*1
is,
effect,
necessarily
plaintiffs’ theory
overwhelm the common of the
an
Xcelera,
at
such,
ones.”
507. The
assessment of the case’s merits. As
applicability of the fraud-on-the-market
putting
we are
the cart before the horse
theory
appropriateness
is central to the
of
turning
stage
the class certification
litigation:
the class action as a vehicle for
summary judgment
into a motion for
pro-
theory, plaintiffs
longer
under the
are no
ceeding
juncture
appropriate
—the
prove
reliance.
required
individualized
fully
viability
plain-
which to
vet the
(vacat-
PolyMedica,
See
tion. remanding
In the certification of the
damages classes for reconsideration with evidence, benefit of additional the ma-
jority dispute conflates the as to the viabil-
ity
theory
the plaintiffs’
with the
CUKO, Petitioner,
Vllasi
inquiries required at class certification.
PolyMedica,
As we noted in
“a court has
power
disputed premises early
to test
MUKASEY,* Attorney
Michael B.
and when the class action would be
if
General, Respondent.
proper
premise
on one
but not another.”
PolyMedica,
(quoting
unlike the fraud-on-the-market is
not determinative of whether a class action Indeed, proper
is or not. the identified plaintiffs’
uncertainties within the theory
challenge only ability plaintiffs
(as group) successfully prove their
theory impact. Slip op. at 26-28. In case, inquiry stage tests each
* 43(c)(2), R.App. Pursuant Attorney to Fed. P. Attorney tuted for former General Alberto R. Mukasey General Michael respondent B. has been substi- Gonzáles as the herein. *3 Blaya, Attorney,
Robbin K. Office of Immigration Litigation, Department U.S. Justice, Keisler, Peter D. Acting Attor- General, ney Anthony Norwood, W. Senior Counsel, Litigation brief, for respon- dent. TORRUELLA,
Before Judge, Circuit CYR, Judge, LYNCH, Senior Circuit Judge. Circuit LYNCH, Judge. Circuit Cuko, Vllasi a citizen and national of Albania, petitions for review of an order of Immigration (BIA), the Board of Appeals (IJ) immigration affirmed an judge’s denial of application his political asy- lum.
I
BACKGROUND After Cuko entered the United States 2001, via Italy July in placed he was in removal proceedings and applica- filed an asylum, tion for removal, withholding of protection under the Convention (CAT), Against predicated Torture on alle- gations persecution based on politi- cal opinions. At hearing, removal Cuko testified that the former Communist government of forcibly Albania interned family in a concentration camp during the 1970s and 1980s. After the fall of the government Communist in Cuko be- came an active member of his hometown chapter Party. of the Democratic Party’s major Democratic political oppo- Party, nent is the Socialist legal suc- cessor to the Albanian Party. Communist overcome that, persecution ture would be in November also testified country conditions. changed membership his official he allowed chapter of Democratic the local The IJ noted that he did “not further had decided sell he lapse because applicant ... find the to be credible capital, family relocate home and case. any regard [The this witness to ac- ultimately was he unable but that carefully has observed IJ] house. quire new hearing throughout demeanor furtive, evasive, to be a that, finds the February testified in, wholly witness.” incredible participated helped organize, in Fier. rally Party election specifically then detailed *4 house was stoned evening, his Later that for his adverse determi- bases by unknown family terrorized and his First, the noted that Cuko tes- nation. IJ thereafter, Shortly masked individuals. that, in the after he had arrived tified anony- began receiving his wife and Cuko States, father-in-law he asked his United their son threats that telephone mous member- party Albania obtain Cuko’s not cease if Cuko did kidnapped be Party ar- the Democratic ship card from Party, the Democratic with his activities later, it to him. Moments chives and mail and son to have his wife paid and Cuko testimony” changed his “completely Cuko When into the United States. smuggled card say that he had left the rally on March party another Cuko held Imme- departed home when he Albania. claims, all Cuko are the police who, thereafter, changed — diately he testimo- him, Party supporters Socialist —arrested given had ny again and said that he hours, insulted for several and held him departing before to his father-in-law card lost him. When Democrats and beat noted, in States. The IJ for United Socialists, sold his Cuko the election that based on Cuko’s demean- particular, house, via left for the United States then or, modify his second seemed to Cuko Italy. that was as he realized it answer as soon that testimony with his earlier for inconsistent application Cuko’s denied leaving before Alba- had sold his home removal and his he withholding of asylum and that actually appeared [Cuko] nia. “[I]t an oral relief under CAT. In claim for realizing then that giving decision, by noting that was answers began the IJ an- inconsistent, testimony conflicted with these prior both testimony Cuko’s swers, change his an- he would then exhibits, that and internally and with some thought one that he give another mendacity. swer suggested his demeanor on until plausible so would be more coun- present then described The IJ the final version of up ended with that and noted try Albania conditions had noted testimony.” The IJ longer any indications were no there authenticated appropriately also against Com- systemic political persecution clear though it was membership card even The IJ found Party opponents. munist the proce- aware of well that Cuko was account if he credited Cuko’s even dures authentication. in a family were that he and his interned Second, certifi- the IJ observed 1970s, all Alba- virtually in the camp labor 28, 2001, from the December cate dated similarly years from the nians suffered office, Party branch Therefore, if local Democratic even to 1990. “has that Cuko been certified the which credibly past persecution, show could [sic] from 1992 till fu- member of fear of of a well-founded presumption year regu- November of the 2000 and has money to the source of the pay used to larly paid monthly membership fees to smugglers. appeared say that he party,” testimony contradicted Cuko’s sold one of two houses he owned to that he was an active and Demo- vibrant money, raise the but clearly his wife testi- Party cratic organizer member they fied that owned one home in through March his arrest in 2001. Albania. The IJ also noted that the timing of the sale of “completely the house was rejected, “wholly
The IJ also unsatis- unclear” to the IJ. The IJ found Cuko’s factory,” for the No- ... “simply not ... to be credi- vember 2000 membership termination: point, ble” on this and that “the truth is that he had intended to move to another something other than testi- reregister town and with its local Demo- is, mony, that the applicant and his branch, cratic ultimately but that he family plans had to come to the United buy failed in his efforts to new house States, they have story concocted this locality, stay other and decided to in an effort to obtain permanent lawful true, noted, Fier. If this were the IJ residence....”1 likely would be that the letter would have *5 active, mentioned that he had remained The IJ concluded that discrepan- these especially light of his efforts cies became material in 'combination with organizer as an up until his arrest perjurious testimony Cuko’s other regard- March 2001. ing membership card and the December 2001 addition, certificate. In the IJ determined it “incon- ceivable” the December 2001 certifí- IJ, having rejected application the cate, written the chairman of the local asylum, rejected Cuko’s claim for with- and purportedly issued removal, holding of noting that the latter alleged harassments, assaults, the ar- after requires higher proof. burden of The IJ rest, beatings and of spring Cuko the rejected also claim Cuko’s for relief under 2001, never persecution. mentioned this CAT, the based finding both on his The IJ found that discrepan- these two Cuko was not credible and that there was cies and support inconsistencies were material and no record likely it was more applicant’s asylum went to the heart of the than not Cuko would be tortured were he them, claim and that in light Albania, Cuko could to return to especially given the not be found to be a credible country’s changed witness. political circumstances.
Finally, the discrepan- IJ noted other decision, After appealed Cuko the IJ’s testimony cies. Cuko’s about how much the affirmed and adopted the IJ’s paid and when Cuko to have his wife and “finding decision the not credi- child smuggled ble,” brief, out of changed Albania in a summary, but not opinion. from one directly moment to the next record, and Based on an examination of the contradicted of his disposed wife. BIA of Cuko’s contention on ap- “completely His demeanor was peal evasive and that the IJ’s conduct in questioning nonresponsive” testifying when he was beyond as Cuko went authority. The BIA (i) 1. The IJ also noted that Cuko’s de- wife's with Cuko's family contention that the evasive," "exceptionally meanor was tive," “fur- (iii) fleeing political persecution; and incredible”; "wholly that she was did adequately why family not did (ii) Cuko’s family’s wife’s stated reason for the Greece, try emigrate nearby to where viz., coming enjoy to the United States — daughters living peacefully. his two were "greater opportunities” inconsistent —was Mew of the IJ.” the determination view up- support record sufficient found also v. finding. engkang credibility adverse IJ’s hold also, Cir.2007); e.g., Chanthou (1st see finding that based affirmed The BIA Hem, at 69. reports, country Department State on fear of a well-founded not have did vantage the best the IJ has Since petitioned then persecution. future the witnesses’ assess point final BIA’s decision. for review sig demeanors, we accord testimonies these witness respect nificant II Ashcroft, 380 determinations. Afful Cir.2004). (1st Accordingly, we DISCUSSION credibility determi adverse the IJ’s review the BIA argues petition Cuko’s “substantial deferential under the nation the IJ decision sustaining erred standard, and must sustain evidence” re- withholding of asylum, denying Cuko compel evidence the record “unless claims He the CAT. moval, under relief or contrary make a factfinder a reasonable assumed improperly IJ again that Gonzales, 454 Stroni v. determination.” argues He attorney. government of a role Cir.2006) add (emphasis 82, 87 determinations, inquire ed). narrowly we Specifically, perceptions IJ based which the (i) articulated discrepancies whether: witnesses’ inconsistencies testimonial actually BIA are by the and/or founded demeanors, upon which he (ii) record; in the administrative present are application, denial of co generate discrepancies by the record. not supported *6 peti infer that from which to reasons gent here, adopted BIA “Where, ‘the as provided non-cre or witnesses tioner also ruling, but dis the IJ’s and affirmed (iii) petitioner testimony; and ditworthy opin the IJ’s for bases of the cussed some explanation persuasive provide failed and BIA’s the IJ’s ion, we review both v. Gon Hoxha discrepancies. for these ” Gonzales, 4, 6- F.3d 503 Lin v. opinions.’ Cir.2006); (1st In 210, 214 zales, 446 F.3d Cir.2007) v. Zheng Gon (1st (quoting 7 (BIA 1106, A-S, Dec. 1109 21 N. I. & re Cir.2007)). (1st 30, zales, 33 F.3d 475 1998). decision, we the IJ’s adopts When findings of particular disregard the cannot the Demo- Custody Chain 1. does the BIA just because the IJ Membership Party Card cratic See, Chan e.g., them. address expressly for his adverse the first As (1st 67, 69 F.3d Mukasey, 514 v. thou Hem determination, the IJ noted Cir.2008) IJ’s (reviewing both the toas accounts different three gave adopts and the BIA when opinion BIA’s Party his Democratic he obtained how “some ruling and discusses affirms the IJ’s supporting exhibit. as membership card Lin, decision”); 503 for bases IJ’s demeanor also Cuko’s The IJ found Gonzales, 502 (same); Yu v. 6-7 F.3d at gave that Cuko believe led the Cir.2007) (same); Zheng, (1st 17, 19 F.3d recognized he because accounts multiple (same). at 33 475 F.3d ac prior inconsistency between testimony. his other count Credibility Determination A. Adverse testimony in Cuko’s discrepancies These the IJ’s adopted has the BIA “Where Democratic obtained how here, about he determination, we re- 38 2000,
Party membership clearly present card are through from 1992 November contra- They in the administrative record. are dicted that he remained inconsistency based not of state- an active Party member into ments but also on observation of demean- early 2001, explanation and that Cuko’s They go or. also the heart of Cuko’s claim {viz., terminating his membership persecution political based on beliefs.2 attempt purchase aborted a house in INS, v. Bojorques-Villanueva Tirana) See 194 “wholly unsatisfactory.” was (1st Cir.1999). 14, Further, the IJ addition, In the IJ found that the De- explanation considered Cuko’s for his in- reasonably cember 2001 certificate should testimony, consistencies in and found it (but not) have included did some account was not ap- credible because his answer political persecution pur- peared change only after he it realized portedly early suffered 2001. Cuko’s prior testimony. conflicted with his See explanation that the December 2001 certif- (1st Gonzales, Simo v. 445 F.3d just icate was a ministerial verification of Cir.2006) (“Our frequent cases make refer- Cuko’s official enrollment par- dates ence to of a petitioner the failure to suffi- ty was undercut the evidence that the ciently explain (citing inconsistencies.” December 2001 certificate did make refer- Gonzales, Chen ence to pri- Cuko’s forced labor under the Cir.2005); Gonzales, Dhima v. regime. or Albanian Again, under our (1st Cir.2005))). 92, 96 review, deferential standard was rea- Under our deferential standard of sonable for the IJ to note the inconsisten- review, say we cannot that the record com cies and find Cuko’s inade- pels contrary us to make a determination quate.3 to that of the IJ. IJ’s determination demeanor, argues that if was also even he based on Cuko’s no longer Party was an active Democratic findings as to demeanor are sub member, See, ject great weight. may still be at risk of e.g., Rodriguez political persecution Del Carmen v. because he (1st Cir.2006) (“Matters be Democratic It witness credi member. is cor *7 rect, bility here, and demeanor are peculiarly asylum for the but not material that an factfinder.”). claim can predicated be not an on affiliation, applicant’s actual political but
2. The December 2001 Certifícate on his particu affiliation with a Party Chairman political opinion. lar See Mekhoukh v. (1st Ashcroft, 118, Cir.2004); ground As the second for 358 his ad F.3d 125 determination, INS, verse the IJ ob Alvarez-Flores v. 909 F.2d 4 Cir.1990) (“[A]n served that the December 2001 certifi imputed political opinion, cate, in party which the local chairman correctly whether or incorrectly attrib uted, certified that paid party Cuko had dues can constitute a political of petition pre-dates 2. Cuko's party, the effective date cial enrollment dates in the and would Act, of the Real ID which abolishes the “heart alleged political persecu- not mention Cuko’s Hem, of the claim” rule. See Chanthou tion, plausible it is at least as to draw the 3; F.3d at 69 n. see also 8 U.S.C. equally inference competing the IJ did. Even 1158(b)(l)(B)(iii). § inferences do not allow us to unsettle the IJ's determination. 3. Even if the December 2001 certificate was only a ministerial verification of offi- Cuko's testimony of Cuko between crepancies meaning [Im- of the within persecution of the Act.”); concerning details also see his wife Nationality] and migration Gonzales, smug- F.3d by which Mrs. Cuko was v. transaction Koudriachova Cir.2007) (“[T]he question (2d relevant Because Cuko’s States. to the United gled subjec- applicant asylum an whether is not date the effective pre-dates petition view, but political particular tively holds of Act, standard our deferential ID Real ap- the authorities whether instead caveat: important an subject to is review him to country perceive home plicant’s credibility determination adverse “[A]n perse- opinion political hold a must be based trivia but rest on cannot basis.”); v.Gao him on cute the heart of involved discrepancies Cir.2005); (2d C.F.R. 122, 129 424 F.3d Lin, (quot- at 7 asylum claim.” 208.13(b)(2)(iii). § 16) ing Bojorques-Villanueva, IJ’s deter- to the irrelevant is point This omitted). The (internal marks quotation the dis- IJ used mination, The however. discrepancies these found that membership over Cuko’s crepancy with Cuko’s smuggling, when combined factors, including its many as one dates “material” testimony, became other men- suggested “his demeanor finding that his claim. the heart of went not personally was to find Cuko dacity,” in the testi- inconsistencies considered was of decision IJ’s basis credible. The smuggling the Cukos’ regarding mony longer no was because not that to Cuko’s transaction; “collateral” while member, not he would alone, they provided still if viewed claim it was persecution; subject have been support additional incon- testimonial of Cuko’s that because these addition- finding. “While not demeanor, did sistencies go necessarily do not discrepancies al a well-founded showing his burden meet claim, and persecution of Lin’s heart persecution. fear alone standing enough not be might thus which a case in Further, was not credibility finding, an adverse support opportunity not afforded was sup- further they provide in this case ... Hoxha, 446 inconsistency. See that [petition- conclusion IJ’s for the port appli- asylum (noting that at 214 her recitation candid in er] persuasive provide cant must omitted). (citations at 8 events.” Id. Zi Lin discrepancies); for the funding sell- about inconsistencies (9th 611, 618 Ashcroft, 362 Chen source home, provided ing of Cir.2004) (noting that raised smugglers, money pay opportu- “a reasonable should be afforded *8 rea- credibility regarding issues of anas the IJ what nity explain States, United fleeing sons for testimony”). her inconsistency in application. of his heart go inconsistency by explain the attempted a compel different record does The found The IJ to Tirana. move his aborted credible, conclusion. be not also to that contrary compel a does not the record
finding. 4. Other Concerns Concerning Testimony the Cu- IJ The
3. argues Smuggling decision, Transaction credibility bos’ base adverse dis- inconsistencies on “material part, adverse for his As another written crepancies between dis- determination, the IJ cited credibility 40 Gonzales, 89,
asylum application testimony,” and his claim. Dine v. See (1st Cir.2006) (“[Wjhen not, in petitioner’s but then did the remainder of his 93 decision, any examples depends cite ... specific veracity of such case on the testi- added.) discrepancies. (Emphasis mony, fully As de- supported above, determination, more, scribed the IJ does without can sustain a testimony asylum.” (quoting Olujoke inconsistencies between Cuko’s denial of v. Gon- (1st zales, Cir.2005)) (inter- 16, and the exhibits that submitted. Re- 22 omitted)). gardless, quotation had sufficient other nal marks The denial alone, grounds, testimony asylum effectively based on the of Cuko’s claim also dis- upon poses withholding which to rest his adverse of his of removal claim. determination, prejudice 75, and no Ashcroft, would See Makhoul v. (1st Cir.2004) (“A have resulted to Cuko. claim withholding deportation carry demands that the alien Further, if the IJ noted even stringent proof more burden of than does showing Cuko had met his burden Thus, claim. if an alien cannot persecuted had been as an active Demo asylum eligibility, establish his claim for (and not), cratic member he had withholding deportation fails a fortio- background “the information does not cor ri.”). claim persecution roborate his awaits case, In this the petitioner’s brief does Albania,” him upon his return to any arguments not advance specific to his therefore, he “cannot establish he has claim. To CAT the extent that the claim suffering per a well-founded fear of future waived, Dine, is not see 464 F.3d at information, background secution.” This predicated Cuko’s CAT claim was on the namely Department country the State re veracity of his and the current ports note minimal political —which climate, political Albanian and so this present-day, violence and retaliation in claim, too, fails. post-Communist Albania—refute the con family tention that his be harmed Immigration B. The Conduct of the if they the future returned to Albania. Judge finding This is relevant to Cuko’s failure to a perfunctory argument Cuko makes prove a perse well-founded fear of future overstepped that the IJ authority by cution. Even if Cuko had shown he suf assuming government the role of a attor past persecution, not, fered which he did ney engaged “prosecutorial ques Department the IJ’s reliance on the State tioning.” rejected position, reports was sufficient to the pre “rebut[ ] as we do. petitioner’s points brief sumption of a well-founded fear of future no sup instance the record to persecution arising allegations past port this claim. It is well settled that persecution on support based for the Dem perfunctory “issues adverted to in a man Party.” ocratic Gjiknuri Mukasey, No. ner, unaccompanied by some effort at de (1st 07-1328, WL *3 Cir. veloped argumentation, are deemed Jan.15, 2008); Alibeaj v. Zannino, waived.” United States v. Cir.2006); 192-93 Tota v. *9 (1st Cir.1990). 1, 17 F.2d Gonzales, (1st Cir.2006). The record does compel contrary not Regardless, it is clear from the conclusion. hearing transcripts that the acting IJ was event, any
In the credibility de- within his broad discretion. 8See U.S.C. 1229a(b)(l) § termination defeats the petitioner’s asylum (authorizing the IJ to “re- collat- are States into the United examine, smuggled and evidence, interrogate, ceive (Emphasis add- claim.” witnesses”); to his eral or the alien cross-examine to the con- ed.) insistence (1st majority’s The 53, 59 Mukasey, 514 Jorgji v. plain this directly at odds with trary is that the BIA Cir.2008). agree with We language. to warnings directed and questions “the not] indicate [do the IJ by applicant
the re- BIA is not Further, although the appli- the against bias any pre-disposed affirming for every basis catalog quired to dis- broad [IJ’s] the cant, [go] beyond or decision, and indeed credibility IJ’s an pace control the authority to cretionary re- the IJ’s affirmed simply could have oppor- hearing.” Cuko’s scope comment, the without rationales maining restrict- not his case was tunity present it that stated expressly BIA in this case ed. in the other evidence found “sufficient had [IJ’s] the support record Ill finding.” See Sou review, Cir.2006) (“In con- (1st we our CONCLUSION by the Board stated only the reasons sider is denied. for review petition independent- do not denying for relief grounds other whether ly consider (dissenting). Judge CYR, Circuit Senior record.”). BIA If the by the supported be seriously misreads majority Because the example merely give proceeded had the record, particularly appellate the evidence,” reasonably one “other this decisions, respect- I written agency’s two was affirm- implicitly it that might argue deferring wholesale In fully dissent. rationales. remaining IJ’s all of the ing in determinations agency’s the sentence with the begin than next Rather turns circumstances, majority the these however, the example,” “For phrase the a hollow exercise into function our review con- “Specifically,” begins BIA with rubber-stamping. “other identify the that intends *10 42 (“ ‘[Ajdverse “recognized” party credibility
mained an “active” and
determinations
easily
in ...
February
grounded
in
should not be
ex-
member
and March 2001—
plained discrepancies’ because such bases
three-part
appellate
meets
the
review
necessary ‘legitimate
lack the
(viz.,
nexus to the
an
presence
standard
the
actual
(citation omitted);
finding.’”)
Ming Shi
discrepancy
generates specific
rea
(2d
BIA,
111,
Xue v.
439 F.3d
114-115
veracity,
to
suspect
sons
Cir.2006) (“[W]hen
inconsistency
is not
provided
persua
and for which he has
no
self-evident,
may
rely
an IJ
on it to
Gonzales,
explanation).
sive
See Hoxha v.
support
a
determination without
210,
Cir.2006);
446
214
A-
In re
bringing
perceived discrepancy
first
to
(BIA 1998).
1106,
S-
I. & N. Dec.
attention,
thereby giving
the alien’s
majority mistakenly suggests
The
that
opportunity
alien an
per-
address and
even this
narrower
determination is
haps
seeming inconsistency,
reconcile the
deny
itself
sufficient
Cuko’s
satisfaction,
least.”);
at
IJ’s
ac-
petition for
putative discrep-
review. The
Ashcroft,
cord He Chun Chen v.
ancy-
Party
necessary
certificate’s
im-
—the
(3d Cir.2004)
215,
(“[AJmbiguous
an-
that
plication
Cuko thereafter became “in-
at airport
swers
interviews should not be
party
simply
active”
activities—is
upon
question
relied
inconsistency.
not a
An asylum
self-evident
”).
adjective
....
alien
“active”
applicant might testify,
example,
that
obviously requires some further definition
Canada,
country
he entered the
from
then
instance,
explanation,
and in this
testify later that
country
he entered the
point
perceived
IJ did not
out the
inconsis-
from Mexico. In that case of facial incon-
tency
at
hearing,
to Cuko
nor did he
(viz.,
sistency
both versions of the histori-
allow
opportunity
reasonable
true),
cal
simultaneously
facts cannot be
explain why or how the two items of evi-
we would be hard-pressed to find that the
discrepant.
dence were not
Under the
rely
IJ could not
on that
in-
unexplained
first criterion of the Hoxha standard of
consistency
finding
the applicant not
review,
simply
there
is no actual discrep-
worthy of credence.
See,
INS,
ancy.
e.g., Bandari v.
(9th Cir.2000)
1160,
By contrast,
Party
(finding
no actual
sug-
certificate
Cuko,
inconsistency
gests only
long-time
between two statement
that
party
perceived
discrepant).
member, stopped paying
his dues
No-
specifically
vember 2000. When
asked to
most,
proves,
certificate
why
explain
stopped paying
he had
membership
party
in the
official
dues, he
planned
testified
he had
un-
terminated when he
paying
ceased
dues in
successfully
escape
to relocate to Tirana to
freely
November
as Cuko
admitted.
political
increased
persecution. He later
sought
any
The IJ neither
out nor received
testified, however, that he remained “ac-
evidence, however,
Party
that Democratic
tive”
after November
rules
persons,
party
forbade
whose official
“recognized”
and continued to be
as an membership
lapsed,
continuing
had
party
active
organizer.
member and
Un-
participate
organize party
in or to
elec-
like the black-and-white Canada-Mexico
rallies,
tion
party actively
that the
and/or
above,
discrepancy hypothesized
however,
participants
monitored such
ensure
discrepancy between the
their formal
membership had not
concepts “non-dues-paying” and “active” is
expired. Nor was
ever
asked to
hardly inexorable. See
Kai
perceived inconsistency.
San
Kwok v.
Hox-
(7th Cir.2006)
ha,
455 F.Sd
(noting
was not for his father-in-law to reasonably that one expect should get the card from the archives because type Party certificate would contain in already posses Cuko had the card a detailed history narrative of Cuko’s with sion before he left Albania. Party, especially specific of the
A close review of the record amply sup- political persecution allegedly acts of in- ports plausibility explana- early of Cuko’s flicted on him in specu- is rank tion. The crux inquiry of this was whether lation. The terse certificate was a Party supporter, only Democratic abe ministerial verification of Party and the fact that the issued this card Cuko’s official par- enrollment dates prove partic- ty. would tend to that fact. The It indicated that it was issued at {viz., ulars of whether request Cuko’s father-in-law re- Cuko’s verify that he was directly Party trieved the card from Party), affiliated with the which means archives, home, likely Cuko’s or from Cuko that it subject would confine mat- its himself, particularly are not important ter to question and narrow Moreover, inquiry. that core even at- application posed. that Cuko’s Again, the torneys experienced considerable confu- record contains no evidence that these sion over this line questioning, and ex- typically certificates would contain an ex- pressed doubts whether Cuko had even haustive or history individualized hearing been shown the applicant’s correct exhibits party. activities with the Ac- during previous testimony. cordingly, Rather nary the BIA made a mention than steps take to insure that Cuko’s ex- of these dubious findings. IJ planation fide, however, was not bona C. Other Concerns simply forged
IJ If attorneys ahead. even proficient befuddled, in English were so aptly pur- notes that the IJ also hardly great we can have confidence that ported to base his adverse credibility deci- Cuko was not. Id. sion, part, on “material inconsistencies discrepancies between the Party Certificate B. written application and his testi- Tellingly, solely the BIA affirmed mony,” but then failed in the remainder of Party IJ’s rationale that any certificate’s his decision specific examples to cite stopped Instead, declaration that paying par- such variances. the IJ based his ty dues November 2000 was inconsistent entire decision on the three core with his discrepancies above, he remained “ac- discussed and the in party tive” activities thereafter. Its BIA inconsistency. relied on one To silence as to the IJ’s two other sub-ratio- the extent asylum applica- that the Cuko nales based on speaks certificate suggests tion that he remained active reasonably accepted have might activities af- Party causes and credibility arguendo, and then denied his termination of the formal ter 2000, however, asylum application either on the in November membership ill treatment not rise to the is coterminous with did allegation *13 country or that hearing testimony “persecution,” level of of his substance any fear of reports per- at “variance” with his refuted his future regard, and is not (indeed, many secution we have affirmed asylum application. opinions country IJ to the effect that con- all IJ meant If that were changed signifi- in Albania have ditions “discrepancies between reference deliberately silently cantly), the IJ chose asylum application applicant’s written a catalog to collect of testimonial prej- it would seem that no testimony,” discrepancies during hearing, and then Yet we are left udice would result to Cuko. solely base his final decision on Cuko’s lack as to whether the guidance no reliable with relatively credibility. may This seem a “variances” relied on other distinction, insignificant and academic but nor described are neither disclosed likely asylum applicant, to an affects his This unilluminated refer- in his decision. given oppor- sense that he has been a fair overall confi- inevitably undercuts ence asylum. is tunity to state his case for He credibili- reliability in the of the IJ’s dence country simply removed to his home be- ty determination. liar, he has cause he is and not because proven past persecution or a well- Future Persecution D. Fear of persecution. founded fear future correctly con- Although majority agree or not we about the Whether country reports might that the have cludes case, I think it is present facts of the decision supported independent the IJ’s agen- from the incumbent on us to demand lack a well-founded fear of anent Cuko’s cy a minimum threshold of fairness in the rely the IJ did not persecution, future Expecting that the IJ will afford process. Rather, solely reports. explic- on these applicant contemporane- a fair chance itly states: “Even if this court were ously perceived discrepancies Depart- take other sections State upon which the IJ intends to base responses ment this record report just credibility determination is Profile, contradict that proceedings requirement. Zi Lin such a de minimis must note that the has this Court (9th Ashcroft, 362 F.3d Chen v. witness, found to be not credible been Cir.2004). that, review func- Short of our therefore, this Court cannot find that essentially meaningless. tion becomes testimony or the documents that he has are credible.” Because submitted fatally
defective determination concerning the issue
infected his decision affirm on persecution, future we cannot independent ground.
III. perspec-
Finally, policy from a broader
tive, case is a suggest I would that this with
prime example of what is so defective
many immigration proceedings. While the notes its supports independently evidence” I. v. Muka- Tobon-Marin affirmance. See Cir.2008) (“As the 28, 30 sey, 512 F.3d credibility determi- assessing pivotal In IJ’s the supplemented adopted BIA very least—hold nations, the we must —at gloss, we own substantive with its had opinion If the BIA to its word. agency the the decision and the IJ’s both deci- evaluate adopted IJ’s merely affirmed v. Unit- decisions.”); Hong Yang Xue BIA elaboration, we would further without sion Justice, 426 F.3d Dep’t States and ex- ed directly rationales the IJ’s review Cir.2005) (2d that when (noting however, that is Importantly, clusively. re- all the IJ’s decision BIA affirms BIA’s decision not what must one, court appellate but BIA spects gloss. do; its own it added by decision re- review instead “affirm”—but modified expressly did argu- single decision, “minus discrep- decision IJ’s jected —the rejected relief denying for his ment smuggled concerning how Cuko ancies lan- BIA”). choice Given could the United States into and child wife ask whether we must credibility: guage, assessing weighed be affir- as a cited evidence agree with “[W]e per se party certificate concerning mance—that the record inconsistencies re- testimony that he wife and son contradicts paid to have much he how