NIJC - 2nd Cir. says adverse credibility finding can be based on ancillary inconsistencies and omissions

2nd Cir. says adverse credibility finding can be based on ancillary inconsistencies and omissions

Tuesday, 22 July 2008

Xiu Xia Lin v. Mukasey (2nd Cir. 07/21/08):

Winter, Miner, Cabranes

The 2nd Circuit found that the REAL ID Act of 2005 abrogated its 2003 holding in Secaida-Rosales v. INS, 331 F.3d 297 (2nd Cir. 2003), in which the court decided that adverse credibility determinations in asylum cases could not be based on inconsistencies and omissions that were ancillary or collateral to the applicant's claims of persecution. Rather, the court held that an IJ may now rely on omissions and inconsistencies so long as the totality of the circumstances establish that the applicant is not credible.

(Read more below)

Read opinion here.

Lin EWI'd and was shortly afterwards placed in proceedings. She filed an application for asylum/WH/CAT based on her persecution as a member of the Falun Gong. At Lin's merits hearings, the IJ found her lacking in credibility and denied her application. Lin appealed to the BIA, which dismissed her appeal. Lin argued in her PFR that the discrepancies and omissions relied upon by the IJ were minimal, that the IJ improperly relied on omissions in her documentary submissions as compared to her testimony, and that the IJ relied upon his own speculation that it was implausible that Lin was able to obtain a copy of her birth certificate while she claimed gvt officials were looking for her.

The court noted that, prior to the REAL ID Act, the IJ was required to (1) demonstrate a nexus b/t inconsistencies in an asylum applicant's testimony and the applicant's claims; and (2) establish that the inconsistencies were material to the applicant's claims for asylum. See Secaida-Rosales, 331 F.3d at 308-08. HOWEVER, the REAL ID Act freed an IJ from these requirements:

"The REAL ID Act freed an IJ from the nexus and materiality requirements by explicitly stating that an IJ may base an adverse credibility determination on any inconsistencies, “inaccuracies or falsehoods . . without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s
claim, or any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added). Under the standard established by the REAL ID Act, an IJ is required to evaluate inconsistencies in light of the “totality of the circumstances.” Id.

The court concluded:

"Now squarely presented with the question, we conclude that our previous holding that an IJ may not base an adverse credibility determination on inconsistencies and omissions that are “collateral or ancillary” to an applicant’s claims, see, e.g., Secaida-Rosales, 331 F.3d at 308, has been abrogated by the
amendments to the statutory standard imposed by the REAL ID Act. For cases filed after May 11, 2005, the effective date of the Act, an IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as the “totality of the circumstances” establishes that an asylum applicant is not credible. 8 U.S.C. § 1158(b)(1)(B)(iii).

Evaluating the case at hand, the court concluded that the cumulative effect of Lin's inconsistencies reasonably could have affected the IJ's evaluation of Lin's credibiltiy. The court therefore affirmed the IJ's adverse credibility finding.

Moreover, the court found that, although Lin's challenge to the IJ's speculation regarding the plausibility of her ability to obtain her birth certificate might have survived prior to the REAL ID Act, under the Act an IJ may evaluate an applicant's credibility in light of the "inherent plausibility of the applicant's ... account" of persecution. 8 USC 1158(b)(1)(B)(iii); cf. Ying Li v. BCIS, 529 F.3d 79, 82 (2nd Cir. 2008).

Petition for review denied.

Atty: Sheema Chaudhry, Law Offices of Michael Brown, New York, NY.

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