Davicin Nwadinobi v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 27 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DAVICIN EMEKA NWADINOBI, AKA No. 15-73246 Devicin Nwadinaobi, Agency No. A206-498-278 Petitioner, v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 16, 2018 San Francisco, California Before: PAEZ and IKUTA, Circuit Judges, and ADELMAN,** District Judge. Davicin Emeka Nwadinobi petitions for review of the Board of Immigration Appeals (BIA) decision affirming the Immigration Judge’s (IJ) adverse credibility determination, upholding the IJ’s denial of asylum and withholding of removal, * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Lynn S. Adelman, United States District Judge for the Eastern District of Wisconsin, sitting by designation. and rejecting Nwadinobi’s claims that his due process rights were violated by faulty translation and by the IJ’s reliance on evidence not in the record. We have jurisdiction under 8 U.S.C. § 1252. 1. We hold that the IJ’s adverse credibility determination was not supported by substantial evidence. Where, as here, the BIA reviewed the IJ’s credibility determination for clear error and “relied upon the IJ's opinion as a statement of reasons but did not merely provide a boilerplate opinion,” we do not review “those parts of the IJ's adverse credibility finding that the BIA did not identify as most significant and did not otherwise mention.” Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014) (internal quotation marks and citations omitted) (quoting Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008)).1 On appeal, the government defends only three of the agency’s reasons2 for Nwadinobi’s adverse credibility determination; we address each in turn. 1 Contrary to the dissent’s contention, we are limited to reviewing the reasons “explicitly identified” by the BIA because while the BIA “relied upon the IJ’s opinion as a statement of reasons,” it “did not merely provide a boilerplate opinion”; indeed, the BIA expressly rejected one of the grounds for the IJ’s credibility finding. See Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014) (internal quotation marks and citations omitted). Notably, even the government does not contend that the other reasons relied upon by the IJ (such as demeanor) are properly before us. 2 In its briefing, the government conceded that the fourth ground relied upon by the BIA lacked support in the record. As such, any argument regarding that issue is waived. See Miller v. City of Los Angeles, 661 F.3d 1024, 1029 (9th Cir. 2011). 2 a. Nwadinobi explained the inconsistent birth dates on his Nigerian identity documents by stating that the Nigerian government was unconcerned with the day and the month of birth—only the year, his name, and his address—and that the government “sometimes” made “mistakes” as a result. The IJ rejected Nwadinobi’s explanation and called it “not persuasive.” The IJ did not explain ...

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