Blanket Rejection of All Testimony
The procedural history, facts of record, holding and rationale in Inthujan Thanigasalam v. Garland (March 31, 2022) No. 20-60677 are as follows:
Case History
The Petitioner filed a petition for review of an order by the Board of Immigration Appeals (“BIA”) dismissing his appeal of the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).
Facts
The Petitioner did not contest the Immigration Judge’s adverse credibility finding.
Nevertheless, the Petitioner asserted that his objective proof of his Tamil ethnicity and the Sri Lankan government’s pattern or practice of persecuting young Tamils was sufficient to establish eligibility for asylum based on 8 C.F.R. § 208.13(b)(2)(iii) which provides that inclusion in a group subject to a pattern or practice of persecution excuses an asylum applicant from providing evidence that there is a reasonable possibility the asylum applicant would be singled out individually for persecution.
(For asylum applications brought before the Immigration Judge in removal proceedings, the correct citation of the regulation should be 8 C.F.R. § 1208.13(b)(2)(iii).)
Held
Petition for Review DENIED
Rationale
The Fifth Circuit Court of Appeal reasoned that:
- Where there is no finding of past persecution triggering a presumption of a well-founded fear of future persecution, the applicant “must prove his subjective fear to win his asylum claim.” Arulnanthy v. Garland, 17 F.4th 586, at 596 (5th Cir. 2021).
- Since “an adverse credibility finding operates as a blanket rejection of every piece of testimony the applicant has offered,” an applicant subject to such a finding “cannot possibly establish a subjective fear of persecution.” Arulnanthy v. Garland, supra.
- Objective proof of the Petitioner’s Tamil ethnicity and the Sri Lankan government’s pattern or practice of persecuting young Tamils was sufficient to trigger 8 C.F.R. § 208.13(b)(2)(iii).
- Under 8 C.F.R. § 208.13(b)(2)(iii), an asylum applicant alleging a well-founded fear of future persecution need not provide evidence that he would be “singled out individually for persecution,” as long as he establishes: (A) “that there is a pattern or practice in his or her country of nationality . . . of persecution of a group of persons similarly situated to [him] on account of race, religion, nationality, membership in a particular social group, or political opinion,” and (B) “his or her own inclusion in, and identification with, such group of persons such that his or her fear of persecution upon return is reasonable.”
- However, an asylum applicant’s satisfaction of the requirements set forth in 8 C.F.R. § 208.13(b)(2)(iii) establishes only the objective reasonableness of his alleged fear of future persecution. See Zhao v. Gonzales, 404 F.3d 295, at 307 (5th Cir. 2005).
- Consequently, the Petitioner “simply cannot establish that he subjectively fears future persecution,” Arulnanthy, 17 F.4th at 597. Thus, the BIA correctly concluded that the adverse credibility finding foreclosed his asylum application.
Commentary
In the approximately 17 years I served as an Immigration Judge, I cannot recall any asylum case that turned on the question of subjective fear of persecution. Based on my experience, the most common challenge for asylum applicants was to establish an objective fear of persecution.
An applicant can establish a well-founded fear of persecution by showing that a reasonable person would fear future persecution upon return to his or her native country or last country of habitual residence. Matter of Mogharrabi, 19 I&N Dec. 439, at 445 (BIA 1987). Specifically, the asylum applicant must prove that there is a “reasonable possibility” of suffering persecution if he or she were to return to his or her native country or last country of habitual residence. See 8 C.F.R. § 1208.13(b)(2)(i)(B).
In other words, if a reasonable person in similar circumstances would fear persecution upon return, the standard of proof is satisfied, even where the likelihood of persecution is significantly less than clearly probable. Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).
A reasonable fear of persecution is not only a subjective fear. In addition, an applicant must establish that:
1) the applicant possesses a belief or characteristic connected to one of the 5 statutory grounds in the definition of refugee;
2) the applicant has been targeted for punishment or harm based on that belief or characteristic or falls within a group subjected to a pattern or practice of punishment or harm based on that belief or characteristic;
3) the persecutor is aware or could become aware that the applicant possesses that belief or characteristic or is a member of a group defined by that belief or characteristic;
4) the persecutor has the capability to punish or harm the applicant;
5) the persecutor has the inclination to punish or harm the applicant; and
6) internal relocation to avoid the risk of persecution is not reasonable.
See Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), as modified by Matter of Mogharrabi, supra.; See 8 C.F.R. § 1208.13(b)(2).
In my opinion, these six factors necessary to establish the objective component of a well-founded fear of persecution in Matter of Mogharrabi and Matter of Acosta are still good law.
It appears that, according to the Fifth Circuit Court of Appeal, circumstantial proof of a subjective fear of persecution, which is necessary to prove in addition to an objective fear of persecution, cannot be established without credible testimony.
Litigators should be aware, however, that the approach enunciated in Arulnanthy v. Garland, described as “blanket rejection of every piece of testimony” based on an adverse credibility finding, is not absolute, and might not apply in every case.
In particular, the Fifth Circuit Court of Appeal allowed for flexibility conditioned on articulated circumscription by the Immigration Judge and BIA. Jeevithan Arulnanthy v. Garland, at 14 (November 8, 2021) No. 19-60760 (“[A]n adverse credibility determination is a rejection of every part of an applicant’s testimony unless the IJ or BIA say otherwise.”). [emphasis added]
Evaluation of the performance of witnesses is not dissimilar to evaluation of communications arising from interactions that all of us have with our fellow humans in everyday life. Not every inaccuracy or communication of misinformation is a lie. A mistake does not involve intent to deceive or mislead. A witness might be unreliable about details or omit significant events due to post traumatic stress, or might simply be anxious or nervous while being questioned in a witness chair in a public court room, or have a poor memory or disorganized thought process.
For example, I recall a Haitian asylum applicant who had credibly articulated fear of persecution by violent factions that had overthrown the popular president of Haiti, Jean-Bertrand Aristide, in a September 30, 1991 coup. This applicant established with credible objective evidence and testimony that he was a loyal supporter of Aristide, but became confused about the date of the coup during direct and cross examination. It became clear that the applicant was not a credible witness with regard to dates, but he did not lack character for truthfulness.
In a case like this, I think that it would be fundamentally unfair to apply a blanket rejection of all of the asylum applicant’s testimony based on inconsistent testimony about the date of a coup arising from confusion, bad memory, or anxiety that negatively impacted performance on the witness stand, in the absence of intent to deceive or mislead.
If an Immigration Judge makes an adverse credibility finding based on inconsistencies in the factual record it is important to attempt to persuade the Immigration Judge to limit the adverse credibility finding. It might even be necessary to provide explanatory evidence of anticipated or manifested limitations of an asylum applicant that might affect or might have affected performance as a witness. Just be careful not to entirely undermine the credibility of the witness’ testimony.
It seems that fundamental fairness, at least when a factual inconsistency that could not reasonably be anticipated arises in the course of a hearing, should require an Immigration Judge to grant an adjournment to allow for an explanation of such factual inconsistency if requested and probative evidence is available.
In a published decision involving an adverse credibility finding involving inter-proceeding similarities, the BIA required an Immigration Judge to (1) give the applicant "meaningful notice of the [significant] similarities between the documents or other evidence under consideration," (2) give the applicant "a reasonable opportunity to explain the similarities," and (3) "consider the totality of the circumstances in making a credibility determination." See Matter of R-K-K-, 26 I&N Dec. 658, at 661-62 (BIA 2015).
Moreover, the Fifth Circuit Court of Appeal endorsed the approach articulated in Matter of R-K-K-, stating that "[if] the IJ's credibility finding turned on nothing more than 'eerie similarities' from nameless prior cases, Singh's due process claim might have purchase under Matter of R-K-K-." Daljinder Singh v. Garland, at 5 (December 17, 2021 No. 19-60937.
Scheduling a practice session for giving testimony in a mock hearing setting might be helpful preparation for an asylum applicant’s day in immigration court.