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Dan Kowalski reports for LexisNexis Immigration Community:
CA11 on Credibility, Substantial Evidence, Cuba: Serra v. Atty. Gen.
“For decades, the authoritarian regime in Cuba has utilized its police force to intimidate and physically assault political dissidents and peaceful demonstrators throughout the island. Ignacio Balaez Serra, a Cuban immigrant seeking asylum in the United States, maintains he experienced this abuse first-hand after multiple arrests, imprisonments, and beatings by the Cuban police. Serra seeks review of the Board of Immigration Appeals’ (“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of Serra’s application for asylum, withholding of removal under the Immigration and Nationality Act (“INA”), and relief under the United Nations Convention Against Torture and Other Cruel Inhumane or Degrading Treatment or Punishment (“CAT”) (together, “Application”). The IJ denied Serra’s Application, finding Serra’s testimony “not credible.” In reaching this adverse credibility determination, the IJ cited two inconsistencies between Serra’s hearing testimony and Application. The first purported inconsistency dealt with the timing of Serra’s passage of a kidney stone; specifically, whether he passed it on the day he was beaten by Cuban police or several days thereafter. The second pertained to the number of countries Serra passed through en route to the United States; he listed ten countries in his written Application but later testified that he traveled through “about 11 or 12.” The IJ also reached his adverse credibility determination based on Serra’s perceived non-responsiveness to certain questions. On appeal, the BIA rejected the IJ’s finding that Serra was non-responsive but affirmed the IJ’s adverse credibility determination based on the two inconsistencies alone. After careful review and with the benefit of oral argument, we conclude the record lacks substantial evidence that would allow us to affirm the adverse credibility determination. We therefore reverse and remand. … [T]he IJ perceived two instances of non-responsiveness and two discrepancies in the record, resulting in an adverse credibility determination. The BIA rejected the IJ’s findings of non-responsiveness. Thus, the IJ’s adverse credibility determination hinged only on two purported inconsistencies in the record. But upon consideration of the totality of the circumstances, it is clear these inconsistences are unsupported by reasonable, substantial, and probative evidence—and thus cannot form the basis for an adverse credibility determination. Therefore, we grant Serra’s petition. We further vacate the BIA’s decision and the IJ’s opinion and remand this case to the IJ to rule on Serra’s applications for asylum, withholding of removal, and relief under CAT in accordance with this opinion. In doing so, the IJ must ensure that all relevant factors are considered—and the totality of the circumstances ascertained—before reaching a conclusion as to credibility. PETITION GRANTED, VACATED and REMANDED.”
[Hats off to Marty High and Joshua Carpenter and Jonathan Morton for amici American Immigration Council and Immigration Justice Campaign!]
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Super congrats to NDPA superstar litigators Marty High, Joshua Carpenter, and Jonathan Morton.
This respondent was a unrepresented before the IJ. Thus, we see another example of how EOIR routinely mistreats pro se litigants and why counsel is a due process necessity even in a very straightforward asylum case like this. Obviously, here, the IJ played the role of “co-counsel” to the ICE Assistant Chief Counsel. Yet, AG Garland has intentionally established “dedicated dockets” and bogus “adjudication timelines” that have been shown to reduce opportunities for representation and diminish the chances of success for asylum seekers.
To borrow a memorable phrase used by my late BIA colleague Appellate Judge Fred W. Vacca, “this pathetic attempt at an adjudication” by EOIR was actually defended before the Circuit by the DOJ’s OIL. The glaring problems with immigration and asylum adjudication at DOJ begin at EOIR, but by no means end there.
This case isn’t “rocket science,” nor is it legally or factually complicated. It’s a very straightforward asylum grant to somebody persecuted by Cuba, where, in the words of the 11th Circuit, “[f]or decades, the authoritarian regime . . . has utilized its police force to intimidate and physically assault political dissidents and peaceful demonstrators throughout the island!”
I also note the statutory provision on credibility that the IJ completely bolluxed here and the “any reason to deny” BIA then “rubber stamped” (in part, even while noting that some of the IJ’s analysis was wrong) was part of the REAL ID Act, passed in 2005. That’s 15 years before the the IJ hearing in this case! Heck, I used to give training classes for incoming EOIR JLCs where decisions very much like this IJ’s were used as “teaching examples” of how NOT TO APPLY Real ID! EOIR not only isn’t making “progress,” it’s actually stuck in reverse!
Having spent eight years as an Appellate Judge at the BIA and having reviewed thousands of records, I know that when an IJ goofs up one part of the analysis it’s often indicative of an overall careless, flawed analysis that should be viewed with considerable skepticism. Yet, here the IJ’s “clear error,” acknowledged by the BIA, in basically inventing “unresponsiveness” doesn’t appear to have inspired the BIA to critically examine the rest of the adverse credibility ruling below. On the contrary, it appears to have spurred the BIA to find “any other reason to deny” despite the indication that this was an inaccurate and unreliable analysis by an IJ having a bad day.
It also appears from the Circuit’s decision that there might have been interpretation issues before both the IJ and the Asylum Office. That makes the IJ’s “cherry picking” and “excessive focus on insignificant testimonial inconsistencies” particularly egregious.
The 11th Circuit decision here was written by U.S. District Judge Rodolfo A. Ruiz II, SD FL, sitting by designation. Judge Ruiz is a Trump appointee. He was joined on the panel by Judge Jill Pryor (Obama) and Judge Charles R. Wilson (Clinton) of the 11th Circuit. Thus, apparently the abysmal performance of EOIR is one of the few things capable of uniting and creating “bipartisan agreement among Article III Judges!”
Perhaps Senator Gillibrand is right, and she will be able to obtain sufficient bipartisan support for her Article I Immigration Court bill, which would remove this system from the DOJ’s chronic mismanagement. See https://immigrationcourtside.com/2023/02/17/⚖️🗽-teas-coffee- Because the current situation at EOIR, the continuing indifference to injustice, and its damage to human lives and the law is totally unacceptable!
Also, what about the legal and judicial resources consumed on this and similar cases? Wouldn’t it be great if both the USG and the private sector could “redeploy” them to making the immigration justice system work, rather than correcting sophomoric, yet life threatening, errors? (Admittedly, describing the errors made by DOJ attorneys at all three levels here as “sophomoric” could be viewed as a slight to sophomores everywhere.)
Not only is EOIR’s “any reason to deny” system patently unjust, it’s a colossal waste of public resources! “Bureaucracy 101” — “Get it right at the initial level of the system.”
Of course the battle here hasn’t concluded. The remand gives EOIR yet another opportunity to screw up. Given EOIR’s current indifference to quality and fairness, I wouldn’t count on them to “get it right this time around” — even with Judge Ruiz basically providing them with the correct answer!
🇺🇸 Due Process Forever!
PWS
02-20-23
