Metropolitan News-Enterprise


Tuesday, March 12, 2024


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Ninth Circuit:

Immigration Board Erred in Shunning Deportee’s Evidence

Board Discounted the Evidentiary Value of Documents Supporting Claims of Past Persecution


By Kimber Cooley, Staff Writer


The Ninth U.S. Circuit Court of Appeal yesterday granted a petitioner’s request for review of an immigration board decision dismissing her appeal of a deportation order, remanding with instructions for the agency to reconsider whether documents introduced by the petitioner supported her claims of past persecution in her native country on account of her homosexuality, despite upholding the agency’s finding of adverse credibility.

Circuit Judge Lawrence VanDyke authored the majority opinion and District Court Judge Stephen M. Murphy III of the Eastern District of Michigan, sitting by designation, joined in the opinion. Circuit Judge Gabriel P. Sanchez wrote a separate opinion, concurring in part and dissenting in part with VanDyke’s opinion.

Milly Kalulu petitioned the appellate court for review of a Board of Immigration Appeals (“BIA”) decision. Kalulu, a native of Zambia, is a lesbian and claims that she might be killed upon her return to Zambia based on her sexual orientation. Homosexual activity is illegal in that country.

Kalulu entered the United States on a tourist visa to attend a world scouting jamboree in West Virginia with her Zambian girl scout troop. She was permitted to remain for up to six months under her visa, and she stayed with her naturalized aunt for approximately five months after the jamboree.

She took a trip to Mexico so that, upon reentry into the U.S., she could restart the six month clock on her stay. When she attempted to reenter at the border, she was placed in removal proceedings.

Removal Proceedings

Kalulu applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) based on alleged past incidents of persecution, and fear of future persecution, because of her sexual orientation.

She offered various documents prior to her hearing to support her claims of past persecution, including declarations from purported eyewitnesses to three alleged attacks in Zambia motivated by her sexual orientation as well as what was represented to be a medical record. She testified in support of her application.

The immigration judge (“IJ”) found some of her testimony evasive and contradictory, rendering her testimony not credible. The judge entered relief, finding that none of the supporting documents rehabilitated her credibility, independently established her claims of persecution, or demonstrated that she was more likely than not to be tortured if she returned to her home country.

The BIA found no clear error in the judge’s adverse credibility determination and explained:

“The affidavits from the respondent’s cousin, neighbor, and friend are not signed or sworn …, which undermines their evidentiary value. The respondent’s cousin’s letter does not mention any reason for the June 2019 attack on the respondent. The neighbor’s statement also does not mention any underlying reason for the attack. The friend’s statement indicates that the respondent would be in danger if she returned to Zambia but does not mention whether she was aware of the respondent’s sexuality.”

The agency also found no clear error in the immigration judge’s determination that Kalulu’s medical record failed to rehabilitate her testimony or provide independent evidence for one of the attacks. The BIA concluded she could not meet her burden for any of the relief she sought.

VanDyke’s Opinion

VanDyke noted that the BIA’s factual findings are reviewed under the substantial evidence standard, which he wrote is an “extremely deferential standard of review” wherein “we must accept agency factual findings” unless any reasonable judge would be compelled to conclude to the contrary.

The jurist explained:

“The agency may deny asylum, withholding of removal, and CAT relief because it deems an applicant’s testimony, under the totality of the circumstances, not to be credible, and the lack of credible testimony renders the applicant unable to meet her burden….Such an adverse credibility determination may be based on inconsistencies in an applicant’s testimony even if no uncovered inconsistency goes to the heart of the applicant’s claim….It also may be based on a finding that a petitioner’s demeanor undermined her credibility.”

Adverse Credibility

VanDyke found that the BIA’s determination of adverse credibility in Kalulu’s case was supported by substantial evidence, saying:

“The agency based its adverse credibility determination on (1) twelve inconsistency and implausibility findings and (2) Kalulu’s demeanor during her hearing.”

Although he noted that substantial evidence did not support all 12 of the findings, he wrote:

“The adverse credibility determination is supported by substantial evidence because at least four of those inconsistencies, as well as the [immigration judge’s] demeanor finding, are supported by the record.”

He found that the record supported that Kalulu made inconsistent statements at various points in her testimony and had inconsistencies between her testimony and prior statements to border agents on issues ranging from whether or not she intended to attend college in California, to knowledge of her health status relating to her HIV diagnosis in 2020.

VanDyke also found that the record supported the agency’s finding that her demeanor during her removal hearing undermined the credibility of her testimony due to evasiveness and non-responsiveness.

Kalulu argued that even if the agency was correct about the inconsistencies and her demeanor, those facts did not justify an adverse credibility determination because they are counterbalanced by other consistencies in her testimony.

VanDyke rejected the counterbalancing approach and said:

 “[T]his court repeatedly has emphasized that an adverse credibility determination is not a balancing exercise. A petitioner might (at least appear to) be consistent in much of her testimony, including all aspects of that testimony that go to the heart of her claim. But if the record demonstrates that some of her testimony is inconsistent, even if that testimony is peripheral to the heart of her claim, an IJ is permitted to make an adverse credibility determination.”

VanDyke noted that Sanchez, in her dissent, seems to rely on a similar counterbalancing argument, writing that the dissenting opinion “advocates for remand because it repeats many of the same errors made by the Petitioner and rejected…by this court.”

He declared:

“Once the agency has properly concluded that the petitioner lied about some things, the fact that corroborating evidence indicates that she may not have lied about everything does not somehow repair her credibility.”

Supporting Documents

VanDyke next considered whether the supporting documents introduced by Kalulu independently proved her claim of past persecution. He said:

“If a petitioner who has been found noncredible provides independent evidence to support her claims, the agency must evaluate whether that evidence independently proves her claims. Here, Kalulu offered such documentary evidence in the form of purported eyewitness declarations to three attacks on her in Zambia and a purported medical record detailing injuries of the second attack. Because the agency discounted the documents’ evidentiary value based on a clear misreading of them, this case is remanded with instructions for the agency to reconsider whether, when properly read, they independently prove Kalulu’s past persecution claim.”

As to the first document introduced by Kalulu, this document, VanDyke wrote:

“The IJ misread the declaration to expressly state that all these events occurred on the same night, which would be inconsistent with Kalulu’s testimony that weeks passed between the first attack and when she disclosed her sexual orientation to her cousin. But the declaration does not in fact state any timeline, neither its syntax nor grammar implies one, and common sense might even suggest that Kalulu’s cousin would not ask her ‘why she doesn’t even want to go out anymore’ right after Kalulu allegedly arrived at her house bloodied and beaten in the middle of the night.”

The second declaration, from a cousin’s neighbor who witnessed another attack, contained a stamp from a Zambian commissioner for oaths certifying it as a true copy of the original document. VanDyke questioned the description of it as “unsworn” by the BIA.

A third declaration was offered by Kalulu from a friend who witnessed a third attack at a restaurant in Zambia contained a handwritten signature, but was noted by the BIA as “not signed or sworn.”

The final documentary evidence was a medical record mentioning a deep cut on Kalulu’s chest, which the immigration judge observed was consistent with her claim that she was stabbed in the chest during the second attack, but the BIA found—without explanation—that it did not fully agree with her testimony about being stabbed in the chest.

He concluded that “the BIA made clear factual errors when it reviewed those documents” and “the agency must reexamine the three declarations and medical document…to consider whether they, when properly read alongside other nontestimonial evidence in the record, independently prove Kalulu’s claims for asylum or withholding of removal.”

Sanchez’s Dissent

Sanchez agreed that the agency failed to consider whether the supporting evidence independently proved her claims for asylum, withholding of removal and relief under the CAT. However, he wrote:

“The main area of disagreement between the majority and dissenting opinions is not whether most of the agency’s adverse credibility factors are supported by substantial evidence in the record. It is clear they are not. But the majority concludes that if even only four or five of the twelve adverse findings are supported by the record, we must affirm that agency’s adverse credibility determination. This conclusion ignores binding circuit precedent and basic principles of administrative law.”

He continued:

“Accordingly, I would remand not only for the agency to consider whether Kalulu’s supporting documentary evidence independently establishes her claims of past persecution, but also to determine in the first instance whether the remaining factors on their own support an adverse credibility determination.”

The case is Kalulu v. Garland, 21-895.


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