NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 24 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SAMPSON ANTWI, No. 17-71270 Petitioner, Agency No. A208-923-513 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 8, 2022 Anchorage, Alaska Before: HURWITZ, BRESS, and H. THOMAS, Circuit Judges. Dissent by Judge BRESS. Sampson Antwi, a citizen of Ghana, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal from an order of an Immigration Judge (“IJ”) denying asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The IJ denied relief based on an adverse credibility determination, and the BIA upheld that determination, citing * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994). “Where, as here, the BIA cites Burbano and also provides its own review of the evidence and law, we review both the IJ’s and BIA’s decisions.” Aguilar Fermin v. Barr, 958 F.3d 887, 891 (9th Cir. 2020) (citation omitted). We have jurisdiction under 8 U.S.C. § 1252 and grant the petition for review in part and dismiss it in part. 1. Antwi claimed that he was persecuted in Ghana based on the perception that he was gay, asserting that during two attacks by “vigilante groups” he was beaten with fists, stones, sticks, and a brick. In arriving at the adverse credibility determination, the IJ repeatedly stated that Antwi testified that the initial attack took place on either December 23 or 25, 2015, but had previously stated in a Form I-589 that the attack occurred on December 21. However, Antwi never testified or otherwise asserted that the first attack took place on December 23. Rather, in his direct testimony, consistent with his Form I-589, he stated that the first attack occurred on December 21. The BIA decision upholding the adverse credibility determination did not mention the IJ’s erroneous statements about December 23, and correctly noted that Antwi once testified on cross-examination that the first attack occurred on December 25. But, given the BIA’s Burbano citation, we also review the IJ’s decision, see Aguilar Fermin, 958 F.3d at 891, and the IJ’s error takes on special significance because the adverse credibility determination is a factual one that only the IJ can 2 make. See Rodriguez v. Holder, 683 F.3d 1164, 1166, 1171–72 (9th Cir. 2012); Shrestha v. Holder, 590 F.3d 1034, 1041 (9th Cir. 2010). Moreover, Antwi was never confronted about the inconsistency between his statement on cross- examination and his otherwise consistent testimony that the first attack occurred on December 21. See Perez-Arceo v. Lynch, 821 F.3d 1178, 1184 (9th Cir. 2016).1 The IJ’s factual error implicated at least two of her credibility findings, including a finding concerning the timing of Antwi’s phone call to a …
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