18-2532

Alexandre v. Garland

BIA

Mulligan, IJ

A209 866 675

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 TO 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 

for the Second Circuit, held at the Thurgood Marshall 

United States Courthouse, 40 Foley Square, in the City of 

New York, on the 18th day of March, two thousand twenty-one.

PRESENT:

BARRINGTON D. PARKER,

REENA RAGGI,

JOSEPH F. BIANCO,

Circuit Judges.

_____________________________________

JODE ALEXANDRE,

Petitioner,

v. 18-2532

NAC

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL,

Respondent.1

_____________________________________

FOR PETITIONER: Hagit Muriel Elul, Esq., Hughes 

Hubbard & Reed LLP, New York, NY; 

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney 

General Merrick B. Garland is automatically substituted for former 

Attorney General William P. Barr as Respondent.
2

Elizabeth Rieser-Murphy, Esq., The 

Legal Aid Society, New York, NY.

FOR RESPONDENT: Brian M. Boynton, Acting Assistant 

Attorney General; Nancy E. 

Friedman, Senior Litigation 

Counsel; Andrew Jacob Oliveira,

Trial Attorney, Office of 

Immigration Litigation, United 

States Department of Justice, 

Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a 

Board of Immigration Appeals (“BIA”) decision, it is hereby 

ORDERED, ADJUDGED, AND DECREED that the petition for review 

is GRANTED.

Petitioner Jode Alexandre, a native and citizen of Haiti, 

seeks review of an August 15, 2018, decision of the BIA 

affirming a February 21, 2018, decision of an Immigration 

Judge (“IJ”) denying Alexandre’s application for asylum, 

withholding of removal, and protection under the Convention 

Against Torture (“CAT”). In re Jode Alexandre, No. A 209 866 

675 (B.I.A. Aug. 15, 2018), aff’g No. A 209 866 675 (Immigr. 

Ct. N.Y.C. Feb. 21, 2018). We assume the parties’ familiarity 

with the underlying facts and procedural history. 

We have reviewed the IJ’s decision as supplemented by 

the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d 
3

Cir. 2005). “Considering the totality of the circumstances, 

and all relevant factors, a trier of fact may base a 

credibility determination on . . . the consistency between 

the applicant’s or witness’s written and oral statements 

. . . , the internal consistency of each such statement, the 

consistency of such statements with other evidence of record 

. . . and any inaccuracies or falsehoods in such statements, 

without regard to whether an inconsistency, inaccuracy, or 

falsehood goes to the heart of the applicant’s claim, or any 

other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). We 

review adverse credibility determinations for substantial 

evidence. See Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d 

Cir. 2018). Given the lack of explanation in the agency’s 

decision, as well as the possible consideration of an 

unsubstantiated allegation regarding a matter outside the 

record, we cannot conclude that the findings relied upon by 

the agency provide substantial evidence for the adverse 

credibility determination. While the agency may rely on any 

omission or inconsistency in making an adverse credibility 

determination, see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167

(2d Cir. 2008), not all omissions and inconsistencies deserve 
4

the same weight, see Hong Fei Gao, 891 F.3d at 77. The agency 

must “evaluate each inconsistency or omission in light of 

‘the totality of the circumstances, and all [the] relevant 

factors.’” Id. at 79 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). 

In finding Alexandre not credible, the IJ relied on his 

border interview statement that he was coming to the United 

States to find work and did not fear returning to Haiti. 

Alexandre did not dispute making this statement, but 

explained that he was told by an individual “who works that 

route” not to disclose his fear of return at the border as 

doing so would make him “eligible for immediate deportation.” 

Certified Admin. Rec. at 166. Although an IJ is not required 

to accept an asylum applicant’s explanation for record 

inconsistencies, the IJ must engage or evaluate an 

applicant’s explanation. A “summary conclusion that the 

Court does not accept [petitioner’s] explanation [does] not 

meet this requirement.” Hong Fei Gao, 891 F.3d at 81-82

(internal quotation marks omitted). This is particularly so 

when, as here, the inconsistency pertains to a borderinterview statement. See Latifi v. Gonzales, 430 F.3d 103,

105 (2d Cir. 2005) (identifying error in IJ’s reliance on 
5

applicant’s statement during airport interview that he did 

not fear return where IJ did not consider explanation that 

applicant was “afraid and pressured”). Here, the IJ rejected 

Alexandre’s explanation, stating that he found it “more 

likely” that Alexander later fabricated an asylum claim to 

avoid deportation. Certified Admin. Rec. at 97. But the IJ 

did not explain why he found this more likely. Absent some 

explanation as to why the IJ thought Alexandre likely 

fabricated his asylum claim, a due process issue arises as to

whether the IJ relied on the Department of Homeland Security’s 

(“DHS”) assertion—unsubstantiated in the record—that Haitians 

have a pattern of fabricating asylum claims. See Burger v. 

Gonzales, 498 F.3d 131, 132–33 (2d Cir. 2007) (Due process 

requires “if the [BIA] intends to take administrative notice 

of potentially dispositive facts, it must warn a petitioner 

and provide the petitioner with an opportunity to respond 

before it . . . enters a final order of removal on the basis 

of those facts.”); cf. Brown v. Ashcroft, 360 F.3d 346, 352 

(2d Cir. 2004) (submission of conviction record did not 

violate due process because alien had opportunity to contest 

evidence at the hearing).
6

Because the IJ gave significant weight to this initial 

finding of likely fabrication, we cannot determine whether he 

would have reached the same adverse credibility determination 

based only on the other identified inconsistencies. The IJ 

correctly noted inconsistency between Alexandre’s borderinterview statement that he left his passport in Brazil and 

his testimony that his passport was stolen in Nicaragua. But

it is not apparent on the record before us how that 

inconsistency relates to the rationale for his asylum claim. 

See Hong Fei Gao, 891 F.3d at 77. Also, the IJ did not engage 

with or, on the record, evaluate Alexandre’s explanation that 

he initially said he left his passport in Brazil to avoid 

deportation directly to Haiti. See id. at 81–82 (requiring 

IJ to “engage or evaluate the explanation” (internal 

quotation marks omitted)); see also Pavlova v. INS, 441 F.3d 

82, 89-90 (2d Cir. 2006) (remand appropriate where not 

apparent on the face of record that agency considered 

explanation). 

The IJ also found Alexandre’s credibility undermined by 

his inability to remember the month or time of year in 2013 

when his mother told him over the phone that his sister had 
7

died. This lack of detail concerns an event unrelated to

Alexandre’s own past persecution, though supportive of his 

professed continuing fear if returned. In his brief to this 

Court, Alexandre submits that his inability to pinpoint the 

season is less telling of credibility because he was living 

in the Domincan Republic where there is little seasonal 

variation. We do not ourselves assess this explanation but, 

instead, leave it for agency determination on remand. 

Finally, the IJ’s finding that the testimonies of 

Alexandre’s brothers were vague related primarily to details 

following their sister’s death. They gave consistent 

accounts as to Alexandre’s political activities and the harm 

that he suffered. 

In sum, we cannot conclude on the record before us that 

the IJ’s adverse credibility finding is supported by 

substantial evidence. Accordingly, we are obliged to remand 

for further proceedings consistent with this order. See 

Gurung v. Barr, 929 F.3d 56, 62 (2d Cir. 2019) (“When the 

agency has denied asylum and related relief on credibility 

grounds, we can (and we will) affirm only if (a) the agency 

offered a clearly independent and sufficient ground for its 
8

ruling, one that is not affected by any erroneous adverse 

credibility findings, or (b) the evidentiary record includes 

statements that are so inconsistent that we can be confident 

that the agency would not accept any kind of explanation.”). 

For the foregoing reasons, the petition for review is 

GRANTED, the BIA’s decision is VACATED, and the case is 

REMANDED for further proceedings. All pending motions and 

applications are DENIED and stays VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe,

Clerk of Court