N O T FO R PUB L ICAT IO N UNITED STATES C OUR T OF APPEALS FOR THE NINTH C IR C UIT

PIER R E DAVID B O SSA,

Pe t i tione r,
v. W ILLIAM P. B ARR , Attorne y Ge ne ra l, R e sponde nt. No. 18-70202 Age n c y No. A209-391-310
M EM O R ANDUM *

On Pe tition for R e vie w of a n Orde r of the B oa rd of Im m igra tion Appe a ls Argue d and Subm itte d June 4, 2019 Se a ttle , W a s hington B e fore : D.W . NELSON, R AW LINSON, a

nd B EA, C irc uit Judge s . Pie rre B o ssa , a

na tive and c itiz e n of Ha iti, pe titions for re vie w of the B oa rd of Im m igra tion Appe a l s’ (“ B IA” ) orde r dism issing his a ppe a l of the im

m igra tion judge ’ s (“ IJ” ) de c i sion de n y ing B ossa ’ s a pplic a tion for a sy lum , withholding of
re m ova l, a

nd re lie f unde r the C onve ntion Aga i nst Torture (“ C AT” ). W e have jurisdic tion unde r 8 U.S.C . § 1252(a ). W e de ny B ossa ’ s pe tition for re vie w.



# FIL ED
JAN 7 2020 M OLLY C. DW Y ER, CLERK U

. S. CO URT O F APPEALS

* This disposition is not a ppropria te for public a t ion a

nd is not pre c e de nt e xc e pt a s provide d

by Ninth C irc uit R

ule 36-3.W e re vie w the B IA’ s c re dibility finding for substa

ntia l e vide nc e . S

e e Guo v

. Se ssions , 897 F.3d 1208, 1212 (9th C ir. 2018). Unde r the substa ntia l e vide nc e sta nda rd, the c o urt tre a ts the a ge nc y ’ s de te rm ination a s “ c onc lusive unle ss a ny
re a s ona ble a djudic a tor would be c o m pe lle d to c onc lude to the c ontra ry .” 8 U.S.C
. § 1252(b)(4)(B ); IN

S v . Elias-Zac arias , 502 U.S. 478, 481 n.1 (1992). The c ourt
a ffords IJs pa

rtic ula r de fe re nc e in the are a

of a d ve rse c re dibility

de te rm inations be c a use the IJ is, “

by virtue of his a c quire d skill, unique ly qua l ifie d to de c ide whe the r a n a lie n’ s te s tim ony ha s a bout it the

ring of truth.” Sarv i a-Quintanilla v

. IN S , 767 F.2d 1387, 1395 (9th C ir. 1985). Substa ntia l e v i de nc e supports the a ge nc y ’ s a dve rse c re dibility de c ision. The IJ ide ntifie d m

ultiple inc onsiste nc e s be twe e n B ossa ’ s te s tim o ny a t his he aring be fore the IJ, his prior sworn sta te m e nt, a nd his sta te m e n ts in his initia

l inte rvie w. Pa rtic u la rly , in his initia

l inte rvie w with a

borde r pa trol a g e nt, B ossa sta te d he did not fe ar re turning to Ha iti a nd tha t he would not be

ha rm e d if re t

urne d. At his he aring, B ossa

c la im e d fe ar ba s e d on se xua l orie ntation a n d de sc ribe d inc ide nts he
e xpe rie nc e d in his na

tive Ha iti a

nd in B ra z il, whe re he live d for ne a rly two y e ars be fore arriving in the

Unite d State s. Furthe r, B ossa disc uss a n im porta nt inc ide nt
a t a soc c e r ga m e in his c re dible fe a r inte rvie w, but did not m e ntion it in his writte

n
a sy lum a pplic a tion, a

n d the n inc lude d inform a tion a bout this inc ide nt in his
2de c la

ra tion with more de ta il tha n he provide d in the c re dible fe ar inte rvie w. The IJ que stione d

B ossa a bout the inc o nsiste nc ie s, but he provide d shifting
e xpla na tions. B ossa

e x pla ine d tha

t he gave fa lse inform at ion to theborde r pa trol
a ge nt be c a

u se the re we re m a

n y othe r Ha iti im

m igra n ts in the room

and it wa s too public , but la

te r sta te d it wa s be c a

use he ha d diffic ulty

with the inte rpre te r. The IJ pointe d out tha

t the sworn sta

te m e nt e xpre ssly

note s the inte rvie w m ay

be the only opportunity

for an a lie n to e xpla in his fe a r of re turning a

n d tha t he did not m e ntion
any c onc e rns re la te d to the inte rpre te r a t the tim e . B ossa first e xpla ine d tha t no one
re a d ha d re a d him the notic e s but la

te r state d tha

t he ha d diffic ulty

working with the i nte rpre te r. The IJ did not find the se e xpla na t ions c re dible , noting tha t B ossa ha d c om ple te d othe r portions of the form c orre c tly
. The IJ wa s not re quire d to
a c c e pt B ossa ’ s e xpla

na tions for the se inc onsiste nc ie s. Se e Zamanov v . Holde r , 649 F.3d 969, 974 (9th C ir. 2011). In a ffirm i ng the IJ’ s a dve rse c re dibility finding, the

B IA re lie d on m

ultiple inc o nsiste nc i e s, pa

rtic ula rly B ossa ’ s sta

te m e nts a t the borde r tha

t he did not fe ar
re turning to Ha iti a

n d would not be

ha rm e d, in c ontra st to his c la im s in his he aring. The B IA a lso found B ossa ’ s e xpla na tions for the se inc onsiste nc ie s unpe rsua sive , inc l uding B ossa ’ s sta

te m e nts tha

t he ha d diffic ulty

working with the inte rpre te r be c a use his inte rvie w wa s c onduc te d in a la ngua ge othe r tha

n C re ole , though Form
3I-867A shows tha t his inte rvie w wa s c onduc te d in C re ole
. Though the B IA re lie d on m ultiple inc onsiste nc ie s , the c o urt m ust uphold the d e te rm i na tion if one ba sis is supporte d by substa ntia l e v ide nc e . S

e e Rizk v . Holde r , 629 F.3d 1083, 1088-89 (9th C ir. 2011). Substa ntia l e vide nc e supports the B IA’ s de te rm ination B ossa wa s not c re dible , the re fore the re c ord doe s not c om pe l
re ve rsa l. Se e 8 U.S.C . § 1252(b)(4)(B ). B ossa fa ile d to e sta blish pa st pe rse c ution. Substa ntia l e v i de nc e a lso supports the a ge nc y ’ s de te rm inat ion tha t B ossa fa ile d to de m onstra

te a we ll-founde d fe ar of future pe rse c ution. S e e Lolong v

. Gonzale s , 484 F.3d 1173, 1178 (9th C ir. 2007) (e n ba nc ). To e sta

blish a
we ll-founde d fe ar of future pe rse c ution, thea pplic a nt m ust e s ta blish tha t his fe ar

“ is both subje c tive ly

ge nuine and obje c tive ly

re a sona ble
. ” Id
. B o ssa

fa ile d to
sa tisfy the subje c tive c om

pone nt by not te stify ing c re dibly
. Id. a t 1178-79. Abse nt c re dible te stim o ny or e v ide nc e , B ossa ’ s a sy lum and withholding of
re m ova l c la im s fa i l. Se e Farah v . Ashc roft , 348 F.3d 1153, 1156 (9th C i r. 2003). Substa ntia l e v i de nc e supports the B IA’ s de nia l of C AT re lie f. B e c a use B ossa ’ s C AT c la im

is ba se d on the sa

m e te stim ony

tha t the IJ found not c re dible , and be c a u se B ossa pre se nte d no othe r e v ide nc e of torture , his C AT c la im fa ils a s
we ll. Se e Farah , 348 F.3d a t 1157. PE T IT IO N FO R RE V IE W DE NIE D.
4Pierre Bossa v. William Barr , 18 - 70202 D.W. NELSON, Circuit Judge, dissenting : T he majority affirms the Immigration Judge (IJ) and Board of Immigration Appeals (BIA)’s adverse credibility finding on the basis of Bossa’s failure to disclose his sexual orientation at the border patrol interview
. In my view, neither the IJ nor the BIA provide d a specific a nd cogent reason to disregard Bossa’s explanation r egarding his fear of disclosing his sexual orientation in public during the border patrol interview. See Manes v. Sessions , 875 F.3d 1261, 1263 (9th Cir. 2017). Accordingly, I will dissent. Bossa explain ed that he did not express his fear of persecution to the border patrol agent during the September 2016 interview because the interview was conducted in a public location, with many other Haitians present, and he was afraid to disclose his sexual orientati on given the persecution he had experienced from Haitians in the past. As Bossa later put it to the asylum officer , “I was worried and afraid to give the reasons why I am afraid.” The IJ rejected that explanation as “unconvincing , ” b ut the IJ never provided a cogent reason to disbelieve it. The IJ only suggested the explanation was somehow implausible given “the two

- month journey to reach the United States for protection.” If anything, Bossa’s reluctance to publicly divulge his sexu al orientation after a lengthy journey simply confirms the intensity of his fear. Given the hostility he experienced from his family, homophobia from Haitians in Haiti and Brazil, and particularly after being attacked 

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JAN 7 2020 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 and injured by a mob in Haiti, it see ms reasonable for Bossa to be afraid that if a large group of Haitians found out that he was gay, he would be attacked
. Cf. Paramasamy v. Ashcroft , 295 F.3d 1047, 1053 (9th Cir. 2002) (“ That a woman who has suffered sexual abuse at the hands of male offic ials does not spontaneously reveal the details of that abuse to a male interviewer does not constitute an inconsistency from which it could reasonably be inferred that she is lying .”). Because the “IJ fail[ed] to address [Bossa’s] explanation for a discre pancy or inconsistency ,” the adverse credibility finding is improper. Kaur v. Ashcroft , 379 F.3d 876, 887 (9th Cir. 2004)
. In affirming the BIA , the majority relies on Bossa’s statements that he had difficulty working with the interpreter during the border patrol interview , but the record supports Bossa’s explanation . The BIA emphasized that Bossa’s sworn statement “did not indicate that he had trouble understanding the interpreter.” Not true. For example, Bossa repeatedly answered the border patro l’s open

- ended questions with a non

- sensical “yes” or “no.” Such “ unresponsive answers by the witness provide circumstantial evidence of translation problems. ” Perez

- Lastor v. I.N.S. , 208 F.3d 773, 778 (9th Cir. 2000)
. T he BIA also took issue with Bossa ’s contention that the border interview “was eventually conducted by someone else in a language other than Creole.” T he IJ and BIA doubt ed that a portion of the border patrol interview was conducted by someone other than the telephonic interpreter in3 ligh t of a “presumption of regularity” they afforded the border proceedings
. See Kohli v. Gonzales , 473 F.3d 1061, 1068 (9th Cir. 2007). Initially, I doubt such a presumption should extend to an apparent contractor with AT&T who offered telephonic interpreta tion services , especially in light of the language difficulties noted above
. Cf. Del Norte Cty. v. United States , 732 F.2d 1462, 1468 (9th Cir. 1984) (“[C] ourts presume that public officers properly discharge their duties .” (emphasis added)). In any event, Bossa’s consistent testimony on this point during his credible fear interview, and his declaration and testimony before the IJ provides

“ clear evidence ” to overcome that presumption. Id. The majority construes these a s “shifting” rather than simply additional explanations for Bossa’s omission. But it was not contradictory for Bossa to consistently explain that

— in addition to his fear of persecution

— these language barriers provided an additional impediment to him publi cly disclosing his sexual orientation. Bossa’s explanation for his omission is grounded in the same fear of persecution on which his asylum application relies. Lacking a specific and cogent reason to reject that explanation, the BIA’s adverse credibility determination is not supported by substantial evidence. See Manes , 875 F.3d at 1263
. Accordingly, I DISSENT.