Phiribert Monestime v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHIRIBERT MONESTIME,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-72196
Agency No. A209-383-933
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 14, 2023**
Before: FERNANDEZ, FRIEDLAND, and H.A. THOMAS, Circuit Judges.
Phiribert Monestime, native and citizen of Haiti, petitions pro se for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his applications for asylum,
withholding of removal, protection under the Convention Against Torture
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
FEB 22 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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(“CAT”), and voluntary departure. We have jurisdiction under 8 U.S.C. § 1252.
We review for substantial evidence the agency’s factual findings, applying the
standards governing adverse credibility determinations under the REAL ID Act.
Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010). We review de novo
questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005).
We grant the petition for review and remand.
The BIA found no clear error in three factual findings the IJ relied on in
support of an adverse credibility determination. Substantial evidence does not
support these findings. Substantial evidence does not support the agency’s
determination that Monestime’s asylum application and testimony were
inconsistent regarding his role with the MEDH party because he was not provided
an opportunity to explain the alleged inconsistency. See Rizk v. Holder, 629 F.3d
1083, 1088 (9th Cir. 2011) (applicant must have the opportunity to explain an
inconsistency), overruled on other grounds by Alam v. Garland, 11 F.4th 1133,
1135-36 (9th Cir. 2021) (en banc). Substantial evidence does not support the
agency’s determination that his asylum application and testimony were
inconsistent regarding when he fled Haiti, and his return in 2004 to renew a visa.
See Munyuh v. Garland, 11 F.4th 750, 758 (9th Cir. 2021) (“[T]he agency has a
duty to consider a petitioner’s explanation for a perceived inconsistency[, and i]f
that explanation is reasonable and plausible, then the agency must provide a

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specific and cogent reason for rejecting it.” (internal quotation marks and citations
omitted)). Substantial evidence also does not support the agency’s determination
that Monestime’s testimony is inconsistent with his documentary evidence as to
who killed his cousin. See Barseghyan v. Garland, 39 F.4th 1138, 1143 (9th Cir.
2022) (alleged inconsistency did not support an adverse credibility determination
because it was not, in fact, inconsistent). Further, the BIA erred when it made its
own credibility findings on appeal. See 8 C.F.R. § 1003.1(d)(3); Rodriguez v.
Holder, 683 F.3d 1164, 1170 (9th Cir. 2012) (BIA may not make its own factual
findings).
Because we cannot be confident that the BIA would have upheld the adverse
credibility determination absent these errors, we grant the petition and remand for
the BIA to reconsider Monestime’s credibility and for any necessary further
proceedings consistent with this decision. See Kumar v. Garland, 18 F.4th 1148,
1156 (9th Cir. 2021) (remand appropriate for the BIA to determine whether the
adverse credibility determination is supported in the totality of the circumstances).
As to voluntary departure, we remand where the agency did not have the
benefit of our decision in Posos-Sanchez v. Garland, 3 F.4th 1176, 1185 (9th Cir.
2021), holding that a statutorily deficient notice to appear does not trigger the
voluntary departure stop-time provision. See also Vasquez-Rodriguez v. Garland,
7 F.4th 888, 896 (9th Cir. 2021) (exhaustion not required where resort to the

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agency would be futile).
The government must bear the costs for this petition for review.
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW GRANTED; REMANDED.

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