Ilunga v. Holder (Lawyers Weekly No. 001-025-15, 28 pp.) (Gregory, J.) No. 13-2064, Jan. 27, 2015; On Petition for Review; 4th Cir.
Holding: In assessing a Congolese citizen’s application for asylum under the Convention Against Torture, an immigration judge erred in finding his account of torture less than credible, based on alleged inconsistencies between petitioner and his former cellmate; the inconsistencies were more likely attributable to difficulties with the French translation, and the 4th Circuit grants the petition for review and vacates the BIA order.
The REAL ID Act of 2005, 8 U.S.C. § 1158(b)(1)(B)(iii), requires that credibility determinations be based on the totality of the circumstances. As this court has held, omissions, inconsistent statements, contradictory evidence and inherently improbable testimony are appropriate bases for making an adverse credibility determination.
The totality of the circumstances standard thus provides an immigration judge with ample discretion in assessing credibility. The IJ must consider the petitioner’s explanation for any inconsistency to verify that an inconstancy actually exists, and then evaluate whether the discrepancy renders the entire testimony incredible in light of the whole record.
Here, the IJ based her credibility determination on four grounds: testimony about the location of Ilunga’s torture in prison; testimony about the prayer practices of Ilunga and his cellmate who testified on his behalf; the dates on his membership card with the Movement for the Liberation of the Congo (MLC) and Ilunga’s letter accusing the president of assassinating his father; and Ilunga’s demeanor during testimony.
Here, it is impossible to say that Ilunga’s testimony was inconsistent with that of his cellmate regarding the location of torture because we do not know precisely what the men testified to. The transcript reveals the cellmates were consistently and genuinely confused about the questions regarding location. For example, the first translator used a French word that connotes “jailhouse” instead of “room” when describing the cell in question, causing confusion in his testimony. Neither the IJ nor the Board of Immigration Appeals resolved which word was used. The IJ’s reliance on the alleged testimonial inconsistency was unfounded.
The transcript reveals no substantive inconsistency between the testimony of Ilunga and his cellmate. Both testified they prayed together, they knelt to pray and they prayed for their release from jail. Any hesitancy and vagueness cited by the IJ is consistent with the repeated disconnect between questions and answers throughout the proceeding – strong indirect evidence of interpretation problems. It was an abuse of discretion to use the prayer testimony to find Ilunga incredible.
Any ambiguity that may exist about the MLC membership card and Ilunga’s letter is insufficient to sustain an adverse credibility determination given Ilunga’s plausible explanation, the agency’s conclusory treatment of it, the absence of any contrary evidence and the extensive record corroborating Ilunga’s claim. The agency’s reliance on the MLC documentation to support an adverse credibility determination also was unfounded.
In affirming the IJ, the BIA summarily disagreed with Ilunga’s argument that it was normal for a torture victim to appear “uncomfortable” given his experiences. The BIA’s disagreement manifests a basic misunderstanding of the human condition. The record suggests Ilunga was subject to a pattern of vicious abuse; he was diagnosed as suffering from moderate post-traumatic stress syndrome. For the BIA to dismiss the potential impact of such torture on Ilunga’s testimonial disposition is unsettling.
Even if his testimony was incredible, we also find the IJ failed to sufficiently consider whether Ilunga presented adequate independent documentary evidence to establish asylum credibility.
We grant Ilunga’s petition for review, vacate and remand to the BIA for further proceedings, and recommend assignment to a different IJ for any further remand.
