BIA Holds That Applicants Bear The Burden Of Establishing Their Own Credibility, And No Statute Or Legal Precedent Compels An Immigration Judge To Conclude That An Applicant’s Testimony Is Credible. Additionally, Rape Is Sufficiently Severe To Constitute Torture And Can Never Be A Lawful Sanction Under The Convention Against Torture (CAT).
On June 20, 2024 ,the Board of Immigration Appeals (BIA or Board) remanded a matter to a new Immigration Judge (IJ), concluding that the immigration court’s denial of Respondent’s applications for asylum, withholding, and CAT relief was in error; Respondent had appealed the IJ’s decision and DHS had filed an opposition brief but the BIA found that the IJ’s credibility determination was based on an error of law and that the IJ had made insufficient factual findings.
Respondent had claimed past persecution and a fear of future persecution by both the police and gangs in El Salvador, alleging he had been detained and falsely accused of a crime by police. Because he “stood up to a corrupt police officer,” he was jailed, beaten and sent to a prison for gang members, where he was subsequently beaten and raped. After being released, he was detained twice by police and again beaten and sexually assaulted.
The IJ found parts of Respondent’s testimony speculative and vague and, even, “not plausible” but concluded that “in light of precedent,” the court was “compelled to conclude [Respondent] was a credible witness.” Yet, the IJ also questioned whether Respondent had been sexually assaulted by the police and stated that he had not established CAT eligibility because the likelihood of future persecution was “speculative.” Further, when discussing whether Respondent had suffered past torture, the IJ said that rape “may not be pleasant, but it’s not torture,” and went on to note that rape by gang members was “not torture, because [Respondent was] in prison for hav[ing] commit[ed] a crime. It’s [a] lawful sanction.”
On appeal, Respondent contended that having found him credible, the IJ committed error by “failing to meaningfully credit his evidence.” Specifically, he argued that after finding him credible, the IJ had to accept as true all facts to which he testified. He also claimed a due process violation when the IJ advanced the hearing date without giving him sufficient time to prepare his case. Further, Respondent asked that the case be assigned to a new IJ on remand.
Initially, in parsing the issue of credibility, the Board set forth the fundamental rules that an asylum applicant or one requesting withholding bears the burden of establishing eligibility for relief or protection from removal and that one’s testimony alone may be sufficient to satisfy this burden, but only if the testimony is credible, persuasive, and “refers to specific facts sufficient to demonstrate that the applicant is a refugee.”
The decision then noted that, in immigration court, there is no presumption of credibility; applicants bear the burden of establishing their own credibility, just as they bear the burden of proof on the other elements needed to prove eligibility. The lack of an explicit adverse credibility finding affords a respondent a “rebuttable presumption of credibility on appeals to the Board,” but no such presumption applies before the IJ.
Further, stated the BIA, the absence of an adverse credibility finding does not require that a respondent’s testimony be accepted as objectively true so, even if the Board or IJ treat a respondent’s evidence as credible, the BIA “need not find the evidence persuasive or sufficient to meet the requisite burden of proof.” As a practical matter, the Board reviews factual findings for clear error and relies on IJs to make findings of fact, including “explicit findings as to the credibility of witnesses, rather than just those findings pertinent to [the] one issue” the IJ may have used to decide the matter. That was not done here, concluded the opinion; the IJ erroneously found that legal precedent compelled him to find Respondent had testified credibly. Yet, no statute or legal precedent mandates that an IJ find a respondent’s testimony credible.
As to Respondent’s many arguments on appeal challenging the IJ’s decision, the decision found that the IJ had not made comprehensive findings of fact, so it could not make “dispositive determinations” as to these contentions. For instance, Respondent disputed the IJ’s holding the he had been convicted of a serious, nonpolitical crime but the opinion noted that some evidence of record concluded that Respondent was a gang member and had been convicted in El Salvador of a drug-related offense. Therefore, further fact-finding was necessary on this issue, “particularly considering that the [IJ]’s credibility finding was premised on an error of law.”
In regards to CAT relief, the BIA explained that Respondent had also argued that the IJ erred by finding that he did not suffer past torture and by denying his CAT claim; the IJ had also uttered comments “that could be read to suggest that rape in prison by inmates cannot constitute torture as a matter of law because it is a common occurrence during incarceration.” In response, the decision found that rape “clearly rises to the level of torture” as it is an extreme form of cruel and inhuman treatment that causes severe pain or suffering and is therefore “mistreatment sufficiently severe” to qualify for CAT protection if all necessary elements are established. As a result, held the Board, rape is sufficiently severe to constitute torture and can never be a lawful sanction under the CAT.
Yet, cautioned the BIA, the severity of past harm is not the only consideration in such cases. An applicant must additionally prove the intent of the persecutor(s), whether such suffering would be imposed for one of the purposes specified under CAT, and whether it would likely be inflicted with the knowledge or acquiescence of a public official with custody or control over the victim.
Lastly, Respondent had requested that, based on the appearance of bias, the case be remanded to a new IJ; as statements by the court could reasonably be read as establishing bias against Respondent’s request for CAT relief and the BIA has the authority to reassign a matter “based on the appearance of bias, in order for ensure fairness and impartiality,” the opinion directed that the remanded proceedings be transferred to a new IJ. This avoids the appearance of unfairness and, while atypical and disfavored, remand to a different IJ is only ordered here “in an abundance of caution under the facts and circumstances in this case.”
The appeal was sustained, the IJ’s decision vacated, and the case remanded for issuance of a new decision addressing the “deficiencies” discussed in the decision. The new IJ is to make factual findings regarding credibility without according Respondent a presumption of credibility or suggesting that finding him credible is compelled by law. The IJ must also address whether Respondent committed a serious nonpolitical crime and whether he established eligibility for CAT relief. Supplementary briefing, with additional evidence and arguments, including those related to intervening case law, is allowed. Matter of H-C-R-C-, 28 I&N Dec. 809 (BIA 2024).
