As discussed in last week’s post, in 2002, the standard under which the BIA reviews credibility determination was changed as part of the reforms instituted by then Attorney General John Ashcroft. Furthermore, in 2005, Congress enacted the REAL ID Act, which provided immigration judges with broader grounds for determining credibility. These two factors combine to make it more difficult for the Board to reverse an immigration judge’s adverse credibility finding than it was prior to these changes. The following are some thoughts on strategy when appealing credibility findings to the Board.
1. Don’t offer alternative interpretations of the record.
You cannot successfully challenge an adverse credibility finding by offering an alternative way of viewing the record. If the IJ’s interpretation is deemed reasonable, the BIA cannot reverse on the grounds that it would have weighed the documents, interpreted the facts, or resolved the ambiguities differently. Or as the Supreme Court has held, “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985).
2. Does the record support the IJ’s finding?
On occasion, the discrepancy cited by the IJ is not found in the transcript. IJs hear so many cases; some hearings are spread over months or years due to continuances; witnesses or their interpreters do not always speak clearly; documents are sometimes clumsily translated. For all of these reasons, it is possible that the IJ didn’t quite hear or remember what was said with complete accuracy, or might have misconstrued what a supporting document purports to be or says. It is worth reviewing the record carefully.
3. Does the REAL ID Act standard apply?
The REAL ID Act applies to applications filed on or after May 11, 2005. With the passage of time, fewer and fewer cases will involve applications filed prior to the effective date. However, there are still some cases which have been administratively closed, reopened, or remanded which involve applications not subject to the REAL ID Act standard. In those rare instances, look to whether the IJ relied on factors that would not support an adverse credibility finding under the pre-REAL ID standard. For example, did the IJ rely on non-material discrepancies to support the credibility finding? If so, argue that under the proper, pre-REAL ID Act standard, the discrepancies cited must go to the heart of the matter in order to properly support an adverse credibility finding.
4. Did the IJ’s decision contain an explicit credibility finding?
Under the REAL ID Act, “if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.” See INA section 208(b)(1)(B)(iii) (governing asylum applications); INA section 240(c)(4)(C) (governing all other applications for relief). Therefore, review the decision carefully to determine if an explicit credibility finding was made. In some decisions, the immigration judge will find parts of the testimony “problematic,” or question its plausibility, without actually reaching a conclusion that the testimony lacked credibility. In such cases, argue on appeal that the statutory presumption of credibility should apply.
5. Did the credibility finding cover all or only part of the testimony?
As an IJ, I commonly stated in my opinions that credibility findings are not an all or nothing proposition. A respondent may be credible as to parts of his or her claim, but incredible as to other aspects. There are instances in which a single falsehood might discredit the entirety of the testimony under the doctrine of falsus in uno, falsus in omnibus. However, there are variations in the application of the doctrine among the circuits, and there are exceptions. For example, the Second Circuit in Siewe v. Gonzales, 480 F.3d 160 (2d Cir. 2007) recognized the doctrine, but laid out five specific exceptions under which a false statement will not undermine the overall credibility. However, the Seventh Circuit, in Kadia v. Gonzales, 501 F.3d 817 (7th Cir, 2007) rejected falsus in uno,referring to it as a “discredited doctrine.” The Ninth Circuit, in Shouchen Yang v. Lynch, 815 F.3d 1173 (9th Cir. 2016), acknowledged that an IJ may apply the doctrine, but that the Board itself could not (for example, to deny a motion to reopen based on a prior adverse credibility finding). Therefore, determine whether under the applicable circuit case law the falsehood cited by the IJ was sufficient to undermine all of the testimony. If not, determine whether the remainder of the testimony is sufficient to meet the burden of proof.
6. Did the IJ rely on a permissible inference, or impermissible speculation?
In Siewe v. Gonzales, supra, the Second Circuit discussed the difference between a permissible inference and impermissible “bald” speculation. The court cited earlier case law stating that “an inference is not a suspicion or a guess.” Rather, an inference must be “tethered to the evidentiary record:” meaning it should be supported “by record facts, or even a single fact, viewed in the light of common sense and ordinary experience.” Generally, findings such as “no real Christian wouldn’t know that prayer” or “the police would never leave a copy of the arrest warrant” would constitute bald speculation unless there was expert testimony or reliable documentation in the record to lend support to such conclusion.
7. Did the IJ permissibly rely on an omission under applicable circuit law?
There is a body of circuit court case law treating omissions differently than discrepancies. For example, several circuits have held that as there is no requirement to list every incident in the I-589, the absence of certain events from the written application that were later included in the respondent’s testimony did not undermine credibility. Look to whether the omission involved an event that wasn’t highly significant to the claim. Also look for other factors that might explain the omission, i.e. a female respondent’s non disclosure of a rape to a male airport inspector; a respondent’s fear of disclosing his sexual orientation to a government official upon arrival in light of past experiences in his/her country. Regarding omissions in airport statements, please refer to my prior post concerning the questionable reliability of such statements in light of a detailed USCIRF report. See also, e.g., Moab v. Gonzales, 500 F.3d 656 (7th Cir. 2007); Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir. 2004), addressing factors to consider in determining the reliability of airport statements.
8. Was the respondent provided the opportunity to explain the discrepancies?
At least in the Second and Ninth Circuits, case law requires the IJ to provide the respondent with the opportunity to respond to discrepancies. The Second Circuit limits this right to situations in which the inconsistency is not “dramatic,” and the need to clarify might therefore not be obvious to the respondent. See Pang v. USCIS, 448 F.3d 102 (2d Cir. 2006).
9. Did the “totality of the circumstances” support the credibility finding?
Even under the REAL ID Act standards, the IJ must consider the flaws in the testimony under “the totality of the circumstances, and all relevant factors.” INA sections 208(b)(1)(B)(ii), 240(c)(4)(C). The circuit courts have held that the standard does not allow IJs to “cherry pick” minor inconsistencies to reach an adverse credibility finding. For a recent example, note the Third Circuit’s determination in Alimbaev v. Att’y Gen. of U.S. (discussed in last week’s post) finding two inconsistencies relied on by the BIA as being “so insignificant...that they would probably not, standing alone, justify an IJ making an adverse credibility finding…”
Copyright 2017 Jeffrey S. Chase. All rights reserved.