Where the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, this court has authority to review the decisions of both the IJ and the BIA.
Adverse credibility determinations are factual findings that this court reviews under the substantial evidence standard, this court must uphold a credibility determination unless any reasonable adjudicator would be compelled to conclude to the contrary. However, the IJ must provide “specific, cogent reasons” for his or her findings, and adverse credibility determinations based on speculation or conjecture, rather than on evidence in the record, are reversible.
Under the REAL ID Act of 2005, credibility determinations may be made without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim. However, an adverse credibility determination may only be made after considering the totality of the circumstances, and all relevant factors, which may include the consistency between the applicant’s written and oral statements and the circumstances under which the statements were made.
The BIA’s own rule requires a credibility determination to be independent of an analysis of the sufficiency of an applicant’s evidence. A failure of proof is not a proper ground per se for an adverse credibility determination. The latter finding is more appropriately based upon inconsistent statements, contradictory evidence, and inherently improbable testimony.
An adverse credibility finding is improper where an IJ fails to address a petitioner’s explanation for a discrepancy or inconsistency. Where the IJ appeared to have found the petitioner credible during the hearing, noting that she had been “candid and honest” during her testimony, and had “readily admitted” that she had lied to Canadian border officials, but nonetheless determined that he had to make a negative credibility finding in light of the petitioner’s admission that she had not been truthful with Canadian authorities, the IJ failed to consider whether the totality of the circumstances and all relevant factors supported the adverse credibility determination, particularly when the IJ did not address (much less discredit) the petitioner’s explanation for her false statements during the airport interview, or explain why that explanation was inadequate.
The IJ’s adverse credibility determination is particularly problematic because he relied solely on inconsistent statements made during the petitioner’s airport interview. It is established in this Circuit that inconsistencies between an airport statement and an asylum seeker’s testimony before an IJ is not sufficient, standing alone, to support a BIA finding that the petitioner was not credible. This court has disfavored reliance on statements made during an airport interview because such an interview is likely to be hurried; language difficulties arise; the results may be inaccurately recorded; and an arriving alien who has suffered abuse in his home country may be reluctant to reveal full information in his or her first meeting with the government.
Where the petitioner, who was only 17 years old at the time, testified that (1) she was disoriented during the airport interview and could not understand all the questions; (2) she did not have counsel during the airport interview, and, although an interpreter was present, he or she apparently participated over the phone; (3) the airport interview lasted approximately two hours, but the record is only one-and-a-half pages long, and lists only 22 total questions and answers; (4) the entire interview was not recorded, it is impossible to know from this incomplete record whether the petitioner mentioned her fear of being forced into prostitution during the airport interview. Accordingly, to the extent the IJ and the BIA relied on the fact that the petitioner had not told Canadian authorities about her fear of being forced into prostitution, that finding is not supported by the record.
Even assuming that the petitioner omitted to mention her fear of being forced into prostitution during her airport interview, this court does not believe that omission, by itself, required the IJ to find the petitioner incredible. In this context, it is quite possible that a 17-year old female might be hesitant to disclose to border officials in a foreign country her fears of being forced into prostitution. Because those most in need of asylum may be the most wary of governmental authorities, the BIA and reviewing court must recognize, in evaluating the statements made in an interview, that an alien may not be entirely forthcoming in the initial interview. Accordingly, the inconsistency between the petitioner’s statements to Canadian officials and her testimony before the IJ, which included her honest and candid admission that she had not been truthful during her airport interview, hardly required a finding that the petitioner was not credible. In sum, this court concludes that the IJ’s and BIA’s adverse credibility determination is not supported by substantial evidence. In so holding, this court is not finding the petitioner credible. Rather, this court concludes that because of the lack of substantial evidence to support the adverse credibility determination, this court must remand in order for the BIA to further explain or supplement the record. Accordingly, this court grants the petition for review, vacates the BIA’s decision, and remand for further proceedings consistent with this opinion on the petitioner’s claims for asylum, withholding of removal, and relief under the CAT.
Showing posts with label credibility. Show all posts
Showing posts with label credibility. Show all posts
Monday, December 28, 2009
Thursday, December 10, 2009
Namocha v. ICE, No. 08-6151-ag (non-precedent) (2d Cir. Dec. 10, 2009).
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. This Court reviews the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. This court reviews de novo questions of law and the application of law to undisputed fact.
In addition to the general statutory requirement that petitioners exhaust available administrative remedies, petitioners must also raise to the BIA the specific issues they later raise in this Court. While not jurisdictional, this judicially imposed exhaustion requirement is mandatory. However, this court has never held that a petitioner is limited to the “exact contours” of his or her argument to the agency. On the contrary, Title 8, section 1252(d)(1) does not prevent this Court from considering “specific, subsidiary legal arguments, or arguments by extension,” even if those arguments were not presented below.
This court finds that the petitioner’s argument that the IJ failed to make a finding that she knew the documents were altered prior to their submission, despite her testimony to the contrary, is a “subsidiary argument” to the her argument before the BIA that the IJ’s adverse credibility finding was flawed because the documents in question were found only to be altered, not fraudulent, and because the IJ failed to specify why the alterations to the documents were material to the petitioner’s credibility.
The IJ’s adverse credibility determination was not based on substantial evidence. In Corovic v. Mukasey, 519 F.3d 90 (2d Cir. 2008), this court held that the submission of fraudulent documents is insufficient to hold that an alien lacks credibility where there is no indication or finding that he knew or had reason to know that the documents were fraudulent. This court concluded that when an applicant contests that he knowingly submitted a fraudulent document, the IJ must make an explicit finding that the applicant knew the document to be fraudulent before the IJ can use the fraudulent document as the basis for an adverse credibility determination. Because the petitioner in the instant case testified that she did not know the documents were altered before she submitted them, and because the IJ failed to make any finding regarding her knowledge of the authenticity of the documents, this court remands to the BIA so that the agency may make the necessary finding. The petition for review is granted, and the case remanded for further proceedings consistent with this order.
In addition to the general statutory requirement that petitioners exhaust available administrative remedies, petitioners must also raise to the BIA the specific issues they later raise in this Court. While not jurisdictional, this judicially imposed exhaustion requirement is mandatory. However, this court has never held that a petitioner is limited to the “exact contours” of his or her argument to the agency. On the contrary, Title 8, section 1252(d)(1) does not prevent this Court from considering “specific, subsidiary legal arguments, or arguments by extension,” even if those arguments were not presented below.
This court finds that the petitioner’s argument that the IJ failed to make a finding that she knew the documents were altered prior to their submission, despite her testimony to the contrary, is a “subsidiary argument” to the her argument before the BIA that the IJ’s adverse credibility finding was flawed because the documents in question were found only to be altered, not fraudulent, and because the IJ failed to specify why the alterations to the documents were material to the petitioner’s credibility.
The IJ’s adverse credibility determination was not based on substantial evidence. In Corovic v. Mukasey, 519 F.3d 90 (2d Cir. 2008), this court held that the submission of fraudulent documents is insufficient to hold that an alien lacks credibility where there is no indication or finding that he knew or had reason to know that the documents were fraudulent. This court concluded that when an applicant contests that he knowingly submitted a fraudulent document, the IJ must make an explicit finding that the applicant knew the document to be fraudulent before the IJ can use the fraudulent document as the basis for an adverse credibility determination. Because the petitioner in the instant case testified that she did not know the documents were altered before she submitted them, and because the IJ failed to make any finding regarding her knowledge of the authenticity of the documents, this court remands to the BIA so that the agency may make the necessary finding. The petition for review is granted, and the case remanded for further proceedings consistent with this order.
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