Zimmer's Books

by William K. Zimmer, in Immigration Matters

 

The procedural history, facts of record, holding and rationale in Mariana Ndudzi v. Garland (5^th Cir. July 22, 2022) No. 20-60782 are as follows:

 

Case History

Upon arriving in the United States, the Petitioner applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) under sections 208, 241(b)(3)(A) of the Act and 8 C.F.R. § 1208.16(c).

 

The Immigration Judge denied all of the Petitioner’s applications.

 

The Petitioner appealed the denial of her applications to the Board of Immigration Appeals (“BIA”).

 

The BIA denied the Petitioner’s appeal.

 

The Petitioner filed a petition for review of the denial of her relief applications.

 

 

Facts

Country Background

• The Petitioner is a native and citizen of Angola where she had lived in Cabinda which is geographically separate from Angola and distinct in terms of dialect and culture.
• Cabinda is home to a separatist movement that evolved into the Front for the Liberation of the Enclave of Cabinda (“FLEC”) in the 1970s, when Angola gained independence from Portugal.
• In past decades, the FLEC engaged in a violent insurgency against Angola.
• The Angolan government maintains an extensive military presence in Cabinda which remains impoverished and subject to regular human rights violations at the hands of Angolan government affiliates.
• Outside of the FLEC, a substantial part of the Cabindan population engages in peaceful demonstrations against Angolan rule.
• Consequently, many Cabindans have been subjected to arbitrary human rights violations, such as disappearances, torture, and intimidation in Angola’s attempts to subdue the province.

 

Petitioner’s Claim

According to the Petitioner:

• The Angolan government identified her as a supporter of the independence movement after she attended a church-organized, pro-independence rally in 2016.
• Soon thereafter, three armed men in government uniforms broke into her home and, in front of her children, beat and raped her, leading to a three-day hospital stay.
• According to her asylum application and sworn testimony, the Petitioner was never formally a member of the FLEC, but rather has only supported independence through peaceful protest and organizing.

 

Administrative Decision

• The Immigration Judge interpreted unsworn, nonverbatim statements from the Petitioner’s credible fear interview (“CFI”) as indicating that the Petitioner was a member of the FLEC.
• This perceived inconsistency, along with varying statements by the Petitioner about her preferred language, style and color of uniforms worn by her attackers, circumstances surrounding the Petitioner’s entry and her demeanor as a witness led the Immigration Judge to conclude that the Petitioner is not credible, which formed the primary basis for denial of her relief applications.
• The BIA found the Immigration Judge’s adverse credibility finding reasonable, and affirmed.

 

Held

Petition for Review GRANTED

Decisions of the BIA and Immigration Judge denying the Petitioner’s application for asylum and CAT relief VACATED

REMANDED for further proceedings consistent with the opinion of the court

 

Rationale

The Petitioner made two assertions in her petition for review:

1. The BIA and the Immigration Judge improperly relied on the CFI notes, which consisted of nonverbatim translations of her responses to questions, and to which the Petitioner did not contemporaneously swear or attest (although she did attest to a summary of the interview); and
2. substantial evidence does not support the decisions based on adverse credibility.

The Fifth Circuit Court of Appeal declined to address admissibility of the CFI notes because, even if CFI notes were properly admitted, they do not support the conclusions that the Immigration Judge and the BIA drew from them.

The Fifth Circuit Court of Appeal then reasoned as follows:

• A trier of fact may base a credibility finding upon “[c]onsidering the totality of the circumstances, and all relevant factors . . .”  See section 208(b)(1)(B)(iii) of the Immigration and Nationality Act, as amended (“the Act”).
• An adverse credibility finding must be based in “specific and cogent reasons derived from the record.” Singh v. Sessions, 880 F.3d 220, at 225 (5th Cir. 2018).
• Deference will be given to “an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.”  Singh, 880 F.3d at 225.

CFI Notes

• The conclusion of the Immigration Judge and the BIA that the Petitioner expressly claimed FLEC membership is rooted in the following (non-verbatim) summary in the CFI notes:

[Q] Why do you think the men came to your home in 2017 to harm you?

[A] Because I was also part of the group that fights for the independence of my province.

[Q] How did they know you were part of the group?

[A] How do you not know? Everyone is aware of who is part of this group.

[Q] How does everyone know?

[A] The government, compared to those people, is not the same power.

[Q] I’m not sure I understand. You said everyone is aware of who is part of the group. How does everyone know that?

[A] Because the government is aware of the people that belong to flec [sic], it’s like generations of families and even [when] they die, they pass it along. The government knows who belongs to this group.

[Q] What does [FLEC] stand for?

[A] It’s the rebel group that fights for the independence of Cabinda.

[Q] Did you ever use violence as part of your activities in the group?

[A] No.

• The CFI notes also state that the Petitioner feared an attack if she returned to Angola “Because I know that my husband is on the list for this group and I belong to the group and I’m his family.  I know they would come after me too and I don’t want to die and leave my kids behind.”
• When asked directly about it, under oath in a transcribed hearing, the Petitioner repeatedly denied ever having been a FLEC member or having said she was a member.
• Nevertheless, the Immigration Judge and the BIA concluded that the Petitioner was lying, inferring that she’d learned from counsel that FLEC membership could hinder her asylum application.
• The purported “inconsistencies” between the CFI notes and the Petitioner’s sworn testimony are in fact largely consistent.  In particular, CFI notes don’t include any direct statement by the Petitioner that she “belongs” to the FLEC, and the CFI officer never directly asked the Petitioner whether she is a member of the FLEC.  In other words, the Petitioner never claimed FLEC membership in the CFI notes. 
• Thus, there is no express inconsistency in the Petitioner’s statements regarding the FLEC.

 

Circumstances of Entry to the United States

• The BIA determined that the Petitioner made an inconsistent statement about whether she entered the United States alone or with two of her children.
• Before the merits hearing, the Petitioner claimed that she entered the United States with two children, while her partner separately entered with their third child; and that they did not all enter together because she and two of her children were kidnapped in Mexico for ransom, and were released only when her kidnappers decided that no one would pay for her release.
• At her merits hearing, when asked if she entered the United States “with all those family members,” she responded:

 

When we arrived in Mexico, we wanted to continue traveling and crossing together. But due to the fact that I was kidnapped in Mexico, I wasn’t able to go with the rest of my family.  So the people who kidnapped me thought I was from Central America.  But when I told them I’m from Africa, they did not harm me. When I arrive[d] at the border with Immigration, they told me that my . . . partner had already crossed.

 

• While the BIA interpreted this answer as stating that the Petitioner had entered the United States “alone,” she never actually said that.  She only said that her family did not all enter together.

 

 

Statements About Best Language

 

• The Immigration Judge and the BIA relied on the Petitioner’s inconsistent statements about what language she speaks best.
• During her CFI interview, the Petitioner said that she prefers Portuguese, but she told the Immigration Judge at her merits hearing that she prefers French.
• The government’s Portuguese interpreter, however, who spoke European Portuguese had difficulty understanding the Petitioner’s African dialect.  Therefore, the Petitioner’s desire to forego Portuguese in favor of French at her merits hearing is understandable.

 

Uniforms of The Attackers

• The Immigration Judge and the BIA noted inconsistencies in the Petitioner’s descriptions of uniforms her attackers wore.
• In her asylum affidavit, the Petitioner states that her attackers wore “Angolan black police uniforms.”   At her merits hearing, the Petitioner testified that her attackers wore “military uniform[s].”
• Although trivial or unimportant details may support an adverse credibility decision, (See Avelar-Oliva v. Barr, 954 F.3d 757, at 768 (5th Cir. 2020)), there are two corroborating statements; one from the Petitioner’s partner and one from the child advocate working with the Petitioner’s child who witnessed the rape; that corroborate the Petitioner’s assertion that she was raped by three men representing the Angolan government to intimidate her from continuing to demonstrate for Cabindan independence. 
• Nothing in the record indicates Angolan “military uniforms” are not black or are different from “police uniforms.”   

 

Failure to Consider Corroborating Evidence

• The Immigration Judge and the BIA declined to credit the Petitioner’s sworn testimony and accepted as true the unsworn, non-verbatim statements in the CFI notes, while ignoring evidence to the contrary.  
• In particular, the Petitioner submitted declarations from her partner; two experts on Angola and Cabinda; a child support advocate discussing the Petitioner’s children’s diagnoses of post-traumatic stress disorder from witnessing the Petitioner’s rape; and corroborating country condition information. Neither the Immigration Judge nor the BIA’s opinion cited any of this corroborative evidence, and instead rested their decisions on the description of the Petitioner’s statements in the CFI notes.

 

Demeanor

• The Immigration Judge noted that the Petitioner’s demeanor was “agitated,” including when asked about “being separated from her children” for over a year, and interpreted it as evidence she was not credible.
• The Fifth Circuit Court of Appeal has never held that demeanor alone supports an adverse credibility finding where the Agency failed to consider an asylee’s corroborating evidence. See In re A-S-, 21 I. & N. Dec. 1106, at 1112 (BIA 1998) (suggesting that it may be inappropriate to base an adverse credibility finding solely on “halting and hesitating testimony” if that testimony is detailed and consistent); In Re B-, 21 I. & N. Dec. 66, at 70 (BIA 1995) (reversing denial of asylum that was based solely on demeanor).

 

 

Commentary

The Fifth Circuit Court of Appeal reviews adverse credibility findings using the “substantial evidence” standard.  Under the substantial evidence standard, an appellate court will uphold an adverse credibility finding “unless it is clear[] from the totality of the circumstances” that a “reasonable adjudicator would be compelled to conclude to the contrary.” See section 242(b)(4)(B) of the Act; Morales v. Sessions, 860 F.3d 812, at 817 (5th Cir. 2017).  Obviously, this is a heavy burden which seemingly must be carried up-hill from the perspective of any Petitioner.
 

Credible Fear Interviews

CFIs of potential asylum applicants, most of whom are not represented by an attorney, can be treacherous.  I have never met an immigration attorney who felt comfortable about a client talking to the government without legal representation.  Nevertheless, an immigration attorney cannot do anything about a client's CFI that has occurred before the attorney is retained. 

An alien may consult with any person prior to a CFI.  In addition, any person with whom the alien consults may be present at the interview and, in the discretion of the asylum officer who conducts the interview, may present a statement at the end of the interview.  However, governing regulations make no provision for active participation of a legal representative in the interview itself.  See 8 C.F.R. § 208.30(d)(4).

It seems that one obvious lesson immigration practitioners should learn from Mariana Ndudzi v. Garland (5th Cir. July 22, 2022) No. 20-60782 is to try to ensure their clients’ asylum applications and testimony are materially consistent with CFI transcripts, and be prepared to support any minor discrepancies with objective evidence and cogent explanations.  Of course, it is imperative that all supporting evidence and explanations be captured in the record of proceedings.

The conditions in which a CFI takes place and the manner in which it is conducted can be challenged, but don’t wait to challenge it in a petition for review.  Clearly, the integrity of a CFI that adversely affects a client’s applications for relief should be challenged before the Immigration Judge and the BIA and made part of the record of proceedings.

 

Adverse Consequences

Another observation that comes to mind is that, although the Immigration Judge and the BIA can rely on section 208(b)(1)(B)(ii) and (iii) of the Act to discard all of an asylum seeker’s testimony based on any “inconsistency” or “inaccuracy,” all is not lost if trustworthy evidence other than the asylum seeker's testimony can be substituted.

According to the Fifth Circuit Court of Appeal, an adverse credibility finding operates as a blanket rejection of every piece of testimony the applicant had offered and, therefore, precludes an asylum applicant from establishing a subjective fear of persecution as described in C.F.R. § 1208.13(b)(2)(i).  See Cabrera v. Sessions, 890 F.3d 153, at 159–60 (5th Cir. 2018); Jeevithan Arulnanthy v. Garland (5^th Cir. November 8, 2021) No. 19-60760.

 

Boundaries

Enhanced clarity about the extremities of deference outlined in Mariana Ndudzi v. Garland (5^th Cir. July 22, 2022) No. 20-60782 provides a measure of security distilled from knowledge about how to formulate a reasonable legal position relating to adverse credibility findings.

The Fifth Circuit Court of Appeal has rejected the argument that credibility can never be challenged by reference to a CFI worksheet.  See Singh v. Sessions, 880 F.3d 220, at 226 (5th Cir. 2018) (relying on inconsistencies between the petitioner’s CFI and his hearing testimony to uphold an adverse credibility determination).

Nevertheless, the Fifth Circuit Court of Appeal clearly declared in Mariana Ndudzi v. Garland that a decision maker must consider all of the relevant evidence and allow for explanations before determining that an asylum applicant is not credible.

Moreover, the Fifth Circuit Court of Appeal noted for the first time that it has never held that demeanor alone supports an adverse credibility finding in the absence of corroborating evidence.   Ndudzi v. Garland at 11-12. 

In fact, the Fifth Circuit Court of Appeal seems to have signaled a reluctance to rely on demeanor to justify an adverse credibility determination by including the following note in its decision:

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).

Mariana Ndudzi v. Garland at 11, n2.

Although there might not be an immediate cure for the disappointment of being informed by an Immigration Judge of perceived inconsistencies, practitioners should, ON THE RECORD, request specific identification of all the perceived inconsistencies, including documents referenced by the Immigration Judge; and, move for adjournment if a reasoned response can be prepared.

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