On December 12, 2019, the Board of Immigration Appeals (BIA or Board) denied the Respondent’s request for oral argument and dismissed his appeal of an order by the Immigration Judge (IJ) denying his applications for political asylum and withholding of removal. Respondent had entered the U.S. under the Visa Waiver Program and applied for asylum within a year of arrival. Placed into asylum-only proceedings before the IJ, Respondent testified about his refusal to enter the Ukrainian military due to his Russian Orthodox Christian religious beliefs and his fears of persecution on account of religion and for being perceived as a military deserter; he claimed he was inducted and allowed to engage in alternative military service, not required to undergo weapons training, and discharged after 1 year. He further testified he was recalled 6 years later, requested alternative service again, but called a deserter and beaten twice, which left him with post-contusion pneumonia, bruises and internal bleeding for which he received medical treatment. A day after starting treatment, Respondent stated he traveled to Hungary and obtained a fraudulent passport and returned to Ukraine the next day to continue his medical care. One month later, he filed a complaint against the officers who beat him but was attacked and beaten on his way home.
The IJ denied Respondent’s claim, finding him not credible primarily because of inconsistencies in the record. His appeal challenged the adverse credibility finding, arguing that the IJ erred by not personally identifying the inconsistencies and giving him a chance to respond. He also contended that DHS’s questioning about the inconsistencies on cross-examination was insufficient to correct that error.
The BIA began its analysis by framing the issue at hand as “whether, if inconsistencies in the record are obvious or have previously been identified by the applicant or the DHS, an Immigration Judge is personally required to specify the discrepancies and solicit an explanation from the applicant prior to relying on them to make an adverse credibility finding”; a footnote explained that findings of fact, including credibility determinations, are reviewed under a “clearly erroneous” standard. The Board stated that the consideration of inconsistencies by the IJ, whether they are found in testimony or between testimony and other evidence is a fundamental component of an adverse credibility determination; they need not go to the heart of the claim and an IJ can rely on any inconsistency or omission in making an adverse credibility determination as long as the totality of the circumstances establishes that the applicant is not credible.
Further, noted the opinion, the U.S. Court of Appeals for the Second Circuit, in whose jurisdiction this case arose, has explained that an asylum applicant should have a meaningful opportunity to respond to an inconsistency that is not apparent before it may be considered as part of an adverse credibility finding. Additionally, the IJ is not required to adopt an applicant’s explanation for an inconsistency if there are other permissible views based on the record. In this context, the BIA concluded, because an applicant carries the burden of proof for asylum relief, “it is incumbent upon him to directly raise and clarify information that is obviously inconsistent.” An “obvious inconsistency,” explained the Board, is one that is sufficiently conspicuous as to be self-evident. Thus, the decision disagreed with Respondent’s contention that an IJ must personally identify inconsistencies and give the applicant a specific opportunity to explain them, finding that where an inconsistency is not obvious, the “key consideration” is whether it is reasonable to assume the applicant was aware of it and had the opportunity to explain it before the IJ relied on it.
The BIA also noted that Respondent’s appeal relied on Second Circuit caselaw referencing an IJ bringing a perceived discrepancy to a respondent’s attention, but stated that that decision held that the adverse credibility finding was inadequate because the IJ or DHS should have brought the discrepancy to the applicant’s attention to ensure that he had an opportunity to explain. Therefore, under the Board’s conception, if the IJ “identifies problems” with an applicant’s testimony, the court should, before rendering a decision, ask about the perceived inconsistency if the DHS does not bring it to Respondent’s attention on cross-examination. Citing to Second Circuit law, the opinion found it important that an IJ’s responsibility to identify, in advance of judgment, perceived inconsistencies “is not tantamount to a duty to assist the counseled asylum applicant in putting forward an affirmative asylum claim in the first place.” The BIA thus held that when inconsistencies in the record are obvious or have previously been identified by the applicant or DHS, the IJ is not personally required to specify the discrepancies and solicit an explanation prior to relying on them in making an adverse credibility finding.
The Board also found no clear error in the IJ’s adverse credibility finding as he had given “specific and cogent reasons” for his conclusion, including “examples of significant internal inconsistencies in the applicant’s testimony, inconsistencies and omissions between his testimony and the documentary evidence he submitted, and the implausibility of his testimony.” Collaterally, the BIA concluded that the IJ properly relied on the implausible aspects of Respondent’s claim as support for the adverse credibility finding. The decision similarly disagreed with the applicant’s contention that any inconsistencies in the record were minor and irrelevant to his claim of persecution. The IJ noted that Respondent could not explain: his prior military history; his trip to Hungary; or, his medical claims, all which were central to his allegation of past harm. As Respondent did not establish eligibility for asylum relief in terms of proving past persecution and a fear of future harm, he had not “otherwise met his burden to prove eligibility for asylum or withholding of removal.” The Board also held the IJ properly concluded that Respondent’s incredible testimony was insufficient to establish CAT eligibility. The appeal was therefore dismissed. Matter of Y-I-M-, 27 I&N Dec. 724 (BIA 2019).
