December 3, 2021 - This Week at the Ninth

This Week at the Ninth: Credibility Determinations

This week, the Ninth Circuit applied its “totality of circumstances” test for credibility determinations in immigration proceedings.

KUMAR v. GARLAND

The Court applied its recent en banc decision in Alam v. Garland, 11 F.4th 1133 (9th Cir. 2021) to hold that because the bulk of the Immigration Judge’s credibility determinations were infirm, the case should be remanded for the Board of Immigration Appeals (BIA) to consider whether the remaining factors sufficed to support an adverse credibility determination.

The panel: Judges McKeown, Nguyen, and Vitaliano (E.D.N.Y.), with Judge McKeown writing the opinion.

Key highlight: “We acknowledge that in some circumstances, our ‘totality of circumstances’ review of the BIA’s determination permits us to uphold an adverse credibility finding, even where we conclude that some of the grounds are not supported by substantial evidence. However, the several rejected findings here all but gut the BIA’s adverse credibility determination.”

Background: Petitioner Kumar was born in Punjab, India and joined the Bahujan Samaj Party (BSP) there because of BSP’s opposition to the country’s caste system. Kumar alleged that, as a result of his work for BSP, he was beaten by the police and members of opposing political parties. After arriving in the United States, Kumar sought asylum, withholding of removal, and protection under the Convention Against Torture. Following a hearing at which Kumar testified, the IJ found him not credible and denied all of his claims. Kumar appealed to the BIA, which dismissed his appeals, identifying four factors that supported the IJ’s adverse credibility finding. Kumar then petitioned the Ninth Circuit for review.

Result: The Ninth Circuit granted the petition and remanded. The Court concluded that most of the factors relied on by the IJ, and identified as significant by the BIA, in making the adverse credibility determination were not supported by the record as several of the alleged inconsistencies were not inconsistent at all and the implausibility finding was wholly unsupported. For example, Kumar’s statement that he had been beaten on his arms and legs was not inconsistent with his later statement that he was beaten all over his body. And the IJ and BIA had impermissibly relied on speculation and conjecture to conclude that Kumar’s story was implausible because he would have suffered greater injuries from his beatings. Other of the IJ’s grounds for the non-credibility finding, however, passed the low bar review. But, applying the Court’s en banc decision in Alam v. Garland, 11 F.4th 1133 (9th Cir. 2021), which held that the Court must affirm credibility findings only when they are supported by the ‘totality of the circumstances,’ the Court concluded that a remand was appropriate because the several rejected findings all but gutted the adverse credibility determination made by the BIA and IJ.