Johnson Niwagaba v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHNSON NIWAGABA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 18-73102
Agency No. A213-020-126
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 12, 2021**
San Francisco, California
Before: McKEOWN, IKUTA, and BRESS, Circuit Judges.
Johnson Niwagaba, a citizen and national of Uganda, petitions for review of
a decision by the Board of Immigration Appeals (“BIA”) affirming the denial by
an Immigration Judge (“IJ”) of his application for asylum, withholding of removal,
and protection under the Convention Against Torture (“CAT”). The parties are
* 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
MAR 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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familiar with the facts, so we do not repeat them here. We have jurisdiction under
8 U.S.C. § 1252, and we remand to the BIA for further consideration.
Niwagaba challenges the agency’s adverse credibility determination on
several grounds. The government requests remand in all respects. First, Niwagaba
argues that the agency’s conclusion that Niwagaba’s testimony was “rehearsed and
memorized” and not “genuine” is unsupported by the record, because Niwagaba
was not fluent in English, waived his right to proceedings in his native language as
he was afraid of encountering an interpreter who might know his clan back home,
and represented himself pro se. The government concedes that “there are many
reasons why an applicant may memorize a statement even if it is true,” and
requests remand to “allow the agency to specify the basis of its holding” since the
BIA “did not explain whether it also agreed that [Niwagaba’s] demeanor changed
when asked to describe events not included in his written statement.”
Second, Niwagaba argues that the agency’s determination that it was
implausible that Niwagaba’s mother had the legal authority to sell his land and that
she was able to do so in secret is based on speculation and conjecture. Here too the
government requests remand, noting that the agency’s decisions do not address
Niwagaba’s explanation of the specific circumstances of the land sale and potential
inapplicability of statements in the 2016 Country Report, and stating that remand
will allow the agency to clarify its fact-finding.

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Third, Niwagaba argues that it was similarly speculative for the agency to
conclude that it was implausible that Niwagaba would not reveal his past harm and
sexual orientation to U.S. officials during a visa interview at the U.S. consulate in
Uganda, in light of the record’s silence on the specific circumstances of the
consular interview and the holding in Mamouzian v. Ashcroft that “in order to
secure entry to the United States and to escape their persecutors, genuine refugees
may lie to immigration officials . . . .” 390 F.3d 1129, 1138 (9th Cir. 2004). The
government requests remand for the agency to conduct the proper fact-finding in
the correct legal context.
The parties’ concerns regarding the adverse credibility determination are
well-taken. We agree with the government that a remand is warranted to give the
agency an opportunity to fully consider the issues. See INS v. Ventura, 537 U.S.
12, 16 (2002) (“[T]he proper course, except in rare circumstances, is to remand to
the agency for additional investigation or explanation.”)
Niwagaba also challenges the BIA and IJ’s alternative findings that, even if
credible, he failed to establish his eligibility for asylum, withholding of removal, or
CAT protection. The government requests remand for the agency to determine
whether “gay men in Uganda” is a cognizable social group, whether Niwagaba
established that his membership in such group was “a reason” for the harm he
experienced, and the import of Niwagaba’s claim that it was the chairman of the

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local council who targeted him—key considerations that the agency did not
address. We grant the government’s request for remand on the credibility
determination as well as the alternative merits findings.
REMANDED.

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