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Immigration Law

CA1 on Credibility, Evidence: Cuesta-Rojas v. Garland

Cuesta-Rojas v. Garland

"Darwin Aliesky Cuesta Rojas ("Cuesta Rojas"), a native and citizen of Cuba, petitions for review of an order of the Board of Immigration Appeals ("BIA") affirming the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). We vacate and remand. ... The asylum officer found Cuesta Rojas credible and referred his case to immigration court. ... At the end of the hearing, the IJ orally denied Cuesta Rojas's application for relief. ... In support of that conclusion, the IJ focused on the fact that Cuesta Rojas had been under oath during the initial credible fear interview and also at the asylum hearing but that in the IJ's view there were "several significant discrepancies" between his interview account of what he had endured in Cuba and his hearing account. ... The BIA dismissed Cuesta Rojas's appeal on February 12, 2020, explaining that it "decline[d] to set . . . aside as clearly erroneous" the IJ's decision to deny "relief in this case based on an adverse credibility finding and the respondent's failure to corroborate his claim." (emphasis added). The BIA also declined to remand the case in light of the evidence submitted by Cuesta Rojas for the first time on appeal, observing that Cuesta Rojas had "not explained how he obtained this evidence . . ., and why he was unable to present it during the proceedings before the Immigration Judge." Further, the BIA added, "the newly submitted evidence does not address or resolve the credibility concerns raised by the Immigration Judge." After the BIA issued its decision, Cuesta Rojas secured representation, and this counseled petition for review followed. ... Here, we are explaining why the record does not support finding any of these inconsistencies to be concerning at all, such that their amalgamation necessarily cannot be of concern. ... Zero plus zero still equals zero, no matter the context in which the equation must be performed. ... We grant the petition for review, vacate the decisions of the IJ and BIA denying Cuesta Rojas's application for asylum, withholding of removal, and CAT protection, and remand for further proceedings consistent with this opinion."

[Hats way off to Irene Freidel!  The fact that ICE and OIL defended this case is simply shameful.]