H-C-R-C ( 2024 )

Cite as 28 I&N Dec. 809 (BIA 2024) Interim Decision #4077
Matter of H-C-R-C-, Respondent
Decided June 20, 2024
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) 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.
(2) Rape is sufficiently severe to constitute torture and can never be a lawful sanction
under the Convention Against Torture.
FOR THE RESPONDENT: Nancy Oretskin, Esquire, Las Cruces, New Mexico
FOR THE DEPARTMENT OF HOMELAND SECURITY: Evan S. Qarana, Assistant
Chief Counsel
BEFORE: Board Panel: CREPPY, HUNSUCKER, and PETTY, Appellate Immigration
Judges.
HUNSUCKER, Appellate Immigration Judge:
The respondent, a native and citizen of El Salvador, appeals from the
Immigration Judge’s April 19, 2023, decision denying his applications for
asylum and withholding of removal under sections 208(b)(1)(A) and
241(b)(3)(A) of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§§ 1158(b)(1)(A), 1231(b)(3)(A) (2018), and protection under the
regulations implementing the Convention Against Torture (“CAT”). 1 The
Department of Homeland Security filed a brief opposing the appeal. Because
we conclude that the Immigration Judge’s credibility determination was
based on an error of law and the Immigration Judge made insufficient factual
findings, the record will be remanded.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent claims he suffered past persecution and fears future
persecution at the hands of the police and gang members in El Salvador. He
1
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into
force for United States Nov. 20, 1994). 8 C.F.R. §§ 1208.16(c)–1208.18 (2020).
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testified that he was detained and falsely accused of a crime by police during
a sweep of his neighborhood. The respondent testified that he stood up to a
corrupt police officer and, in retaliation, was jailed, beaten, and transferred
to a prison for gang members. He further testified that he was beaten and
raped in prison. After his release from prison, the respondent allegedly was
detained twice by the police on suspicion of being a gang member and beaten
and sexually assaulted.
The Immigration Judge found “aspects of the respondent’s testimony
speculative, vague” and seemingly “not plausible.” However, the
Immigration Judge concluded that “in light of precedent, the court finds it’s
compelled to conclude respondent was a credible witness.” Notwithstanding
this finding, the Immigration Judge questioned whether the respondent was,
in fact, sexually assaulted by police officers and concluded that the
respondent had not established eligibility for CAT protection because the
likelihood of future torture was “speculative.” During the hearing, when
addressing whether the respondent had been tortured in the past, the
Immigration Judge said that rape “may not be pleasant, but it’s not torture,”
and stated that rape in prison by gang members is “not torture, because he’s
in prison for hav[ing] committ[ed] a crime. It’s [a] lawful sanction[].” 2
On appeal, the respondent argues that having found him credible, the
Immigration Judge erred by failing to meaningfully credit his evidence.
Specifically, the respondent claims that “after finding [the respondent]
credible, the IJ must accept as true all the facts to which [the respondent]
testified.” The respondent also claims he was denied due process when the
Immigration Judge advanced the hearing date without providing the
respondent sufficient time to prepare his case. Finally, the respondent
requests that his case be assigned to a different Immigration Judge on
remand.
II. CREDIBILITY
An applicant for asylum or withholding of removal bears the burden of
proof to establish eligibility for relief or protection from removal. See
INA §§ 208(b)(1)(B)(i), 240(c)(4)(A), 241(b)(3)(C), 8 U.S.C.
§§ 1158(b)(1)(B)(i), 1229a(c)(4)(A), 1231(b)(3)(C) (2018); see also Matter
of S-M-J-, 21 I&N Dec. 722, 723 (BIA 1997). An applicant’s testimony
alone may be sufficient to satisfy this burden, “but only if the applicant
satisfies the trier of fact that the applicant’s testimony is credible, is
2
We recognize that the Immigration Judge’s oral comments are open to differing
interpretations. In that regard, the lawful sanction to which he was referring may have been
the respondent’s imprisonment, or he may have been inadvertently conflating acquiescence
with severity of harm rather than opining whether rape in prison is a lawful sanction.
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persuasive, and refers to specific facts sufficient to demonstrate that the
applicant is a refugee.” INA § 208(b)(1)(B)(ii), 8 U.S.C. § 1158(b)(1)(B)(ii);
see also 8 C.F.R. § 1208.16(c)(2) (allocating the burden of proof to the
applicant in the context of CAT protection).
In Immigration Court, there is no presumption that an applicant
is credible. INA §§ 208(b)(1)(B)(iii), 240(c)(4)(C), 8 U.S.C.
§§ 1158(b)(1)(B)(iii), 1229a(c)(4)(C). Applicants bear the burden of
establishing their own credibility, just as they bear the burden of proof on the
other elements needed to establish eligibility for relief or protection. See
Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2014) (“A petitioner carries
the burden of persuading the fact finder that the evidence offered is
credible.”). The lack of an explicit adverse credibility determination affords
the respondent a rebuttable presumption of credibility on appeal to the Board,
“[b]ut no such presumption applies in antecedent proceedings before an IJ.”
Garland v. Ming Dai, 593 U.S. 357, 367–68 (2021); see also INA
§§ 208(b)(1)(B)(iii), 240(c)(4)(C), 8 U.S.C. §§ 1158(b)(1)(B)(iii),
1229a(c)(4)(C).
An Immigration Judge may credit all, some, or none of an applicant’s
testimony, so long as the finding considers “the totality of the circumstances
and all relevant factors.” INA §§ 208(b)(1)(B)(iii), 240(c)(4)(C), 8 U.S.C.
§§ 1158(b)(1)(B)(iii), 1229a(c)(4)(C); see also Ming Dai, 593 U.S. at 366
(noting an Immigration Judge, “like any reasonable factfinder, is free to
‘credit part of [a] witness’ testimony without’ necessarily ‘accepting it all’”
(alteration in original) (quoting Banks v. Chi. Grain Trimmers Ass’n.,
390 U.S. 459, 467 (1968))). This finding may be based, among other factors,
on “the inherent plausibility of the applicant’s or witness’s account, the
consistency between the applicant’s or witness’s written and oral
statements . . . , the internal consistency of each such statement, the
consistency of such statements with other evidence of record . . . , and any
inaccuracies or falsehoods in such statements.” INA §§ 208(b)(1)(B)(iii),
240(c)(4)(C), 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1229a(c)(4)(B). If the
Immigration Judge finds the respondent not credible, that finding “must be
supported by specific and cogent reasons.” Wang v. Holder, 569 F.3d 531,
537 (5th Cir. 2009) (quoting Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir.
2005)).
However, the absence of a clear adverse credibility finding does not mean
the respondent’s testimony must be deemed objectively true. See Ming Dai,
593 U.S. at 365–66 (explicitly rejecting the “deemed-true-or-credible rule”).
The INA provides that when determining whether a respondent has met his
burden of proof, the agency “may weigh the credible testimony along with
other evidence of record.” INA § 208(b)(1)(B)(ii), 8 U.S.C.
§ 1158(b)(1)(B)(ii). Thus, even if we or the Immigration Judge treat the
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respondent’s evidence as credible, we need not find the evidence persuasive
or sufficient to meet the requisite burden of proof. Ming Dai, 593 U.S. at 371.
“It’s easy enough to imagine that a factfinder might not describe the plaintiff
as lacking credibility—in the sense that she was lying or not ‘worthy of
belief,’—yet find that her testimony on a key fact was outweighed by other
evidence and thus unpersuasive or insufficient . . . .” Id. at 372 (citation
omitted). “It’s not always the case that credibility equals factual accuracy,
nor does it guarantee a legal victory.” Id.
The Board reviews factual findings for clear error and relies on
“Immigration Judges to make comprehensive findings of fact, including
explicit findings as to the credibility of witnesses, rather than just those
findings pertinent to one issue that the Immigration Judge may deem
dispositive of the case.” Matter of S-H-, 23 I&N Dec. 462, 465 (BIA 2002);
see also 8 C.F.R § 1003.1(d)(3)(i) (2020). That was not done here, as the
Immigration Judge erroneously determined that legal precedent compelled
him to conclude that the respondent testified credibly. However, no statute
or legal precedent compels an Immigration Judge to conclude that a
respondent’s testimony is credible. 3 See, e.g., Ruiz-Colmenares v. Garland,
25 F.4th 742, 749 (9th Cir. 2022) (holding that the Immigration Judge is not
obligated to extend an applicant “a presumption of total credibility or the
benefit of every doubt”); Luna-Romero v. Barr, 949 F.3d 292, 295 (6th Cir.
2020) (“Since 2005, . . . the asylum statute has given immigration judges
wide latitude to find testimony not credible.”). An Immigration Judge’s
fact-finding on credibility is constrained only by the testimony presented and
other evidence of record. See INA §§ 208(b)(1)(B)(iii), 240(c)(4)(C),
8 U.S.C. §§ 1158(b)(1)(B)(iii), 1229a(c)(4)(C).
On appeal, the respondent makes numerous arguments challenging
aspects of the Immigration Judge’s decision on the merits of his applications.
However, because the Immigration Judge did not make comprehensive
findings of fact, we cannot make dispositive determinations regarding the
respondent’s arguments. In this respect, the respondent challenges the
Immigration Judge’s conclusion that he was convicted of a serious
nonpolitical crime. “The evaluation of a serious nonpolitical crime is
conducted on a case-by-case basis considering the facts and circumstances
presented.” Matter of E-A-, 26 I&N Dec. 1, 3 (BIA 2012). The respondent
asserts that he was not a member of a gang and did not engage in criminal
3
Before the United States courts of appeals, “the administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to conclude to the
contrary.” INA § 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B). However, this “compelled to
conclude” standard has no applicability to an Immigration Judge making findings of fact
in the first instance or, indeed, to the Board’s review of those findings. See 8 C.F.R.
§ 1003.1(d)(3)(i) (setting forth the Board’s standard of review).
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activity but was framed by police in an act of retribution. However, some of
the documentary evidence states that the respondent was a member of the
18th Street Gang and was convicted in El Salvador for a drug-related offense.
Thus, further fact-finding is necessary on this issue, particularly considering
that the Immigration Judge’s credibility finding was premised on an error of
law.
III. CONVENTION AGAINST TORTURE
The respondent further argues that the Immigration Judge erred in finding
that he did not suffer past torture and in denying his claim for CAT
protection. See 8 C.F.R. § 1208.16(c)(3)(i) (directing consideration of past
torture in assessing the likelihood of future torture). The Immigration Judge
made statements 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.
Rape clearly rises to the level of torture. 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 protection under the
CAT where the other elements are established. 8 C.F.R. § 1208.18(a)(1)–(2);
see Zubeda v. Ashcroft, 333 F.3d 463, 472 (3d Cir. 2003) (“Rape can
constitute torture. Rape is a form of aggression constituting an egregious
violation of humanity.”), abrogated on other grounds by Auguste v. Ridge,
395 F.3d 123, 148 (3d Cir. 2005). As the Immigration Judge noted, torture
does not include pain or suffering arising from lawful sanctions. 8 C.F.R.
§ 1208.18(a)(3). However, a lawful sanction must be “judicially imposed”
or otherwise “authorized by law.” Id. While incarceration is a lawful
sanction, rape by fellow inmates is not. Additionally, a lawful sanction
cannot “defeat the object and purpose of the Convention Against Torture to
prohibit torture.” Id. Thus, rape is sufficiently severe to constitute torture
and can never be a lawful sanction under the CAT.
While rape is sufficiently severe to meet the definition of torture under
the regulations, and past torture must be considered under 8 C.F.R.
§ 1208.16(c)(3)(i) in determining eligibility for protection under the CAT,
the severity of past harm is not the only consideration. An applicant must
also establish “the intent of the persecutor(s), whether the suffering will be
imposed for one of the purposes specified under the Convention, and whether
it will likely be inflicted with the knowledge or acquiescence of a
public official with custody or control over the victim.” Zubeda,
333 F.3d at 473; see also Matter of J-E-, 23 I&N Dec. 291, 297–99
(BIA 2002). Since further fact-finding is necessary, we cannot currently
address the merits of the respondent’s application for CAT protection.
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See Matter of S-H-, 23 I&N Dec. at 464 (recognizing that the Board must
defer to the factual findings of an Immigration Judge in the absence of clear
error); see also 8 C.F.R. § 1003.1(d)(3)(i).
The respondent has requested that, based on an appearance of bias, his
case be remanded to a different Immigration Judge. As noted above, the
statements by the Immigration Judge could reasonably be read to suggest
bias against the respondent’s claim for protection under the CAT. We have
the authority to reassign a case based on the appearance of bias, in order to
ensure fairness and impartiality. See Matter of Y-S-L-C-, 26 I&N Dec. 688,
690–92 (BIA 2015). Remands to a different Immigration Judge are atypical
and disfavored but are warranted in limited circumstances. To avoid any
appearance of unfairness, and in an abundance of caution under the facts and
circumstances in this case, we will direct these proceedings be transferred to
a different Immigration Judge on remand.
IV. CONCLUSION
On remand, the Immigration Judge should issue a new decision that
addresses the deficiencies discussed above. Specifically, the Immigration
Judge should make factual findings regarding the respondent’s credibility
without according the respondent a presumption of credibility or erroneously
suggesting that finding the respondent credible is compelled by law. The
Immigration Judge should then render any necessary conclusions of law
regarding the merits of the respondent’s applications, including whether the
respondent committed a serious nonpolitical crime and whether he
established eligibility for CAT protection. 4
On remand, the parties may supplement the record with additional
evidence and arguments, including those related to any intervening case law.
In remanding, we express no opinion as to the outcome of these proceedings.
See Matter of L-O-G-, 21 I&N Dec. 413, 422 (BIA 1996).
ORDER: The appeal is sustained, and the Immigration Judge’s decision
is vacated.
FURTHER ORDER: The record is remanded to the Immigration
Court for assignment to a new Immigration Judge and for further proceedings
consistent with the foregoing opinion and entry of a new decision.
4
The respondent also argues that the rescheduling of his merits hearing from May 16,
2023, to April 19, 2023, was a violation of his right to due process that prejudiced his
ability to fully present his claim. However, given that we are remanding this case for
further proceedings, including the opportunity to supplement the record, this argument is
moot. Cf. INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and
agencies are not required to make findings on issues the decision of which is unnecessary
to the results they reach.”).
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