This court has generally approved the application of the Lozada procedural requirements to claims of ineffective assistance of counsel in removal proceedings. However, we have modified Lozada to excuse strict compliance with its requirements under particular circumstances such as where the counsel freely admitted his ineffectiveness, the alien was excused from explaining his failure to file a disciplinary complaint against the allegedly ineffective counsel. Where the BIA decision does not specify – and this court is unable to clearly discern from the record – the particular Lozada requirement with which the petitioner failed to comply, this court is therefore unable to meaningfully review the BIA’s application of those requirements to the petitioner. The BIA, in reviewing upon remand, the petitioner’s evidence that he was targeted by the ELN because he was a health-care worker, should reconsider the petitioner’s ineffective-assistance claim in light of our ruling and our cases modifying Lozada.
This court has jurisdiction under INA § 242, 8 U.S.C. § 1252, to review the BIA’s decision that the IJ’s credibility determination was not clearly erroneous. Because the BIA adopted the findings of the IJ and also commented on the sufficiency of the IJ’s determinations, this court reviews the decisions of both the BIA and the IJ. This court’s review of these decisions is for substantial evidence, considering whether they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. This court will uphold a pre-Real ID Act adverse credibility determination under the substantial evidence standard unless any reasonable adjudicator would be compelled to conclude to the contrary. Adverse credibility determinations based on speculation or conjecture, rather than on record evidence, are reversible. Furthermore, this court must uphold a determination regarding the availability of corroborating evidence unless a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.
Where the petitioner provided reasonable explanations for the perceived minor inconsistencies in the description of a traumatic event, and where the IJ failed to acknowledge either of the petitioner’s explanations for the alleged discrepancies, they do not support an adverse credibility determination, particularly in light of the petitioner’s otherwise consistent account.
Where the petitioner considers the police and the human rights office to be the same, and where the record shows that the petitioner reported to both the police and the human rights office on the next day of the shooting, substantial evidence does not support the BIA’s conclusion that the petitioner was unable to remember reporting the shooting incident to a human rights office.
Where the petitioner’s description of going to the police in the morning is supported by the Human Rights Chief’s statement that the petitioner presented a copy of the complaint submitted to the metropolitan police when he appeared in the DAS office at 3:00 p.m., this court perceives no inconsistency in the 5-hour difference between the reports.
Where the IJ noted that it was impossible for the petitioner to attempt to authenticate the documents because the Government did not return the documents to the petitioner’s counsel with such a request, and where the BIA offered no explanation for its decision to hold the lack of authentication against the petitioner, the BIA’s agreement with the IJ’s finding that the petitioner failed to establish that he was in Colombia from November 2001 to February 2002 is without basis. This court will grant the petition for review, vacate the BIA’s order of February 20, 2008, including that portion of the order which denied the petitioner’s motion to remand on futility grounds, and remand for further proceedings.
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