E Z

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reading of the I -213 was erroneous, a n d that there was no inconsistency

on the timing of entry

at all.

B

W h ile t h e I J erred in these three respects when determining that J uan and Antonio wer e not credible, we disag r ee with Antonio that the I J erred in the two other respects that Antonio identif i e s in his brief. One leg itimate

reason the I J g ave to support the neg a t i ve credibility determinations—thoug h as to J u an, not Antonio—was that he

conc l u d ed that J uan and Micaela falsely testified that they

were threatened by B order Patrol Officer L opez with removal of Micaela’s children if they did not blame someone. The I J instead g ave dispositive weig ht to L opez ’s testimony that he would “never” make such a threat in a n y case, althoug h he did not remember this specific case. Sub s tantial evidence supports the I J ’s conclusion that J uan’s and Micaela ’ s later testimony that they were threatened by B order Patrol was a lie or embellishment. W hen J uan retrac t ed his statement to B order Patrol in March 2007, he d id n o t say a ny thing about

a threat that his mother’s c h ildren w ould b e taken—he

ex p lained only that he had been “afraid what would happen
to my two y oung er sisters and y oung er brother, i f t h e I mmig r a tion detai n e d m y mother.” He made no sug g estion of a threat.

The second valid reason the I J g ave to discredit J uan was that it was suspicious that Micaela and J uan had both testified
to the same $ 150 0 smug g ling fee even thoug h they claimed that they never spoke about t h e f ee. Substantial evidence supports the I J ’s conc l u s i on that J uan was ly ing that he “invented” this fee amount because it could reasonably seemP E R E Z

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t hat Micaela and J uan had coordinated this aspect of thei r stories.

IV

W e n e ed not decide whether the three errors by the I J in his reasoning to discredit Antonio a nd J u a n were sufficient b y themselves for u s to g rant A n t o n i o’s petition for review. There is a fundamental contradiction in the I J ’s reasoning that leads us to g r ant Antonio’s petition and remand for f urther

ex p lanation.

As ex plained above, removability f or smug g ling requires the responde nt to h ave taken an affirmative act in the
smug g ling a ttempt. See Altamirano

, 427 F .3d at 592. T h e I J here made no ex plicit finding that Antonio eng ag ed in any

a f f i rmative act—he ruled o nly that “the Court finds that t h e father, Antonio Perez -Arceo w as aware of the smug g ling

. ” The only evidence in the record that could h a ve supported a finding o f an affirmative act on Antoni o ’ s part is J uan’s initial statement to B order Patrol th a t i t was Antonio w ho made the arrang ements to bring Rodrig uez and Gar cia into the United States. To cred i t J uan’s initial statement would require disc r e d iting Micaela’s testimony and I -213 statements, in which she took sole responsib i l ity for the
smug g ling a ttempt. I t would also require discrediting J uan’s later recantation a n d Antonio’s testimony

, all of which was consistent with Micaela’s testimony and I -213 statements that she alone was responsible.

F ar from d iscrediting Micaela’s statements, however, the I J ex plicitly

relied on them in ordering her removal, holding that “ throug h [ Micaela’s] testimony and information in the I

213 in h er case, the D epartm e n t o f Homeland Security hasP E R E Z

- A R C E O V

. L Y

N C H 16

met their b urden by proving by c lear and convincing evidence both the a lleg ations and that c h arg e, and I will sustain b oth.” Yet when it came to A ntonio’s case, the I J ig nored Micaela’s testimony and I -213 stating that she was the sole g uilty party and that Antonio “ had no idea” she made the smug g ling
arrang ements. The I J instead f o u n d A ntonio responsible without ex plaining this inconsistency at all.

W h en an I J makes s e e m ing ly inconsistent finding s with respect to an adverse c r edibility d etermination, it is necessary to remand the record for mo r e fa ctfinding and clarification. Stated another way , absent a sufficient ex planation, the I J in this c ase could not c redit one part o f the witness Micaela’s testimony to remove h er, w hile at the same time discrediting the same part of he r t e s t i mony to remove Antonio. See Shrestha

, 5 9 0 F .3d a t 1 043 (e x p laining the I J must g ive “cog ent reasons” fo r c redibility determinations); Soto-Olarte

, 555 F .3d at 1094 (ex plaining g eneral r u l e t o remand for further ex planation when adverse c redibility determination is flawed); cf. Arthur R. Miller, 9 C F ed. Prac. & Proc. Civ. § 2579 n.9 (3d ed. 2016) ( “F actual f inding s that a

re internally inconsistent . . . are clearly erroneous.”).

I n sum, the I J ’s conclusion that Antonio was complicit in
t h e s mug g ling attempt r equired more than a determination that Antonio and J uan were untruthfu l i n lay ing sole responsibility on Micaela. The I J also needed to ex plain why Micaela’s I

- 213 and testimony were not credible. I n stead, the I J actually cr e d i ted Micaela’s testimony and I -213 in which she took r esponsibility for the smug g ling attempt. A neg ative credibility determination must be supported by “specific a nd
coge n t r easons,” Shrestha

, 5 90 F .3d at 1042, but the I J did
not g ive any reasons unde r m i ning Micaela’s statements that

s he took responsibility f

or arrang ing the smug g ling effo r t sP E R E Z

- A R C E O V

. L Y

N C H 17

a n d procuring false documents. The I J cannot “cherry pic k solely facts f

avoring an a dverse credibility d eterminati o n while ig noring facts that undermine that result.” Id

. at 1040. The I J ’s failure to discuss Micaela’s testimony and I -213 a nd why M i c ae la was not credible requires us to remand for further ex planation. 4

V

W e g rant Antonio’s petition f or review and remand on an open r e c o r d for further proceeding s in accordance with this opinion. See Soto-Olarte

, 555 F .3d at 1094–96.

G RANTED and REMANDED.

4 T h e IJ m ay h av e th o u g h t t h at all f am ily m em

b ers k n ew ab ou t th e

a ttem p t to s m u g g le Garcia an d Ro d rig u ez in to th e U n i ted States

. B u t

w h eth er o r n o t th e ev id en ce su p po rts th is s p ecu latio n , t h is f in din g is in su f f icien t to su stain th e ch arg e ag ain st A n t o n i o b ecau se m ere k n o w led g e

o f th e sm

u g g lin g attem

p t is in su f

f icien t f o r rem o v ab i lity u n der § 1 1 8 2 (a)(6 )(E)(i). S

ee Alta mira n o , 4 2 7 F. 3 d a t 5 9 2

. A s m en tio n ed b e fo r e , th e IJ m ad e n o ex p l icit f in d in g th at A n to n io en g ag ed in an y af f irm ativ e act, in stead ru lin g o n ly t h a t “t h e Co u rt f in d s th at th e f

ath er, A n to n io P erez- A rceo w as aw are o f th e sm u g g lin g .”