Unpub. BIA Remand Victory: CAT, Mexico, credibility, social group

Unpub. BIA Remand Victory: CAT, Mexico, credibility, social group

"[T]he adverse credibility finding is clearly erroneous inasmuch as it based on minor inconsistencies and improper speculation (Resp. Br. at 15). See Ren v. Holder, 648 F.3d 1 (9th Cir. 2011) (trivial inconsistencies that under total circumstances have no bearing on petitioner's veracity should not form basis of adverse credibility determination); see also Cosa v. Mukasey, 543 F.3d 1066, 1068 (9th Cir. 2008) (speculation and conjecture cannot form basis of adverse credibility finding). The inconsistencies regarding the incident which formed the basis for his past persecution claim were not significant in light of the totality of the record. Whether the respondent went to the club with three friends or four, and whether he left the club at 1:30 or 4:00 in the morning, are not significant discrepancies given the remainder of the respondent's account. Likewise, the alleged implausibilities regarding his HIV medication are based on speculation. Accordingly, the adverse credibility determination cannot be affirmed. We disagree with the Immigration Judge's determination that the respondent did not suffer past persecution (1.J. at 11-12). The beatings and rape inflicted on the respondent while in detention clearly rise to the level of persecution (Tr. at 1 1). He testified that while he was detained and assaulted, the police officers alluded to his homosexuality, telling him that they were teaching him a lesson so that he would act like a man outside of jail (Tr. at 129; Resp. Br. at 24). This is sufficient evidence to demonstrate that a central reason for the respondent's persecution was his membership in a particular social group, i.e., homosexuals. See Boer-Sedano v. Gonzales, 418 F.3d 1082, 1088 (9th Cir. 2005) (sexual assault of respondent by police officer on account of respondent's homosexuality sufficient to constitute past persecution).  Accordingly, the respondent's mistreatment constitutes past persecution on account a protected ground. Since the respondent suffered past persecution on account of a protected ground, he is entitled to the presumption his life or freedom would be threatened. 8 C.F.R § I208.16(b)(1)(i). The burden shifts to DBS to rebut the presumption that life or freedom would be threatened by demonstrating a fundamental change in circumstances or respondent's ability to internally relocate. 8 C.F.R. § 1208.16(b)(1)(ii).  We will remand matter to provide parties the opportunity to supplement the record with evidence relating to current conditions Mexico, and the Immigration Judge should assess current conditions there in evaluating whether the respondent's life or freedom would be threatened upon his return to Mexico."  Matter of X-, Oct. 21, 2011.  [Hats off to Edgardo Quintanilla!]