FILED NOV 26 2019 NOT FOR PUBLICATION MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ANGEL MENJIVAR, ) No. 16-72128 ) Petitioner, ) Agency No. A070-060-360 ) v. ) MEMORANDUM* ) WILLIAM P. BARR, Attorney ) General, ) ) Respondent. ) ) On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 12, 2019 Pasadena, California Before: FERNANDEZ and M. SMITH, Circuit Judges, and OTAKE,** District Judge. Angel Menjivar, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) determination that he was not eligible * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Jill Otake, United States District Judge for the District of Hawaii, sitting by designation. for special rule cancellation of removal pursuant to the Nicaraguan Adjustment and Central American Relief Act (“NACARA”).1 We grant the petition and remand. Menjivar asserts that the BIA erred when it decided that he was not credible and, therefore, denied relief on the basis that Menjivar failed to meet his burden of showing that he was not a persecutor. See 8 U.S.C. § 1231(b)(3)(B)(i); see also 8 U.S.C. § 1229a(c)(4)(B). We agree. The Immigration Judge (“IJ”) recognized the substantial inconsistencies between Menjivar’s testimony at the hearing before the IJ and his previous sworn statements before the asylum officer. However, while noting these substantial inconsistencies, the IJ did not consider them because, the IJ said, Menjivar did not have an opportunity to explain them. As a result, the IJ did not decide whether Menjivar was actually credible—the IJ did not even “reach a finding that [Menjivar] had lied under oath,” even though he lacked candor. We agree that an alien must be given an opportunity to explain inconsistencies before an adverse credibility determination is made on account of those inconsistencies. See Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011); see also Garcia v. Holder, 749 F.3d 785, 790 (9th Cir. 2014). But, as the BIA decided, 1 Pub. L. No. 105-100, 111 Stat. 2160, 2193 (1997). 2 the IJ’s determination that Menjivar had not been given the opportunity was clearly erroneous as were the IJ’s conclusions that followed thereafter.2 However, the BIA erred when it made its own credibility findings on appeal rather than remanding to the IJ to make that factual determination in the first instance. See 8 C.F.R. § 1003.1(d)(3); Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012); Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 661 (9th Cir. 2003); cf. Recinos de Leon v. Gonzales, 400 F.3d 1185, 1194 (9th Cir. 2005). On the record, that leaves gaps in the reasoning of the IJ and BIA which must be filled in order for the BIA to properly decide whether the government carried its burden to show that Menjivar “may” be subject to the persecutor bar,3 and, if so, whether Menjivar ...
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