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CA2 on Competency, Credibility: K.O. v. Garland (unpub.)

May 23, 2021 (1 min read)

K.O. v. Garland (unpub.)

"The record evidence in this case shows that K.O. had been diagnosed with post-traumatic stress disorder (PTSD), anxiety, and depression, and was prescribed medication for PTSD while in immigration custody. ... K.O. urged that the IJ consider his history of mental illness before deciding the issue of removability. ... As the Government does not dispute, under these circumstances, the BIA’s own precedent, Matter of M-A-M-, compelled the IJ to make a finding about K.O.’s competency. ... But the IJ failed to do so. ... We therefore remand to the agency for a new hearing consistent with Matter of M-A-M-. We decline to address the issue of whether the asylum claim was untimely. On remand, however, K.O. may raise the issue of his PTSD diagnosis and the effect of that diagnosis on his ability to timely file his application before the IJ. ... We next review the agency’s credibility and corroboration determinations for substantial evidence. ... In finding K.O. not credible, the IJ made several errors. ... Absent the initial findings that called into question K.O.’s credibility, the absence of corroboration cannot be a basis for the adverse credibility determination. ... The BIA’s failure to acknowledge the mother’s affidavit warrants remand. ... We have considered the Government’s remaining arguments and conclude that they are without merit. For the foregoing reasons, the petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED for proceedings consistent with this order."

[Hats way off to appointed pro bono counsel Beatrice Franklin and Arun Subramaniam, both of whom clerked for the late Justice Ruth Bader Ginsburg!  Note that this Petition for Review was filed in 2018.  Also note (from PACER) that K.O. was removed in the interim.  I hope counsel move for publication, and are able to persuade DHS to return K.O. to the U.S.]