Abduvakhob Alimbaev v. Attorney General United States , 872 F.3d 188 ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 16-4313
_______________
ABDUVAKHOB ABDUKAKHAROVICH ALIMBAEV,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
_______________
On Petition for Review of an Order of the
Board of Immigration Appeals
(BIA No. A079-729-904)
Immigration Judge: Honorable Charles M. Honeyman
_______________
Argued: June 12, 2017
Before: JORDAN and KRAUSE, Circuit Judges,
and STEARNS, District Judge.*
*
The Honorable Richard G. Stearns, United States
District Judge for the District of Massachusetts, sitting by
designation.
(Opinion Filed: September 25, 2017)
Lawrence H. Rudnick (Argued)
Rudnick Immigration Group
1608 Walnut Street
Suite 1700
Philadelphia, PA 19103
Counsel for Petitioner
Chad A. Readler, Acting Assistant Attorney General Civil
Division
Ethan B. Kanter, Deputy Chief, National Security Unit
Melissa K. Lott
Jefferson B. Sessions, III.
Daniel I. Smulow (Argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
Ryan Houldin
Council on American-Islamic Relations
1501 Cherry Street
Suite 330
Philadelphia, PA 19102
Counsel for Amicus Petitioner
2
_______________
OPINION OF THE COURT
_______________
KRAUSE, Circuit Judge.
This disconcerting case, before our Court for the second
time, has a lengthy procedural history marked by conflict
between the Board of Immigrations Appeals (BIA) and the
Immigration Judge (IJ) and fueled by troubling allegations that
Petitioner, an Uzbek national, relished watching violent
terroristic videos, while apparently harboring anti-American
sympathies. The issue on appeal, however, is whether the BIA
correctly applied the clear error standard of review, as required,
when reviewing the IJ’s factfinding in this case—an inquiry
that highlights the role of faithful adherence to applicable
standards of review in preserving the rule of law, safeguarding
the impartiality of our adjudicatory processes, and ensuring
that fairness and objectivity are not usurped by emotion,
regardless of the nature of the allegations. Because we
conclude that the BIA misapplied the clear error standard when
reversing the IJ’s finding that Petitioner’s testimony was
credible, we will grant the petition for review of the BIA’s
removal order, vacate the denial of Petitioner’s applications for
adjustment of status, withholding of removal, and protection
under the Convention Against Torture (CAT), and remand
once more to the BIA.
I. Factual and Procedural Background
Petitioner Abduvakhob A. Alimbaev is a native and
citizen of Uzbekistan. According to his testimony before the
3
IJ,1 when he was a young teenager in the early-to-mid 1990’s,
Alimbaev attended a handful of services led by Obidkhon Qori
Nazarov, an imam who was accused by the Uzbek
government—reputed for religious intolerance—of preaching
violence and plotting a government takeover. During that time
period, Uzbek authorities rescinded Nazarov’s license to lead
religious services, making it illegal for citizens to attend
religious gatherings he hosted. According to Alimbaev, on a
day Uzbek authorities came to Nazarov’s apartment, Alimbaev
was among a crowd of two- to three-hundred followers and
reporters, all gathered to seek religious guidance and to prevent
the government from surreptitiously arresting Nazarov.
Alimbaev believes that when he was standing in the midst of
the crowd, he was caught on video taken by authorities. It is
because of his connections to Nazarov in Uzbekistan in the
1990’s and to others who were followers of Nazarov in the
United States after he came to this country in 2001, as
described below, that Alimbaev claims to fear persecution and
torture if he is removed to Uzbekistan.
Alimbaev testified that in February 2001, when he was
nineteen, he traveled to the United States as a nonimmigrant
visitor, planning to perform with an Uzbek band at a music
festival in Los Angeles. Although Alimbaev was with some of
his fellow band members in the Tashkent airport, he did not see
them on his flight to New York City or upon arriving at the
airport. Instead, according to Alimbaev, a girl from another
1
This factual summary is derived principally from
Alimbaev’s testimony. See, e.g., Serrano-Alberto v. Att’y
Gen., 859 F.3d 208, 211 n.1 (3d Cir. 2017); Jishiashvili v. Att’y
Gen., 402 F.3d 386, 388 (3d Cir. 2005).
4
Uzbek band informed him that his band members would not
arrive until the following week. Afraid he would not have
enough money to survive on his own for that week, Alimbaev
decided to travel to Orlando, Florida to visit a friend from
Uzbekistan whose name and phone number his father had
given him to use in case of emergency, rather than continuing
as planned to Los Angeles.
After a few months in Orlando and a brief stay in
Dayton, Ohio, Alimbaev settled in Philadelphia, Pennsylvania.
There, Alimbaev testified, he shared an apartment with six or
seven Uzbek Muslim men, all of whom were supporters and
former students of Nazarov. He also testified that not long after
he moved into the apartment, Uzbek authorities came to
Alimbaev’s parents’ house in Uzbekistan to inquire after
Alimbaev’s whereabouts and to pressure his parents to
facilitate his return, displaying pictures of him with his new
roommates in Philadelphia and accusing him of being
“involved with these bad guys.” AR 1297.
During this time, according to Alimbaev, he heeded
warnings from his parents to stay in the United States by
submitting applications to the then-called Immigration and
Naturalization Service (INS)2 to extend and change the status
of his visa—applications that, it turned out, contained
numerous misrepresentations. Initially, with the help of a
friend, Alimbaev filed for and received an extension on his
tourist visa through January 2002. That application falsely
represented that Alimbaev was a computer scientist, that he
2
In 2003, INS ceased to exist and its responsibilities were
transferred to the Department of Homeland Security (DHS).
See Homeland Security Act of 2002, 6 U.S.C. § 291.
5
had been invited to the United States by other computer
scientists, and that his parents were wealthy and could support
him for the duration of his stay. Alimbaev testified that he was
unaware of the false statements in the application when it was
submitted, though he acknowledged that it did contain his
signature.
Later, when his visa was soon to expire in December
2001, Alimbaev applied to have his nonimmigrant status
changed from tourist to student, representing in that application
that he had been admitted to the Concord English Language
Center in California and attaching a false tuition invoice as
proof. Alimbaev testified that he was, once again, assisted by
a friend in assembling this second application, but that he had
no recollection of its contents or of actually submitting it to the
INS. Although the application was denied as untimely, he
remained in the country without authorization, continuing to
live in the same apartment in Philadelphia.
In this communal residence, Alimbaev and his
roommates occupied close quarters and shared just one
computer, which, according to Alimbaev, he used only
occasionally, typically to read international news. In June
2002, federal immigration agents executed a warrant at
Alimbaev’s apartment, arresting, detaining, and placing into
immigration proceedings Alimbaev and five of his roommates,
four of whom were the subject of extradition requests and
Interpol warrants issued based on outstanding charges of
religious extremism in Uzbekistan.3 The agents searched the
3
Our Court, in granting the petitions for relief later filed
by Alimbaev’s roommates, held that these charges were
baseless and “a pretext to single out and punish those in
6
roommates’ shared computer and discovered terroristic videos
displaying Al Jazeera broadcasts—one of Osama bin Laden
and one of Afghan fighters—images of Chechen rebel fighters,
and scenes of destruction caused by explosives. The computer
also contained a map of Pennsylvania State Police barracks and
an email to one of Alimbaev’s roommates praising an Islamic
terrorist organization. After two months, Alimbaev was
released from detainment, and charged with removability,
which he conceded. Although removable, he soon became
eligible to apply for adjustment of status based on two
successive marital relationships.
In 2003, Alimbaev married Shaketa Chapman, a United
States citizen whom he divorced in 2005. That December, he
married his current wife, Kia Crawford, also a United States
citizen, with whom, by the time of the hearing, he had had two
children. Alimbaev supports his family financially through
the construction business he owns and operates, and Crawford
takes care of their children full time. Alimbaev also owns a
house, and provides financial support to his mother-in-law.
In 2008, based on his marriage to Crawford, Alimbaev
applied to adjust his status to lawful permanent resident, a
request the Attorney General may grant or deny in his or her
discretion by balancing the positive and negative factors
relevant to a petitioner’s application. 8 U.S.C. § 1255(a);
Matter of Edwards, 20 I. & N. Dec. 191, 195 (BIA 1990); see
Zheng v. Gonzales, 422 F.3d 98, 111 (3d Cir. 2005). At the
subsequent hearing on Alimbaev’s application, held before an
IJ in 2010, Alimbaev testified that he did not watch violent
peaceful opposition to the authoritarian regime.” Yusupov v.
Att’y Gen., 650 F.3d 968, 982 (3d Cir. 2011).
7
terroristic videos on his former roommates’ shared computer,
although he did view broadcasts downloaded from Al Jazeera,
NBC News, and a Russian news channel that included
coverage of Saddam Hussein and Osama bin Laden.
Additionally, a government agent testified that none of the
terroristic materials found on that computer were directly
linked to Alimbaev’s email account or tied in any traceable
way to his usage of the computer. However, Alimbaev’s ex-
wife—who had by then changed her name to Shaketa
Gonzalez—was called to testify as a rebuttal witness following
Alimbaev’s testimony, and she asserted that during their
marriage, while they lived together in an apartment with no
roommates, she witnessed Alimbaev view and express
enthusiasm for violent videos depicting terrorist acts on
multiple occasions.
Following the hearing, the IJ granted Alimbaev’s
application to adjust status. The Department of Homeland
Security (DHS) appealed to the BIA, which vacated the IJ’s
decision, concluding the adverse factors present in Alimbaev’s
case outweighed the favorable equities. The BIA remanded,
however, to afford Alimbaev the opportunity to apply for
asylum—a form of discretionary relief, see Guo v. Ashcroft,
386 F.3d 556, 561 (3d Cir. 2004)—and withholding of removal
and CAT protection—both of which are mandatory if
eligibility is established, see Kaita v. Att’y Gen., 522 F.3d 288,
296, 300-01 (3d Cir. 2008).
On remand, in addition to seeking these forms of relief,
Alimbaev submitted a new application for adjustment of status.
The IJ held a second hearing in 2014, at which Alimbaev
repudiated Gonzalez’s earlier testimony that he had watched
violent videos of terrorist activity while they were married,
8
testifying that her statements were untrue and speculating that
she was motivated by jealousy over his second marriage. After
the hearing, the IJ granted Alimbaev’s second application for
adjustment of status, and, in the alternative, granted each
additional form of relief he sought. The IJ credited Alimbaev’s
testimony both generally and specifically as to the violent
videos, and found that in balancing the equities to adjudicate
adjustment of status, Alimbaev, as well as his wife, children
and mother-in-law (each of whom would remain in the United
States),4 would face hardship if he were deported.
At the outset of his second opinion, the IJ recounted in
great detail Alimbaev’s testimony at the second hearing, which
he found credible overall “based on the totality of the
circumstances,” determining it to be “internally consistent,
generally believable, and sufficiently detailed.” AR 232.
Specifically, the IJ highlighted as “candid” Alimbaev’s
“testimony that Shakeyta Gonzalez said things about him that
were not true” and his testimony that “he never watched Al
Qaeda videos or videos advocating violence against the United
States.” AR 229. On that basis, the IJ concluded that Gonzalez
was “bias[ed],” that her testimony deserved little weight
because it was uncorroborated by the DHS,5 and that overall,
4
Crawford noted that she and the children would not
accompany Alimbaev to Uzbekistan because of his anticipated
imprisonment and her inability to speak the language or to
obtain employment there.
5
Although Gonzalez testified that she had made
contemporaneous reports about Alimbaev’s interest in
terroristic videos to her uncle who worked at the FBI and to
others at the FBI, no written reports or other corroboration of
9
“the veracity and reliability of her testimony remain[ed]
subject to doubt.” AR 229. The DHS appealed again, and the
BIA, reviewing the IJ’s second decision, vacated that decision
in its entirety, ordering Alimbaev’s removal from the United
States to Uzbekistan.
After Alimbaev petitioned our Court for review of that
BIA decision and removal order, the Government promptly
filed an unopposed motion to remand, seeking to allow the BIA
to reconsider its decision in multiple respects, including the
effect of the IJ’s credibility findings on Alimbaev’s
applications for relief. We granted the motion, returning
Alimbaev’s case to the BIA for the third time.
In 2016, the BIA vacated its prior decision and re-
adjudicated Alimbaev’s claims. First, it reversed the IJ’s
positive credibility determination regarding Alimbaev’s
testimony as clearly erroneous and credited Gonzalez’s
testimony regarding the violent videos. In addition, the BIA
held that Alimbaev’s application for asylum was time-barred,6
and his applications for withholding of removal and CAT
protection were meritless in light of Alimbaev’s incredible
such conversations were offered by the Government at any
point in these immigration proceedings.
6
Alimbaev conceded at oral argument that, under 8
U.S.C. § 1158(a)(2)(B), his application for asylum was
untimely, and that we lack jurisdiction to review the BIA’s
discretionary determination that he is ineligible for the
“changed circumstances” exception to that statutory bar, id. §
1158(a)(2)(D); see 8 C.F.R. § 1208.4(a)(4); Sukwanputra v.
Gonzales, 434 F.3d 627, 635 (3d Cir. 2006). Thus, we will not
further address Alimbaev’s application for asylum.
10
testimony. The BIA also held that the IJ lacked jurisdiction to
review Alimbaev’s second application for adjustment of status.
In the alternative, it addressed the application’s merits,
reversing the IJ’s finding that Alimbaev himself would suffer
hardship upon being removed to Uzbekistan and declining, in
its discretion, to adjust Alimbaev’s status to legal permanent
resident. Having denied all of Alimbaev’s claims, the BIA
once again ordered his removal.
Alimbaev now petitions this Court for review of the
November 18, 2016 removal order of the BIA, asserting that
the BIA erred in rejecting the IJ’s credibility determination.
For the reasons that follow, we conclude the BIA failed to
properly apply the clear error standard of review when it
overruled the IJ’s credibility finding, necessitating yet another
remand for reconsideration of Alimbaev’s applications for
adjustment of status, withholding of removal, and CAT
protection.
II. Jurisdiction and Standard of Review
Although we have jurisdiction over removal orders of
the BIA under 8 U.S.C. § 1252(a), see Cruz v. Att’y Gen., 452
F.3d 240, 246 (3d Cir. 2006), we lack jurisdiction to review the
BIA’s discretionary weighing of evidence, see Pieschacon-
Villegas v. Att’y Gen., 671 F.3d 303, 310 (3d Cir. 2011), or the
BIA’s denial of discretionary relief, including applications for
adjustment of status, see 8 U.S.C. §§ 1252(a)(2)(B)(i), 1255;
Pareja v. Att’y Gen., 615 F.3d 180, 186 (3d Cir. 2010).
However, even when presented with these discretionary
decisions, we may review “colorable claims or questions of
law,” Pareja, 615 F.3d at 186 (quotation marks and citation
omitted); see 8 U.S.C. § 1252(a)(2)(D), such as whether the
11
BIA “misapplied the legal standard,” Pieschacon-Villegas, 671
F.3d at 310. And, of course, when our jurisdiction is unclear,
“[w]e have jurisdiction to determine whether we have
jurisdiction.” Jarbough v. Att’y Gen., 483 F.3d 184, 188 n.3
(3d Cir. 2007).
As for what standard we apply, we review the BIA’s
legal determinations de novo, including whether the BIA
properly applied clear error review to the IJ’s findings of fact.
Mendoza-Ordonez v. Att’y Gen., No. 16-3333, 2017 WL
3611991, at *4 (3d Cir. Aug 23, 2017); Pieschacon-Villegas,
671 F.3d at 310, 314; see Lin v. Lynch, 813 F.3d 122, 129 (2d
Cir. 2016); Kabba v. Mukasey, 530 F.3d 1239, 1245 (10th Cir.
2008). Where, as here, the BIA issues its own opinion on the
merits, we review that decision, not the IJ’s.7 Cadapan v. Att’y
Gen., 749 F.3d 157, 159 (3d Cir. 2014).
7
The Government takes no position regarding the
BIA’s holding that the IJ lacked jurisdiction to adjudicate
Alimbaev’s second application for adjustment of status,
positing that we need not address this question because the
BIA, in the alternative, considered and denied Petitioner’s
second application on the merits. However, because we must
ensure that we review the correct BIA opinion, which turns on
which adjustment application the IJ had jurisdiction to
adjudicate, see Cadapan v. Att’y Gen., 749 F.3d 157, 159 (3d
Cir. 2014), we pause to clarify the IJ’s jurisdiction.
We have held that when the BIA does not expressly
retain jurisdiction over a petitioner’s case and issues a remand
order unlimited in scope and purpose, an IJ has jurisdiction to
consider any matters pertinent to that case under the
12
III. Discussion
The central question in this case is whether the BIA
misapplied the clearly erroneous standard in rejecting the IJ’s
finding that Alimbaev’s testimony was credible. We conclude
that it did err and that this error necessitates remand to the BIA
Immigration and Nationality Act (INA) and its implementing
regulations. Johnson v. Ashcroft, 286 F.3d 696, 702-03 (3d
Cir. 2002) (holding that unless remand from the BIA is
“qualified or limited to a specific purpose,” an IJ may consider
“any and all matters [he] . . . deem[s] appropriate in the
exercise of his administrative discretion or which are brought
to his attention in compliance with the appropriate
regulations”) (quoting Matter of Patel, 16 I. & N. Dec. 600,
601 (BIA 1978)). Here, the BIA employed the following
language in its first decision: “Because the respondent . . .
indicated a desire to apply for asylum, withholding of removal,
and [CAT] protection . . . we [] remand the record to provide
him the opportunity to apply for that relief or any other relief
for which he may be eligible.” AR 967. Clearly, the BIA
neither retained its own jurisdiction nor placed limits on the
scope or purpose of its remand order, see Johnson, 286 F.3d at
702-03, going so far as to spell out that Alimbaev was at liberty
to apply for additional forms of relief beyond asylum,
withholding of removal, and CAT protection. Additionally,
the INA does not confine the number of applications a
petitioner may file. See 8 U.S.C. § 1255. Thus, we have no
difficulty concluding the IJ had jurisdiction over Alimbaev’s
second adjustment application, and therefore we review the
BIA’s analysis of that application as set forth in the BIA’s third
and most recent opinion and order, which is the subject of this
appeal. See Cadapan, 749 F.3d at 159.
13
of Alimbaev’s applications for adjustment of status,
withholding of removal, and CAT protection because the
BIA’s analysis of the merits of each form of relief was affected
by its reversal of the IJ’s credibility determination. To explain
how we arrive at this conclusion, we begin by situating the
clearly erroneous standard in the context of credibility
determinations; we then address how the BIA misapplied this
standard by reversing the IJ’s credibility finding; and we close
by explaining the implications of our holding in order to define
with clarity the BIA’s task on remand. We start with the
clearly erroneous standard.
A. The Clearly Erroneous Standard of Review of
Credibility Determinations
The Supreme Court explicated the concept of clear error
review in United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948), the seminal case for defining this standard, including
in the immigration context. See, e.g., Lin, 813 F.3d at 126;
Kabba, 530 F.3d at 1245. In Gypsum, the Court held that “[a]
finding is ‘clearly erroneous’ when although there is evidence
to support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been
committed.” Gypsum, 333 U.S. at 395. Since Gypsum, the
Court has acknowledged that “the meaning of the phrase
‘clearly erroneous’ is not immediately apparent.” Anderson v.
City of Bessemer, 470 U.S. 564, 573 (1985). Nevertheless, the
Court has set forth certain defining principles, including that
“[w]here there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous,”
id. at 574, and that, where the disputed finding of fact is a
credibility finding, “even greater deference” is owed, “for only
the [factfinder] can be aware of the variations in demeanor and
14
tone of voice that bear so heavily on the listener’s
understanding of and belief in what is said,” id. at 575. In
short, “[t]his standard plainly does not entitle a reviewing court
to reverse the finding of the trier of fact simply because it is
convinced that it would have decided the case differently.” Id.
at 573.
These teachings apply with particular force when the
BIA reviews an IJ’s credibility finding in immigration
proceedings because a petitioner’s testimony, in many cases, is
the singular evidence that establishes, or, conversely, disproves
that petitioner’s case. See Chukwu v. Att’y Gen., 484 F.3d 185,
191 (3d Cir. 2007) (“[T]he BIA may grant . . . [relief] solely on
the basis of the applicant’s credible testimony.”). The INA, by
its terms, grants IJs broad discretion in making credibility
determinations, providing that: “Considering the totality of the
circumstances, and all relevant factors,” an IJ “may base a
credibility determination on the demeanor, candor, or
responsiveness of the applicant or witness, the inherent
plausibility of the applicant’s or witness’s account, the
consistency between . . . 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,” whether or not
“an inconsistency, inaccuracy, or falsehood goes to the heart of
the applicant’s claim, or any other relevant factor.” 8 U.S.C.
§ 1158(b)(1)(B)(iii). Although that subsection applies
specifically to asylum applications, we have recognized
previously that the wide latitude that it affords an IJ—in
considering all pertinent factors and weighing those factors as
the IJ deems appropriate in each individual case—carries over
to other applications for relief. See, e.g., Sukwanputra v.
Gonzales, 434 F.3d 627, 636 (3d Cir. 2006).
15
In view of that broad latitude and factfinding authority,
the BIA’s review of an IJ’s factfinding is highly deferential.
See In Re S-H-, 23 I. & N. Dec. 462, 464-65 (BIA 2002). The
BIA is prohibited from “engag[ing] in de novo review of
findings of fact determined by an immigration judge,” and
instead, “[f]acts determined by the immigration judge,
including findings as to the credibility of testimony, shall be
reviewed [by the BIA] only to determine whether the findings
of the immigration judge are clearly erroneous.” 8 C.F.R.
§ 1003.1(d)(3)(i). The Board must “start from the premise that
it will accept the findings of fact made by the immigration
judge,” and it may only reject them if it “identifies specific
reasons . . . for forming a definite and firm conviction that a
mistake has been made.” Board of Immigration Appeals:
Procedural Reforms To Improve Case Management, 67 Fed.
Reg. 54878-01, 54889 (Aug. 26, 2002). Merely pointing to
another permissible view of the evidence is insufficient. In Re
J-Y-C-, 24 I. & N. Dec. 260, 263 (BIA 2007). If further
factfinding is needed, the Board must remand the proceeding
to an immigration judge. 8 C.F.R. § 1003.1(d)(3)(iv).
Moreover, the BIA’s review of the record “must reflect a
meaningful consideration of the record as a whole. It is not
enough for the BIA to select a few facts and state that, based
on them, it disagrees with the IJ’s conclusion.” Huang v. Att’y
Gen., 620 F.3d 372, 387 (3d Cir. 2010).
When we, in turn, are called upon to review the BIA’s
acceptance of an IJ’s factfinding, we carefully consider
whether the BIA has adhered to its obligation to apply the clear
error standard and whether it has applied that standard
consistently. When the BIA has adopted the IJ’s findings as
being supported by substantial evidence, we will likewise
16
uphold those findings “to the extent that they are ‘supported by
reasonable, substantial, and probative evidence on the record
considered as a whole.’” Abdulrahman v. Ashcroft, 330 F.3d
587, 597 (3d Cir. 2003); see also Mendoza-Ordonez, 2017 WL
3611991, at *5. And when our Court is called to evaluate an
IJ’s credibility determination that has been adopted by the BIA,
we do so with exceptional deference, recognizing that the IJ
“alone is in a position to observe an alien’s tone and demeanor,
to explore inconsistencies in testimony, and to apply workable
and consistent standards in the evaluation of testimonial
evidence.” Abdulrahman, 330 F.3d at 597. Stated differently,
we view the IJ as being “uniquely qualified to decide whether
an alien’s testimony has about it the ring of truth,” and our
deferential review is built to reflect this principle. Id.
Where the BIA rejects an IJ’s findings, however, we
carefully scrutinize its reasoning to determine whether the BIA
has overstepped these bounds and misapplied the clear error
standard by “ignoring evidence relevant to determining” the
merits of a petitioner’s claim, Pieschacon-Villegas, 671 F.3d
at 310, failing “to supply cogent reasons for its rulings,” Lin,
813 F.3d at 129, “substitut[ing] its own judgment for that of
the IJ,” Kabba, 530 F.3d at 1247, or failing to “defer to the IJ’s
findings,” id. In those circumstances, we will grant a petition
for review and remand for appropriate proceedings.
Such is the case here. Below, we identify each of the
BIA’s missteps, explaining why its reversal of the IJ’s
credibility finding reflects legal error.
B. BIA Review of Alimbaev’s Testimony
17
In this case, the IJ found that Alimbaev’s testimony was
“candid[],” AR 232, “internally consistent, generally
believable and sufficiently detailed to provide [the IJ] with a
‘plausible and coherent account.’” AR 232 (quoting Matter of
Dass, 20 I. & N. Dec. 120, 124 (BIA 1989)). On the basis of
that credible testimony, much of which was otherwise
uncorroborated, the IJ concluded that Alimbaev was entitled to
an adjustment of status, or in the alternative, withholding of
removal or CAT protection. The BIA, however, reversed that
credibility finding, purporting to apply the clearly erroneous
standard and finding clear error based on three aspects of
Alimbaev’s testimony: (1) two inconsistencies; (2) the
circumstances of his entry to the United States; and (3)
Alimbaev’s alleged failure to rebut his ex-wife’s testimony that
he watched terroristic videos. We consider these three issues
below.
1. Inconsistencies
We have observed that it would be improper for an IJ,
much less the BIA, to discount entirely otherwise-credible
testimony based solely on an “excessive focus on insignificant
testimonial inconsistencies to support a finding of lack of
credibility,” Chen v. Gonzales, 434 F.3d 212, 220 (3d Cir.
2005), and that the credibility of a witness must be considered
in toto because the IJ’s “overall credibility determination does
not necessarily rise or fall on each element of the witness’s
testimony, but rather is more properly decided on the
cumulative effect of the entirety of all such elements,”
Jishiashvili v. Att’y Gen., 402 F.3d 386, 396 (3d Cir. 2005).
“Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous,”
Anderson, 470 U.S. at 574, and the BIA’s review of any
18
inconsistencies must be based on “meaningful consideration of
the record as a whole,” Huang, 620 F.3d at 387.
Here, however, the BIA homed in on two small
inconsistencies in Alimbaev’s testimony. First, the BIA
deemed Alimbaev’s testimony to be “internally inconsistent”
because, although he testified that his parents informed him in
August 2001 that Uzbek authorities had come to their house
and questioned them about his relationship with his roommates
in Philadelphia, he testified at another point that he did not
move to Philadelphia until October 2001. AR 5. When asked
about the discrepancy in dates, Alimbaev testified that it was
merely a mistake, reiterating that the conversation between
Uzbek authorities and his parents did take place and that it took
place after he moved to Philadelphia. The IJ, in his second
opinion, noted Alimbaev’s acknowledgment that he confused
these dates but offered no additional analysis on this point.
Second, the BIA took issue with the fact that, in the first
hearing, Alimbaev testified that he attended Nazarov’s mosque
two to three times, whereas in the second hearing, he testified
that he attended the mosque six to eight times. The IJ did not
address this minor change in testimony, merely noting in his
opinion that Alimbaev had previously attended the mosque, but
was not a member.
Although identified by the BIA as central reasons for its
rejection of the IJ’s credibility finding, the two statements at
issue appear to be no more than “insignificant testimonial
inconsistencies,” Chen, 434 F.3d at 220, that would probably
not, standing alone, justify an IJ in making a general adverse
credibility finding, much less justify the BIA in rejecting a
positive credibility finding under a clear error standard. Thus,
the BIA substituted its view for the IJ’s “permissible” view that
19
Alimbaev’s overall credibility was not thereby undermined.
Anderson, 470 U.S. at 574. While Alimbaev’s ability to recall
specific numbers and dates may have been imperfect—and the
number of times he attended Nazarov’s mosque does bear on
his affiliation with Nazarov, with potential implications for
Alimbaev’s likelihood of persecution and torture relevant to
his claims for withholding of removal and CAT protection, see
Kaita, 522 F.3d at 296, 300—the IJ could reasonably credit
Alimbaev’s explanations and allow some leeway in his
estimates of how many times he attended the mosque as a
teenager nearly a decade earlier. In holding otherwise, the BIA
jettisoned “consideration of the record as a whole,” Huang, 620
F.3d at 387, demonstrated “excessive focus on insignificant
testimonial inconsistencies to support a finding of lack of
credibility,” Chen, 434 F.3d at 220, and substituted its own
view of the facts in place of the IJ’s “permissible” view,
Anderson, 470 U.S. at 574.
2. Circumstances of Alimbaev’s Entry to
United States
The BIA’s second ground for rejecting the IJ’s
credibility finding was its determination that Alimbaev’s
“testimony concerning the basis and circumstances of his entry
into the United States” was “implausible” and his explanations
“inherently improbable.” AR 6. The IJ did not expound on
this issue, merely stating as a part of his review of Alimbaev’s
application for adjustment of status: “As previously noted, the
Court considers the circumstances surrounding Respondent’s
admission and I-539 applications and the testimony of his ex-
wife disturbing and negative, but not sufficient to cumulatively
outweigh the positive equities in his case.” AR 228-29.
20
As noted by both the IJ and the BIA, Alimbaev’s
explanation for his entry into the United States—that he lost
his bandmates somewhere between the Tashkent airport and
New York City and then abandoned his travel plans to Los
Angeles in favor of visiting a friend in Orlando—appears
implausible. Likewise, Alimbaev’s false statements on his
applications to extend and change his status are disturbing,
notwithstanding his explanations that he relied on others to
complete those applications. But the question is not whether
these circumstances were problematic negative factors; the IJ
acknowledged that they were and counted them as “disturbing
and negative” in reaching his conclusion. AR 229.
The question, instead, is whether the BIA, reviewing
only for clear error, was entitled to set aside the IJ’s credibility
findings and, hence, to disregard the testimony on which the IJ
relied to conclude that Alimbaev feared persecution and torture
if deported and that Alimbaev’s removal would result in
hardship for his family. See Jishiashvili, 402 F.3d at 396. It
was not. As the IJ “alone is in a position to observe an alien’s
tone and demeanor, to explore inconsistencies in testimony,
and to apply workable and consistent standards in the
evaluation of testimonial evidence,” Abdulrahman, 330 F.3d at
597, and here the IJ did so after hearing extensive testimony
over the course of two hearings, the IJ’s credibility finding was
not “[im]plausible in light of the record viewed in its entirety,”
and therefore was not clearly erroneous, Anderson, 470 U.S. at
574.8
8
We are not suggesting that the spoken word will
always trump other aspects of a record that may indicate a lack
of credibility. It is certainly possible that a record could
appropriately leave the BIA with a definite and firm conviction
21
3. Rebuttal Testimony
The third basis that the BIA identified for rejecting the
IJ’s credibility determination was that because “the respondent
did not specifically rebut [Gonzalez’s] testimony in either
2010, or on remand in 2014, the [IJ] clearly erred in
questioning the reliability of [Gonzalez’s] account of the
events and assigning her testimony limited weight.” AR 11.
In addition, the BIA asserted that the IJ “did not make an
adverse credibility finding with respect to [Gonzalez],” AR 10,
and because the IJ did not make that finding—instead stating
only that Gonzalez’s testimony “deserved limited weight”
because it was “biased” and uncorroborated, AR 229, and that
“the veracity and reliability of her testimony remains subject
to doubt,” AR 229—the BIA could simply consider the
contradictory testimony as one factor in its discretionary
determination of adjustment of status—a determination this
Court lacks jurisdiction to review. 8 U.S.C. § 1252(a)(2)(B).
The BIA’s reasoning, however, rests entirely on a false
premise. Alimbaev did, in fact, rebut Gonzalez’s testimony
that he watched “homemade” videos depicting violence against
U.S. military members several times a week, AR 1469–70, by
testifying in 2014 that he accessed websites to watch news
videos but “never saw” videos depicting violence against U.S.
forces, AR 335. Moreover, the IJ, after carefully considering
that an IJ has made a mistake about credibility, even in the face
of the IJ’s finding that a petitioner’s testimony was truthful.
Our point here is simple: on this record, the BIA overreached
to sustain this particular result, and that was in derogation of
its responsibility to apply the clearly erroneous standard in its
review of the IJ’s findings.
22
the divergent accounts of the two witnesses, explicitly found
that Alimbaev’s testimony refuting Gonzalez’s account was
“candid,” AR 229, and his testimony was overall “credible,”
AR 232. By necessary implication, the IJ made an adverse
credibility finding as to Gonzalez’s testimony, and the
Government points to no authority suggesting either that an IJ
must pronounce particular “magic words” in making its
credibility findings or that an implicit credibility finding is
entitled to any less deference than an explicit one.
Also troubling, the BIA described the IJ as discounting
“evidence from the respondent’s ex-wife establishing that the
respondent regularly used a computer to watch videos of
terrorist activity . . . as well as evidence that a computer was
recovered at the residence containing such material.” AR 10.
Notwithstanding the BIA’s insinuation, however, the videos in
question were not found on any computer in the marital
residence and thus did not provide any corroboration for
Gonzalez’s testimony. Rather, the videos were found on the
communal apartment computer that Alimbaev shared with his
roommates prior to his marriage to Gonzalez—a computer that,
as Alimbaev explained, he used only on occasion, and then
only to watch the news.9
9
This Court also had occasion to consider the nature of
those videos in Yusupov v. Att’y Gen., 650 F.3d 968 (3d Cir.
2011), where we pointed out that “none of the videos were
‘training materials,’ . . . several of the videos, including that of
bin Laden, originated from Al Jazeera, a recognized news
source,” and that on the whole, the computer “did not produce
any direct or causal link suggesting that [they] espoused
violence, such as email messages of a questionable nature.” Id.
at 985, 987.
23
In sum, the BIA’s characterization of the record appears
inaccurate and reflects a decision to “ignor[e]” evidence
crucial to Alimbaev’s case and contrary to the BIA’s preferred
outcome, Kabba, 530 F.3d at 1247, effectively reweighing the
testimony and engaging in the very “de novo review of
findings of fact determined by an immigration judge” that is
prohibited by regulation, 8 C.F.R. § 1003.1(d)(3)(i). Neither
singly nor in combination are the three grounds identified by
the BIA “sufficient justification for its conclusion that the IJ
has committed clear error.” Lin, 813 F.3d at 129. For that
reason, remand is appropriate for the BIA to reconsider
Alimbaev’s applications for relief.
C. Implications on Remand
We turn, next, to the scope of remand and, specifically,
to how reinstatement of the IJ’s credibility findings may affect
Alimbaev’s claims for adjustment of status, withholding of
removal, and CAT protection.
1. Adjustment of Status
As we lack jurisdiction to review the BIA’s
discretionary decision whether to grant Alimbaev’s adjustment
application and the balancing of the positive and negative
factors that underlie it, we only review the BIA’s application
of the clear error standard to the IJ’s factual findings. Based
on that review, we will remand as to Alimbaev’s application
for adjustment of status only for the BIA to accept the IJ’s
credibility determination to which it should have deferred
24
when performing that balancing. See Jarbough, 483 F.3d at
188; Matter of Edwards, 20 I. & N. Dec. at 195.10
10
Alimbaev also raises multiple arguments on appeal
pertaining to the BIA’s adjustment of status analysis that we
lack jurisdiction to review. First, Alimbaev asserts that the
BIA engaged in independent factfinding when it counted
inaccuracies in his immigration applications against him in its
balancing of the equities. However, the IJ credited Alimbaev’s
testimony that he was unaware of the misrepresentations in the
submitted documents, describing the circumstances
surrounding the applications as “disturbing and negative, but
not sufficient to cumulatively outweigh the positive equities in
this case,” AR 228-29, and the BIA “accept[ed] the [IJ’s]
finding that the respondent lacked actual knowledge of the
inaccuracies” in the applications, merely considering these
inaccurate applications as a discretionary adverse factor. AR
12. The BIA thus adopted and relied on the IJ’s factual
findings and assigned greater significance to the inaccurate
immigration applications when adjudicating Alimbaev’s
application for adjustment of status than did the IJ. The BIA
was well within its rights to do so, and we do not review that
discretionary decision. See Pareja, 615 F.3d at 186. In
addition, Alimbaev suggests the agency was required to forego
its exercise of discretion, disregard all negative equities, and
grant Alimbaev’s application for adjustment because of his
status as the immediate relative of a United States citizen.
Petitioner’s Br. 33-34 (citing Matter of Battista, 19 I. & N. Dec.
484 (BIA 1987); Matter of Cavazos, 17 I. & N. Dec. 215, 217
(BIA 1980)). Again, the BIA is entitled to assign the weight it
sees fit to adjustment factors like a petitioner’s familial status,
and its subsequent balancing of those factors is beyond the
25
Alimbaev’s credibility informs two factors that the BIA
considered in its discretionary balancing. First, it affected the
BIA’s assessment of whether Alimbaev and his family would
face hardship if Alimbaev returned to Uzbekistan. The IJ had
identified hardship as a positive factor because he found—
based solely on Alimbaev’s testimony—that Alimbaev’s
removal would present hardship to his family because “it is
likely that the Uzbek government will arrest and detain”
Alimbaev, making him unable to work, and it would present
hardship to Alimbaev himself “in light of the risk of arbitrary
arrest, detention, and torture that he would face in his home
country based upon his ardent practice of Islam, his association
with Imam Nazarov, and his association with his former
roommates.” AR 230-31. Because the BIA deemed
Alimbaev’s testimony incredible, it perceived no factual
support for the IJ’s determination of hardship and omitted
hardship as a positive factor in its own adjustment of status
balancing.
Second, as discussed at length above, while the IJ did
not consider Alimbaev’s alleged viewing of terroristic videos
to be a negative factor because he credited Alimbaev’s
testimony over that of Gonzalez, the BIA, as a result of its
rejection of the IJ’s explicit credibility finding as to Alimbaev
and implicit credibility finding as to Gonzalez, did consider it
a negative factor.
On remand, the BIA must reconsider those factors with
due deference to the IJ’s factfinding before weighing the
purview of our jurisdiction to consider. See Pareja, 615 F.3d
at 186.
26
various positive and negative factors to make its ultimate
discretionary decision on adjustment of status.
2. Withholding of Removal and CAT Protection
The BIA’s error in its standard of review also affected
Alimbaev’s applications for withholding of removal and CAT
protection. The IJ determined that Alimbaev made the
required showing for withholding of removal—i.e., that it was
“‘more likely than not’ that [Alimbaev’s] life or freedom
would be threatened if returned to” Uzbekistan because of his
religion or membership in a particular social group, Kaita, 522
F.3d at 296—and for CAT protection—i.e., that it was more
likely than not that he would be tortured in Uzbekistan “with
the consent or acquiescence of a public official or other person
acting in an official capacity,” id. at 300—through his
testimony that he feared “being arrested, detained, and tortured
in Uzbekistan based upon his appearance, his ties to . . .
Nazarov, and his association with his former roommates,” AR
232-33. Additionally, the IJ determined that Alimbaev’s
explanation for his failure to offer any corroboration from
friends and family, while credible only in part and resulting in
an “evidentiary gap”—was not so troubling as to overcome the
strength of Alimbaev’s other testimony, AR 235, ruling that his
testimony that he feared “being arrested, detained, and tortured
in Uzbekistan based upon his appearance, his ties to . . .
Nazarov, and his association with his former roommates,” was
credible. AR 232-33.
But having discredited the only evidence supporting
those rulings—Alimbaev’s testimony—the BIA necessarily
reached a different outcome. Accordingly, remand is required
to allow the BIA, adopting the IJ’s credibility finding and
27
considering both Alimbaev’s testimony and the “evidentiary
gap” the IJ acknowledged in the lack of corroboration, 11 to
reassess Alimbaev’s applications for withholding of removal
and CAT protection.
IV. Conclusion
For the foregoing reasons, we will grant Alimbaev’s
petition for review of the BIA’s order of removal, vacate that
order to the extent that it denied Alimbaev’s applications for
adjustment of status, withholding of removal, and protection
under CAT, and remand to the BIA for proceedings consistent
with this opinion.
11
Although a petitioner’s testimony alone may be
sufficient to sustain his burden of proof, we recognize that
“failure to produce corroborating evidence may undermine a
petitioner’s case where (1) the IJ identifies facts for which it is
reasonable to expect the applicant to produce corroboration, (2)
the applicant fails to corroborate, and (3) the applicant fails to
adequately explain that failure.” Chukwu, 484 F.3d at 192
(citing Toure v. Att’y Gen., 443 F.3d 310, 323 (3d Cir. 2006)).
28