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Dan Kowalski reports for LexisNexis Immigration Community:
Rare CA5 Credibility Victory: Ndudzi v. Garland
https://www.ca5.uscourts.gov/opinions/pub/20/20-60782.0.pdf
“Mariana Ndudzi, a native and citizen of Angola, petitions for review of a Board of Immigration Appeals (BIA) decision denying her appeal of an immigration judge’s (IJ) denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). She argues that the Agency erred in finding her not credible and failed to review her corroborating evidence. We vacate and remand. … The main issue in this appeal is whether the BIA erred in upholding the IJ’s adverse credibility finding. That decision is largely based on perceived contradictions between Ndudzi’s alleged statements in her CFI and her sworn testimony in her removal hearing. Ndudzi makes two arguments against the adverse credibility finding. … [N]one of the inconsistencies the Agency relied on are in fact inconsistent. … In sum, the BIA and IJ’s adverse credibility determination rests largely on “inconsistencies” in the record that are not actually inconsistent. … In summary, the BIA and IJ relied heavily on an unsupported conclusion that Ndudzi is not a credible witness. At the same time, there appears to be little dispute that, if Ndudzi’s claims are true, she would be entitled to asylum under 8 U.S.C. § 1158(b)(1)(A). Because the adverse credibility finding is not supported by specific and cogent reasons derived from the record, we GRANT the petition for review, VACATE the decisions of the BIA and IJ denying Ndudzi’s application for asylum and CAT relief, and REMAND for further proceedings consistent with this opinion.”
[Hats off to Brian Casey, Lisa Koop and Chuck Roth!]
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“Because the adverse credibility finding is not supported by specific and cogent reasons derived from the record:” The 5th Circuit states the correct standard for adverse credibility findings, derived from BIA precedents! But, neither the IJ nor the BIA applied it! How is this professionally acceptable “judging” from supposed (but not really) “experts? Why is it tolerated at Garland’s DOJ?
Folks, stripped of the legal niceties, the most conservative Article III court in America just spent 16 pages analyzing and finding that the IJ and the BIA invented bogus “inconsistencies” to deny an otherwise clearly “grantable” asylum application from a woman who fled Angola.
Why is this type of unprofessional judicial performance, at both the trial and appellate levels of EOIR, acceptable in “life or death” cases? Why is it “OK” to submit asylum seekers to a “crap shoot” for their lives rather than giving them fair hearings before expert judges committed to great scholarship, careful analysis, and, most important, “getting it right the first time around?” Both the IJ and the BIA actually “went to some lengths” to invent reasons to disbelieve credible testimony. Isn’t unwillingness to fairly and routinely grant asylum to qualified applicants a major contributing factor in EOIR’s uncontrolled backlog? Wouldn’t getting it right at the “first level” promote efficiency and reduce the need for appellate litigation?
Also worthy of note: The 5th Circuit’s “footnote 2” punches huge holes in the myth of demeanor as an indicator of credibility:
Such deference is perhaps unfounded, however, given the wealth of contemporary psychological research suggesting that subjective perception of a witness’ demeanor is an unreliable indicator of the witness’ veracity. E.g., Mark W. Bennett, Unspringing the Witness Memory and Demeanor Trap: What Every Judge and Juror Needs to Know about Cognitive Psychology and Witness Credibility, 64 AM. U. L. REV. 1331, 1332 (2015) (“[C]ognitive psychological studies have consistently established that the typical cultural cues jurors rely on, including averting eye contact, a furrowed brow, a trembling hand, and stammering speech, for example, have little or nothing to do with a witness’s truthfulness.”); Liz Bradley & Hillary Farber, Virtually Incredible: Rethinking Deference to Demeanor When Assessing Credibility in Asylum Cases Conducted by Video Teleconference, 36 GEO. IMMIGR. L.J. 515, 535 (2022) (“Decades of research by social scientists have shown that the nonverbal ‘cues’ commonly associated with deception are based on false assumptions,” and cultural differences between an asylee and an IJ can “lead to cross- cultural misunderstandings of nonverbal cues,” especially when testimony is mediated through an interpreter).
Conscientious judges and advocates take note! In plain terms, “demeanor” is a largely bogus device used by bad judges to deny potentially valid claims. Obviously, in a “deny and deport oriented culture” like today’s EOIR (the very antithesis of the generous approach the Supremes in Cardoza and an earlier BIA in Mogharrabi said should apply to asylum adjudication), “bogus demeanor findings” become just another “device to deny protection.”
🇺🇸Due Process Forever!
PWS
07-23-22
Revised on 07-23-22 to reflect the panel’s revised opinion.