NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 16 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHNSON NIWAGABA, No. 18-73102

Petitioner, Agency No. A213-020-126

v.

MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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). 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.

2 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

3 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.

4