Nkenglefac v. Garland, No. 19-60647 (5th Cir. 2022)
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Petitioner a native and citizen of Cameroon, applied for admission into the United States on May 9, 2018. The immigration judge (“IJ”) denied Petitioner’s application for relief from removal and ordered him removed to Cameroon after determining that Petitioner was not credible. The Board of Immigration Appeals (“BIA”) subsequently affirmed the IJ’s determination, and Petitioner was removed to Cameroon.
The Fifth Circuit granted Petitioner’s petition for review of the BIA’s dismissal of his appeal on the IJ’s denial of application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) and remanded the case to the BIA.
The court reasoned that under BIA precedent, an adverse credibility determination should not be based on inconsistencies that take one by surprise. Relatedly, the court has approved, but not required, that petitioners should be given the opportunity to explain any non-obvious discrepancies that may bear on their credibility. Here, at no point during the hearing before the IJ was Petitioner provided with the opportunity to explain any apparent inconsistencies or dispute the accuracy of the records in question, or cross-examine the individuals who prepared the interview summaries, much less object to their introduction, or offer views on weight to be given to the evidence. Further, the court noted that there is no evidence—beyond the statement of the BIA majority—that Petitioner’s counsel failed to preserve this issue on appeal.
The court issued a subsequent related opinion or order on March 28, 2023.
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