GAO-2D CIR 16-2262_16-2493_opn
Hong Fei Gao v. Sessions, 2d Cir., May 25, 2018, published
PANEL: WINTER and CHIN, Circuit Judges, and KORMAN, Judge.*
Edward R. Korman, of the United States District Court for the Eastern District of New York, sitting by designation.
OPINION BY: JUDGE CHIN
SUMMARY OF HOLDING (From Decision):
These petitions for review heard in tandem challenge two decisions of the Board of Immigration Appeals (the ʺBIAʺ), affirming decisions by two Immigration Judges (ʺIJsʺ), denying asylum, withholding of removal, and protection under the Convention Against Torture (ʺCATʺ) to two petitioners seeking relief from religious persecution in China on adverse credibility grounds. During removal proceedings, petitioners testified regarding the medical attention they received for injuries they sustained from police beatings. The IJs and the BIA relied substantially on the omission of that information from petitionersʹ initial applications and supporting documents to determine that petitioners lacked credibility.
On appeal, petitioners principally challenge the agencyʹs adverse credibility determinations. In light of the totality of the circumstances and in the context of the record as a whole, in each case we conclude that the IJ and BIA erred in substantially relying on certain omissions in the record. Accordingly, we grant the petitions, vacate the decisions of the BIA, and remand the cases to the BIA for further proceedings consistent with this opinion.
KEY QUOTE:
For cases filed after May 11, 2005, the effective date of the REAL ID Act, Pub L. No. 109‐13, 119 Stat. 231 (2005), ʺan IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as theʹtotality of the circumstancesʹ establishes that an asylum applicant is not credible,ʺ Xiu Xia Lin, 534 F.3d at 167 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). The agency may base a credibility finding on an asylum applicantʹs ʺdemeanor, candor, or responsivenessʺ; the ʺinherent plausibilityʺ of his account; the consistency among his written statements, oral statements, and other record evidence; and ʺany inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicantʹs claim, or any other relevant factor.ʺ 8 U.S.C. § 1158(b)(1)(B)(iii). Even where the agency ʺrelies on discrepancies or lacunae that, if taken separately, concern matters collateral or ancillary to the claim, the cumulative effect may nevertheless be deemed consequential.ʺ Xiu Xia Lin, 534 F.3d at 167 (quoting Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006)). To resolve the instant appeals, we first clarify the following principles that govern credibility determinations based on omissions following the REAL ID Act.
First, although the REAL ID Act authorizes an IJ to rely on ʺanyinconsistency or omission in making an adverse credibility determination,ʺ even one ʺcollateral or ancillaryʺ to an applicantʹs claims, id. at 167, the Act does not give an IJ free rein. The REAL ID Act does not erase our obligation to assess whether the agency has provided ʺspecific, cogent reasons for the adverse credibility finding and whether those reasons bear a legitimate nexus to the finding.ʺ Id. at 166 (quoting Zhou Yun Zhang, 386 F.3d at 74); accord Shrestha v. Holder, 590 F.3d 1034, 1042 (9th Cir. 2010) (ʺThe REAL ID Act did not strip us of our ability to rely on the institutional tools that we have developed, such as the requirement that an agency provide specific and cogent reasons supporting an adverse credibility determination, to aid our review.ʺ). Thus, although IJs may rely on non‐material omissions and inconsistencies, not all omissions and inconsistencies will deserve the same weight. A trivial inconsistency or omission that has no tendency to suggest a petitioner fabricated his or her claim will not support an adverse credibility determination. See Latifi v. Gonzales, 430 F.3d 103, 105 (2d Cir. 2005) (per curiam) (remanding where we found ʺany potential discrepancies that might exist to be far from ʹsignificant and numerous,ʹ but rather insignificant and trivialʺ); accord Shrestha, 590 F.3d at 1044 (noting thatʺtrivial inconsistencies that under the total circumstances have no bearing on a petitionerʹs veracity should not form the basis of an adverse credibility determinationʺ); Kadia v. Gonzales, 501 F.3d 817, 821 (7th Cir. 2007) (faulting IJ forʺfail[ing] to distinguish between material lies, on the one hand, and innocent mistakes, trivial inconsistencies, and harmless exaggerations, on the other handʺ).3
Second, although ʺ[a] lacuna in an applicantʹs testimony or omission in a document submitted to corroborate the applicantʹs testimony . . . can serve as a proper basis for an adverse credibility determination,ʺ Xiu Xia Lin, 534 F.3d at 166 n.3, we also recognize that ʺasylum applicants are not required to list every incident of persecution on their I–589 statement,ʺ Lianping Li v. Lynch, 839 F.3d 144, 150 (2d Cir. 2016) (per curiam) (quoting Pavlova, 441 F.3d at 90); see also Secaida‐Rosales v. INS, 331 F.3d 297, 308 (2d Cir. 2003) (noting that an applicantʹsʺfailure to list in his or her initial application facts that emerge later in testimony will not automatically provide a sufficient basis for an adverse credibility findingʺ), superseded by statute on other grounds as recognized in Xiu Xia Lin, 534 F.3d at 167; accord Pop v. INS, 270 F.3d 527, 531‐32 (7th Cir. 2001) (ʺWe hesitate to find that one seeking asylum must state in his or her application every incident of persecution lest the applicant have his or her credibility questioned if the incident is later elicited in direct testimony.ʺ); Abulashvili v. Attorney Gen. of U.S., 663 F.3d 197, 206 (3d Cir. 2011). Because of this tension, although we have noted in dictum that an inconsistency and an omission are ʺfunctionally equivalentʺ for adverse credibility purposes, Xiu Xia Lin, 534 F.3d at 166 n.3, in generalʺomissions are less probative of credibility than inconsistencies created by direct contradictions in evidence and testimony,ʺ Lai v. Holder, 773 F.3d 966, 971 (9th Cir. 2014). Cf. Lianping Li, 839 F.3d at 150 (upholding adverse credibility determination where petitionerʹs ʺasylum application did not simply omit incidents of persecution. . . . [but rather] described the same incidents of persecution differentlyʺ).
An example of a trivial inconsistency that is entitled to little if any weight is the difference between Gaoʹs hearing testimony that he was interrogated by the police ʺfour timesʺ and his application statement that he was interrogated ʺseveral times.ʺ The BIA correctly held that this ʺdiscrepancyʺ did not support an adverse credibility determination. Likewise, the difference between September 1, 2010 and September 4, 2010 as the date when Shao contacted his cousin is a trivial discrepancy.
Although the federal evidentiary rules do not apply in immigration proceedings, Aslam v. Mukasey, 537 F.3d 110, 114 (2d Cir. 2008) (per curiam), it is nonetheless instructive to analogize the use of omissions in adverse credibility determinations to the use of a witnessʹs prior silence for impeachment. In the latter context, we have indicated that ʺ[w]here the belatedly recollected facts merely augment that which was originally described, the prior silence is often simply too ambiguous to have any probative force, and accordingly is not sufficiently inconsistent to be admitted for purposes of impeachment.ʺ United States v. Leonardi, 623 F.2d 746, 756 (2d Cir. 1980) (citation omitted). In addition, the probative value of a witnessʹs prior silence on particular facts depends on whether those facts are ones the witness would reasonably have been expected to disclose. See Jenkins v. Anderson, 447 U.S. 231, 239 (1980) (ʺCommon law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted.ʺ(emphasis added)). In the immigration context, in assessing the probative value of the omission of certain facts, an IJ should consider whether those facts are ones that a credible petitioner would reasonably have been expected to disclose under the relevant circumstances.
Finally, the REAL ID Act requires IJs to evaluate each inconsistency or omission in light of the ʺtotality of the circumstances, and all relevant factors,ʺ8 U.S.C. § 1158(b)(1)(B)(iii). That requirement is consistent with our well‐established rule that review of an agencyʹs adverse credibility determination ʺis conducted on the record as a whole.ʺ Tu Lin, 446 F.3d at 402; see also Xiu Xia Lin, 534 F.3d at 167 (an applicantʹs testimony must be considered ʺin light of . . . the manner in which it hangs together with other evidenceʺ (citation omitted)); accord Shrestha, 590 F.3d at 1040 (ʺ[T]he totality of the circumstances approach also imposes the requirement that an IJ not cherry pick solely facts favoring an adverse credibility determination while ignoring facts that undermine that result.ʺ). Thus, ʺan applicantʹs testimonial discrepancies ‐‐ and, at times, even outright lies ‐‐ must be weighed in light of their significance to the total context of his or her claim of persecution.ʺ Zhong v. U.S. Depʹt of Justice, 480 F.3d 104, 127 (2d Cir. 2007). An IJ must also ʺʹengage or evaluateʹ an asylum applicantʹs explanations for apparent inconsistencies in the record.ʺ Diallo v. Gonzales, 445 F.3d 624, 629 (2d Cir. 2006) (quoting Latifi, 430 F.3d at 105); see also Cao He Lin v. U.S. Depʹt of Justice, 428 F.3d 391, 403 (2d Cir. 2005) (ʺAbsent a reasoned evaluation of [petitionerʹs] explanations, the IJʹs conclusion that his story is implausible was based on flawed reasoning and, therefore, cannot constitute substantial evidence supporting her conclusion.ʺ).
II. Application
In light of the foregoing principles, we conclude that in both cases, the IJs and the BIA erred by substantially relying on certain inconsistencies and omissions that had no tendency to show that petitioners fabricated their claims when considered in light of the totality of the circumstances and in the context of the record as a whole. Because we cannot confidently predict that the IJs would have adhered to their adverse credibility determinations absent these erroneous bases, we remand for further evaluation.
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So, while Jeff Sessions is busy with a “nuclear attack” on asylum law and Constitutional Due Process, some U.S. Immigration Judges and BIA Appellate Immigration Judges are equally busy just mis-applying well-established legal standards to screw asylum seekers.
Rather than looking at the record as a whole, as required by law, and giving asylum seekers the “benefit of the doubt,” too many Immigration Judges and BIA Judges are playing “gotcha” with the law — using minor or irrelevant variances in testimony or minor gaps in proof to justify bogus adverse credibility findings and asylum denials. Obviously, as backlogs stretch out, the problems inherent in “fly-specking” an applicant’s testimony about events many years in the past increases. That’s one of the reasons why Sessions’s insane bid to shove more properly administratively closed removal cases back onto “active dockets,” and to discourage the further removal of “low priority” cases from active dockets, is totally and intentionally destructive to an already failing court system.
The REAL ID ACT was effective in 2005, well over a decade ago. So, its proper application is not “rocket science.” It’s “Immigration Judging 101.”
Yet unfair applications of the law to wrongfully discredit and deny asylum seekers persists in the Immigration Courts and seems to breeze through at least some BIA “Panels” without critical review or analysis. I put “Panels” in quotes because all too often these days the appellate review is conducted by a “Panel of One” judge.
And since the BIA Appellate Immigration Judges now come almost exclusively from Government backgrounds, they are very likely to share some of the same “blind spots” as to the reality of presenting an affirmative asylum application in Immigration Court. If any of them have done it (and most haven’t), it was decades ago when conditions and the law were very different. They all too often draw inferences and reach conclusions that any competent immigration practitioner would know are way out of line with reality.
How are these endemic problems affecting fairness and Constitutional Due Process in the Immigration Courts, and potentially destroying and endangering lives of asylum applicants, solved by cranking up judicial productivity, trying to reverse long-standing precedents that aid asylum seekers pursuing legal protections, and making biased public anti-asylum statements? How is justice and Due Process served by gratuitously attacking immigration lawyers and disingenuously seeking to eliminate laws that provide the already meager and inadequate protections that asylum seekers now have? Yet this is precisely what Sessions’s program is!
The Immigration Court system needs reform to guarantee unbiased, high quality, fair treatment of asylum seekers and other individuals fighting for their very lives. Jeff Sessions is dedicated to the eradication of Due Process and turning the Immigration Courts into a “Death Railroad” for asylum seekers and other migrants. He must be stopped before he destroys our entire U.S. justice system — apparently his ultimate aim.
Join the New Due Process Army and stand up to Jeff Sessions and the other bullying, scofflaw, White Nationalists in the Trump Regime.
PWS
06-01-18