author: KOZINSKI, Circuit Judge: KOZINSKI, Circuit Judge, O’SCANNLAIN, Circuit Judge,

text:
    Fortino ALVAREZ, Petitioner-Appellant, v. Ron LOPEZ, Chief Administrator for the Gila River Indian Department of Rehabilitation and Supervision, Respondent-Appellee.
    No. 12-15788
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted April 15, 2013 San Francisco, California
    Filed August 30, 2016

      Daniel L. Kaplan (argued) and Keith J. Hilzendeger, Assistant Federal Public Defenders; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Petitioner-Appellant.
    Thomas L. Murphy (argued), Deputy General Counsel; Linus Everling, General Counsel; Gila River Indian Community Office of the General Counsel, Sacaton, Arizona; for Respondent-Appellee.
    Barbara Creel, Professor of Law and Director of Southwest Indian Law Clinic, University of Mexico School of Law, Albuquerque, New Mexico; Tova Indritz, Co-Chair, Native American Justice Committee, National Association of Criminal Defense Lawyers, Albuquerque, New Mexico; for Amicus Curiae National Association of Criminal Defense Lawyers and Barbara Creel.
    Before: ALEX KOZINSKI, DIARMUID F. O’SCANNLAIN, and N. RANDY SMITH, Circuit Judges.

       Ron Lopez succeeded Randy Tracy as Chief Administrator. We substitute him for Tracy pursuant to Federal Rule of Appellate Procedure 43(c)(2).

   Concurrence by Judge KOZINSKI;

Partial Concurrence and Partial Dissent by Judge O’SCANNLAIN

ORDER

' The petition for panel rehearing is GRANTED. The opinion and dissent filed on December 8, 2014 and published at 773 F.3d 1011 are withdrawn. They are replaced by the new opinion and dissent filed concurrently with this order. The pending petition for rehearing en banc is DENIED as moot. The parties may file new petitions for panel rehearing or rehearing en banc within 14 days.

OPINION

KOZINSKI, Circuit Judge:

We consider whether an Indian tribe violated a criminal defendant’s rights by failing to inform him that he could receive a jury trial only by requesting one.

FACTS

Fortino Alvarez is an enrolled member of the Gila River Indian Community (the “Community”). In April of 2003, Alvarez (then 20) showed up drunk at the home of his girlfriend (then 15). Following a brief argument, Alvarez struck his girlfriend with a flashlight. When she attempted to retreat, Alvarez pulled a knife. The girlfriend’s brother then stepped outside to confront Alvarez. Alvarez clubbed him too. Alvarez then took his leave, but not before informing his victims that he would soon return to kill their entire family.

Alvarez was picked up by the Community police and charged with assault, domestic violence, criminal threats, and misconduct involving a weapon: According to the Community, Alvarez received a “Defendant’s Rights” form along with the criminal complaint. The Defendant’s Rights form said: “You have the right to a jury trial.” The form didn’t explain what Alvarez needed to do in order to invoke that right.

At a group arraignment, the judge stated that Alvarez had been informed of his rights. The judge then asked Alvarez if he had any questions about those rights. He said that he didn’t. At a bench trial four months later, Alvarez represented himself. He presented no evidence, no witnesses, no case, and no closing argument. When the judge asked Alvarez whether he wished to cross-examine the government’s key witness, Alvarez conceded that everything the witness had said was true. Alvarez was convicted on all counts except making criminal threats. He was sentenced to five years in prison.

Under the Indian Civil Rights Act (ICRA), tribes may not deny criminal defendants facing imprisonment “the right, upon request, to a trial by jury.” 25 U.S.C. § 1302(a)(10). Alvarez sought federal habe-as relief on the theory that the Community had deprived him of that right by failing to inform him that he would only receive a jury upon request. See id. § 1303. The district court denied relief after finding that Alvarez validly waived his right to a jury trial by failing to request one.

DISCUSSION

1. Exhaustion

We may not exercise jurisdiction over a habeas petition presenting ICRA claims unless the petitioner has first exhausted his tribal remedies. See Grand Canyon Skywalk Dev., LLC v. ‘SA’ NYU WA Inc., 715 F.3d 1196, 1200 (9th Cir. 2013). The exhaustion doctrine is rooted in our respect for tribal sovereignty: We are loath to second guess a tribe’s handling of a criminal case unless and until the tribe has had a fair opportunity to review the matter in its own appellate courts. In order to protect tribal sovereignty, we may raise the issue of non-exhaustion sua sponte when the tribe fails to press that defense due to an “inadvertent error.” Day v. McDonough, 547 U.S. 198, 211, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006). But we may not override a tribe’s “deliberate waiver” of its non-exhaustion defense. Wood v.

Milyard, - U.S. -, 132 S.Ct. 1826, 1834, 182 L.Ed.2d 733 (2012); see Day, 547 U.S. at 202, 126 S.Ct. 1675. We have no discretion to raise nonexhaustion on our own initiative when a tribe “strategically withholds]” this defense, “cho[oses] to relinquish it,” makes a “deliberate decision to proceed straightaway to the merits,” or “deliberately steer[s] the [court] away from” the issue. Wood, 132 S.Ct. at 1833-35.

In order to satisfy the exhaustion requirement, a criminal defendant must pursue a direct appeal or show that such an appeal would have been futile. See Jeffredo v. Macarro, 599 F.3d 913, 918 (9th Cir. 2010). Alvarez failed to pursue a direct appeal or show the appeal would have been futile. However, the Community’s response to Alvarez’s habeas petition didn’t argue that this failure presented an exhaustion problem. In our previous opinion, we raised the nonexhaustion defense sua sponte after concluding that there was “no indication in the record that the Community deliberately waived” it. Alvarez v. Tracy, 773 F.3d 1011, 1019 (9th Cir. 2014). After reviewing new information presented in Alvarez’s petition for rehearing and the parties’ supplemental briefs, we now conclude that there is evidence of deliberate waiver.

In its response to Alvarez’s habeas petition, the Community argued that Alvarez did not exhaust because he failed to pursue “a motion to correct his sentences” or “a motion for commutation.” The Community now admits that its response to Alvarez’s habeas petition “did not raise the failure to take a direct appeal as an argument in support of the nonexhaustion issue.”

After the Community filed its response to the habeas petition, Alvarez filed a motion for leave to conduct discovery. He sought permission to subpoena records and depose a witness regarding the appeals system in the Community courts. Alvarez explained that this discovery was necessary “to address the defense of non-exhaustion raised in the Community’s Response.” See Johnson v. Gila River Indian Cmty., 174 F.3d 1032, 1036 (9th Cir. 1999) (noting that the lack of a functioning appellate court would, render a direct appeal futile, negating any non-exhaustion defense). In its response to this motion, the Community noted that Alvarez’s request for information “relating to the processing of appeals” was “premised on a misunderstanding of Respondent’s affirmative defense that Petitioner has failed to exhaust his tribal court remedies.” The Community again explained that Alvarez’s available remedies were “(1) a motion for commutation of his sentence(s) or to correct his sentences(s) [sic], or (2) filing a petition for writ of habeas corpus in the Community Court.” Alvarez then withdrew his request for discovery due to the Community’s “clear indication that [it] is not arguing that Mr. Alvarez failed to exhaust his claims by raising them in an appeal to the Community court of appeals.” At no point did the Community ever seek to correct Alvarez’s interpretation of its response. We therefore conclude that the Community’s response to the discovery request was a deliberate waiver of any non-exhaustion defense stemming from Alvarez’s failure to file a direct appeal.

Our conclusion that- the Community waived this defense is buttressed by the fact that the Community “deliberately steered” us away from the issue of the direct appeal. Wood, 132 S.Ct. at 1835. When asked to address exhaustion at argument before us, the Community’s lawyer first insisted that the district court clearly erred by finding that it would have been futile for Alvarez to seek a commutation of his sentence or tribal habeas. When asked to expand on his argument, the lawyer again emphasized that “Alvarez never attempted to use any of the mechanisms that were specified in the record below.” According to the lawyer, these remedies “included commutation” and “a habeas proceeding.” When we asked about the possibility of a direct appeal, the Community’s lawyer referred us yet again to “the mechanisms that were identified in the motion to dismiss.” Those mechanisms didn’t include a direct appeal. The lawyer’s dogged insistence that we focus on commutation and tribal habeas “deliberately steered” us away from any discussion' of the direct appeal. Id. That steering amounts to intentional waiver, which in turn precludes us from raising non-exhaustion sua sponte. See id.

II. Merits

Under ICRA, “[n]o Indian tribe in exercising powers of self-government shall ... deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury.” 25 U.S.C. § 1302(a)(10) (emphasis added). The parties debate at length whether the jury-trial right accorded by ICRA parallels the jury-trial right accorded by the Sixth Amendment. If the rights are “the same,” then we would employ federal constitutional standards when determining whether or not the Community violated Alvarez’s rights under ICRA. Randall v. Yakima Nation Tribal Court, 841 F.2d 897, 900 (9th Cir. 1988); see also Howlett v. Salish & Kootenai Tribes of the Flathead Reservation, Mont., 529 F.2d 233, 238 (9th Cir. 1976). But “[w]here the tribal court procedures under scrutiny differ significantly from those commonly employed ... courts weigh the individual right to fair treatment against the magnitude of the tribal interest ... to determine whether the procedures pass muster under” ICRA. Randall, 841 F.2d at 900 (internal citation and quotation marks omitted). This balancing test reflects a “compromise intended to guarantee that tribal governments respect civil rights while minimizing federal interference with tribal culture and tradition.” Robert J. McCarthy, Civil Rights in Tribal Courts: The Indian Bill of Rights at Thirty Years, 34 Idaho L. Rev. 465, 467 (1998).

We need not resolve whether the jury-trial rights accorded by ICRA and the Sixth Amendment are equivalent. Assuming that Randall’s less rigorous balancing test applies, we conclude that Alvarez’s interests in understanding the full contours of his rights outweigh any interests the Community might have here. Indeed, the Community’s handling of Alvarez’s case falls short of the “fair treatment” required by ICRA. Randall, 841 F.2d at 900.

Alvarez’s right to “fair treatment” includes the right to know that he would forfeit his right to a jury unless he affirmatively requested one. The Community concedes that Alvarez “was not advised that he had to ask for” a jury. The Community doesn’t argue that its Defendant’s Rights form apprised Alvarez of the need for such a request. The right as articulated on the form (“the right to a jury trial”) is very different from the right Alvarez actually had under ICRA (“the right, upon request, to a trial by jury”). The Community doesn’t explain how a defendant would have known that he was obligated to make a request in order to preserve his right to a jury trial. Moreover, the first line on the form notes that criminal defendants have “the right to a speedy trial and a public trial.” Tribal defendants are accorded those rights without having to take affirmative steps to invoke them. To make the same unqualified statement as to a right that must be affirmatively invoked is misleading.

So far as we can tell, the Community’s theory is that Alvarez was expected to understand more about his rights than was printed on the form. This was an unreasonable expectation as to Alvarez, and, we expect, many others like him who are charged in tribal courts. At the time of his arraignment, Alvarez was barely out of his teens. He had a seventh-grade education, and he was not represented by counsel. He admitted to the judge that he didn’t “really know about court that much.” The judge himself noted that Alvarez was “having a hard time understanding the procedures.” Despite Alvarez’s profound limitations, the Community made no effort to ensure that Alvarez knew he would receive a jury trial only if he requested one.

We are generally reluctant to trench upon tribal sovereignty. See Smith v. Confederated Tribes of the Warm Springs Reservation of Or., 783 F.2d 1409, 1412 (9th Cir. 1986). But we think it clear that Alvarez’s interests here outweigh those of the Community. It hardly undermines tribal sovereignty to require that the Community inform defendants of the nature of their rights, including what must be done to invoke them. The fact that such a requirement presents minimal intrusion into a tribe’s sovereignty may explain why “all tribal courts presented with the question have concluded that there must be a knowing and voluntary waiver of ICRA’s conditional jury right.” Mark D. Rosen, Multiple Authoritative Interpreters of Quasi-Constitutional Federal Law: Of Tribal Courts and the Indian Civil Rights Act, 69 Fordham L. Rev. 479, 555 (2000). The Community has never attempted to explain what legitimate interest it has in using a boilerplate form that gives defendants a misleading picture of their rights.

We hold that the Community denied Alvarez his right under ICRA to be tried by a jury. Because denial of the right to a jury trial is a structural error, it requires automatic reversal. See Sullivan v. Louisiana, 508 U.S. 275, 281-82, 113 5.Ct. 2078, 124 L.Ed.2d 182 (1993). We therefore need not reach Alvarez’s alternative argument that the Community violated his confrontation right.

The judgment below is REVERSED. This case is REMANDED to the district court with instructions to grant the petition for a writ of habeas corpus.

KOZINSKI, Circuit Judge,

concurring:

This appeal gives us no occasion to consider a rat’s nest of problems with the Community’s justice system that may well provide future criminal defendants with avenues for habeas relief. In 1999, we published an opinion expressing “doubt that a functioning appellate court exists” in the Gila River Indian Community. Johnson v. Gila River Indian Cmty., 174 F.3d 1032, 1036 (9th Cir. 1999). Too few reforms have been implemented in the intervening years. When the Community destroys its inventory of Defendant’s Rights forms, it may also wish to reflect on whether it is proud to have: permitted Alvarez only five days to notice an appeal after being sentenced, the shortest such window I have ever heard of; incarcerated Alvarez for nine years without ever providing him assistance of counsel; declined to provide Alvarez with a notice-of-appeal form or any other post-trial guidance about how to take an appeal, see Alvarez v. Tracy, 773 F.3d 1011, 1024 (9th Cir. 2014) (Kozinski, J., dissenting); incarcerated Alvarez after his conviction in a facility with no law library, preventing him from conducting his own research on the Community’s appeals procedure; failed to ensure that Alvarez was apprised of his rights on the record and by a judge, id. at 1034; permitted prosecutors to convict Alvarez on the basis of hearsay testimony, in plain contravention of his confrontation right; or faulted Alvarez for failing to seek habeas relief in Community court despite the fact that the Community’s own court of appeals has issued an opinion indicating that habeas relief isn’t available under the tribe’s Code.

Regrettably, our decision today comes too late to give Alvarez any meaningful relief. He was released years ago after having spent most of his twenties in the Community’s custody. But this case need not be a total loss. Perhaps the Community and others like it will take this opportunity to reconsider the dubious procedures they employ in their criminal courts.

O’SCANNLAIN, Circuit Judge,

concurring in part and dissenting in part:

I concur in the court’s determination that the Gila River Indian Community deliberately waived its non-exhaustion defense. I respectfully dissent, however, from the court’s conclusion that the Community denied Fortino Alvarez his “right, upon request, to a trial by jury” when Alvarez never requested a jury. Rather than analyze the scope of Alvarez’s jury-trial right under the Indian Civil Rights Act, the majority simply applies an unmoored balancing test without giving a single reason to do so.

I

As the majority recounts, in 2003 Forti-no Alvarez struck his girlfriend with a flashlight, threatened her with a knife, hit her brother with the flashlight, and threatened to kill the whole family. The Community charged him with various crimes. Prior to a group arraignment, Alvarez received a copy of the Community’s criminal complaint with a “Defendant’s Rights” form attached. The Defendant’s Rights form included the statement: “You have the right to a jury trial.” The Community did not specifically notify Alvarez that he needed to request a jury trial. The rights were also read at the beginning of the group arraignment. At the arraignment, the court asked Alvarez whether he had any questions about those rights. He responded that he did not.

Later that year, Alvarez was convicted of most charges in a tribal-court bench trial in which he represented himself. At no point before or during the trial did Alvarez request a jury or even inquire about one. In due course, Alvarez filed a federal habeas corpus petition under 25 U.S.C. § 1303 challenging various convictions and sentences on the basis of nine claims. The district court, adopting the recommendation of a magistrate judge, dismissed all claims. On appeal, Alvarez challenges only the dismissal of two claims: (1) his claim that he was denied his right to be confronted with the witnesses against him, and (2) his claim that he was denied his right, upon request, to a jury trial.

II

A

“As separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority.” United States v. Bryant, - U.S. -, 136 S.Ct. 1954, 1962, 195 L.Ed.2d 317 (2016) (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978)). “The Bill of Rights ..., therefore, does not apply in tribal-court proceedings.” Id. However, “persons subject to tribal authority can invoke other sources of individual rights. The two most prominent sources of these rights are tribal bills of rights ... and federal statutes such as” the Indian Civil Rights Act of 1968 (ICRA), Pub. L. No. 90-824, § 202, 82 Stat. 73, 77-78 (codified as amended at 25 U.S.C. § 1302(a)). F. Cohen, Cohen’s Handbook of Federal Indian Law § 14.03[1], at 944 (2012 ed.) [hereinafter Cohen’s].

ICRA, “rather than providing in wholesale fashion for the extension of constitutional requirements to tribal governments, as had been initially proposed, selectively incorporated and in some instances modified the safeguards of the Bill of Rights to fit the unique political, cultural, and economic needs of tribal governments.” Martinez, 436 U.S. at 62, 98 S.Ct. 1670. Thus, in ICRA, “Congress accorded a range of procedural safeguards to tribal-court defendants ‘similar, but not identical, to those contained in the Bill of Rights and the Fourteenth Amendment.’ ” Bryant, 136 S.Ct. at 1962 (quoting Martinez, 436 U.S. at 57, 98 S.Ct. 1670).

B

“In addition to other enumerated protections, ICRA guarantees ‘due process of law.’ ” Id. (quoting ICRA § 202(8)). The majority concludes that the Community’s apparent failure to notify Alvarez of the requirement to request a jury (the “demand requirement”) was unfair, which sounds perhaps like a due process violation. However, Alvarez has not argued, on appeal or in the district court, that the failure to notify him of the demand requirement violated his right to due process. He argued below that numerous other aspects of his convictions violated his right to due process, but not the tribe’s failure to provide notice of the requirement to request a jury.

Fear not. The majority has devised a clever way to vindicate Alvarez’s due process rights: ignore the text of ICRA and instead import a due-process balancing test. Maj. Op. at 1028-29 & n.5 (concluding that we should apply the test from Randall v. Yakima Nation Tribal Court, 841 F.2d 897, 900 (9th Cir. 1988)). To its credit, the majority acknowledges that the Randall test was “developed in the context of challenges premised on” ICRA’s due process right, § 202(8), and further recognizes that we have never applied the Randall test to a jury-trial claim under § 202(10). Maj. Op. at 1029 n.5.

What the majority does next, however, is both unexplained and troubling. The majority does not state why we should apply an atextual balancing test to a claim under § 202(10). Instead, it jumps straight to the conclusory determination that “the language and principle of Randall sweep beyond Section 202(8).” Maj. Op. at 1029 n.5. With respect, this is not how we should decide cases. We determine the relevant standard to apply in a given case based on reasons to do so, not the absence of reasons to refrain from adopting some standard at random (or at will).

Importantly, Alvarez did not argue that we should apply the Randall test. As a result, he waived any such argument, and the majority should not expect the Community to explain why the Randall test should not apply.

Moreover, we should not apply a test designed to evaluate generalized due process claims under § 202(8) when another ICRA provision, § 202(10), specifically addresses the right to a jury trial. In general, where a specific provision constitutes an explicit textual source of protection against a particular sort of government behavior, that provision, and not more generalized notions of due process, “must be the guide for analyzing” claims that the government engaged in prohibited behavior. See County of Sacramento v. Lewis, 523 U.S. 833, 842, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); United States v. Lanier, 520 U.S. 259, 272 n.7, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997); Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 805 (9th Cir. 2014) (en banc) (O’Scannlain, J., dissenting). We should apply this principle to analysis under ICRA because the procedural safeguards of ICRA largely mirror those of the federal constitution, both in content and the relative levels of generality of their protections.

Indeed, we have already applied this principle in construing ICRA. In Tom v. Sutton, we declined to apply the due process right in § 202(8) to find a right to appointment of counsel for indigent defendants because § 202(6) specifically addressed the right to counsel. 533 F.2d 1101, 1105 (9th Cir. 1976).

Thus, there are at least two good reasons not to import Randall’s due-process test to evaluate jury-trial claims. Yet the majority adopts such test for its analysis without any countervailing reason to do so.

Ill

Instead of shrugging our shoulders and adopting a due-process test for no reason, we should construe ICRA’s jury-trial provision and determine whether the Community violated Alvarez’s right under such provision.

A

Alvarez argues that ICRA’s jury-trial right parallels the jury-trial right guaranteed by the Sixth Amendment. It clearly does not.

1

Congress modified the safeguards regarding imprisonment and the criminal jury trial in the ICRA. The Sixth Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

As originally enacted, the ICRA provided: “No Indian tribe in exercising powers of self-government shall ...

(6) deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of counsel for his defense; ...
(10) deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons.”

ICRA, Pub. L. No. 90-824, § 202, 82 Stat. 73, 77-78 (1968) (codified as amended at 25 Ú.S.C. §§ 1302(a)(6)-(8), (10) (2012)).

ICRA § 202(6) contained most of the same text as the Sixth Amendment, but it differed in key aspects. For instance, it did not provide for free counsel for indigent defendants, ICRA § 202(6) (counsel “at his own expense”), while the Sixth Amendment did so provide, see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Also, § 202(6) did not provide a right to a jury trial.

ICRA § 202(10) provided a jury-trial right, but its text did not parallel the Sixth Amendment text at all. Indeed, the only commonality between the text of ICRA § 202(10) and the Sixth Amendment was that both contain the words “right to a,” “trial,” “by,” and “jury.” Subsection 202(10) expressly required a request to receive a jury, it did not require an impartial jury, and it did not require a jury “of the State and district wherein the crime shall have been committed.” Compare ICRA § 202(10) with U.S. Const, amend. VI.

2

Critically, unlike the Sixth Amendment, ICRA provides a right to have a jury trial only upon request.

In 1986, Congress permitted tribes to impose a sentence of up to one year in jail. Indian Alcohol and Substance Abuse Prevention and Treatment Act of 1986, Pub. L. No. 99-570, § 4217, 100 Stat. 3207-146 (codified as amended at 25 U.S.C. § 1302(a)(7)(B)). At that time, the Sixth Amendment required a jury trial as the default for any crime punishable by more than six months in jail. See Baldwin v. New York, 399 U.S. 66, 69, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970) (plurality). In federal court, a defendant would receive a jury trial for a non-petty offense unless (1) he waived a jury in writing, (2) the government consented, (3) the trial court sanctioned the waiver, 'and (4) the waiver was made expressly and intelligently. See Singer v. United States, 380 U.S. 24, 34, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965). The States had “adopted a variety of procedures relating to the waiver of jury trials in state criminal cases.” Id. at 36-37, 85 S.Ct. 783. Without a waiver, a jury trial was the default for “serious crimes.” Duncan v. Louisiana, 391 U.S. 145, 154, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (“The laws of every State guarantee a right to jury trial in serious criminal cases.... ”).

Thus, contrary to Alvarez’s argument, ICRA’s jury-trial right differs substantially from the Sixth Amendment’s jury-trial right. However, this conclusion merely raises the question: if the rights are different, then what right did Congress provide in ICRA?

B

1

The plain meaning of § 202(10) at the time of its enactment suggests that it did not obligate tribes to provide notice of the demand requirement. Subsection (10) provides: “No Indian tribe ... shall ... deny to any person ... the right, upon request, to a trial by jury.” Thus, at least one prohibition is clear in the statutory text: a tribe cannot refuse to grant a defendant’s request for a jury trial. The tribe did notify Alvarez of his right to a jury trial, and there is no dispute that Alvarez did not request a jury.

Instead, the parties’ dispute centers on whether § 202(10) obligated the tribe also to notify Alvarez of the requirement to request a jury. Do tribes deny the “right, upon request, to a trial by jury” by failing to notify defendants of the need to request a jury? Obviously, the plain text of § 202(10) does not explicitly state that a tribe must provide a defendant with notice of such requirement. The lack of any textual requirement that tribes notify defendants of the need to request a jury strongly suggests that Congress did not impose such a requirement.

2

Context reinforces that the right to receive a jury trial does not include a right to be notified of the need to request a jury trial.

In 1968, there existed both tribal courts established by tribes and Courts of Indian Offenses, which “were created by the Federal Bureau of Indian Affair's to administer criminal justice for those tribes lacking their own criminal courts.” Santa Clara Pueblo, 436 U.S. at 64 n.12, 98 S.Ct. 1670; see also Cohen’s § 4.04[3][c], at 263-64. Congress applied § 202, including the jury-trial right, to both types of courts. ICRA §§ 201-02. In a neighboring provision, § 301 of that statute, Congress directed the Secretary of the Interior also to establish a model code to govern the Courts of Indian Offenses:

Such code shall include provisions which will (1) assure that any individual being tried for an offense by a court of Indian offenses shall have the same rights, privileges, and immunities under the United States Constitution as would be guaranteed any citizen of the United States being tried in a Federal court for any similar offense, (2) assure that any individual being tried for an offense by a court of Indian offenses will be advised and made aware of his rights under the United States Constitution, and under any tribal constitution applicable to such individual....

Pub. L. No. 90-284, § 301, 82 Stat. 73, 78 (codified at 25 U.S.C. § 1311) (emphasis added). Thus, in federally established Courts of Indian Offenses, a model code would assure that defendants there both have rights — the fall slate of rights provided by our Constitution — and that they have notice of these rights. The fact that Congress provided for both in separately enumerated provisions of § 801 strongly suggests that Congress viewed rights as distinct from notice of such rights. While a model code for Courts of Indian Offenses would provide both, Congress did not impose a model code on tribal courts established by tribes, such as the court in which Alvarez was convicted. Instead, for such courts Congress only imposed the rights contained in § 202, without any notice requirement.

Consequently, I would conclude that Congress did not impose on tribes any obligation to notify defendants of the need to request a jury. Section 202(10) only required tribes to refrain from denying the right to a jury trial, but did not obligate tribes to notify defendants of the need to request a jury.

3

Substantive canons reinforce my conclusion that we should not construe § 202(10) to impose on tribes a duty to notify defendants that they must request a jury.

“Federal courts must avoid undue or intrusive interference in reviewing Tribal Court procedures.” Smith v. Confederated Tribes of Warm Springs, 788 F.2d 1409, 1412 (9th Cir. 1986). In the specific context of ICRA, the Supreme Court has emphasized that “considerations of ‘Indian sovereignty are a backdrop against which the applicable federal statute must be read.’ ” Santa Clara Pueblo, 436 U.S. at 60, 98 S.Ct. 1670 (quoting McClanahan v. Ariz. State Tax Comm’n, 411 U.S. 164, 172, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973) (alterations omitted)). Most importantly, the Court has admonished, “Although Congress clearly has power to authorize civil actions against tribal officers, and has done so with respect to habeas corpus relief in [28 U.S.C. § 1303], a proper respect both for tribal sovereignty itself and for the plenary authority of Congress in this area cautions that we tread lightly in the absence of clear indications of legislative intent.” Id. Absent any clear indications that § 202(10) requires the tribe to notify Alvarez of the demand requirement, we should “tread lightly” and conclude that Alvarez has failed to show that the tribe violated his rights under § 202(10).

C

Based on the plain meaning of the statutory text, the statute’s context, and important considerations of tribal sovereignty, I would conclude that ICRA § 202(10) prohibits a tribe from refusing a defendant’s request for a jury trial, but does not impose an affirmative obligation on tribes to notify defendants that they must request a jury. Because Alvarez did not request a jury, the Community did not violate his rights under § 202(10).

I respectfully dissent.

      . By whom, the record does not say.

      . There is no doubt that Alvarez failed to exhaust these remedies. However, we agree with the district court that any attempt to invoke them would have been futile. A motion for commutation would have been denied due to Alvarez’s disciplinary infractions while incarcerated. And the Community failed to show that its criminal Code allowed for either habeas relief or the correction of a sentence, two remedies it faulted Alvarez for failing to pursue.

      . To the extent that we refer here to information gleaned from sealed documents, we pro tanto lift the seal on that information.

      . Alvarez’s unopposed motions to take judicial notice and to file an amended supplemental brief are GRANTED.

      . The Randall test developed in the context of challenges premised on Section 202(8) of ICRA, which provides that a tribe may not "deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.” 25 U.S.C. § 1302(a)(8). We have never before had occasion to apply the Randall test to Section 202(10) of ICRA, which accords the jury-trial right. See id. § 1302(a)(10). But the language and principle of Randall sweep beyond Section 202(8).

      . See, e.g., McGrady v. Three Affiliated Tribes, 31 Indian L. Rep. 6058, 6059 (N. Plains Intertribal Ct. App. 2004) ("[W]e expressly hold that the Tribe’s failure to inform the appellant [that he must request a jury trial at the time of arraignment] constitutes a violation of his right to a trial by jury as guaranteed under [ICRA].”); Confederated Salish & Kootenai Tribes v. Peone, 16 Indian L. Rep. 6136, 6137 (C.S. & K. Tribal Ct. 1989) ("This court must conclude that the failure of the accused to make a request for a jury trial constitutes a valid waiver only when that failure to request a jury trial is made knowingly and intentionally. ...”); Squaxin Island Tribe v. Johns, 15 Indian L. Rep. 6010, 6011 (Sq. I. Tribal Ct. 1987) ("[T]he court finds that the defendant subsequently waived his right to trial by jury by knowingly and voluntarily failing to appear-”); see also Laramie v. Colville Confederated Tribes, 22 Indian L. Rep. 6072, 6074 (Colv. Ct. App. 1995) ("[T]he fundamental right of a criminal defendant to a trial by jury cannot be diluted because of administrative difficulties.”).

      . Citing four state-law cases, the Community suggests that a waiver of the statutory right to trial by jury need not be knowing. We question whether these cases are relevant to our analysis, as they do not interpret ICRA. But even if relevant, they are readily distinguishable. In three of the cases, the court specifically instructed the defendant that he had a .right to a jury trial upon request. See State v. Vernon, 218 Neb. 539, 356 N.W.2d 887, 889 (1984); Jackson v. State, 644 N.E.2d 595, 596 (Ind. Ct. App. 1994); State v. Farmer, 548 S.W.2d 202, 205 (Mo. Ct. App. 1977). In the fourth case, the appellate court remarked that defendant's “attorney clearly had knowledge of the time frame within which to make a jury trial demand.” State v. Gordon, 766 A.2d 75, 77 (Me. 2001). Moreover, the criminal defendant was represented by counsel in at least three of the four cases. Gordon, 766 A.2d at 76; Vernon, 356 N.W.2d at 889; Farmer, 548 S.W.2d at 205. The opinion in Jackson doesn’t mention whether the defendant had an attorney at trial. 644 N.E.2d 595.

      . Like the majority, I do not address Alvarez's confrontation rights.

      . Instead, he argued that the ICRA jury-trial right parallels the Sixth Amendment jury-trial right, so we should employ “federal constitutional standards” to evaluate his jury-trial claim.

      . Further, I am not persuaded that it was unfair to require Alvarez to do something to invoke his rights. Alvarez was told he had a right to a jury trial. Alvarez failed to object, ask a question, or do anything when it was clear that the trial was proceeding without a jury. And after the trial was over, he failed to appeal. At a certain point, a defendant cannot sit on his rights and then claim unfairness when the trial does not turn out the way he wanted.

      . The Sixth Amendment does not require a jury trial for "petty offenses,” for which the penalty does not exceed six months’ imprisonment or a $500 fine, or both. See 18 U.S.C. § 1(3) (1964) ("Any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both, is a petty offense.”); Cheff v. Schnackenberg, 384 U.S. 379 (1966) (A "petty offense ... does not require a jury trial.”). Indeed, at the time of ICRA’s enactment in April 1968, three states did not require jury trials for longer periods of imprisonment: Louisiana only granted a jury trial in cases in which capital punishment or hard labor could be imposed; New Jersey's disorderly conduct offense carried a one-year maximum sentence but no jury trial; and New York State did not provide juries in New York City for crimes with a one-year maximum sentence. Duncan, 391 U.S. at 146, 161 & n.33, 88 S.Ct. 1444. Shortly after ICRA’s enactment, the Supreme Court confirmed that states need not provide a jury trial for "[c]rimes carrying possible penalties up to- six months ... if they otherwise qualify as petty offenses.” Id. at 159, 88 S.Ct. 1444. Thus, ICRA § 202(10) provided a greater right than those available in federal court or in state court for offenses for which the penalty did not exceed six months.

      . We should not give much, if any weight, to the tribal decisions discussed by the parties. First, we should not base our opinion on decisions issued by unrelated tribes. Alvarez makes no argument that the Gila River Indian Community’s tribal courts would handle this issue in the same manner as other courts that have addressed the issue. The Community could interpret § 202(10) differently depending on the tribe's own needs, customs, and resources. One commentator has noted:
      Indian tribes are not all alike. Tribes range in size from tremendous to tiny. Some gaming tribes have per capita incomes that rival the richest towns in the United States while other tribes are some of the poorest communities in the country. Some tribes have adopted tribal court systems that largely mimic those present in the states surrounding them, while others have courts with little or no resemblance to Anglo-American justice systems.
      Max Minzner, Treating Tribes Differently: Civil Jurisdiction Inside and Outside Indian Country, 6 Nev. L.J. 89, 89 (Fall 2005) (footnotes omitted). Thus, the panel should avoid imposing the decisions of unrelated tribes on the Community. To the extent that we give any weight to the tribal opinions, I note that in Confederated Salish & Kootenai Tribes v. Peone, 16 Indian L. Rep. 6136 (C.S. & K. Tr. Ct. 1989), the court stated: “In the event of a pro se defense, it is the accused's responsibility to be aware of his own rights ... and failure to act in a timely manner on his own behalf is a burden the accused must bear alone. Even when the accused intends to obtain legal counsel the need for timely advice generally is the responsibility of the defendant.” Id. at 6137.

        Like the majority, Maj. Op. at 1030 n.7, I question whether state-court decisions are relevant to our analysis. To the extent that we consider them, I note that several state-court decisions support the tribe’s position. See State v. McClinton, 418 S.W.2d 55, 60-61 (Mo. 1967) (discussing State v. Larger, 45 Mo. 510, 511 (1870)); State v. Mangelsen, 207 Neb. 213, 297 N.W.2d 765, 767-68 (1980).


source: Caselaw Access Project

author: W. FLETCHER, Circuit Judge:

license: Public Domain

text:
    Nishchal BHATTARAI, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
    No. 12-74062
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 7, 2016, Pasadena, California
    Filed August 30, 2016

      Garish Sarin (argued), Law Offices of Garish Sarin, Los Angeles, California, for Petitioner.

      Richard Zanfardino (argued), Trial Attorney; Terri J. Scadron, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
    Before: WILLIAM A. FLETCHER, MARY H. MURGUIA, and JOHN B. OWENS, Circuit Judges.
   OPINION

W. FLETCHER, Circuit Judge:

Nishchal Bhattarai petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). The BIA upheld the immigration judge’s (“IJ”) adverse credibility finding based on alleged inconsistencies between Bhattarai’s testimony and certain supporting documents, and because Bhattarai failed to provide additional corroborative evidence, including testimony by his brother. The alleged inconsistencies are either unsupported by the record or are more properly considered gaps in corroboration, and the IJ failed to give Bhattarai notice and an opportunity to provide the corroborative evidence she deemed necessary. See Ren v. Holder, 648 F.3d 1079, 1090-92 (9th Cir. 2011). We therefore grant the petition and remand for further proceedings.

I. Background

A. Bhattarai’s Asylum Application . and Testimony

The following narrative was set forth in Bhattarai’s asylum application and testimony before the IJ.

Petitioner Nishchal Bhattarai is a 33-year-old native of Nepal, born to a politically active family who “influenced [him] with the democratic ideology since [his] school life.” In 1999, Bhattarai joined the Nepal Student Union (“NSU”), and later its parent political party, the Nepali Congress Party (“NCP”). Bhattarai worked on student elections for the NSU and from 2001 to 2002 served as an NCP district chief in his home Sunsari district.

During the time he was involved with the NSU and NCP, Bhattarai was attacked three times by individuals identified with the Maoist Party, which opposed the NCP. The first attack occurred on June 6, 2002. Just after Bhattarai had returned home from the NCP offices, a group of five Maoists arrived at his home. The Maoists accused Bhattarai of “[g]oing against” the Maoist Party, and demanded money. When Bhattarai told the Maoists that he would not help them, they beat him with sticks, a cane, and bicycle chains on his back and buttocks. They told Bhattarai before leaving that if he continued his involvement with the NCP they would return to hurt him again. Two days after the attack, Bhattarai fled to Kathmandu — several hundred kilometers from the Sunsari district — where he moved in with friends. The Maoists continued to communicate threats to Bhattarai through friends and family.

The second attack occurred almost six years later, on March 29, 2008. By this time, Bhattarai had completed a bachelor’s degree and had begun studies for a master’s degree in Kathmandu. He was still active with the NSU and gave speeches advocating the end of monarchy in Nepal. In 2008, in anticipation of national elections in April of that year, Bhattarai returned to Sunsari, his home district, to campaign for the NCP. During a campaign program on March 29, members of the Young Communist League (“YCL”) — a branch of the Maoist Party — began throwing rocks. A group of Maoists then captured a number of NCP workers, including Bhattarai, and beat Bhattarai with a cane. They forbade him from voting for the NCP, and threatened to “cut [him] into pieces” if he returned to the area to promote the NCP. The next day, Bhattarai returned to Kathmandu, where his brother was then living and studying. Bhattarai continued his political activities on behalf of the NCP.

Bhattarai’s third and most serious confrontation with Maoists occurred two years later, in March 2010. Bhattarai had begun working as a program officer for the organization UNESCO and Youth Nepal (“UNESCO-YN”) in 2008. He worked primarily as a youth leader, raising awareness about HIV, drug addiction, human rights, and community development. On March 8, 2010, Bhattarai was participating in a four-day youth program he had organized in a rural district, when he received a phone call from Maoists demanding that he leave the area. Bhattarai informed the president of UNESCO-YN and other local leaders about the threat. The next day, March 9, Bhattarai had just completed a lecture when three individuals who identified themselves as Maoists entered the room and confronted him. One drew a pistol and told Bhattarai to be silent while another rummaged through his bag and seized paperwork and 10,000 rupees (approximately $130). The Maoists then forced Bhattarai to walk for half an hour to a small isolated hut, and tied Bhattarai’s hands behind his back with a rope.

Four additional Maoists were waiting at the hut. One introduced himself as “Tau-rav.” He said that Bhattarai had been warned not to organize “this kind of program! ],” particularly in Maoist occupied areas. Taurav then punched Bhattarai in the face, and the other Maoists began beating him with sticks. They told Bhatta-rai that he was “going against their party,” accused him of being a spy for another party, and demanded that Bhattarai leave the NCP, quit his job with UNESCO-YN, and publicly join the Maoist Party. When Bhattarai refused, his captors hit and kicked him in the head and body until his vision became blurry. Bhattarai felt “excruciating pain” in his head and right arm. He heard the Maoists say that they were “going to have to end him,” and then he blacked out.

Bhattarai awoke in a police station. He learned later that villagers had found him lying on the floor of the hut and had contacted the police. The police gave Bhat-tarai first aid. The next day, March 10, Bhattarai returned to Kathmandu to receive medical treatment. He had pain “almost all around [his] body” and his right elbow was sprained. The doctor treated him for one week, prescribed medicine, and asked him to rest for three weeks. He recovered while living at a house he rented in Bhaktapur, near Kathmandu.

Several months later, Bhattarai was invited to participate in a UNESCO Youth Assembly at UN Headquarters in New York City. He was issued a non-immigrant visa and entered the United States on August 2, 2010. While he was in the United States, his parents received threats from the Maoists and told him not to return to Nepal. Bhattarai heeded their warnings. He remained in the country and lived with his brother, who had won the diversity visa lottery and had moved to the United States in 2009.

B. Procedural History

On February 1, 2011, the day his visa expired, Bhattarai filed an affirmative application for asylum, withholding of removal, and protection under the CAT. He included a number of supporting documents, including a sworn declaration, medical notes from the doctor who treated his injuries in 2010, a letter from a Nepali police investigator, other supporting letters from the NSU, NCP, and UNESCO-YN, among others, and a 2010 U.S. State Department country conditions report.

The Department of Homeland Security filed a Notice to Appear, and Bhattarai appeared in Immigration Court for a merits hearing on July 18, 2011. At the hearing, Bhattarai testified and was cross-examined. The IJ concluded the hearing by stating that “the evidentiary record’s closed.” About two weeks later, on August 3, 2011, the IJ denied Bhattarai’s application. She found that he had not “presented credible evidence” of past persecution or fear of persecution. In particular, the IJ found Bhattarai’s supporting documentation “at odds with” his testimony and lacking in specifics. She also stated that Bhat-tarai’s brother’s absence from the hearing “severely undercut[ ] [his] credibility.”

Bhattarai appealed to the BIA. Bhatta-rai also submitted a motion to remand for consideration of additional evidence, including additional letters from the NCP and UNESCO-YN, as well as a copy of Bhattarai’s brother’s passport. The BIA denied Bhattarai’s appeal and motion to remand on December 5, 2012. The BIA found no clear error in the IJ’s adverse credibility finding, and refused to remand for consideration of the additional evidence, on the ground that it had been available and could have been presented at the time of Bhattarai’s hearing before the IJ.

Bhattarai filed a timely petition for review with this court.

II. Standard of Review

Where, as here, the BIA agrees with and incorporates specific findings of the IJ while adding its own reasoning, we review both decisions. Vahora v. Holder, 641 F.3d 1038, 1042 (9th Cir. 2011). “We review factual findings, including adverse credibility determinations, for substantial evidence.” Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014). We will uphold the finding “unless any reasonable adjudicator would be compelled to conclude to the contrary.” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). We review questions of law de novo. Id.

III. Discussion

A. Asylum and Withholding of Removal

An applicant for asylum and withholding of removal bears the burden of establishing eligibility. 8 U.S.C. §§ 1158(b)(l)(B)(I), 1229a(c)(4)(A). Under the REAL ID Act, which applies to applications filed after May 11, 2005, an applicant may establish eligibility on his credible testimony alone, without any corroboration. 8 U.S.C. § 1158(b)(l)(B)(ii). However, “[w]here the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.” Id.

In Ren v. Holder, we held that this provision requires an IJ to “provide an applicant with notice and an opportunity to either produce [corroborative] evidence or explain why it is unavailable before ruling that the applicant has failed in his obligation to provide corroborative evidence.” 648 F.3d at 1090. Our conclusion was based on a detailed textual analysis of § 1158(b)(l)(B)(ii) and supported by the constitutional avoidance canon, because requiring an applicant to provide corroborative evidence before he knew it was necessary would “raise ... due process concerns.” Id. at 1093. We laid out a “sequential analysis” that an IJ must undertake:

To begin, the IJ must determine whether an applicant’s credible testimony alone meets the applicant’s burden of proof. If it does, no corroborative evidence is necessary. If a credible applicant has not yet met his burden of proof, then the IJ may require corroborative evidence. If corroboration is needed, however, the IJ must give the applicant notice of the corroboration that is required and an opportunity either to produce' the requisite corroborative evidence or to explain why that evidence is not reasonably available.

Id.

Ren makes clear that an IJ cannot articulate for the first time in her decision denying relief that key corroborative evidence is missing. Rather, when an IJ determines that additional corroborative evi- ■ dence should have been submitted, the IJ must give an applicant notice of what evidence would suffice and an opportunity to provide the evidence or explain why he cannot reasonably obtain it. If the IJ or BIA failed to provide the required notice and opportunity, we must grant the petition and remand. See Lai v. Holder, 773 F.3d 966, 975-76 (9th Cir. 2014) (granting petition based on Ren); Zhi v. Holder, 751 F.3d 1088, 1094-95 (9th Cir. 2014) (same).

The notice-and-opportunity requirement applies when the applicant’s testimony is “otherwise credible.” Ren, 648 F.3d at 1090. The REAL ID Act sets out a non-exhaustive list of factors that may reflect on the credibility of an applicant’s testimony or statement, including the “demeanor, candor, or responsiveness” of an applicant; “inherent plausibility” of the applicant’s account; consistency between the applicant’s written and oral statements, within such statements, or between such statements and other evidence; any inaccuracies or falsehoods in an applicant’s statements; “or any other relevant factor.” 8 U.S.C. § 1158(b)(l)(B)(iii). Our case law puts some limits on these factors. For example, we require that the inconsistencies that form the basis of the IJ’s adverse credibility determination are not “trivial” and are actually inconsistent in light of all “relevant record evidence.” Shrestha v. Holder, 590 F.3d 1034, 1043-44 (9th Cir. 2010).

Sometimes immigration judges or the BIA rely on lack of corroboration as a reason for finding an applicant’s testimony not credible, but this does not eviscerate Ren’s notice-and-opportunity requirement. Rather, when the IJ or BIA “relied on the lack of corroboration as part of [an] overall credibility determination[,] and, on review, we reject[] each of the IJ’s other reasons — besides lack of corroboration— for the adverse credibility finding,” the denial of relief cannot stand unless the IJ satisfied Ren’s requirements. Lai, 773 F.3d at 976 (internal quotation marks omitted). To apply Ren in this situation, we must disentangle the IJ’s corroboration-related reasons for the adverse credibility determination from other' reasons, such as inconsistencies, implausibility, or demeanor.

In reviewing an adverse credibility determination in which lack of corroboration is one of several stated grounds for the IJ or BIA’s decision, we undertake a two-step process. First, we separate out the non-corroboration grounds for the adverse credibility determination and evaluate whether the IJ and BIA’s determination is supported by substantial evidence. If it is, we defer to the IJ and BIA’s adverse credibility determination. But if we overturn that determination, and only issues regarding lack of corroboration remain, we next ask whether the IJ satisfied Ren’s notice requirement. If the IJ did not provide the applicant notice of the specific corroborative evidence that was required and an opportunity to provide it or explain why he cannot reasonably obtain it, we remand for the IJ to give the applicant that opportunity. See Lai, 773 F.3d at 974-75; Zhi, 751 F.3d at 1095. We now apply that method to this case.

1. Credibility

The BIA upheld the IJ’s adverse credibility determination based on one purported internal inconsistency in Bhatta-rai’s testimony, and on three purported conflicts between Bhattarai’s testimony and other evidence in the record. We find that some of the purported inconsistencies and conflicts are not supported by substantial evidence or were not properly addressed by the IJ at the hearing while others are more properly categorized as lack of corroboration.

a. Bhattarai’s Home in Kathmandu

The BIA found Bhattarai’s testimony internally inconsistent because he first testified that “he stayed with friends when he fled to Kathmandu,” and later testified that he stayed at a home his parents had in Kathmandu. Even if we assume, ar-guendo, that this detail is non-trivial, see Shrestha, 590 F.3d at 1043 (stating that “trivial” inconsistencies may not support an adverse credibility determination), the record reveals no actual inconsistency. Bhattarai’s first statement was in response to a question about where he stayed when he fled from Sunsari to Kathmandu after suffering his first Maoist attack in June 2002. He replied that he “stayed with [his] friends.” Bhattarai’s second statement was in response to the IJ’s question about where he stayed “after [his] release from the hospital” following the attack in March 2010. Bhattarai replied that he returned to a house “we had rented” in Bhaktapur, a suburb of Kathmandu. He added that his parents “used to come every [so] often” to stay there and were there with him when he returned' from the hospital. He never said that the house belonged to his parents.

The fact that Bhattarai stayed with friends during his first days in Kathmandu in 2002 but by 2010 had a rented home in a Kathmandu suburb is not only internally consistent but also eminently believable. It stands to reason that after living, studying, and working in the capital for eight years Bhattarai would have established a more stable residence. Indeed, Bhattarai explained this to the IJ, saying that “in the beginning, for a couple months” he stayed elsewhere, but “later on” he “made the house” in Bhaktapur. The BIA’s determination that these two facts were inconsistent ignores the clear meaning of Bhatta-rai’s testimony and has no basis in the record.

b. Medical “Letter”

The BIA and IJ also found that a medical “letter” submitted by Bhattarai was “at odds with the respondent’s testimony and his written application.” The IJ stated that Bhattarai testified about Maoists hitting him on the head and beating him until he was unconscious, but that he did not mention an injury to his elbow. In contrast, the medical document omitted any mention of a head injury, focused on treatment of a deep wound to Bhattarai’s right elbow, and stated in the “history” section that Bhatta-rai “Fell down on the road before ]á hours.”

To begin with, we agree with Bhattarai that the IJ mischaracterized this document. The IJ called the document a “report” or “letter,” when in reality the document contains only contemporaneous handwritten doctor’s notes. The difference is important because the notes are not self-explanatory, as a letter or report would be. Further, the IJ’s interpretation of the notes is unsupported by the record. For example, the IJ interpreted the doctor’s notation “no unconscious” to mean that Bhattarai had never lost consciousness, but this note- appears next to other contemporaneous conditions, such as Bhatta-rai’s vital signs, suggesting that Bhattarai was not unconscious at the time of the medical exam. Additionally, the IJ ignored that Bhattarai did in fact specify in his declaration that he felt “excruciating pain” in his right arm during the attack. And the lack of notation regarding a head injury is not an inconsistency. Bhattarai never testified that he had a lingering head injury, and the doctor — who saw him the day after the attack — was likely focused on treating the deep gash at his elbow. Because the IJ did not consider “all plausible and reasonable explanations” for the alleged inconsistencies, substantial evidence does not support the conclusion that the medical notes were inconsistent with Bhat-tarai’s claimed injuries. See Zhi, 751 F.3d at 1093.

To the extent the doctor’s notation that Bhattarai “Fell down on the road” described a different cause of the injuries than Bhattarai alleged, the IJ never asked Bhattarai about this discrepancy or gave him the opportunity to explain it. An IJ “must provide a petitioner with a reasonable opportunity to offer an explanation of any perceived inconsistencies that form the basis of a denial of asylum.” Don v. Gonzales, 476 F.3d 738, 741 (9th Cir. 2007) (quoting Ordonez v. INS, 345 F.3d 777, 786 (9th Cir. 2003)). Because Bhattarai was not given this opportunity, the perceived inconsistency is not a proper basis for an adverse credibility determination. See Soto-Olarte v. Holder, 555 F.3d 1089, 1091-92 (9th Cir. 2009).

c. Police Report

The BIA and IJ also found that a “police report” submitted by Bhattarai undermined his credibility because it was “not contemporaneous with the incident” and “omit[ted] any abduction or being threatened with the pistol or the gun.” However, the BIA mischaracterized this document. What it termed a “police report” is actually a letter from a police inspector verifying that Bhattarai was the victim of an attack on March 9, 2010. As the letter was presumably written at Bhattarai’s request, in order to provide documentation of the attack for the immigration court, it is to be expected that the letter would post-date Bhattarai’s decision to apply for asylum.

Moreover, the document is not inconsistent with Bhattarai’s testimony or any other record evidence. Rather, it simply does not provide details of Bhattarai’s assault. Thus, although the IJ termed this an “inconsistency,” the problem with the police letter — to the degree that there is a problem — is that it does not corroborate the details of the assault. As we explained above, when an adverse credibility finding is based on the failure to sufficiently corroborate an applicant’s story, Ren applies. Thus, if the IJ found it necessary for Bhat-tarai to present a contemporaneous police report or a report that detailed his assault as corroboration, she had to provide Bhat-tarai with notice and an opportunity to provide the report or explain why it is not reasonably available. See Ren, 648 F.3d at 1090; cf. Chawla v. Holder, 599 F.3d 998, 1002-03 (9th Cir. 2010) (rejecting IJ’s adverse credibility determination based on a newspaper article’s omission of particular details because applicant could not have been expected to explain the omission before knowing that the IJ would find the evidence lacking). As we explain in the following section on corroboration, the IJ did not do so.

d. Supporting Letters

Finally, the IJ and BIA also found flaws with the supporting letters Bhattarai submitted from UNESCO-YN, NSU, and NCP. The BIA explained that the letters were dated after Bhattarai’s arrival in the United States, “make vague references to each organization’s record of the respondent’s receiving threats or being tortured, assaulted, or threatened,” and provide “no dates or details that would support the respondent’s claim.”

Again, the lack of details in these supporting documents is not an inconsistency. Rather, the problem is simply that the documents may not sufficiently corroborate the important details of Bhattarai’s story. Because Ren’s requirements apply to this determination, this purported deficiency is properly addressed in the corroboration analysis below.

In sum, we hold that the inconsistencies identified by the IJ and BIA were either non-existent or proeedurally defective because Bhattarai was not given the chance to explain them. We note also that Bhatta-rai’s in-court testimony was remarkably detailed, consistent with his written declaration, and plausible in light of the U.S. State Department report and other country conditions evidence in the record. “[C]onsidering the totality of the circumstances and all relevant factors,” we find that the adverse credibility determination is not supported by substantial evidence. Owino v. Holder, 771 F.3d 527, 588 (9th Cir. 2014) (citing 8 U.S.C. § 1158(b)(1)(B)(iii)).

2. Corroboration

Because the BIA and IJ’s non-corroboration reasons for the adverse credibility determination fail, we consider Bhat-tarai “otherwise credible” and proceed to determine whether Bhattarai’s application was properly denied on the basis that he did not provide certain corroborative evidence. See Lai, 773 F.3d at 976.

a. Bhattarai’s Brother

The IJ focused on the fact that Bhattarai’s brother, with whom he lived in the United States, did not testify, commenting that this absence “severely undercut!] [Bhattarai’s] credibility.” We agree that substantial evidence supports the IJ’s determination that Bhattarai’s brother “might have corroborated” his testimony. Bhattarai’s brother lived in Nepal when Maoists' attacked Bhattarai in 2002 and 2008, and could potentially verify Bhatta-rai’s involvement in the NCP. He may also have heard from Bhattarai or his parents about the threats they received from Maoists after Bhattarai moved to the United States and was living with him.

However, the BIA’s reliance on the absence of testimony from Bhattarai’s brother was error under Ren because the IJ did not give Bhattarai notice and an opportunity to present the corroborative testimony before denying his asylum application. See Ren, 648 F.3d at 1091. The government argues that Bhattarai was on notice of the need for his brother’s testimony. It points out that the government attorney questioned Bhattarai during the hearing about why his brother hadn’t appeared to testify, and that the IJ overruled Bhattarai’s counsel’s objection by saying that this line of questions “went to credibility.” However, even if this was enough to alert Bhattarai that his brother’s absence was fatal to his claim — which we are not sure it was — the IJ did not give Bhattarai an opportunity to provide his brother’s testimony after her determination that it was necessary. See id. (if an IJ determines that corroboration is required, “the applicant must then have an opportunity to provide it....”) (emphasis added). Instead, at the end of the merits hearing in July 2011, the IJ ordered the evidentiary record “closed.” Thus, by the time he knew he should have brought his brother to the hearing, Bhattarai was out of luck. Because the IJ did not give him an opportunity to provide his brother’s testimony or explain why he could not, the absence of this corroborative evidence cannot be the basis for denying him relief. See Zhi, 751 F.3d at 1095; see also Chen v. Ashcroft, 362 F.3d 611, 620 (9th Cir. 2004) (“[W]e have held that due process requires that an applicant be given a second opportunity to' establish eligibility for asylum where the adverse credibility determination was based, without notice to the applicant, on a failure to produce a relative as a corroborating witness.”).

b. Supporting Letters

We now return to whether the absence from the supporting letters of specific dates and details of the Maoist attacks is a sufficient ground to deny relief. Even if evidence corroborating these dates and details was reasonably required to sustain Bhattarai’s burden of proof, the IJ erred under Ren. The IJ never mentioned the inadequacy of the supporting letters Bhat-tarai submitted, or suggested a need for more specific documents corroborating dates and details, until she announced her decision. Thus, Bhattarai could not “act on the IJ’s determination that he ‘should provide’ corroboration” because he was “not given notice of that determination until it [wa]s too late to do so.” Ren, 648 F.3d at 1091.

Bhattarai’s attempt to supplement the record with more detailed letters perfectly illustrates the importance of the Ren rule. After the IJ issued her decision stating that the supporting letters in the record were too vague and did not contain specific dates, Bhattarai was able to obtain new letters from the NCP and UNESCO-YN verifying the specific attacks he suffered on particular dates. But the BIA refused to reopen his case to consider the new evidence because, in its view, Bhattarai could have obtained this evidence at the time of the previous hearing. Bhattarai thus found himself in an impossible situation: he did not know until after the hearing that certain evidence was required, but once he knew, he could not submit it because, in the view of the BIA, that evidence had been available at the time of the hearing.

Because the REAL ID Act requires notice and a fair opportunity to provide the necessary corroborative evidence or explain why it is not reasonably available, we remand for the BIA to provide Bhattarai with that opportunity.

B. CAT

■ The IJ and BIA also summarily denied Bhattarai’s application for relief under the CAT. To the extent this denial was based on the flawed adverse credibility determination regarding Bhattarai’s asylum and withholding claims, the CAT denial must also be reconsidered on remand.

We note that an adverse credibility determination in the asylum context does not necessarily support denial of an applicant’s CAT claim. See Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001) (“[W]e are not comfortable with allowing a negative credibility determination in the asylum context to wash over the torture claim.... ” (internal citation and quotation marks omitted)). Rather, in the CAT context the BIA must consider “all evidence relevant to the possibility of future torture,” including country conditions evidence. See id. at 1282 (quoting 8 C.F.R. § 208.16(c)(3)); Madrigal v.. Holder, 716 F.3d 499, 508 (9th Cir. 2013) (“Under CAT’s implementing regulations, the BIA must consider all evidence of country conditions to determine the likelihood that an applicant would be tortured.”).

Conclusion

The IJ and BIA’s adverse credibility determination is not supported by substantial evidence. The IJ and BIA erred in relying on the absence of certain corroborating evidence without giving Bhattarai notice and an opportunity to provide that evidence or explain why he cannot reasonably obtain it. We GRANT the petition and REMAND for further proceedings consistent with this opinion.