Pеtitioner Galina Smolniakova, a native and citizen of Russia, seeks review of the order of the Board of Immigration Appeals (“BIA”), denying her requests for asylum, withholding of removal, and review of the termination of her conditional permanent resident status. The Immigration Judge (“IJ”) dismissed Smolniakova’s asylum claim based on findings that she lacked credibility, failed to establish past persecution on account of an enumerated ground, and did not have a well-founded fear of future persecution. The IJ denied Smol-niakova’s request to review the termination of her conditional resident status on the ground that Smolniakova had not met her “heavy burden” of proving that her *1041 marriage in 1993 to a United States citizen was genuine, and found her deportable. The IJ granted Smolniakova voluntary departure in lieu of removal. The BIA affirmed the decision without opinion.
We hold that substantial evidence does not support the IJ’s adverse credibility finding in the asylum сontext and that Smolniakova is statutorily eligible for asylum. We remand for an exercise of discretion on Smolniakova’s asylum claim and for a review of her claim of withholding of removal. We also reverse and remand the IJ’s denial of Smolniakova’s petition for review of the termination of her conditional resident status. Accordingly, we reverse the IJ’s holding that because Smol-niakova’s conditional resident status was validly terminated, she was deportable. The BIA is instructed to grant Smolniako-va a new hearing in which she has a full and fair opportunity to establish her credibility in the qualifying marriage context. On remand, the IJ shall also determine whether the government has met its burden of establishing by a preponderance of the evidence that Smolniakova did not intend to establish a life together with Roberto Quitevis at the time of their marriage.
I. Factual and Procedural Background
A. Smolniakova’s Experiences in Russia
Smolniakova, a 39-year-old woman, was born in Kaliningrad, formerly Konigsberg, a city on the Baltic сoast. She is the daughter of a Jewish mother and a non-Jewish father.
In her asylum application, Smolniakova recounted numerous instances of harassment and discrimination on account of her Jewish identity, including anti-Semitic profanities scribbled on the walls of her apartment entryway, human feces smeared on her mailbox, fires set in her mailbox, and repeated slashings of her front door. While instances of harassment and discrimination do not themselves rise to the level of persecution for purposes of asylum,
Nagoulko v. INS,
Before the IJ, Smolniakova testified that she lived in an environment that was not only inhospitable to Jews, but one in which practicing Judaism openly was very difficult. From 1988 to 1991, Smolniakova participated in a Jewish community organization that met secretly. Smolniakova testified that the Berenshteyns, close family friends of Smolniakova, were very active in the group. Smolniakova testified that one summer night in 1990 she received a call while with her sister, Regina, in their parents’ apartment, where they both lived. The caller announced that Mr. and Mrs. Berenshteyn had been killed and warned that the same fate lay in store for the rest of the Jews in Kaliningrad. Smolniakova was horrified to learn the following morning, when the news first became public, that the Berenshteyns had indeed been brutally murdered. They were discovered bound in their home with numerous stab wounds. See A Crime on Bankovsky Street (translated Russian newspaper article reporting the murder), reprinted in the Administrative Record (“AR”) at 1453. Smolniakova testified that while the authorities claimed to make solving the case a top priority, the case was never resolved. She also testified that the lead investigator in the case mysteriously disappeared a month after the murders. Yuliya Ber-enshteyn, the surviving daughter of the slain Berenshteyns, testified that since the murder of her parents, Tolik Payrkov, another member of their Jewish organization, had also been killed.
Smolniakova testified that in May 1991, after the Berenshteyns’ murder, she was *1042 attacked by two men while walking home from a town celebration. The men grabbed her from the street and began to strangle her behind some bushes along the side of the road. She testified that one of the assailants whispered in her ear, “Jewish Bitch.” The attackers dispersed when a witness, who heard the scuffle, yelled out and threatened to call the police. Smolnia-kova testified that the men slowly walked away, promising that they would be back and that she would not get away alive next time. Regina, who cared for Smolniakova after the attack and to whom both Smol-niakova and the good Samaritan stranger recounted the assault, substantially corroborated her sister’s testimony.
Smolniakova testified that one evening, six months after the attack, two men began pounding on her doоr, threatening to kill her if she did not let them in and referring to her home as a “Jewish snake nest.” Smolniakova and Regina called the police, but they refused to help. Smolnia-kova and Regina explained that when they called to report this and other incidents, the police were unresponsive and dismissive, even to the point of laughing at them.
In September 1991, Smolniakova married her Russian boyfriend of several years, Alexey. As soon as they were married, she moved in with him and his family in order to change her address. After a few weeks, Alexey, a seaman, left for a five-month assignment abroad. Shortly thereafter, Smolniakova was forced to return to live with her parents because she was no longer welcome in her in-laws’ home. Smolniakova testified that Alexey’s mother unabashedly expressed her displeasure at her son’s choice of a wife, who she feared would taint her grandchildren with “Jewish blood.” Soon after leaving hеr in-laws, Smolniakova obtained a six-month visitor’s visa to the United States. She and her husband agreed that she would be safe there until Alexey returned and she could rejoin him, hopefully in Germany, where he had the prospect of permanent employment.
Smolniakova left Russia in early December 1991. She testified that her husband had still not called for her after four months, that her mother told her of rumors that he was seeing other women, and that she believed his disapproving mother had been “working on him.” At this point, Smolniakova decided to seek political asylum in the United States.
Without the benefit of counsel, Smolnia-kova filled out an asylum application, which was filed with the Immigration and Naturalization Service (“INS”) 1 on April 17,1992. While the INS officer who interviewed Smolniakova deemed her credible, the Service sent her a letter of intent to deny asylum on October 15, 1992, for failure to meet the requirement of a well-founded fear of persecution on account of one of the five enumerated grounds. Her application was subsequently denied on March 11,1993.
B. Smolniakova’s Marriage to an American Citizen
Around November 1992, Smolniakova enlisted Regina’s help in divorcing Alexey. The divorce was finalized in February 1993. Smolniakova testified that she met her second husband, Roberto Quitevis, through a mutual friend, Richard White, at a New Year’s party in December 1992. She testified that they dated for a few months until she confided in him about the denial of her asylum application and her pending appeal, and he, in turn, proposed because, according to Smolniakova, he ex *1043 pressed strong feelings for her and could not bear the thought of losing her. She testified that they began having sexual relations that evening and continued to do so over the course of their marriage, which began in June 1993. Quitevis filed an immediate relative visa on Smolniako-va’s behalf, which the INS approved, and on January 24, 1994, the INS granted Smolniakova two-year conditional permanent resident status as the spouse of a United States citizen.
Smolniakova returned to Russia in July 1994 for three months to tend to her gravely ill mother. This was the first of three such trips. Smolniakova testified that Quitevis came to resent her prolonged absence and was sullen and detached when she returned home. She testified that while they continued to have conjugal relations, he became emotionally withdrawn, “like a stranger to [her].” By the time of her next trip to Russia in December 1994, the marriage had deteriorated significantly. Regina testified that when her sister came home to Russia the second time, she was “blue,” “very nervous,” and had lost a lot of weight, and confided in her that Quitevis had begun to sleep elsewhere.
On June 1, 1995, the INS revoked Smol-niakova’s conditional resident status pursuant to Immigration and Nationality Act (“INA”) § 216(b), 8 U.S.C. § 1186a(b), based on a finding — the culmination of an investigation precipitated by an anonymous tip — that her marriage to Quitevis was a sham. Deportation proceedings commenced in December 1995.
In the deportation proceedings, Smol-niakova introduced various pieces of documentary evidence, including wedding pictures, a joint tax return, a marriage certificate, checks from a joint checking account, joint phone bills, and a lease in both her and Quitevis’ names. Sixteen witnesses submitted affidavits, declarations, letters, and testimony stating generally that Smolniakova and Quitevis had been married since the summer of 1993, that they had lived together as husband and wife, and that they had suffered some marital problems during the course of their relationship, culminating in their divorce in November 1995. The affidavits and testimony substantiate her claims that she and Quitevis cohabited, shopped together, had conjugal relations, entertained together, bought furniture together, commingled assets, and generally lived as husband and wife. See 8 C.F.R. § 216.4(a)(5) (enumеrating these and other indicia of a good faith marriage).
Quitevis presented a markedly different story. He testified that Smolniakova had approached him through their mutual friend, Richard White, about a business proposition, offering to pay him $5,000 to marry her and help her secure permanent resident status. He explained that Smol-niakova paid him between $500 and $1,000 up front in cash and then another $1,500 to $2,500 in subsequent installments. He testified that he had been at Smolniakova’s apartment a few times in order to further the illusion that they were married, and even spent the night at her place on at least one occasion, although he denied that they ever had sexual relations. Richard White corroborated Quitevis’ testimony.
Quitevis also introduced various pieces of documentary evidence, including copies of checks made out to his aunt, whose house he claimed to rent with a few friends, along with various bill payments written from checks with the same address, ranging in dates from March to August 1994. Quitevis’ close friend, Edgar Franada, testified that Quitevis had confided in him that he had entered into a “paper marriage” with a Russian woman named Galina. Franada never responded to INS counsel’s question about when Qui- *1044 tevis actually confided this to him. Frana-da also testified that he lived with Quitevis, along with another roommate, in Quitevis’ aunt’s house from June 1993 to the end of 1994, a time period that spans the duration of Smolniakova’s marriage to Quitevis.
At the time of her separation from Qui-tevis, Smolniakova began a relationship with Tony Roland, who accompanied her on her final visit to Russia in the summer of 1995. Roland and Smolniakova were wed in December 1995 and profess to be happily married.
On March 4, 1996, Roland filed a Form 1-130 Petition for an Alien Relative visa on behalf of Smolniakova, which was denied based on the marriage-fraud bar for such petitions. See INA § 204(c)(1), 8 U.S.C. § 1154(c)(1). Smolniakova sought review of the INS’s determination that her marriage to Quitevis was a sham pursuant to INA § 216(b)(2), 8 U.S.C. § 1186a(b)(2), and review of her asylum and withholding of removal claims. The IJ found Smolnia-kova incredible as to all claims and denied her petition in its entirety. On March 19, 2003, the BIA affirmed the decision without opinion pursuant to 8 C.F.R. § 1003.1(e)(4). Smolniakova timely appealed.
II. Standard of Review
Whether Smolniakova married Quitevis in good faith is an intrinsically fact-specific question reviewed under the highly deferential substantial evidence standard. “Under this standard, we must affirm unless the evidence is so compelling that no reasonable fact-finder could fail to find the facts were as [Smolniakova] alleged.”
Damon v. Ashcroft,
Where, as here, the BIA adopts the decision of the IJ and affirms without opinion, we review the decision of the IJ as the final agency determination under the substantial evidence standard set forth above. 8 C.F.R. § 1003.1(e)(4);
see also Falcon Carriche v. Ashcroft,
Because Smolniakova was first placed in deportation proceedings before the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009, and a final order of deportation was entered after October 30, 1996, her appeal is governed by the transitional rules of IIRIRA.
See Kalaw v. INS,
III. Discussion
A. Asylum
1. The Adverse Credibility Determination
Adverse credibility determinations must be “based on specific, cogent reasons that bear a legitimate nexus to the finding.”
Zahedi v. INS,
The perceived contradictions that the IJ attributed to Smolniakova in support of her adverse credibility finding are based on a misconstruction of the record, insufficient evidence and improper speculation and conjecture.
See Ge v. Ashcroft,
In support of her adverse credibility finding, the IJ first pointed to discrepancies between Smolniakova’s asylum application, completed without the assistance of counsel, and her testimony at the merits hearing. The IJ noted that “[rjespondent testified at the merits hearing that her wrist was slashed by a man, but yet respondent did not mention this in her asylum application.” In her first asylum application, Smolniakova explained that she had been “mistreated and threatened a lot of times” and that she “want[edj to specify one of the terrible incidents.” This court has recognized that “an applicant’s testimony is not per se lacking in credibility simply because it includes details that are not set forth in the asylum application.”
Lopez-Reyes v. INS,
Second, the IJ made much over what she claimed was an inconsistency between Smolniakova’s and Regina’s accounts of the attempt on Smolniakova’s life in May 1991. The IJ pointed out that Smolniako-va testified her assailants simply walked away after a witness to the assault threatened to call the police, whereas her sister testified they ran away. The IJ failed to consider, however, that Regina, or perhaps the translator through whom she was speaking, immediately corrected her testimony about the manner in which the attackers dispersed — “[they did] not exactly run away, just start to walk away.” Both Smolniakova and Regina, whose testimony the IJ found “believable as a whole,” testified, then, that the attackers “walked away.” The IJ found an inconsistency where none exists. Moreover, this kind of judicial hair-splitting does not go to the heart of the asylum claim.
See Singh,
Third, the IJ questioned the veracity of Smolniakova’s claim that she came to the United States seeking a safe haven from the menacing conditions for Jews in Russia. The IJ’s efforts to discredit Smolnia-kova’s stated reason for leaving her homeland betray, at best, inattention to the record and, at worst, outright bias against Smolniakova.
The IJ opined, “If respondent was afraid in Russia, she could have gone with her husband, Alexey, to Germany.” Aside from being impermissibly speculative, the IJ’s pronouncement demonstrates a willful
*1046
disregard of the facts in the record. Smolniakova explained that Alexey was away at sea for five months and that they both believed she should leave Russia during that period to ensure her safety. Smolniakova testified thаt Alexey’s permanent assignment in Germany was only a “possibility” and that she planned to move to Germany
if
Alexey received a permanent assignment there. The IJ’s opinion that Smolniakova would have gone to Germany had she truly left Russia out of concern for her safety is at best mere conjecture. “Because conjecture is not a substitute for substantial evidence, we cannot uphold this finding.”
Lopez-Reyes,
The IJ, by again grossly misconstruing the record, found incredible Smolniakova’s claim that she intended to leave the United States and rejoin her husband when he returned from his deployment at sea. The IJ stated:
Respondent also testified that she asked her sister to help her get a divorce in February, 1992, 2 months after her arrival to the United States. This fact further proves that respondent is not only not credible, respondent is lying to this Court as to her intention when she arrived in the United States. Respondent had no intention of returning to her Russian husband.
The recоrd is plain; Smolniakova did not seek help from her sister in divorcing Alexey in February 1992, but rather in November 1992. She did not in fact divorce him until February 1993, a full 14 months after her arrival in this country. The IJ culled her damning “fact” about Smolniakova' — viz., that she sought a divorce only two months after her arrival in this country — from the early part of a colloquy between Smolniakova and her lawyer, wherein they tried to establish the date of Smolniakova’s divorce from Alexey. Smolniakova tried to reconstruct the time-line based upon a mistaken recollection, and it became clear that the timeline was off by a year because of the mistake. When corrected on this point, Smolniakova clarified that the divorce happened in February 1993, not February 1992. Even a cursory reading of the transcript makes this clear, and yet the IJ seized upon the obviously mistaken timeline initially proffered, and later corrected, by Smolniakova as fact tо impugn her credibility.
The IJ also found that Regina’s testimony that Smolniakova left Russia shortly after her marriage to Alexey in order to escape persecution contradicts Smolniako-va’s own testimony that, according to the IJ, “she left Russia for a visit to the United States.” The IJ again found a contradiction where none exists. Smolniakova testified that in order to obtain a visa for the United States she needed an invitation from people already in the country. That she was going to visit friends in the United States was thus the official reason for her trip, the true purpose of which, she testified, was to seek a safe haven for the five months in which Alexey was away at sea.
The IJ concluded that this “entire scenario does not make any sense.” She explained as follows:
Respondent left Russia for the United States in December, 1991, three months after her marriage to her boyfriend of many years. Respondent got married 4 months after hеr purported incident of attack and rape. If respondent’s reason for leaving Russia was fear, why did she get married within 4 months, and then leave 3 months later when her husband was out of town.
Far from “making no sense,” it is perfectly reasonable that, faced with the prospect of living for an extended period with her parents — where she had been threatened
*1047
and attacked several times before — and without the protection of her husband, Smolniakova would decide to seek safe haven in the United States. And, in fact, this is exactly what Smolniakova testified that she and Alexey agreed she would do for the five months he was away at sea. The IJ erred by not considering in a reasoned manner Smolniakova’s explanation for what the IJ thought to be a nonsensical course of events.
Osorio v. INS,
Fourth, the IJ faulted Smolniakova for failing to provide corroborating evidence in support of her testimony. The IJ found that Smolniakova’s credibility was undermined by her failure to corroborate her testimony about the May 1991 attack with a letter from the stranger who witnessed the assault. The IJ committed legal error in so finding. This court has held that “[supplying corroborating affidavits ... has never been required to establish an applicant’s credibility.”
Lopez-Reyes,
The IJ also claimed that “respondent never offered any corroborating evidence to verify the death of the Berenshteyns.” To the contrary, Smolniakova provided a copy of a newspaper article describing the incidеnt, along with a translation, in her amended asylum application. This court has found that a newspaper article reporting an alleged incident of persecution offered in support of oral testimony is sufficient documentary evidence of such an incident.
See Aguilera-Cota,
In light of the foregoing, it is appropriate to echo the words of this court in
Paramasamy
and express a similar worry that “these passages demonstrate the IJ’s ‘predisposition to discredit’ the testimony, rather than any lack of credibility on the part of the witnesses.”
*1048
Because of the IJ’s reliance on contradictions with no factual basis in the record, and in light of the many inconsistencies she unfairly imputes to Smolniakova, we reverse the IJ’s adverse credibility finding with respect to the asylum claim, and accordingly “deem [Smolniakova’s] testimony credible.”
Akinmade v. INS,
2. Past Persecution on Account of Religion
In addition to finding that Smolniakova was not credible, the IJ held, in the alternative, that Smolniakova was ineligible for asylum because she failed to establish either past persecution or a well-founded fear оf future persecution on account of a qualifying ground. As a result, we need not remand to the BIA for a determination of these issues and we consider each in turn.
To establish eligibility for asylum, Smol-niakova must qualify as a refugee. INA § 208(b), 8 U.S.C. § 1158(b). A refugee is one “who is unable or unwilling to return to ... [her native] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). We hold that Smolniakova qualifies as a refugee and is statutorily eligible for asylum.
a) Past Persecution
Asylum is not restricted to petitioners who have suffered persecution at the hands of state actors.
See Singh v. INS,
Smolniakova’s account of the May 1991 assault alone compels a finding of past persecution.
See Montoya-Ulloa v. INS,
b) On Account of Religion
The facts in the record compel the finding that Smolniakova was persecuted on account of her religion. The IJ’s finding that there was no nexus between the asserted persecution and Smolniakova’s religion is not supported by substantial evidence.
The IJ found that the May 1991 attempt on Smolniakova’s life was not motivated by anti-Semitism. Given Smolniakova’s and Regina’s repeated testimony that Smolnia-kova’s assailants called her a “Jewish Bitch,” it is difficult to understand how the IJ could assert that “[n]othing said by the young men would indicate that this attack had anything to dо with respondent’s ethnicity.”
The IJ also extended this dismissive, and seemingly biased, attitude to her analysis of another incident described by Smol-niakova. Smolniakova testified that one evening in November 1991 two men banged on her door and threatened to kill her. She described the incident thus: “[T]hey were saying something like you better open the door, otherwise we’ll kill you. Which, you know, doesn’t make much sense, but I remember that that’s exactly how they were saying it ... And, uh, and calling us ... Jewish, uh, snake nest or something like that.” The IJ interpreted this testimony as follows: “Respondent described an incident in November, 1991, wherein men threatened to have her open the door of the apartment.” Respondent refused, and thus the men just left. Again, even if the men yelled, ‘Jewish snakes’, this is not evidence that any harm would come to respondent. We cannot agree with the IJ’s interpretation; indeed, one would expect that the reaction of any reasonable pеrson who was the victim of such an episode would include a well-founded fear of future persecution on account of her religious identity.
Smolniakova’s consistent and corroborated testimony that she was called a “Jewish Bitch” by one of the assailants who attacked her in May 1991, that she was warned that she and all Jews in Kali-ningrad would be murdered as the Ber-enshteyns were, and that her home was called a “Jewish snake nest” by those who *1050 threatened to kill her if she would not let them enter her apartment compels the conclusion that Smolniakova was persecuted on account of her religion. The IJ’s finding to the contrary was not supported by substantial evidence.
3. Fear of Future Persecution
In addition to finding that Smolniakova failed to show past persecution, the IJ concluded separately that Smolniakova failed to demonstrate a well-founded fear of future persecution. We review the decision to determine whethеr it was supported by substantial evidence.
Mamouzian v. Ashcroft,
In order to demonstrate a fear of future persecution, Smolniakova’s fear “must be both subjectively[genuine] and objectively reasonable.”
Hoxha v. Ashcroft, 819 F.3d
1179, 1182 (9th Cir.2003) (alteration in original) (internal citations and quotation marks omitted). An alien satisfies the subjective component of the well-founded fear test by testifying credibly about his fear of future persecution.
Mamouzian,
Smolniakova’s credible testimony also compels the conclusion that her fear is objectively well-founded. As Smolniakova testified, she sufferеd violent attacks and repeated death threats as a result of her Jewish identity. She was attacked and strangled by men calling her a “Jewish Bitch.” On one occasion, an assailant slashed her wrist. Despite this evidence, the IJ found that Smolniakova’s three trips back to Russia demonstrated there was no likelihood of future persecution. However, Smolniakova provided a reasonable explanation for the trips. Smolniakova testified that she went to Russia on those three occasions to take care of her dying mother, who was languishing in the hospital “like a corpse,” and to help her family, which was ill-equipped to deal with the situation. Rather than belying her avowed fear of returning home, Smolniakova’s trips served as a testament to her love for her mother, whom she went to great pains to visit despite the risk she bore in doing so.
See Karouni v. Gonzales,
The murder of Smolniakova’s close family friends, the Berenshteyns, also supports a finding of well-founded fear of persecution.
See Zhang v. Gonzales,
408 F.3d
*1051
1239, 1249 (9th Cir.2005) (holding that “acts of violence committed against an applicant’s friends or family can establish well-founded fear of persecution”). The IJ concluded that there was no evidence that the Berenshteyns’ death caused problems for Smolniakova. However, on the night of their murder, Smolniakova received an anonymous phone call warning her that what happened to the Berenshteyns would happen to her. Moreover, after Smolnia-kova left Russia, Tolik Payrkov, another member of her Jewish organization, was killed. Smolniakova understandably fears the same fate would befall her if she returned to Russia. In light of these circumstances, no reasonable fact-finder could conclude that Smolniakova has less than a ten percent chance of future persecution in Russia on account of her religion.
See Al-Harbi v. INS,
There is an alternative basis on which we may ground our well-founded fear holding. Even were Smolniakova otherwise unable to demonstrate a well-founded fear of persecution, the finding that she established past persecution entitles her to a presumption of well-founded fear.
See Korablina,
The Supreme Court has held that we cannot determine the issue of changed country conditions in the first instance.
INS v. Ventura,
We review the IJ’s factual findings regarding changed country conditions for substantial evidence.
Lopez,
Not only is the record bereft of any substantial evidence supporting the government’s contention that Russia has changed, but Smolniakova, her sister and Yuliya Berenshteyn testified that the persecution of Jews in the Kaliningrad area of Russia continues and has grown substantially worse in recent years due to the growing strength of anti-Semitic organizations such as the anti-Jewish party, Pam-yat. Indeed, Smolniakova testified that she believed her attackers were members of Pamyat and pointed out in her brief to the BIA that the U.S. Department of State Russia Country Report on Human Rights Practices for 1997 states that “Jews continue to encounter societal discrimination, and government authorities have been crit *1053 icized for insufficient action to counter it.” None of this testimony was contradicted or disputed by the government. The IJ’s finding that Smolniakova’s presumption of well-founded fear was rebutted is thus not supported by substantial evidence. Accordingly, the presumption of a well-foundеd fear of persecution stands and Smolnia-kova is eligible for asylum on this basis as well.
We therefore hold that Smolniakova is statutorily eligible for asylum and remand to the BIA so that it may exercise its discretion whether to grant her that form of relief.
B. Withholding of Removal
A finding of past persecution also gives rise to a presumption
of withholding of removal. 8 C.F.R. § 1208.16(b)(1)(i);
Hoque v. Ashcroft,
C. Qualifying Marriage
Pursuant to INA § 216(b)(2), Smolniakova requested a removal proceeding to review the INS’s determination that her marriage to Roberto Quitevis, a United States citizen, was a sham. Under INA § 216(b)(2), “the burden of proof shall be on the Attorney General to establish, by a preponderance of thе evidence” that the qualifying marriage was improper. 8 U.S.C. § 1186a(b)(2). To dispose of the marriage fraud issue, the IJ merely concluded that “the evidence is not clear as to whether this was a fraudulent marriage” and went on to hold that “[t]he respondent has not met her ‘heavy burden’ of proving that she did not enter into this marriage solely for the purpose of obtaining immigration benefits.” In so holding, the IJ applied the wrong standard of proof to the wrong party. Imposing the heavy burden of clear and convincing evidence on Smol-niakova likely affected the result, especially in light of the IJ’s conclusion that the evidence of marriage fraud was not clear. This alone would be sufficient reason to reverse the denial of Smolniakova’s petition for review of the termination of her conditional resident status and to remand to the BIA.
We also note that the IJ’s misguided, and at times seemingly biased, adverse credibility finding in the asylum cоntext casts serious doubt on her analogous finding in the sham marriage context. The IJ’s application of differing standards to assess the credibility of witnesses undermines her impartiality and suggests a “ ‘predisposition [selectively] to discredit’ the testimony, rather than any lack of credibility on the part of the witnesses.”
Paramasamy,
Quitevis testified that his marriage to Smolniakova was never more than a mere business proposition — a way for a young college graduate in bad financial straits to make some easy money. And yet, he testified inconsistently about the first payment installment he allegedly received from Smolniakova. The IJ was forgiving of this inconsistency, explaining that “[although the amount of payment was not completely consistent, the testimony is consistent in that Mr. Quitevis was paid for marrying the respondent.” The IJ was similarly forgiving of Quitevis’ inability to provide consistent testimony regarding the date he *1054 first met Smolniakova. It is striking, however, that the IJ did not extend the samе understanding to minor inconsistencies, including inconsistent dates, in Smolniako-va’s testimony and the testimony of those who were called on her behalf.
Although Smolniakova’s claims were presented together at a single hearing, the asylum claim and the qualifying marriage claim are analytically distinct. The adverse credibility finding in the asylum context must not be allowed to “wash over the [qualifying marriage] claim.”
Kamalthas v. INS,
Indeed, the IJ explicitly acknowledges this “wásh over” effect in her decision. When discussing the marriage сlaim, the IJ states, “[T]he totality of the respondent’s evidence is so internally inconsistent, inconsistent with her asylum application and inconsistent between witnesses, that the Court cannot possibly believe the witness.” We therefore hold that the IJ’s numerous erroneous findings that Smolnia-kova was lying about her asylum claim tainted the IJ’s view of her credibility with respect to the qualifying marriage claim. Accordingly, we reverse the IJ’s credibility determinations in the qualifying marriage context and remand to the BIA with instructions to hold a new hearing to make fresh findings on this issue.
Lopez-Umanzor v. Gonzales,
IV. Conclusion
In sum, we reverse the IJ’s adverse credibility finding in the asylum context and find that Smolniakova has suffered past persecution on account of her religion and has a well-founded fear of future persecution. We accordingly find Smolniako-va statutorily eligible for asylum. We remand for an exercise of discretion on Smolniakova’s asylum claim and for further consideration of the withholding of removal claim in light of the presumption that now operates regarding her ability to show future threats to her life or freedom. We reverse the IJ’s denial of Smolniako-va’s petition to review the INS’s determination that her marriage to Quitevis was a sham. We remand to the BIA for a new hearing to make fresh credibility findings in the qualifying marriage context and for further review of the INS’s termination of Smolniakova’s conditional permanent resident status in light of the new credibility findings and in conjunction with an application of the appropriate burden of proof. The BIA is instructed not to remand the case to IJ Anna Ho.
PETITION GRANTED, REVERSED AND REMANDED.
Notes
. On March 1, 2003, the INS was abolished as an agency within the Department of Justice and its functions were transferred to the newly created Department of Homeland Security.
. In faсt, the IJ in this case, Anna Ho, has been reversed by this court at least three times in the last year for reasons similar to those that compel our reversal here. Most recently, in
Zolotukhin v. Gonzales,
. The government's reliance on
Hakeem v. INS,
. We note that the extremely limited evidence of changed country conditions offered by the government in this case may constitute an alternate ground for not remanding on the issue of changed conditions. Where the INS offers no evidence concerning changed circumstances before the immigration judge, the BIA, or this court, we do not remand because "to рrovide the INS with another opportunity to present evidence of changed country conditions ... would be exceptionally unfair.”
Nuru v. Gonzales,
. The other article detailed how the INS had cataloged the misuse of the Lautenberg amendment, which allows certain historically persecuted groups of the former Soviet Union, including Jews, to seek refugee status abroad. See 1989 amendment to 8 U.S.C. § 1157 (Lautenberg amendment). Notwithstanding that the Lautenberg amendment is not the law under which Smolniakova may seek asylum, the article in fact supports Smol-niakova's position. See Vast Soviet Refugee Fraud Detailed, Wash. Times, Nov. 4, 1995, at Al, reprinted in AR at 1083 (" 'The irony is that there are plenty of cases from the former Soviet Union which could qualify [as persecuted refugees],’ noted a top INS official in Moscow in December 1993.”) (emphasis added).