Lead Opinion
OPINION OF THE COURT
TABLE OF CONTENTS
I. THE STREAMLINING REGULATIONS.234
A. Background.234
B. Statutory and Regulatory Scheme.236
C. Constitutional Challenges.238
II. THE AGENCY’S DENIAL OF RELIEF.245
A. Dia’s Testimony .245
B. Burden and Standard of Review.247
C. The Immigration Judge’s Decision .250
1. Past Persecution.251
2. Procurement of a Passport and Visa.256
3. Future Persecution.259
III. CONCLUSION.260
Judge Rendell filed the opinion of the Court in which Chief Judge Scirica and Judges Nygaard, Barry, Fuentes, and Smith joined amd Judges McKee, Ambro and Becker joined as to Part II. Judge Alito, joined by Judges Solviter and Roth, filed an opinion concurring as to Part I and dissenting as to Part II. Judge Sta-pleton filed an opinion dissenting, in which Judges McKee, Ambro and Becker joined. Judge McKee filed an opinion concurring as to Part II.
In 2001, the Immigration and Naturalization Service (INS) charged Saidou Dia, a native of the Republic of Guinea, with removability for illegal entry into the United States. Dia conceded removability but applied for relief, seeking asylum, withholding of removal, and relief under the United Nations Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Two issues are before the court for consideration en banc:
First, we will review whether the streamlining regulations promulgated by the Attorney General are either inconsistent with the INA, or violative of Dia’s due process rights under the Fifth Amendment. See U.S. Const, amend. V.
Second, we will review the adverse credibility determination made by the Immigration Judge and summarily affirmed by the BIA.
As to the first issue, we determine that the streamlining regulations are valid.
As to the second issue, however, we conclude that the IJ’s analysis of Dia’s credibility was based on reasoning that was at best unexplained and at worst speculative. Accordingly, it was not supported by substantial evidence.
We will grant the petition for review, vacate the order, and remand to the BIA to give the IJ the opportunity to explain or bolster her analysis.
I. THE STREAMLINING REGULATIONS
In upholding the IJ’s determination denying Dia relief from removal, the BIA did not issue an opinion, but, instead, issued an “affirmance without opinion” (AWO) under its streamlining regulations. See 8 C.F.R. § 3.1(a)(7) (2002). The streamlining regulations have recently been the subject of many unsuccessful attacks. See, e.g., Khattak v. Ashcroft,
A. Background
The Supreme Court has “ ‘long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’ ” Fiallo v. Bell,
The Attorney General has delegated to the BIA many of his responsibilities under the immigration laws, see 1 Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr, Immigration Law and Procedure § 3.02[1] (rev. ed. 2003) (stating that the BIA “exercises so much of the Attorney General’s authority under the immigration and nationality laws as the Attorney General may delegate to it”), and has further delegated supervision of the BIA to the Department of Justice’s Executive Office of Immigration Review. Id. The BIA, established by regulation, has existed in various guises and has held various responsibilities since 1922. Id. at § 3.05[1]. Initially, immigration laws were enforced by the Secretary of Labor, under whose supervision the administrative immigration appellate body was known as the “Board of Review.” Id. After Congress transferred the responsibility for immigration enforcement to the Attorney General in 1940, the Board of Review was renamed the Board of Immigration Appeals. In its present form, the BIA has been described as “a quasi-judicial body with exclusively appellate functions.” Id.
The Attorney General promulgated the streamlining regulations in 1999 when the Board was faced with a crushing caseload, the number of cases having increased exponentially in a little over a decade. See Executive Office of Immigration Review: Board of Immigration Appeals Streamlining, 64 Fed. Reg. 56,135, 56,136 (Oct. 18, 1999) (to be codified at 8 C.F.R. pt. 3). See generally Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,878-79 (Aug. 26, 2002) (to be codified at 8 C.F.R. pt. 3). Under the regulations, “the Chairman [of the BIA] may' designate certain categories of cases as suitable for review” by designated Board members “who are authorized to affirm decisions of Immigration Judges ... without opinion.” 8 C.F.R. § 3.1(a)(7)© (2002). The single BIA member to whom the case is assigned may affirm an IJ’s decision in a single sentence without an opinion if he or she determines that the result was correct, and that “(A) the issue on appeal is squarely controlled by existing Board or federal court precedent and does not involve, the application of precedent to a novel fact situation; or (B) the factual and legal questions raised on appeal are so insubstantial that three-Member review is not warranted.” 8 C.F.R. § 3.1(a)(7)(h) (2002).
B. Statutory and Regulatory Scheme
We are “confronted [with] questions implicating an agency’s construction of the statute which it administers.” INS v. Aguirre-Aguirre,
The streamlining regulations easily pass the first step of the Chevron inquiry. The INA “is silent ... with respect to” streamlined administrative appeals. Chevron,
As Dia points out, the INA refers to the BIA in its “definitions” section, in connection with its definition of the term “order of deportation.”
The [“order of deportation”] shall become final upon the earlier of (i) a determination by the Board of Immigration Appeals affirming such order; or (ii) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals.
8 U.S.C. § 1101(a)(47)(B) (2002). Under this provision, an order of deportation is not “final” until either the BIA has passed on it, or the time for seeking BIA review has expired. The statute also provides that the statutory right to judicial review of orders of deportation is only available for a “final order.” 8 U.S.C. § 1252(b)(9) (2002); Gao v. Ashcroft,
But even assuming that the BIA could not be eliminated without statutory authorization, we are hard pressed to conclude much more from the definitional statement at § 1101(a)(47)(B). It says absolutely nothing about procedures to be employed by the BIA, or the right to, or manner of, review generally; it only speaks to review by the BIA and its “affirming” the “order” of deportation. 8 U.S.C. § 1101(a)(47)(B). Based on the fact that § 1101(a)(47)(B) contains the only mention of the BIA in the INA, it seems clear that Congress has left all procedural aspects of the BIA, especially how it hears cases, entirely to the Attorney General’s discretion. Id.
The statute’s references to an “administrative appeal” do not alter this conclusion. Only two statutory provisions of the INA reference the term “administrative appeal.” These provisions mandate that the procedure established for applying for asylum
shall provide that—
(iii) in the absence of exceptional circumstances, final administrative adjudication of the asylum application, not including administrative appeal, shall be completed within 180 days after the date an application is filed;
(iv) any administrative appeal shall be filed within 30 days of a decision granting or denying asylum, or within 30 days of the completion of removal proceedings before an immigration judge under section 1229a of this title, whichever is later.
8 U.S.C. § 1158(d)(5)(A)(iii) & (iv) (2002) (emphasis added). Although these provisions contemplate some type of an administrative appeal in connection with applications for asylum, they fail to provide any guidance as to the procedural trappings of that appeal.
Similarly unpersuasive is Dia’s citation to 8 U.S.C. § 1229a(c)(4), which provides:
*238 If the immigration judge decides that the alien is removable and orders the alien to be removed, the judge shall inform the alien of the right to appeal that decision and of the consequences for failure to depart under the order of removal, including civil and criminal penalties.
Id. (emphasis added). Even if we were to assume that this provision contemplates that an alien will have the opportunity for an administrative appeal, neither this provision nor any other provision of the INA references the procedural requirements of an administrative appeal or outlines a scheme inconsistent with the streamlining regulations. Instead, it only speaks generally of an “administrative appeal” and “the right to appeal,” and of the BIA only in the context of a “final” order. To conclude from this language in the INA that the streamlining regulations are not a “permissible construction of the statute” under Chevron,
C. Constitutional Challenges
Dia next attacks the streamlining regulations as a deprivation of his constitutional right to due process under the Fifth Amendment.
The basic elements of due process in this context are clear. Although “the Fifth Amendment entitles aliens to
Dia bases his primary due process argument on statements we made in Abdulai, where we expounded on this “ ‘fundamental requirement of due process’ ” articulated in Mathews. Abdulai,
We began our analysis of Abdulai’s due process argument by noting that, in the context of the adjudication of claims for relief from removal such as the one before us, due process “requires three things.” Id. at 555. “An alien: (1) is entitled to ‘factfinding based on a record produced before the decisionmaker and disclosed to’ him or her; (2) must be allowed to make arguments on his or her own behalf; and (3) has the right to ‘an individualized determination of his [or her] interests.’ ” Id. (quoting Llana-Castellon v. INS,
Although we ultimately concluded in Ab-dulai that there was no due process violation because we found that the BIA had in fact made an “individualized determination” of Abdulai’s application, id. at 550, Dia seizes on what we said as we reasoned toward that conclusion. One such comment was that we had previously “suggested that the BIA denies due process to an alien when it ‘act[s] as a mere rubber-stamp.’ ” Id. (quoting Marineas,
Dia, however, takes our statements in Abdulai out of context. We made those statements in connection with Abdulai’s argument that the BIA had not “acknowledged] or address[ed] any of his arguments.” Id. at 549. In Abdulai we necessarily reviewed the BIA’s opinion, because the BIA had issued an opinion and the petitioner focused his arguments on that opinion. Id. at 548. We therefore made the statements in Abdulai in the context of a situation in which the BIA had chosen to speak — thus forcing the reviewing court to examine the BIA’s reasoning — but had done so in a way that caused us to question whether the BIA had carefully reviewed the specific matter before it. See Mikhael v. INS,
Contrary to Dia’s suggestion, in Abdulai we did not impose a requirement that in all instances the BIA must indicate that it made an individualized determination of the claim for relief. In fact, we noted our approval of decisions of other courts of appeals that have upheld the BIA’s right to “ ‘simply state that it affirms the IJ’s decision for the reasons set forth in that decision.’ ” Abdulai,
Dia, nonetheless, also insists that the streamlining regulations violate his right to an “individualized determination” because they specifically state that an AWO does not necessarily imply approval of all of the reasoning of the IJ’s decision. See 8 C.F.R. § 3.1(a)(7)(iii) (2002). But he fails to articulate why or how this is so. We are unaware of any requirement, let alone any constitutional requirement, that an agency adjudicator must commit to writing or otherwise verbalize his or her reasoning, where, as here, the agency has directed us to an opinion for review. In Dia’s case, the due process right to an “individualized determination” was accorded to Dia at the IJ level, where the IJ “reasoned” her decision, and the BIA gave the result its imprimatur pursuant to its regulations. Certainly, the BIA could have articulated its reasons for affirming the IJ’s order, but just because it had the power to do so, does not mean the Constitution required it to exercise that power.
Equally unavailing is amici’s argument that “fundamental rule[s] of administrative law” enunciated by the Supreme Court in SEC v. Chenery Corp.,
[Petitioner and Amici] both overlook the plain language of Chenery, which refers to agencies in their entirety, not individual components of agencies. Here, the relevant agency — the INS — has presented a statement of reasons for its decision, albeit from the IJ rather than the BIA. Chenery does not require that this statement come from the BIA rather than the IJ.
Albathani,
Dia asserts three other ways in which the AWO violated his due process right: it denied him “meaningful review”; it prevented our court from providing meaningful review; and it was not “fair.” Although Dia does not match these due process arguments with any of the three-requirements for due process we outlined in Abdulai, they appear to be variations on his theme that the issuance of an AWO denied him of his right to an “individualized determination.” Regardless of their label, we reject these contentions as well.
Dia’s claim that the AWO denied him his so-called “due process right to meaningful review” lacks substance. Dia specifically maintains that he has the right to meaningful review by the BIA. Other than pointing generally to the Due Process Clause, however, Dia does not identify the
The “right to meaningful review” that Dia alleges is clearly distinguished from “[t]he fundamental requirement of due process [that] is the opportunity to be heard at a meaningful time and in a meaningful manner,” Mathews,
Nor are we persuaded by Dia’s related argument that the streamlining regulations — or, their “opaque” nature, as amici describe them — prevent us as a court of appeals from engaging in a meaningful review of the agency’s actions. See Simmons v. Beyer,
All that is required for our meaningful review is that the agency — as represented by an opinion of the BIA or IJ— put forth a sufficiently reasoned opinion. See Mendoza,
We are similarly unmoved by Dia’s argument that the streamlining regulations violate basic due process requirements of “fairness.” See Bridges v. Wixon,
We find nothing “unfair” in a constitutional sense about the INS’s streamlining procedures. An applicant retains a full and fair opportunity to make his case to the IJ, and has a right to review of that decision by the BIA, and then by a court of appeals. See Guentchev,
Our dissenting colleagues who disagree on this point would strike down the regulations, contending that they alter an established administrative scheme under the INA. However, upon further scrutiny, it becomes clear that Judge Stapleton is not really taking issue with the regulations as a perversion of the statute or even agency practice, but rather as a violation of principles of judicial review that we have espoused in our case law.
Furthermore, Judge Stapleton’s dissent focuses on a perceived “inability to review” in the abstract, doing a disservice to, and seemingly ignoring, what we have done and will continue to do in reviewing, in a meaningful manner, the cases that come to us from the BIA. When, after scouring the record, we are still unable to determine the agency’s reasoning, we have remanded to the BIA for further explanation.
Accordingly, we hold that the Attorney General’s implementation of the streamlining regulations and the BIA’s issuance of an AWO in this case did not violate either the INA or the Constitution.
II. THE AGENCY’S DENIAL OF RELIEF
We now turn to Dia’s substantive attack on the Attorney General’s denial of his claim for relief from removal. As outlined above, when the BIA issues an AWO under the streamlining regulations, we review the IJ’s opinion and scrutinize its reasoning. Because Dia’s credibility was the basis on which the IJ rested her decision to deny relief, the sole issue before us is that credibility determination. In addressing this issue, we first will detail Dia’s testimony before the IJ, augmenting it with details from the administrative record. We then will discuss our standard of review. Lastly, we will apply that standard of review to the IJ’s opinion, explaining why we must vacate it.
A. Dia’s Testimony
Dia, an ethnic Fula, was born in Selou-ma, Dinguiraye, Guinea. He has had only two years of education, has a limited ability to read and write, and does not speak English. He joined the Rassemblement du Peuple de Guiñeé (“Rally of the People of Guinea Party” or “RPG”) in 1998, at the age of twenty-two. His father had been a member of the RPG before his death in 1997. Dia worked in the field rallying support for RPG’s imprisoned leader, A-pha Conde — a member of parliament and a candidate in the 1998 presidential election —and monitored voting polls to help prevent election fraud. The Country Report for Guinea assembled by the U.S. Department of State — included in the administrative record — reveals a country in a state of turmoil. Guinea’s political system appears “deeply flawed” and its human rights record even worse. See U.S. Department of State, 2000 Country Reports on Human Rights Practices: Guinea (Feb. 2001) (hereinafter “Country Report”). The Country Report states:
The Government’s human rights record was poor; although there were some improvements in a few areas serious problems remained in others. The Government’s tight and sometimes partisan control of the electoral process both in the 1998 presidential election and ■ the deeply flawed June municipal elections; its refusal to create an independent electoral oversight mechanism; and its prohibition of nongovernmental broadcast media, effectively restricted citizens’ right to change their government. Major human rights abuses include: Extrajudicial killings; disappearances; use of torture, beatings and rape by police and military personnel; and police abuse of prisoners and detainees. Soldiers, police, and civilian militia groups killed, beat, and raped citizens, as well as refugees from Sierra Leone and Liberia. Security forces used arbitrary arrest and detention. Members of the security forces committed abuses with impunity.... Violence and societal discrimination against women, prostitution of young girls, female genital mutilation (FGM), ethnic discrimination and inter-ethnic violence, child labor, reports of trafficking of women and children, and vigilante actions by victims or others persisted.
Dia testified that the problems that directly affected him began on November 22, 2000. At that time, he was approached in his home in Nzerekore, Guinea, by a man named Bangora, who was the chief of his neighborhood, and two other men, who asked him to join the Guinean military to fight Liberian and Sierra Leonean rebels fighting in Guinea. When Dia refused to join the military, Bangora and the other men accused Dia of sympathizing with the rebels. Dia testified that he refused to join the military because members of the military had killed his father and he feared they wanted to kill him as well.
Later that day, Dia, concerned for his welfare, went to his uncle’s home outside of town to seek advice. Apparently, his uncle was not at his home and Dia waited three days until his uncle finally returned. After the two consulted, Dia’s uncle agreed to return with Dia to town to talk to Bangora. When they arrived, Dia discovered his home burned to the ground.
For four months, Dia remained in Guinea, living at the home of his friend, Abdou-laye Sow.
Upon his arrival in the U.S., Dia attempted to enter the country using the story that the smuggler recommended. The INS official, noticing that Dia did not have a ticket to go to Honduras, did not believe his story. The INS then sought to remove Dia. Dia conceded removability, but sought relief from deportation based on asylum, withholding of removal, and relief under the CAT. Dia was twenty-six years old at the time of his hearing before the IJ. Represented by counsel, and speaking in Fulani through an interpreter, he testified at the hearing and called a handwriting expert to support his story that the visa and passport did not contain his handwriting. The IJ issued a written opinion, denying relief because she found that Dia was not credible. As mentioned, the BIA, through a single member of the Board, affirmed without opinion pursuant to 8 C.F.R. § 3.1(a)(7) (2002).
B. Burden and Standard of Review
An alien has the burden of supporting his claim for relief from removal. An alien’s credibility, by itself, may satisfy his burden, or doom his claim. Gao,
We review the agency’s findings of fact under the standard found in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, div. C, 110 Stat. 3009 (enacted April 1, 1997) (IIRIRA or “Reform and Responsibility Act”), which provides:
[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.
8 U.S.C. § 1252(b)(4)(B).
Since the enactment of the Reform and Responsibility Act, various courts of appeals, including our court, have read this standard to require that the agency support its findings with substantial evidence, as articulated by the Supreme Court in INS v. Elias-Zacarias,
The BIA’s determination that Elias-Za-carias was not eligible for asylum must be upheld if “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” 8 U.S.C. § 1105a(a)(4). It can be reversed only if the evidence presented by Elias-Zacarias was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed. NLRB v. Columbian Enameling & Stamping Co.,306 U.S. 292 , 300,59 S.Ct. 501 ,83 L.Ed. 660 (1939).
Id. at 481,
Substantial evidence is more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. “It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” ... and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.
Columbian Enameling & Stamping Co.,
Our court has explicitly stated that “[t]he Reform and Responsibility Act codifies the language the Supreme Court used in Elias-Zacarias to describe the substantial evidence standard in immigration cases.”
Thus, where we review an IJ’s credibility determination, we must ask whether the determination is supported by evidence that a reasonable mind would find adequate. We look at an adverse credibility determination to ensure that it was “appropriately based on inconsistent statements, contradictory evidences, and inherently improbable testimony ... in view of the background evidence on country conditions.” In re S-M-J- (Interim Decision), 21 I. & N. Dec. 722,
Therefore, “[w]hile we defer to the IJ on credibility questions, that deference is expressly conditioned on support in the record,” Nagi El Moraghy,
If the IJ’s conclusion is not based on a specific, cogent reason, but, instead, is based on speculation, conjecture, or an otherwise unsupported personal opinion, we will not uphold it because it will not have been supported by such relevant evidence as a reasonable mind would find adequate. In other words, it will not have been supported by substantial evidence. Guided by this examination of our principles of deference regarding an IJ’s credibility determination, we conclude that the IJ’s determination here fails this test.
C. The Immigration Judge’s Decision
The IJ rejected numerous aspects of Dia’s testimony, as well as the entire testimony of Dia’s expert handwriting witness. For purposes of our analysis, we will divide the testimony rejected by the IJ into three areas: past persecution, the circumstances surrounding Dia’s procurement of a passport and visa, and future persecution. Dia insists that the IJ’s findings of fact underpinning the adverse credibility determination as to each of these categories of testimony are not supported by evidence in the record, and are not otherwise sufficient to support the conclusions reached by the IJ.
Accordingly, we find that the IJ’s adverse credibility determination is not supported by substantial evidence in the administrative record, and we will remand for the IJ to either state, or seek, the necessary foundation to augment her opinion.
Before reviewing the specific aspects of the IJ’s ruling that we find troubling, however, it is appropriate that we note our agreement with the view expressed by Judge Alito that asylum cases are difficult ones — for us, as well as for immigration judges. And, as Judge Alito points out, some leeway must be given to the administrative arbiters to draw inferences based on common sense and logic as well as on personal experience and background knowledge gained from exposure to certain situations.
However, perhaps because of the difficult nature of these types of cases, and the critical importance of resolving them properly — for the stakes are very high indeed — the soundness of the basis of the decision making, even if experiential or logical in nature, must be apparent. The process of drawing inferences cannot be left to whim, but must withstand scrutiny.
Here, the conclusions of the IJ are more puzzling than plausible, more curious than commonsense. Judge Alito suggests that if we refuse to defer to the IJ’s reasoning here, we would gut the substantial evidence standard. To the contrary, we suggest that to require sound reasoning breathes life into that standard.
We do not, as Judge Alito implies, conclude that the IJ was bound to find Dia credible. Rather, we recognize the possibility that the IJ’s conclusions might ultimately be the correct ones. However, we cannot affirm the IJ’s findings and conclusions on the record presented to us, as the reasons she does provide in support of her decision do not logically flow from the facts she considered. Accordingly, we conclude that the best course is to remand for further explanation by the IJ as to the basis for her various conclusions.
1. Past Persecution
We first address the various parts of Dia’s testimony regarding past persecution that the IJ rejected. We begin with a statement made by the IJ that foretells many of the errors that also infect other parts of her opinion: the IJ’s rejection of Dia’s testimony that, in her words, “members of the Guinean police are actively looking for him.” The IJ rejected this testimony as not credible for two reasons:
The IJ’s conclusion that Dia’s testimony that “members of the Guinean police are actively looking for him ... [was] contrary to the evidence in the Record of Proceedings” is based on a misreading of Dia’s testimony. Dia did not testify that the police were after him, but, rather that the military was after him. Even assuming that the IJ concluded that the police in Guinea necessarily would be looking for a man wanted by the military, there is nothing in the record, nor any reasoning set forth by the IJ in her opinion, to support that conclusion. In fact, the Country Report depicts a country where the military, as well as the civilian militias, act independently from the formal government.
Even more troubling is the fact that, considering the testimony as the IJ presented it — i.e., that the police were after Dia — the IJ’s rejection of this testimony still is not explained, nor does it have any basis in the record. The IJ stated, rhetorically, that she “question[ed] how [Dia] was able to procure a police stamp if he was actively being sought by the police.” But Dia explained how. He testified that a policeman helped him bypass the police and that Sow’s friend had procured the police stamp. The IJ dismissed this testimony as “unconvincing,” but failed to say why or point to any evidence that contradicted this testimony. Absent a reason such as implausibility or inconsistency based in the record, or that Dia’s demean- or in some way led her to question his veracity, the IJ should not have summarily dismissed Dia’s testimony on this point.
We are perplexed by the IJ’s rejection of Dia’s explanation that a Guinean policeman helped him cross the police border for 300,000 Guinean francs (about $150). The IJ stated that she “question[ed] why this policeman would risk his reputation, not to mention, his life, to assist the respondent, a wanted political opponent, evade detection by the police ... for the equivalent of $150 United States Dollars.” This conclusion is not explained, and appears to be pure conjecture. It is not only not based on the record, but, in fact, it contravenes key parts of it. The Country Report confirms that Guinean police extort money from citizens at road blocks and that corruption at road checkpoints is widespread and “systematic.” In addition, figures contained in the record show that $150 U.S. is nearly a quarter of the per capita GDP in Guinea for 1999, a sum likely tempting to a policeman in a poor country replete with corruption within its police force.
As for the IJ’s reference to a lack of “supporting documentation” in the record that “members of the Guinean police are actively looking for” Dia, the IJ failed to explain what type of “documenta
It is obvious that one who escapes persecution in his or her own land will rarely be in a position to bring documentary evidence or other kinds of corroboration to support a subsequent claim for asylum. It is equally obvious that one who flees torture at home will rarely have the foresight or means to do so in a manner that will enhance the chance of prevailing in a subsequent court battle in a foreign land. Common sense establishes that it is escape and flight, not litigation and corroboration, that is foremost in the mind of an alien who comes to these shores fleeing detention, torture and persecution. Accordingly, corroboration is not required to establish credibility. The law allows one seeking refugee status to “prove his persecution claim with his own testimony if it is credible.”
Senathirajah v. INS,
In any event, the IJ failed to acknowledge, let alone adhere to, the parameters that we have adopted regarding such corroboration. In Abdulai, we recognized that, under certain circumstances, the BIA may require corroboration, and we found the three-part inquiry that the BIA has developed in this respect to be consistent with the INA. According to this inquiry, we require the following from an IJ: “(1) an identification of the facts for which ‘it is reasonable to expect corroboration;’ (2) an inquiry as to whether the applicant has provided information corroborating the relevant facts; and, if he or she has not, (3) an analysis of whether the applicant has adequately explained his or her failure to do so.” Abdulai,
In fact, it appears that the IJ actively discouraged — if she did not indeed prohibit — Dia from presenting such evidence. At one of the hearings, Dia’s counsel told the IJ that Dia had been “trying to contact friends or family to substantiate his case. And over the weekend, a friend of his faxed a letter to [counsel’s] office, which [counsel] had only obtained on Monday and [] had to get translated.” The IJ then marked it for “identification purposes only.” At the end of that hearing, the IJ made clear that she was skeptical of Dia’s claims and “need[ed] more information.” But, when Dia’s counsel stated that he understood and noted that he was “somewhat encouraged that over the weekend, [he was] able to make contact with this friend who sent the fax,” the IJ remarkably stated: “I’m not interested about the friend. These friends any more.... I’m not going to give any credence whatever any ‘friend’ has to say about it.” She further made clear that her only concern after the hearing was the authenticity of
In a recent case involving similar issues, we opined that an IJ’s adverse credibility determination does not pass muster under the substantial evidence rubric when it is not supported by an adequate explanation of the IJ’s reasoning. In Mulanga,
An even more significant aspect of Dia’s testimony rejected by the IJ was his report that twenty-five members of the military went to his home to find him, and, upon realizing that Dia was not there, beat and raped his wife. One reason the IJ gave for discrediting this story was that Dia did not present any evidence that the men who did this were from the military, other than hearsay of his wife. We have two problems with this reasoning. The first is that the IJ again failed to engage in the three-pronged analysis we require when an IJ expects documentary evidence or corroboration, discussed above. The second is that, “[tjhough the hearsay nature of evidence certainly affects the weight it is accorded, it does not affect its admissibility in immigration [removal proceedings].” Kiareldeen v. Ashcroft,
The other reasons that the IJ proffered for rejecting this testimony are similarly based on unsustainable grounds, namely, pure conjecture. The IJ “questioned] why so many men would go to the respondent’s home searching for him,” and stated that “[i]t seems, to th[e] Court, [ ] an unusually large number for that purpose.” The IJ also noted that Dia gave no explanation why the men raped his wife and stated that “[i]t seems unlikely to th[e] Court that men who were looking for the respondent would attack his wife.” The basis for the IJ’s having “questioned” this testimony is not explained, and appears speculative at best. Why would the IJ expect Dia to know why such a large group of men were seeking him or why they raped his wife? Twenty-five was an “unusually large number” — compared to what, or based on what? Without some explanation we are hard-pressed to understand why the IJ would find it so difficult to believe that a group of about twenty-five men would have come to Dia’s home. Not only does this account seem consistent with common accounts of the practice of armed groups in war-torn countries, but the record contains documentary evidence confirming that police and civilian mili-
We also conclude that the IJ unreasonably penalized Dia for presenting “no explanation as to why these men would beat and rape his wife.” Dia testified that his wife told him that they were military and that they were looking for him because he supported the rebels. He showed a temporal proximity between Bangora’s visit to his home and the raping of his wife. He also testified that B angora knew of his affiliation with the RPG. So, Dia did, in fact, present some testimony as to why the men came to his home. It seems reasonable for Dia to believe that the militia consisted of government soldiers or was sent by the government. Yet, the IJ rejected this account without explanation. It can hardly be said that Dia had an obligation to investigate further the specific identity of the men who he claims raped his wife and burned his home. How could he have known this? Would not any explanation he might offer be criticized by the IJ as a fabrication, since surely they would not have shared their motivation with him? There is no authority that would require Dia to present direct evidence of the men’s motives; rather, circumstantial evidence was sufficient. See Elias-Zacañas,
The IJ’s disbelief of Dia’s testimony that his wife urged him to flee the country without her also lacked foundation in any logical reasoning or any support in the record, and thus seems to demonstrate more speculation and arbitrariness on the part of the IJ. Dia testified that “[his] wife told [him] if he would really like to see her again, next time in the future, that the best thing was for [him] to try to just flee and try to find a place. And [he] decided to leave her with her family members.” The IJ stated that she found “it highly unlikely that a woman, who allegedly had just been beaten and raped, would urge her husband to leave her and not suggest that she accompany him out of the country.” Why? The IJ also stated that “it appears unlikely that a man whose wife has just been beaten and raped by military personnel would not suggest that they flee the country together.” Why? We can think of any number of reasons why Dia’s wife might have urged him to leave without her.
2. Procurement of a Passport and Visa
The second general aspect of Dia’s story that the IJ rejected dealt with the circumstances surrounding his procurement of a passport and visa. The reasons put forth as support for the rejection, however, do not, again, satisfy the test for substantial evidence.
First, the IJ expressed incredulity that “a man” — ie., Sow’s Mend, the “smuggler” — procured a new passport and a U.S. visa for Dia. Essentially, she concluded that the man did not exist because she found it unbelievable that Dia did not know the identity of a man who helped him leave the country and to whom he “paid a large sum of money.” In fact, during the hearing she went so far as to dismiss Sow’s friend out of hand as an “imaginary person.” But she did so without inquiry into this aspect of Dia’s story, and, in her written opinion, she failed to articulate why she considered it so unbelievable. What is more, as mentioned earlier, she inconsistently asked for more information about how Dia got the passport and visa, but stated that Dia could not provide any supporting evidence from any more “friends.” As it is presented in her opinion, then, the dismissal of this aspect of Dia’s testimony constitutes conjecture as to how the IJ believed Dia should have acted. But it seems highly unreasonable for the IJ, without inquiry into the underlying reasons, to assume that Dia would have, without fail, learned Sow’s friend’s name, given that Sow was his friend and that it was Sow, not Dia, who dealt with the smuggler.
The IJ also inappropriately rejected Dia’s testimony that he had never been to Italy. Dia testified that he was told by Sow’s friend who procured his passport to say that he was a tomato picker in Italy on his way to Honduras, and that he told this story to the immigration officer at the airport. In rejecting Dia’s testimony that he had never been to Italy, the IJ listed a litany of reasons: the U.S. visa in Dia’s passport was issued in Italy; the visa and passport are “valid”; Dia’s non-immigrant visa contains a signature of “Saidou Dia”; an INS memo to file, derived from an airport interview, states that Dia was a “tomato picker” in Italy; the “tomato picker” lie does not make sense because the fact that he was a tomato picker in Italy was “not beneficial to him as far as his intention to remain in the U.S.”; Dia possessed employment documents from Hou-con Cargo Shipping Company addressed to “Dia’s” address in Italy; Dia’s alleged ignorance as to how these documents came to be (and explanation that the smuggler got them for him) was unbelievable; and
The problems with these “reasons” are manifold. As Dia points out, the testimony and reports regarding the passport and visa bore out the fact that the passport and visa given him were “genuine” and seemingly issued in Italy, but not that they were necessarily legitimately obtained or even obtained by Dia. Dia explained consistently how he came into possession of the “genuine” documents and why he told the INS officials that he was a tomato picker on his way to Honduras. Dia also points out that, as discussed below, he presented an expert witness who gave unrebutted testimony that the handwriting on the documents was not Dia’s. As for the letter from the shipping company, a purported address for Dia certainly does not render it authentic. The existence of the address on the letter does not mean that the address exists or that the letter was ever mailed, or even that the cargo company existed. In fact, to conclude that because the documents listed an Italian address, therefore the shipping company actually knew of Dia’s address in Italy, strikes us as bizarre. Dia testified that he got the documents from the smuggler and, thus, that they were totally fraudulent. The record contains no evidence contradictory to this story, and the IJ does not explain why it was not plausible.
Basically, the IJ seemed confused by the fact that the documents that Sow’s friend procured for Dia could be so good that the documents appeared genuine and that the supporting documentation would support Dia’s Italy story. The only evidence in the record that the IJ used to support her conclusion was the INS memo regarding the airport interview, which states that “[h]is last employment appears to be as a Tomato picker while living illegally in Italy.” But, if we are to rely on this memo, assuming it was probative, we must do so with care.
First, we are generally skeptical of reliance on reports of airport interviews. In Balasubramanrim v. INS, we stated that the airport interview is usually not “valid grounds upon which to base a finding that an applicant is not credible.”
We do not know how the interview was conducted or how the document was prepared. We do not know whether the questions and answers were recorded verbatim, summarized, or paraphrased. We cannot tell from the document the extent to which [the petitioner] had difficulty comprehending the questions, whether questions had to be repeated, or when and how sign language was used. Nor does the document reveal whether [the petitioner’s] responses actually correspond to those recorded or whether the examiner recorded some distilled or summary version based on his best estimation of the response.
Id. at 162; see also Mulanga,
In addition, we cannot fathom why the IJ rejected the testimony of Dia’s expert witness, Gregory McNally. McNally testified that the signatures on the passport and visa were not Dia’s. He came to this conclusion after comparing six of Dia’s known signatures with that on Dia’s Republic of Guinea passport and with that on Dia’s Non-Immigrant Visa Application for the U.S. visa found in the passport. Presumably, the purpose of the testimony was to show that, even though the passport and visa issued in Italy were “authentic,” they were not in fact really Dia’s because they did not contain Dia’s actual signature. Establishing this fact certainly would buttress Dia’s testimony that he never went to Italy or obtained the visa and passport himself. This testimony totally undercuts the Id’s reasoning, and it is especially important in that it undermines both the IJ’s expressed skepticism that the passport and visa were not valid and her apparent conclusion that Dia must have been a tomato picker in Italy simply because the documents were “genuine.” Surely she should have realized that they were “genuine” but were not Dia’s. If her experience led her to reject that as improbable, she should have explained her thinking.
The IJ explained her rejection of McNally’s testimony that the signatures on the passport and visa were not Dia’s, by opining that handwriting analysis is too uncertain to accord it much weight. This outright rejection of McNally’s testimony was unfounded. McNally’s expertise was unchallenged. McNally was trained by and worked for the U.S. government, has testified as an expert in various courts more than one hundred times, and belongs to two relevant professional societies, one of which has officially certified him an examiner of questioned documents. In his testimony, he clearly concluded that the signatures on the passport and visa were not Dia’s, thus lending support to Dia’s story. McNally only qualified this conclusion by noting that he preferred to use original documents (some of the documents he had examined were not originals), and by conceding that “anything is possible” with regard to signatures.
The IJ supported her conclusion that handwriting analysis is not probative evidence by referring to United States v. Van Wyk,
3. Future Persecution
The final area of Dia’s testimony rejected by the IJ pertained to whether Dia would suffer future persecution if returned to Guinea. We emphasize that we address this aspect only to determine any errors in the IJ’s credibility determination, not whether Dia should be found eligible for relief from removal. With that said, the IJ’s conclusion here, again, lacks the necessary support.
The IJ decried that “[tjhere is no evidence that low-ranking persons in the RPG are being arrested and detained,” and noted that the only incidence of violence involving Dia during the approximately three years after Dia joined the RPG involved his wife, not Dia. The IJ also expressed doubt about Dia’s testimony that the military was pursuing him because it thought that he was helping Alpha Conde escape from jail. She stated that it made little sense that the military thought Dia could enable Conde to escape, although she did not explain this further.
Once again, there are a number of problems with the IJ’s fact-finding regarding this aspect of Dia’s testimony. First, Dia did present evidence that the Government persecuted low-ranking persons in the RPG. He testified to his own past persecution, the rape of his wife as a means of menacing him, and the beating of local RPG members at the local headquarters, including the beating of Dia’s father that resulted in death. See Baballah v. Ashcroft,
Dia also urges that the IJ placed far too much weight on the fact that neither Dia nor his wife was the victim of any
In sum, the IJ’s adverse credibility determination was based on a combination of misstatements of Dia’s testimony, unreasonably speculative or arbitrary conclusions, inaccurate or insufficiently explained findings of contradictions, and an arbitrary rejection of probative testimony. The “inconsistencies” that the IJ claimed to have found were illusory, and the claimed “implausibility” stemmed solely from conjecture. While we owe deference to the IJ’s findings, our focus, and the essence of our review function, must be on the IJ’s stated reasons. The reasoning in the IJ’s opinion must “bear a legitimate nexus to the finding.” Balasubramanrim,
III. CONCLUSION
Dia asks that we reverse the BIA and grant the relief he seeks. But we are not finding Dia credible. Rather, we are concluding, as we have repeatedly before, that because of the lack of substantial evidence to support the adverse credibility determination, we will remand in order for the agency to further explain or supplement the record. Gao,
sis * * * * *
Accordingly, we will grant the petition for review, vacate the BIA’s order summarily affirming the IJ’s decision, and remand to the BIA.
Notes
. The basic law underlying Dia's substantive claims is clear. The Attorney General has the discretion to grant Dia asylum if he meets the definition of "refugee” as defined in the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (INA), i.e., he is unable or unwilling to return to his home 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.” 8 U.S.C. § 1101(a)(42)(A). To qualify for withholding of removal, Dia must show that, if deported, there is a "clear probability” that he will be
. Since the time of Dia’s appeal to the BIA, the streamlining regulations have been moved to a different section of chapter 8 of the Code of Federal Regulations. See 8 C.F.R. § 1003.1(a)(7).
. We look at the INA at the time of Dia's appeal to the BIA. The INA was amended by the Homeland Security Act of 2002, Pub. L. No. 107-296, § 471, 116 Stat. 2135, 2192, 2205 (Nov. 25, 2002), which, on March 1, 2003, transferred the functions of the INS to various bureaus, the one dealing with asylum cases being the Bureau of Citizenship and Immigration Services within the Department of Homeland Security. See generally 1 Gordon, Mailman, & Yale-Loehr, Immigration Law and Procedure l:SAl-l-2. The functions of the Executive Office for Immigration Review continue to reside in the Department of Justice, under the direction of the Attorney General. Because of the status of the agency at the time this case was submitted, and for ease of reference, this opinion refers to the agency as the INS or merely as the ''agency.”
. The provision reads in whole part:
The term "order of deportation” means the order of the special inquiry officer, or other such administrative officer to whom the Attorney General has delegated responsibility for determining whether an alien is de-portable, concluding that the alien is de-portable or ordering deportation.
8 U.S.C. § 1101(a)(47)(A).
. A fortiori, we reject Dia's argument that the INA requires the BIA to conduct de novo review on appeal.
. Dia suggests that his argument is tailored only to address how the BIA applied the streamlining regulations to him. However, his attack is broad and not based on any specifics of his case. Therefore, we view his due process challenge as a facial challenge to the procedures.
. In fact, we see the summary affirmance process in the streamlining regulations to be little different from the process employed by our court by which we have summarily affirmed rulings of the district court. See 3d Cir. Internal Operating Procedures § 10.6. In the past, we often affirmed via "judgment orders,” with no mention of whether or not we agreed with the reasoning provided by the district court. Indeed, the parties, and, at times, the Supreme Court were left to guess on what grounds we affirmed. It is well-established, however, that this procedure is constitutional. See Furman v. United States,
. See, e.g., Dickinson v. Zurko,
. While arguing that we should not give Chevron deference to the streamlining regulations, Judge Stapleton’s reasoning does not really track Chevron, as he is not decrying the agency’s interpretation of the law. Rather, he is decrying the agency’s establishment of a process that, he believes, runs counter to principles of judicial review. This is not a Chevron analysis.
. See Abdulai,
. See Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc.,
. See Awolesi,
. Judge Stapleton points to Ezeagwuna v. Ashcroft,
. In her opinion, the IJ wrongly stated that the rebels had killed Dia’s father.
. It is not clear whether all or only part of his home was destroyed.
. Sow is referred lo as "Ableso” in the hearing transcript.
. See, e.g., Alvarez Santos v. INS,
. In response to our request for their views on the matter, the parties and amici, in their submissions to the en banc court, stated that they agree with our view that § 1252(b)(4)(B) codified Elias-Zacarias. Scholars have agreed with this view as well. See 8 Gordon, Mailman, & Yale-Loehr, Immigration Law and Procedure, § 104.13 (stating that § 1252(b)(4)(B) “essentially codified the standard set forth in INS v. Elias-Zacarias and should have little practical consequence”); Lenni B. Benson, The New World of Judicial Review of Removal Orders, 12 Geo. Immigr. L.J. 233, 239 (1998) (concluding that the standard currently set forth in § 1252(b)(4)(B) is "simply a new way of saying the same thing Congress wrote in former INA § 106 [8 U.S.C. § 1105(a)(a)(4) ]”); see also Pamela Goldberg, Analytical Approaches in Search of Consistent Application: a Comparative Analysis of the Second Circuit Decisions Addressing Gender in the Asylum Law Context, 66 Brook. L. Rev. 309, 317 n.66 (2000) ("As in the pre-1996 law, this standard [§ 1252(b)(4)(B)] has been construed to mean that the circuit court must examine the record to determine whether the conclusions reached by the agency are supported by substantial evidence.”). While the fact that the current version of the standard does not contain a reference to substantial evidence (as did the previous version) is curious, we will not read into this omission a substantive change in this well-established standard. See Dewsnup v. Timm,
. Indeed, the history of the standard in the administrative context is evident from the Supreme Court’s citation in Elias-Zacarias to Columbian Enameling & Stamping Co., 306
. Dia bears the burden of establishing eligibility for relief from removal. 8 C.F.R. § 208.13 (regarding asylum); Mendoza,
. We also agree with Judge Alito that an IJ is free to assess plausibility. Yet the very law
. Judge Alito makes no reference to the need for “substantial evidence,” but, instead, applies the "no reasonable adjudicator” standard to restrict our review of the IJ’s adverse credibility determination to the situation in which all reasonable adjudicators would affirmatively find Dia to be credible. We have not applied the statutory standard in this manner. See Mulanga,
. We note that the IJ did not rely on her personal observations of Dia’s demeanor or any other observations to which we must accord an even greater degree of deference. See Aguilar-Solis v. INS,
. For example, Dia and his wife may have determined that he could move more quickly and elude detection more easily if he was traveling alone, not burdened by having to care for a wife and daughter, and that once he was safely out of the country, he could arrange for them to join him. Perhaps the Dias were motivated by concern for their young child, believing that it was in their daughter’s best interest that she and her mother remain at a relative's home rather than go on the run with her father. Maybe the injuries Dia's wife sustained during her assault made it impossible for her to travel, and the knowledge that her husband was on his way to safety was more important to her than having him risk his life to stay with her. It is also possible that Dia simply feared so much for his own life that he was willing to abandon his family. The IJ rejected Dia's testimony without indicating any consideration of these equally likely scenarios.
. The Attorney General states that "one inconsistency looms large over the record. Dia testified that when he returned to his home after visiting his uncle, he discovered that his home had been burned, yet when he saw his wife, she does not tell him that their home had been burned along with her alleged report to him that she had been raped and beaten.” The IJ, however, never mentioned this alleged inconsistency; thus, it is not support for the IJ’s credibility determination. See SEC v. Chenery,
. Perhaps most importantly, we fail to see why the IJ placed any emphasis on this particular aspect of Dia's testimony. The name of Sow’s friend did not at all pertain to Dia's claim for relief from removal and Dia’s testimony on this point seemed consistent.
. The IJ also stated that, if the signatures were not legitimate, she could not consider the passport and visa as evidence, and Dia, in turn, would have no documentation establishing his country of citizenship. Even if this would have proven fatal to Dia's claim, Dia effectively contradicts this point by noting that the authenticity of his Guinean nation identification card (required by the Government for all citizens) or his RPG membership card, both submitted to the INS, have not been questioned; therefore, he could prove his citizenship without the questioned documents.
. The IJ’s error here appears similar to the one we discussed in Gao v. Ashcroft,
. In Abdulrahman v. Ashcroft,
. Dia also contends that the Board did not follow the streamlining regulations when it issued an AWO in his case. The Government, in turn, contends that we do not have authority to review whether the Board complied with the streamlining regulations. Because we have found that the IJ erred, we need not address this issue.
Concurrence Opinion
with whom Judges SLOVITER and ROTH, join, concurring in part and dissenting in part.
I join Part I of the opinion of the Court. However, because I believe that the Court’s method of analyzing the Immigration Judge’s credibility determination is seriously flawed, I would deny the petition for review.
I.
Cases in which aliens seek asylum or withholding of removal based on the likelihood or probability of persecution if they are returned to their own countries are among the most difficult that we face. Much is obviously at stake, but the eviden-tiary record is very often meager. Indeed, it is common for an Immigration Judge (IJ) to have little other than the testimony of the applicant on which to base the decision, and this presents obvious and serious problems.
On the one hand, it is often unreasonable to demand that asylum-seekers provide corroborating evidence regarding their personal experiences in their home countries. Such incidents are often not memorialized (at least not in any records that are available to anyone outside the home government), and aliens fleeing persecution may be lucky to escape at all and may have no opportunity to secure any documentary evidence that exists or to obtain statements from witnesses who are willing to help. In addition, once asylum-seekers reach this country, they may find it very hard to obtain corroborating evidence. It may be difficult to contact people at home, and persons who might assist may be prevented by the home government from doing so or may be reluctant to help for fear of governmental retribution. Thus, it is often not reasonable to demand corroboration.
On the other hand, however, testimony by asylum-seekers cannot simply be accepted without question. Persons wishing to escape deplorable conditions that fall short of persecution have a strong motive to fabricate tales of persecution, and it must be recognized that such stories are not hard to construct. An asylum-seeker may have heard another person’s account of persecution and may substitute himself or herself as the victim. Or an asylum seeker may take an incident in which he or she was actually involved and may exaggerate the conduct of the military or police so as to make it reach the high standard needed to constitute persecution.
As Professor David A. Martin, former general counsel of the INS, has written, the government is rarely able to conduct a field investigation of matters such as appli
In deciding how such determinations are to be made in this country, Congress could have taken a variety of different approaches. The approach that it chose, however, was to entrust the responsibility for making these important determinations to the Attorney General, with very limited judicial participation. Specifically, we must accept a credibility determination made by those to whom the Attorney General’s authority has been delegated “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). This limited role sometimes puts us in the uncomfortable position of deferring to a credibility determination about which we are skeptical. But the statute leaves us no alternative.
II.
In analyzing the IJ’s credibility decision in this case, the Court makes three fundamental mistakes. First, the Court fails to recognize that it is entirely proper for a fact finder to take into account “background knowledge” about human behavior in assessing the plausibility of testimony. Second, although the Court pays lip service to the very limited standard of review that we must apply, the Court in effect inverts that standard and refuses to sustain the IJ’s credibility finding, not because a reasonable adjudicator could not find that Dia lacked credibility, but because, in the Court’s view, a reasonable fact finder could make a contrary finding. Third, the Court errs in failing to take the totality of the circumstances into account in reviewing the IJ’s credibility determination. Instead, the Court focuses one by one on specific statements that were made by Dia and asks whether each of those statements is plausible. The Court fails to recognize that a series of statements may, taken together, provide a reasonable basis for finding a witness to be incredible even if each statement standing alone might be credible.
A.
“Background knowledge.” In assessing the credibility of testimony, fact finders commonly ask whether the testimony is consistent with their own understanding of how people usually behave. Judge Wein-stein uses the term “background knowledge” to describe the “ ‘vast storehouses of commonly-held notions about how people ... generally behave,’ ” and he explains that credibility determinations may be based on such knowledge even though it is not in the record. United States v. Shonubi,
The process by which a juror tests a story for plausibility involves some sort of cerebral matching. A juror juxtaposes a set of recounted actions and events against her experience, imagination, and derived intelligence concerning the behavior and reactions of real and fictitious others: “Is this the sort of thing that I might do in those circumstances?” “Would anyone I know have reacted that way?”.... These are the sorts of guides to plausibility on which the juror must rely.
H. Richard Uviller, “Essay: Credence, Character, and the Rules of Evidence: Seeing Through the Liar’s Tale,” 42 Duee L.J. 776, 783 (1993).
Professor Uviller also explains the weaknesses of this process:
The trouble, of course, is that frequently the cultural context and customs of the actors in the events recounted by the witnesses are totally alien to the jurors seeking a plausibility match. Neither the jurors nor anyone they are likely to know have had any experiences comparable to those now described from the witness stand by an adolescent drug dealer or a professional underworld hoodlum.
Id. Nevertheless, this process of judging credibility is employed every day in criminal and civil cases, and there is no reason why it cannot also be used in asylum cases.
In this case, however, the Court faults the IJ for employing this very process. As the Court notes, Dia testified that his wife told him that about 25 soldiers had come to their home looking for him and that, when Dia’s wife told them that she did not know his whereabouts, the men beat and raped her and burned the house. AR 86. Dia stated that, at his wife’s urging, he fled the country alone, leaving his wife and child behind. AR 86. In finding that Dia was not credible, the IJ expressed the belief that a woman in the position of Dia’s wife would probably not urge her husband to leave her behind. AR 43. The IJ also expressed the belief that a man in Dia’s position would probably “suggest that they flee the country together.” AR 43. The IJ thus engaged in precisely the mental process that Professor Uviller de
Although the mental process in which the IJ engaged was routine and entirely permissible, the Court rejects the IJ’s approach. The Court criticizes the IJ for failing to explain her reasoning (Maj. Op. 255), but the basis for her conclusion could not be any clearer: the IJ’s “background knowledge,” “her experience, imagination, and derived intelligence concerning the behavior and reactions of ... others” told her that a woman was not likely to urge her husband to flee alone if she had just been beaten and raped by soldiers who were looking for him. Similarly, the IJ’s “background knowledge” told her that a man was not likely to leave his wife and child behind under such circumstances. What more the Court expects the IJ to have said on this point is a puzzle. Does the Court expect the IJ to have cited to empirical evidence about how couples generally behave when the wife has just been beaten and raped by soldiers who are looking for the husband for political reasons?
B.
Reversing the standard of proof. We are required to sustain the IJ’s findings “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). The Court, however, repeatedly turns this standard on its head and finds that aspects of Dia’s testimony should have been found to be credible because a reasonable person might have found them believable.
The Court’s evaluation of Dia’s testimony about his decision to flee by himself is again instructive. Rejecting the IJ’s determination that it was “unlikely” that a couple in the position of Dia and his wife would agree that the husband should escape alone, the Court states: ‘We can think of any number of reasons why Dia’s wife might have urged him to leave without her,” such as a belief that Dia “could move more quickly and elude detection more easily if he was traveling alone.” Maj. Op. at 255 & n. 23. In other words, the Court inverts the statutory test and refuses to accept the IJ’s finding because the Court can imagine grounds for a contrary finding.
The Court performs the same slight of hand in evaluating the “tomato picker” story. Although Dia testified at the asylum hearing that he had never been in Italy (AR 102), the INS memo regarding his interview upon arrival at JFK Airport on March 27, 2001, reported that Dia had apparently been employed as a tomato picker in Italy. AR 237. The memo also reported that Dia was en route to join a ship in Honduras as an engine room technician (AR 237), and there is documentary evidence that supports the account in the memo. Dia had in his possession a valid United States visa that bore his name and photo and that had been issued in Milan. AR 225. He also possessed an “Employment Letter” from Houcon Cargo Systems of Rotterdam that was addressed to him at an address in Brescia, Italy. AR 218-221. The letter stated that Dia had been employed by the company for a two-year period as an engine room technician and instructed that he was to board a ship in Honduras by April 10, 2001. AR 218. When asked about these documents, Dia stated that they had been provided to him
Instead of asking whether a reasonable adjudicator could infer from this proof that Dia had been in Italy and had therefore lied at the hearing, the Court postulates all sorts of possible explanations for the evidence pointing to residence in Italy. Dia’s statement at the airport might have been misunderstood because of his lack of facility in French, the language in which he spoke at that time; if Dia did say at the airport that he had been employed in Italy, he might have told an untruth because his statement “was not taken under oath” and he was simply parroting what the man who provided the documents had told him to say. Maj. Op. at 257-58. Although the visa was genuine, that did not prove that it had been “necessarily legitimately obtained.” Id. at 257. And although the visa bore Dia’s photo, it might have been obtained by someone else. Id. Houcon Cargo might not exist. Id. at 257. If it does, the letter might not be authentic. Id. The address in Brescia, Italy, might be fictitious, and even if it is not, the letter might have found its way into Dia’s possession without being mailed to that address. Id. The Court concludes:
Dia testified that he got the documents from the smuggler and, thus, that they were fraudulent. The record contains no evidence contradictory to this story.
Id.
In effect, the Court says that the IJ was bound to accept Dia’s testimony that he had never been in Italy unless there was conclusive proof to the contrary. If we applied this standard to the findings that are routinely made by judges and juries in federal litigation, few findings could be sustained.
C.
Totality of the circumstances. In judging the credibility of a witness’s story, a fact finder is entitled to consider whether the story as a whole has the ring of truth. Suppose that a witness asserts that something a bit out of the ordinary happened. Since unusual things do happen, a fact finder might credit that assertion if the witness does not say anything else that is questionable. But suppose that the witness goes on to assert that a whole series of unusual things happened. At some point, the fact finder may — reasonably— conclude that the witness’s testimony as a whole is unbelievable.
Here, the Court rejects the IJ’s determination that Dia’s testimony was not credible because, taking each of his contested statements one by one, the Court finds each plausible. Thus, the Court fault’s the IJ’s credibility finding because, in the Court’s view, it is plausible that about 25 men would be sent to Dia’s home to look for him; it is plausible that Dia would flee alone and leave his wife and child behind even though his wife had been beaten and raped by soldiers looking for him; it is plausible that Dia was able to procure a police stamp even though the authorities were looking for him; it is plausible that a man whose identity Dia did not know was able to obtain for Dia a legitimate passport and legitimate United States visa; it is plausible that even though Dia had never been in Italy, he would say on arriving in this country, that he had been employed in Italy as a tomato picker; and it is plausible that even though Dia had never been in Italy, he would have a United States visa that was stamped as issued in Milan and an Employment Letter addressed to him at a place in Italy. Even if the IJ was bound to view each of these facts as plausible — and I do not think that she was^ — it does not follow that she was bound, when
III.
Viewing the record as a whole, I believe that a reasonable fact finder could find that Dia’s testimony was not believable and could deny his application on that basis.
• In light of the previously mentioned documentary evidence and Dia’s statement at the airport, it was reasonable for the IJ to question whether Dia told the truth when he testified at the hearing that he had never been in Italy. While this evidence may not prove conclusively that Dia had been in Italy, it certainly provided a reasonable basis for the IJ to infer that he had. And if Dia lied about this point, the IJ could reasonably doubt the truthfulness of the remainder of his testimony.
• It was reasonable for the IJ to question Dia’s truthfulness based on Dia’s statement that, even though his wife had been raped and beaten by men who were looking for him, he and his wife agreed that he should flee alone. As explained above, the IJ’s belief about how a couple would likely react under such circumstances is just the sort of “background knowledge” about human behavior that a fact finder is entitled to consider in evaluating a witness’s credibility. Moreover, the particular belief in question (that a couple, under the circumstances, would not likely decide that the husband should run away by himself) is at least reasonable. Since Dia’s wife had allegedly been beaten and raped on one occasion when she did not tell Dia’s pursuers where he was, is it unreasonable to think that a couple in that position would fear that something similar might recur if the husband left alone and the wife was again questioned?
• It was reasonable for the IJ to question Dia’s testimony that about 25 men went to his house looking for him. A reasonable adjudicator could be skeptical that so many men would be sent to look for a single, low-ranking person. Similarly, it was reasonable for the IJ to question whether, as Dia testified, his alleged pursuers would think that a low-ranking person like Dia could help the leader of an opposition political group to escape. And it was reasonable for the IJ to question how Dia was able to obtain a police stamp on his passport if the authorities were searching for him. While each of these statements standing alone may not give rise to a strong inference of mendacity, each statement can be questioned, and when taken together they can reasonably contribute to a finding that Dia was not credible.
Whether I would have believed Dia if I had been given the responsibility to make that determination I cannot say. But viewing all of the evidence in the record and applying the narrow standard of review prescribed by statute, I cannot say that a reasonable adjudicator could not find Dia to be incredible.
. Professor Martin goes on to express his belief that most applicants are honest, id. at 1282 — a fact that I do not question- — -but some applicants may not be not truthful, and our current system relies on IJ's to identify those applicants.
. The Court notes (Maj. Op. 250-51 n.21) — as have I — that this method of judging credibility is hardly foolproof. What the Court does not recognize, however, is that the same is true of virtually all of the other methods of assessing credibility that are available to IJ's. Two of the most common methods involve assessment of demeanor and impeachment based on prior inconsistent statements. As to demeanor, Judge McKee's opinion notes that the reliability of credibility determinations based on demeanor has been challenged and that there are special reasons for questioning this technique when the witness testifies through an interpreter and comes from a different cultural background. As to impeachment with prior inconsistent statements, the Court notes the problems with undue reliance on airport statements (see Maj. Op. 257-58), and reliance on statements made in asylum applications and subsequent interviews may also present difficulties due to translation problems and the volume of cases that must be processed. In sum, virtually all of the methods of assessing credibility that are available to IJ's are fraught with problems, but it is nevertheless essential that IJ's make such assessments using the admittedly imperfect tools that are at hand.
Dissenting Opinion
dissenting, with whom Judges McKEE, AMBRO, and BECKER join.
An applicant for asylum seeks to avoid removal to a country where he insists he will be the victim of persecution. In recognition of the serious consequences of an erroneous denial of asylum, Congress, in the INA, has given asylum seekers the right to present evidence to an immigra
The Attorney General’s streamlining regulations direct a single BIA member to make the final decision on whether a denial of asylum is the “correct” decision, 8 C.F.R. § 1003.1(a)(7)® (2002), and then instructs the Court of Appeals to review the IJ’s explanation for his or her disposition
I.
The scheme of administrative and judicial review established in the INA for asylum cases is a familiar one. Comparable schemes have been before the Supreme Court on numerous occasions, and its decisions in those cases have articulated fundamental principles of administrative law that govern review under such schemes. See, e.g., SEC v. Chenery Corp.,
In a number of ways, the Attorney General’s reading of the statute is more straightforward than that of the Court.
Congress has granted [the federal courts] power to review only “final order[s] of removal.” Because an alien facing removal may appeal to the BIA as of right, and because the BIA has the power to conduct a de novo review of IJ decisions, there is no “final order” until the BIA acts. Accordingly, we now expressly hold that the “final order” we review is that of the BIA.
See also Kayembe v. Ashcroft,
The Attorney General also recognizes, as he must, that an asylum seeker is entitled under the statute to judicial review of the agency’s final decision, and the streamlining regulations so provide. They go on, however, to deprive the Court of Appeals of any basis for reviewing the agency’s final decision, to deprive the Court of the benefit of the agency’s expertise, and to deprive the asylum seeker of de novo review of the IJ’s fact finding. These aspects of the streamlining regulations are at odds with the statute as applied in light of at least two well-established principles of administrative law.
II.
First and foremost, judicial review necessarily requires something to review and, if the agency provides only its result without an explanation of the underlying fact finding and analysis, a court is unable to provide judicial review. See SEC v. Chenery Corp.,
[Njothing in the INA specifically requires the Board to explain its decisions. But the availability of judicial review (which is specifically provided in the INA) necessarily contemplates something for us to review.... Because the BIA’s failure of explanation makes it impossible for us to review its rationale, we grant the petition for review, vacate the Board’s order, and remand the matter. ...
Abdulai,
Whenever the streamlining regulations are invoked, they deprive a reviewing court, by their express terms, of any basis for knowing either the findings of fact or the rationale upon which the BIA’s denial of asylum rests and they thus make judicial review impossible. 8 C.F.R. § 1003.1(a)(7)(iii) requires that the BIA’s order expressly state “the Board affirms, without opinion, the result of the decision below.” This means that the BIA accepts only “the result” of the IJ’s deliberations. Indeed, the regulations, in addition to foreclosing the BIA from giving “further explanation or reasoning,” go on to state that the effect of the BIA’s order is to “approve ... the result reached in the decision below” and to disavow any implication that the approval extends any further. The BIA’s order thus does not only fail to adopt the findings and reasoning of the IJ, it expressly disavows endorsing those findings and that analysis. See 8 C.F.R.
In short, judicial review, by definition, necessarily involves an explanation for the agency’s final decision. Congress has spoken directly to the issue of whether asylum seekers will have a right to judicial review. Accordingly, the situation before us is simply not one in which Chevron deference is due. See Chevron,
It does not help that a summary affir-mance signifies under the regulations that the BIA views “any errors in the decisions of the Immigration Judge [as] harmless or non-material.” In any case where the BIA disagrees with the IJ in whole or in part, but has an alternative and independent basis for denial, the error of the IJ will be harmless or non-material, yet that alternative and independent basis will never be disclosed and, accordingly, will never be exposed to judicial review. It necessarily follows that an alien may be denied asylum and be put in serious jeopardy for a reason that is never exposed to judicial review.
Nor does it help that the regulations instruct the Court of Appeals to review the fact finding and analysis of the IJ. See Executive Office of Immigration Review: Board of Immigration Appeals Streamlining,
On appeal, we held that the evidence the BIA relied upon in concluding that the documents were fraudulent was unreliable and untrustworthy and that the BIA’s reliance upon it had violated the alien’s right to Due Process. Id. at 130.
Cases like Ezeagmma can, consistent with the streamlining regulations, be decided without an opinion. A single BIA member could well have determined in good faith that the errors of the IJ were harmless or immaterial because the BIA member reached the same conclusion. He could also have concluded in good faith that there was no genuine dispute regarding the applicable law and that the case did not involve the application of precedent to a novel fact situation. Had a single BIA member made these determinations and decided the case without opinion under the streamlining regulations, we, as the reviewing court, (1) would have been unaware of the basis for the agency’s final decision and, accordingly, would not have had the opportunity to vindicate the violation of the alien’s constitutional rights; and (2) would have been unaware that, in the expert eyes of the BIA exercising de novo review, the fact finding done by the IJ was unacceptable and, exercising restricted review, we might well have allowed that fact finding to stand. Fortunately for the asylum seeker in Eze-agvmna, her case was not streamlined and her rights were vindicated. Had the streamlining decision gone the other way, however, she might well have been sent home to persecution without any judicial review of the basis of the decision to deny asylum.
This case may well be one like Ezeagwu-na. The BIA member could well have viewed the grounds for the IJ’s credibility determination as impermissibly speculative and, accordingly, may well have relied on alternative, undisclosed grounds. If so, Dia will have been removed for reasons that were unexposed to judicial review.
III.
The streamlining regulations, and the Court’s sanctioning of them, have further
In a recent asylum case, the Court of Appeals for the Ninth Circuit overturned an order of removal based on an argument for asylum that had been addressed by the IJ but not by the BIA. The argument turned on whether conditions in Guatemala had improved to the point that no realistic threat of persecution currently existed. The Supreme Court held that the Court of Appeals had violated “well-established principles of administrative law” by proceeding “without giving the BIA the opportunity to address the [disputed] matter in the light of its own expertise.” INS v. Ventura,
Within broad limits the law entrusts the agency to make the basic asylum eligibility decision here in question. In such circumstances a “judicial judgment cannot be made to do service for an administrative judgment.” Nor can an “appellate court ... intrude upon the domain which Congress has exclusively entrusted to an administrative agency.” A court of appeals “is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry.” Rather, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.”
INS v. Ventura,
Just as Congress did not intend the Ninth Circuit Court of Appeals to perform the BIA’s “legally mandated role,” neither did it intend for our Court to address in the first instance issues like whether Guinea is a “country where the military, as well as civilian militias, act independently of the federal government.” Maj. Op. at 252. While our Court has not usurped the role of the BIA as did the Ventura court, it has permitted the agency to absolve itself, by regulation, of the responsibility for fulfilling the BIA’s legally mandated role. Given the Congressional mandate, our Court should not allow this abdication of responsibility.
IV.
The Attorney General’s desire to streamline the appeals process is understandable. Moreover, I agree with the Court that he has been given by Congress the authority to simplify and expedite the process before the agency. I perceive no reason, for example, why he cannot have a single BIA member decide a category of appeals like the one identified in the streamlining regulation. Moreover, a single member can clearly decide appeals by adopting the opinion of the IJ or by adopt
Contrary to the Court’s suggestion, the Attorney General’s streamlining scheme is not at all analogous to the affirmance of District Court judgments by court of appeals without an opinion. The BIA’s order is materially different from a judgment order of a court of appeals that may be reviewed by higher judicial authority. While an opinion of a court of appeals may be helpful, it is not essential to the intended operation of the federal judicial system. A court of appeals possesses no special expertise that the Supreme Court lacks and both courts review a court’s judgment using the same standards of review. The INA, on the other hand, contemplates an administrative review by an entity which has special, relevant expertise and which will exercise de novo review of the IJ’s findings of fact as well as her conclusions of law. Both factors are very important in cases like the one before us, and the Congressional scheme cannot function as intended if the BIA does not tell us what facts it found and what reasoning it relied upon.
V.
I would grant the petition for review and remand to the BIA with instructions to provide an explanation of the grounds for its decision.
. 8 U.S.C. § 1229a(b)(4)(B) provides that: "In proceedings under this section, under regulations of the Attorney General-the alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien's own behalf, and to cross-examine witnesses presented by the Government....”
. 8 U.S.C. § 1229a(c)(4) states: "If the immigration judge decides that the alien is removable and orders the alien to be removed, the judge shall inform the alien of the right to appeal that decision and of the consequences for failure to depart under the order of removal, including civil and criminal penalties.”
. 8 U.S.C. § 1252(a)(1) states: “Judicial review of a final order of removal (other than an order of removal without a hearing pursuant to section 1225(b)(1) of this title) is governed only by chapter 158 of Title 28, except as provided in subsection (b) of this section and except that the court may not order the taking of additional evidence under section 2347(c) of Title 28.”
. See Executive Office of Immigration Review: Board of Immigration Appeals Streamlining,
. The order of a single BIA member "approves the result reached in the decision below; it does not necessarily imply approval of all of the reasoning of that decision....” 8 C.F.R. § 1003.1 (a)(7)(iii).
. 8 U.S.C. § 1101(a)(47)(B) states in part that: The ["order of deportation”] shall become final upon the earlier of (i) a determination by the Board of Immigration Appeals affirming such order; or (ii) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals.
. 8 U.S.C. § 1252(b)(4)(B) provides that, in the context of judicial review, "the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”
. The Court in Chenery stated that:
It will not do for a court to be compelled to guess at the theory underlying the agency's action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive. In other words, “we must know what a decision means before the duty becomes ours to say whether it is right or wrong.”
. The proposition that judicial review requires an administrative agency to articulate the reasoning for its decisions also follows logically from our holding that the Attorney General’s stated reasons for granting or denying asylum must not be “arbitrary, irrational, or contrary to law.” Ezeagwuna v. Ashcroft,
. The Court's opinion simply ignores the fact that the streamlining regulations permit an asylum seeker to be removed for reasons unexposed to judicial review. It does so with the ipse dixit: "The BIA clearly 'invokes' the IJ's opinion as the grounds on which the agency’s decision rests; we thus judge the propriety’ of the IJ's action in order to 'test' the agency's action.” Maj. Op. at 241. The Court fails to explain, however, how a BIA order that does not "imply approval of all of the reasoning of” the IJ’s opinion can "clearly ‘invoke[]' the IJ opinion as the ground on which, the agency's decision rests.” Every court of appeals that has engaged in judicial review of an IJ's decision has done so because the IJ's reasoning was expressly adopted by the BIA. See Chen v. INS,
Citing Albathani v. INS,
Concurrence Opinion
concurring in part and dissenting in part.
I join Part II of the majority opinion because I agree that we must grant the Petition for Review based upon the many problems with the Immigration Judge’s adverse credibility ruling that the majority explains. However, I must respectfully dissent from Part I of the majority opinion upholding the streamlining regulations. In my view, those regulations should be invalidated for all of the reasons so ably explained in Judge Stapleton’s thoughtful dissent.
I write separately because I am troubled by the majority’s suggestion that the IJ’s flawed and unsupportable credibility ruling could somehow have been saved if it were based upon Dia’s demeanor rather than the substance of his testimony. The majority notes that “the IJ did not rely on her personal observations of Dia’s demean- or or any other observations to which we must accord an even greater degree of deference.” Majority Opinion at 252 n.23.
It is of course true that the law has traditionally recognized a relationship between demeanor and credibility. The Supreme Court has even noted that the opportunity to observe a witness’s demeanor is embodied in the Confrontation Clause of the Sixth Amendment. See California v. Green,
Courts have addressed the extent to which ignorance about an alien’s native land can shape conclusions. See Senathirajah v. INS,
In Chouchkov v. INS, the Court of Appeals for the Ninth Circuit cautioned: “It must be stressed that what sounds peculiar in one country may be the norm in another.”
[T]he evidence was cut off on the apparent assumption that [evidence of] a 10-year-old membership in a union was too old or too stale to constitute a ground for persecution. Perhaps this is so, but there is nothing in the record to sustain the immigration judge’s assumption in this regard, except perhaps his general perception of life or political conditions in El Salvador which may or may not be grounded in fact.
As a general rule, in considering claims of persecution I think it highly advisable to avoid assumptions regarding the way other societies operate. Time and again this Board has considered appeals in which assumptions of this nature have been proven to be totally wrong, once the applicant has been given a full hearing.
Id. (emphasis added).
In Cordero-Trejo v. INS,
The cultural bias at the heart of the adverse ruling of the IJ in Barapind v. Rogers, No. 96-55541,
The IJ also doubted that the alien was 29 years old as he testified. Based only upon her personal observation of the alien during his testimony, the IJ “thought he looked 40.” Id. The court quickly rejected the purported age discrepancy as a basis for concluding that the alien was not credible. The court stated: “We see no basis for the IJ to have thought her own sizing up of the physical appearance of an alien gave her a superior insight into the age of the Sikh before her; still less do we see how her hunch showed that Barapind was lying.” Id. The court dismissed the IJ’s conclusion that the alien lied about his age as nothing more than a “hunch” improperly based upon “personal conjecture.” Id. at *2, *3. The court concluded, “[ajgain, the inference by the IJ seems to reflect her own cultural bias.” Id. at *2. Indeed, given the alien’s testimony that he was subjected to torture that included applying electric shock to various “parts of his body,” id., it would have been surprising if he had not appeared to be older than he was.
These cases primarily exemplify tangible manifestations of bias. However, resting factual conclusions upon unexplained and unarticulated demeanor poses an even greater risk of biased fact finding that can deny a petitioner due process of law.
For example, eye contact plays a central role in evaluating the credibility of a witness in our own culture. The central issue in Morales v. Artuz,
Even assuming arguendo the presumed relationship between such demeanor and credibility in the usual context, I submit that the relationship is often non-existent when the fact finder and witness are from different cultures. Thus, while the failure to look someone in the eye while speaking is usually interpreted as an indication of deception by people in Western cultures, avoiding eye contact has a very different meaning in some other cultures. See Joanna Ruppel, The Need for a Benefit of the Doubt Standard in Credibility Evaluation of Asylum Applicants, 23 COLUM. HUM. RTS. L. REV. 1, 12-13, 13 n.44 (1992) (quoting panelist Ira J. Kurzban, Esquire, as saying the assumptions made about the relationship between eye contact and credibility can be “the product of culture and not credibility” in Annual Judicial Conferences, Second Judicial Circuit of the United States,
Once a fact finder begins to doubt the veracity of a witness, it will be exceedingly difficult for even the most compelling witness to offer testimony sufficient to sustain his/her burden under the immigration laws. We have recognized that aliens often have to flee their native land with precious little documentation or corroboration. Senathimjah,
Moreover, cross-cultural misunderstandings about the veracity of petitioners’ testimony can be exacerbated by difficulty understanding the procedure and structure of immigration proceedings. The proceedings are conducted in English, and petitioners are generally not provided with simultaneous translation. See Anker Study, supra note 3, at 505-06. In addition, the structure of the hearings is not transparent to petitioners. An empirical study of U.S. immigration court hearings and decisions found that “the simultaneously ambiguous and rigid structure of the hearing and the judges [sic] perceived need to control and limit the scope of the hearing, in many instances made it difficult for [petitioners] to communicate intelligibly the essential facts that formed the basis of their claims.” Id. at 515.
Furthermore, petitioners often fear government officials because of past persecution in their native country. Cf. Balasubramanrim v. INS,
The majority’s thoughtful rejection of the IJ’s adverse credibility determination here is yet another example of how even experienced IJs can place too much reliance on their own experiences in evaluating the testimony of petitioners from very different cultures. Although the IJ’s credibility determination here does not rest upon Dia’s demeanor, it is no less important to note that the IJ did not properly allow for differences between Dia’s circumstances and the IJ’s own in evaluating Dia’s credibility. Rather, she failed to demonstrate any awareness of the context in which Dia’s claim arose.
For example, the majority notes that the IJ rejected Dia’s testimony about giving a $150 bribe to a Guinean police officer because she believed that the amount of the bribe was too small given the level of risk the police officer allegedly undertook on Dia’s behalf. As my colleagues point out however, the amount of the bribe Dia said he gave is about a quarter of the average annual per capita income in Dia’s country. See Maj. Op. at 252-53. Accordingly, $150 was a very substantial sum indeed.
I am, of course, aware of our limited standard of review when we adjudicate appeals in immigration cases. See INS v. Elias-Zacarias,
it must be added that there were places where the IJ did go beyond the bounds of propriety to make some additional and problematic generalized assertions of her own. While as discussed below we are understandably troubled by some of those comments, in the context of the record as a whole there is insufficient evidence to conclude that the overall proceedings were biased in violation of Abdulrahman’s right to due process.
The opinion of the Immigration Judge (IJ) is laden with statements such as the following, which I find troubling in terms of their viability as credibility judgments:
(1) “The respondent testified that he was treated with herbs, by his grandmother and mother, and told the Court these are the way things are done in Sudan, people do not go to the hospital as they do here in the Western World. Again, that is not the case, all countries all [sic] have hospitals and doctors, however, he wish [sic] to provide this false information regarding the medical institution about his country, so be it.”
However, based upon available information about the Sudan, the Respondent’s contention seems reasonable. At all events, the basis for the IJ’s conclusion seems far from clear; rather, it seems quite tenuous.
Id. at 599-600.
Judge Becker also cautioned:
The Immigration Judge’s statements barely cross the line into the realm of fact finding, although Judge Shadur [author of the opinion] is correct that, in view of our extremely narrow standard of review, we are constrained to view them as so doing. While I join in Judge Shadur’s opinion, I write separately to highlight these statements and to express my extreme discomfiture with them, as they border on the cavalier. Indeed, in my view, they come extremely close to constituting reversible error.
Id. at 600. Judge Becker’s concurring opinion was joined by the entire panel.
However, even given our narrow scope of review, we still require that specific reasons be given for adverse credibility determinations so that we can review the BIA’s decision. In Balasubramanrim, where the BIA made its own credibility ruling based upon the record before the IJ, we stated: “[t]he Board should give specific reasons for its determination that a witness is not credible. We must evaluate those reasons to determine whether they are valid grounds upon which to base a finding that the applicant is not credible. The reasons must bear a legitimate nexus to the finding.”
We should require nothing less than “specific reasons” for rejecting an alien’s credibility when that assessment is based upon the alien’s demeanor while testifying. Unless we require the IJ to explain those aspects of a witness’s demeanor that undermine credibility, such as eye contact or similar factors that may be culturally determined, we simply can not afford the meaningful review the law requires.
In In re B—, 21 I & N Dec. 66,
Although, of course, we have not been able to observe this behavior by the applicant, we do not find that it necessarily indicates deception. Instead, it may indicate the applicant’s concentration on the questions being asked of him through the interpreter. We note that the applicant seems to have been listening carefully, as the transcript contains about half a dozen instances where the applicant requested clarification of a question before he answered. These requests for clarification appear to have beep conscientious attempts to provide the information sought by the questioner rather than attempts to evade answering.
Id. at 71.
Although the BIA’s concern with the IJ’s reliance on demeanor in In re B— does not implicate the cultural bias I am concerned about here, the BIA’s opinion clearly shows the danger of placing too much reliance upon one person’s interpretation of a witness’s demeanor. It also demonstrates why we must not be content with allowing credibility determinations to rest upon “demeanor” with no further explanation by the IJ.
Requiring the fact finder to specify, and thereby think about and identify, those aspects of an alien’s demeanor that are troubling will also enhance the quality of the entire process by affording IJs an opportunity to reflect upon perceptions that may simply reflect differing customs. Suggesting that adverse credibility rulings will be affirmed whenever they rest upon an alien’s demeanor, with no further explanation or elaboration, will substantially undermine the process and open the door to no small amount of mischief.
I obviously I do not intend to suggest that all claims for relief under the immigration laws are valid or that petitioners do not sometimes fabricate testimony in order to avoid removal. Similarly, I do not minimize the difficulty of distinguishing valid claims from invalid ones at times. However, those difficulties are not resolved by unjustifiable deference to an IJ’s unexplained interpretation of a witness’s demeanor. Rather, they are exacerbated. Accordingly, for all of the reasons I have noted, I take this opportunity to express my concern with the import of footnote 23 in the majority opinion even though I join that portion of my colleague’s analysis.
. See also Zilich v. Reid,
. Barapind is an unpublished opinion and is therefore of no precedential value. See 9TH Cir. R. 36-3(a). I cite it not as relevant precedent but as an example of the kind of cultural bias that may all too frequently burrow its way into the mind of even a well-intentioned and conscientious fact finder, thus undermining the fact finding process to such an extent that factual conclusions may rest upon nothing more substantial than the quicksand of cultural bias.
. See Deborah E. Anker, Determining Asylum Claims in the United States, 19 N.Y.U. Rev. of Law and Social Change 433, 451-52 (1992) [hereinafter Anker Study] (concluding, after conducting an empirical study of U.S. immigration court decisions, that "immigration judges generally evaluated asylum claims without consideration of political realities in the [petitioners’] home countries while also imposing their own cultural and political assumptions in assessing [petitioners'] credibility”); see also Walter Kaelin, Troubled Communication: Cross-Cultural Misunderstandings in the Asylum-Hearing, 20 Int’l Migration Rev 230, 234 (1986) (stating that cross-cultural miscommunication in asylum hearings occurred due to the cultural relativity of words, notions, and concepts together with the lack of consciousness of these differences in communication).
. Judge Newman noted that eye contact has played a role in evaluating “reasonable suspicion” for purposes of a Teriy stop, grounds for exercising a peremptory challenge during voir dire, reliability of criminal confessions, remorse during sentencing, and the reasonableness of a police officer's conduct for purposes of evaluating probable cause to arrest. Morales,
. I submit that this problem is not easily overcome even by skilled and knowledgeable counsel. An attorney familiar with this dynamic and his/her client’s cultural proclivity to avoid eye contact may try to correct for this cultural disconnect by advising his/her client to maintain eye contact while testifying. However, this may well only make the situation worse because the alien will attempt to answer questions in a manner that causes
. Another barrier to understanding the demeanor of petitioners who have experienced trauma is the likely repression of traumatic memories. Such repression only adds to the difficulty of answering questions. Their “detachment when recounting tragic events, sometimes perceived as an indication of fabrication, may reflect psychological mechanisms employed to cope with past traumatic experiences, rather than duplicity.” Ruppel, supra, at 20; see also Zubeda v. Ashcroft,
. Given the significance of $150 in the Guinean context, I need not mention that a search of bribery convictions in this country would no doubt disclose instances where officials in the United States had risked career and liberty for $150 or less.
. I have elaborated upon my concerns while accepting arguendo the proposition that demeanor testimony is of substantial assistance in evaluating credibility. I am willing to accept that proposition for purposes of my discussion given the long legal tradition that I have noted above. That tradition is not, however, without its skeptics. Empirical studies have lead some to conclude that ''[a]lthough highly regarded by ... judges and attorneys, the value of demeanor evidence as a means of determining testimonial reliability has yet to be demonstrated factually.” Morales v. Artuz, 281 F.3d 55, 62 n. 3 (2d Cir.2002) (discussing the debate over the validity of this evidence, and citing empirical studies that raise substantial doubt about the validity of the age old presumption about the relationship between demeanor and veracity).
The notion that special deference is owed to the determination of a trier of fact, whether judge, trial examiner, hearing officer (administrative law judge), or jury, because the trier sees the witnesses and hears them testify, while the [reviewing agency or] court look[s] only at cold records is deeply imbedded in the law. There must be thousands of appellate decisions that state and restate it in an infinite variety of ways.
I am convinced, both from experience as a trial lawyer and from experience as an appellate judge, that much that is thought and said about the trier of fact as a lie detector is myth or folklore. Every trial lawyer knows, and most trial judges will admit, that it is not unusual for an accomplished liar to fool a [fact finder] because his demeanor is so convincing.
Conversely, many trial lawyers, and some trial judges, will admit that the demeanor of a perfectly honest but unsophisticated or timid witness may be or can be made by an astute cross-examiner to be such that he will be thought by the jury or the judge to be a liar. He may be unable to face the cross-examiner, the jury, or the judge; he may slouch and squirm in the chair; he may be obviously tense and nervous; his answers to questions may be indirect, rambling, and inaudible; he may hesitate before answering; he may alternately turn pale and blush. In short, he may, to the trier of fact, be a liar, but in fact be entirely truthful. Again, however, another fact finder, seeing and hearing the same witness, may attribute his demeanor to the natural timidity of the average not very well educated and non-public sort of person when dragged to court against his will and forced to testify and face a hostile cross-examiner, and conclude that the witness is telling the truth.
Penasquitos Village, Inc. v. NLRB,