Freire

MEMORANDUM *

Freire asserts that the IJ erred by limiting the scope of his hearing and then using Freire’s limited testimony as a basis for making an adverse credibility determination. We agree. Though the IJ discussed several bases for his adverse credibility determination, we are unable to conclude that the IJ’s ultimate decision regarding credibility was not affected by Freire’s unduly limited testimony. While this amounts to error, Freire would only be prejudiced if the error tainted the IJ’s conclusion that Freire failed to establish extraordinary circumstances warranting acceptance of Freire’s untimely asylum application. See 8 U.S.C. § 1158 (a)(2)(B).

Though we are without jurisdiction to review an IJ’s extraordinary circumstances finding, see 8 U.S.C. § 1158 (a)(2)(D), (a)(3), it appears that the IJ’s decision that Freire failed to establish extraordinary circumstances excusing his untimely asylum application may have been affected by the error in using Freire’s limited testimony against him. If this is so, Freire was prejudiced as a result of the IJ’s error, which is enough for him to prevail on his due process challenge. Lata v. INS, 204 F.3d 1241, 1246 (9th…