NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 19 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ELHADJI OMAR TOURE, Nos. 20-70369 20-72920 Petitioner, Agency No. A209-169-468 v. MERRICK B. GARLAND, Attorney MEMORANDUM* General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted August 2, 2021 Pasadena, California Before: PAEZ, CALLAHAN, and OWENS, Circuit Judges. Dissent by Judge CALLAHAN Petitioner Elhadji Omar Toure, a native and citizen of Senegal, petitions for review of the Board of Immigration Appeal’s (“BIA”) orders (1) dismissing his appeal of an immigration judge’s (“IJ”) denial of asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”); and (2) denying his motion to reopen. Toure’s first petition (No. 20-70369) challenges the agency’s * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. adverse credibility determination and its denial of CAT relief. The second petition (No. 20-72920) challenges the BIA’s denial of Toure’s motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We grant Toure’s first petition, remand, and deny Toure’s second petition as moot. Toure argues that the agency’s adverse credibility determination is not supported by substantial evidence. We agree. 1 We review an adverse credibility finding for substantial evidence. Qiu v. Barr, 944 F.3d 837, 842 (9th Cir. 2019). “Although that standard is deferential, there must be a ‘specific cogent reason’ for [such a] finding.” Id. (citation omitted). “We review those parts of the IJ’s adverse credibility findings on which the BIA relied.” Id.; see also Iman v. Barr, 972 F.3d 1058, 1064 (9th Cir. 2020). The BIA affirmed the IJ’s adverse credibility determination on a single ground. It concluded that the IJ did not clearly err in finding an inconsistency between Toure’s initial written statements, which explained that he was persecuted in Senegal because he worked as a tailor for gay clientele, and his later testimony that he is himself gay. But the IJ’s finding is belied by the record, as the purported inconsistency is not an inconsistency at all. See Perez-Arceo v. Lynch, 821 F.3d 1 The government’s waiver and exhaustion arguments are meritless. Toure’s opening brief did not waive his claims for asylum and withholding of removal, and all Toure’s claims were properly exhausted before the BIA, see Diaz-Jimenez v. Sessions, 902 F.3d 955, 959-60 (9th Cir. 2018). 2 1178, 1184-85 (9th Cir. 2016) (holding the IJ’s noted inconsistency “cannot support a negative credibility determination” because “there was no inconsistency . . . at all”). There is no inherent inconsistency between Toure’s superseding I-589 application, which explained that he was persecuted for catering to the gay and bisexual community in Senegal, and his testimony at the hearing that he is gay. See id. at 1185. Moreover, Toure’s application specifically stated that the government and his uncle persecuted him because they believe he is gay. And Toure’s written statement explained that, when his younger …
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