26 I. & N. Dec. 658
BIA2015Background
- Respondent, an Indian national, applied for asylum and withholding of removal after alleging two 2010 arrests and beatings by police in Uttar Pradesh; he conceded removability.
- DHS and the IJ identified numerous, striking similarities between the respondent’s asylum declaration and an earlier asylum application submitted by his brother (who had been granted asylum), including identical language, spelling errors, timing, and plural pronouns.
- Respondent claimed similarities arose from shared experiences and use of the same transcriber; brother’s testimony about the transcriber was inconsistent.
- The Immigration Judge gave notice of the similarities, allowed a continuance for the respondent to obtain the transcriber’s testimony or other evidence, and reopened the record conditionally; the transcriber never testified and no persuasive corroboration was produced.
- The IJ made an adverse credibility determination based largely on inter‑proceeding similarities and the inadequate explanations and corroboration, denied asylum, withholding, and CAT relief; the BIA affirmed.
Issues
| Issue | Respondent's Argument | DHS/IJ Argument | Held |
|---|---|---|---|
| May an IJ consider similarities between statements in different proceedings when assessing credibility? | Such similarities can be innocent (shared background, same transcriber) and should not be dispositive. | Significant unexplained inter‑proceeding similarities are probative of fabrication and may be considered. | Yes; IJs may rely on inter‑proceeding similarities as part of a credibility finding, subject to procedural safeguards. |
| What procedural protections are required before adverse credibility based on inter‑proceeding similarities? | Respondent argued he was given opportunity to explain and relied on the transcriber, implying protections were adequate. | DHS/IJ argued the IJ provided notice and an opportunity to explain, including a continuance to obtain the transcriber. | The BIA adopted a three‑part framework: (1) identify and give meaningful notice of the similarities on the record, (2) provide a reasonable opportunity to explain (including continuances), and (3) assess the totality of the circumstances. |
| Was the respondent’s explanation (shared background/transcriber) sufficient to overcome the similarities? | The respondent maintained the similarities resulted from common upbringing and the transcriber's drafting. | DHS/IJ emphasized identical wording, spelling, syntactic errors, plural pronoun use, and inconsistent testimony about the transcriber. | No; the IJ did not clearly err in finding the explanations insufficient, especially given inconsistent testimony and absence of the transcriber. |
| Did respondent’s documentary evidence independently corroborate his claims? | Respondent argued letters, medical document, and IDs should receive dispositive weight. | DHS/IJ argued the documentary evidence was unauthenticated, generic, and unreliable without cross‑examination. | No; the BIA upheld the IJ’s view that the corroboration was conclusory and insufficient to meet the burden. |
Key Cases Cited
- Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517 (2d Cir. 2007) (approving reliance on inter‑proceeding similarities when IJ provides procedural safeguards)
- Jibril v. Gonzales, 423 F.3d 1129 (9th Cir. 2005) (endorsing commonsense credibility assessments by immigration judges)
- Dehonzai v. Holder, 650 F.3d 1 (1st Cir. 2011) (recognizing that nearly identical language across statements can support an adverse credibility finding)
- Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012) (addressing standards for CAT relief and government acquiescence)