Kin v. Holder ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SOMBATH KIN; BUNNARY PRAK,  No. 05-73079
Petitioners,
Agency Nos.
v.
 A078-112-730
ERIC H. HOLDER JR., Attorney A095-302-631
General,
OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 8, 2009—Pasadena, California
Filed February 18, 2010
Before: Andrew J. Kleinfeld and Richard C. Tallman,
Circuit Judges, and David M. Lawson,* District Judge.
Opinion by Judge Tallman
*The Honorable David M. Lawson, United States District Judge for the
Eastern District of Michigan, sitting by designation.
2589
2592 KIN v. HOLDER
COUNSEL
Aris E. Karakalos (argued), Lascher & Lascher, Ventura, Cal-
ifornia; Kathryn M. Davis, Law Office of Kathryn M. Davis,
Pasadena, California, for petitioners Sombath Kin and Bun-
nary Prak.
Margaret K. Taylor (argued), Office of Immigration Litiga-
tion, Washington, D.C.; Jeffrey S. Bucholtz, Acting Assistant
KIN v. HOLDER 2593
Attorney General, Civil Division; Ernesto H. Molina, Senior
Litigation Counsel, for respondent Attorney General Holder.
OPINION
TALLMAN, Circuit Judge:
Bunnary Prak (“Prak”) and Sombath Kin (“Kin”) (collec-
tively “Petitioners”) are natives and citizens of the Kingdom
of Cambodia. They petition for review of the Board of Immi-
gration Appeals’ (“BIA”) final order affirming the Immigra-
tion Judge’s (“IJ”) adverse credibility finding as to each of
them and denying their appeal. As a result of the unfavorable
credibility determination, the IJ found Petitioners ineligible
for asylum, withholding of removal, and relief under the
United Nations Convention Against Torture. The BIA
affirmed the IJ’s adverse credibility finding against each Peti-
tioner in separate opinions. Because the BIA’s adverse credi-
bility findings are supported by substantial evidence, and
therefore Petitioners fail to carry their burden of showing enti-
tlement to relief, we deny the consolidated petition for review.
I
Kin and Prak, husband and wife, entered the United States
on June 28, 2001, and March 29, 2002, respectively, without
valid immigrant visas, reentry permits, border crossing cards,
or other entry documents required by the Immigration and
Nationality Act. The government issued Notices to Appear on
July 3, 2002, their cases were consolidated for the merits
hearing, and Petitioners conceded the charge of removability.
Petitioners claim persecution based on political opinion and
membership in a particular social group.
Both Prak and Kin testified that they are members of the
Sam Rainsy Party (“SRP”). Prak testified that she has been a
2594 KIN v. HOLDER
member of the SRP since 1995 or 1996 and that she has given
the party between four and five thousand dollars. She attended
a demonstration in 1998 in which SRP members protested the
outcome of a recent Cambodian election. Her participation in
the demonstration consisted of taking food and drink to the
protestors each day of the demonstration.
Prak claimed she was arrested in the Mean Chey District of
Phnom Penh by five government officers on October 31,
1998. She described how she was forced into a vehicle and
initially taken to a prison facility called “January 7th” and was
interrogated about her participation in the demonstration. Prak
testified that she was slapped, kicked, hit with electrical
batons, and suffocated. Her skull was fractured. She testified
that she was transferred to another prison, T-3, on November
11, 1998, and was soon visited by human rights workers who
helped her get medical treatment and took pictures of her
wounds. Prak stated that she appeared in court once, but was
sent back to prison until her release on November 17, 1999.
The prison release order Prak offered in evidence listed her
birthday as being in the year 1962, which is incorrect, and
Prak testified that she did not know why her birth year was
wrong on the prison release form.
Prak stated that the human rights personnel kept her in a
safe place for a week after her release, but she eventually
moved back to her house until January 2001. After hearing
that she was still wanted by the authorities, Prak moved with
her children to the home of a Cambodian official, His Excel-
lency Ouk Moeurn. Prak and her children changed their
names and Prak did not work.
Prak testified that she applied for a visa at the U.S.
Embassy in December 2000, but her application was denied.
Prak claims that in June 2001, Ouk Moeurn helped her escape
to the United States by stating she was his wife, and providing
her with a tourist visa bearing the name Heang Kimheng. She
testified that if she had not done this, she would not have been
KIN v. HOLDER 2595
able to escape. She stated that she is afraid that she will be
arrested or killed if she is forced to return to Cambodia.
Kin testified that his birth name is Roth Pon, even though
his birth certificate lists his birth name as Sombath Kin. He
then stated that he changed his name to Kin when he started
working as a reporter. Kin also testified that he worked for the
Proleant Cheat newspaper from January 1985 to November
1998. He also stated that he worked for the United Nations
Transitional Authority. Kin testified that he has been a mem-
ber of the SRP since 1995 and that he wrote reports in an
effort to “ameliorate the party.” Kin said he participated in the
1998 demonstration by reporting the events and acting as a
“propagandist.” He testified that his articles were published in
the Proleant three times per week and he spoke at the demon-
stration three times per day. He claimed the government’s
military force finally dispersed the demonstrating crowd by
throwing grenades into the demonstration and firing rounds
either into the air or straight at participants.
Kin stated that he was arrested on November 10, 1998, in
the Kompong Thoum Province. Kin stated that he believed his
wife was at home at the time he was arrested. He was taken
to a police station for 12-13 hours and was eventually told
that he was arrested for his participation in the demonstration.
He was interrogated and hit with the butt of a gun, a plastic
baton, and an electrical stick. Kin states that he was then sent
to Phnom Penh City and placed in prison for three months
where he was tortured weekly and not allowed to communi-
cate with anyone. Kin was eventually moved to T-3, where he
stayed for thirteen months.
After two unsuccessful attempts to obtain release from the
courts in May and August of 1999, Kin was conditionally
released by the Supreme Court of Cambodia in December
1999. His release was conditioned on him revoking a report
written against the government. After his release, Kin hid
from officials and received help from a Cambodian senator,
2596 KIN v. HOLDER
His Excellency Sitha Thach, to escape to the United States.
Kin entered the United States under the name Vannarath
Heang. He stated that he could not use his real name because
he was under investigation and would not have been allowed
to leave Cambodia.
Senator Thach testified for Petitioners at the hearing before
the IJ. At the time of the hearing, Senator Thach told the court
he was a senator representing the SRP in the Kingdom of
Cambodia and had served in that position since March 1999.
Senator Thach testified that he has known Kin since 1996 or
1997 when they were both working for local newspapers.
Senator Thach claimed that he was one of the founding
members of the SRP, and that both Prak and Kin are also
members. Additionally, Senator Thach testified that members
of the SRP received threats, went missing, or were killed dur-
ing the period leading up to the 1998 election. He also said
that in 1998 he led a post-election protest in which both Peti-
tioners participated. Senator Thach testified that he asked the
United Nations Human Rights Organization to assist Petition-
ers after he learned of their arrests. He believed Petitioners
were arrested as a result of their participation in the demon-
stration.
Senator Thach stated that he knew Prak stayed with His
Excellency Ouk Meourn when she was released from prison.
Senator Thach also testified that he introduced Kin to people
who could help him escape to the United States. When asked
about whether he helped Kin or Prak get released from prison,
Senator Thach stated that he wanted the human rights agency
to speak for them (Prak and Kin), but that he never personally
petitioned any Cambodian court on their behalf.
The IJ received testimony on behalf of Prak and Kin in a
consolidated hearing. The IJ denied relief based on a finding
of adverse credibility against both Petitioners. The IJ listed
several reasons for these adverse findings: (1) Petitioners’
KIN v. HOLDER 2597
demeanor; (2) Prak’s possession of two passports bearing dif-
ferent names and birth dates that also conflicted with her
prison release order; (3) inconsistency between Petitioners’
testimony and a letter written by Senator Thach; (4) Petition-
ers’ failure to mention the 1998 demonstration in either of
their petitions for asylum with no credible explanation as to
why it was omitted; (5) Prak’s lack of proof of her party
membership; (6) Kin’s use of a false name, date of birth, and
visa to enter the United States and obtain a visa extension; (7)
a letter from the United Nations and a United Nations photo
identification of Kin that appear to have been altered; (8)
inconsistency in the testimony regarding Prak’s location at the
time of Kin’s arrest; and (9) inconsistency between sworn
statements in Petitioners’ asylum applications and the testi-
mony of Senator Thach.
The BIA dismissed Petitioners’ appeals by issuing a one-
page per curiam order for each. The BIA found that the IJ’s
adverse credibility determination was based on Petitioners’
demeanor and material inconsistencies between each Petition-
er’s testimony, Senator Thach’s testimony, and the documen-
tary evidence. The BIA highlighted Petitioners’ failures to
mention their participation in the 1998 demonstration in their
applications for asylum, their testimonial inconsistency
regarding where Prak was on the day Kin was arrested, and
the inconsistency regarding whether Senator Thach petitioned
Cambodian courts for either Petitioner’s release. Petitioners
filed their Petition for Review within the 30-day time limit,
giving us jurisdiction under 8 U.S.C. § 1252.
II
A
If the BIA conducts its own de novo review and does not
adopt the IJ’s decision as its own, we review the BIA’s deci-
sion. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004).
We review an adverse credibility finding for substantial evi-
2598 KIN v. HOLDER
dence. Singh v. Ashcroft, 362 F.3d 1164, 1168 (9th Cir. 2004).
We reverse the BIA’s decision only if the petitioner’s evi-
dence was “so compelling that no reasonable factfinder could
find that he was not credible.” Farah v. Ashcroft, 348 F.3d
1153, 1156 (9th Cir. 2003) (internal quotation omitted). Our
review will require reference to the IJ’s decision because the
BIA’s decision in this case accorded significant deference to
the IJ’s observations. See Avetova-Elisseva v. INS, 213 F.3d
1192, 1197 (9th Cir. 2002).
The substantial evidence standard is deferential, but the
BIA must highlight specific and cogent reasons to support an
adverse credibility finding. Alvarez-Santos v. INS, 332 F.3d
1245, 1254 (9th Cir. 2003). Additionally, any reason given by
the BIA in support of its determination must be “substantial
and bear a legitimate nexus to the finding.” Salaam v. INS,
229 F.3d 1234, 1238 (9th Cir. 2000) (internal quotation omit-
ted). Any inconsistencies relied upon by the BIA must go to
the heart of the asylum claim to support an adverse credibility
finding. Alvarez-Santos, 332 F.3d at 1254.1 If the BIA relies
on inconsistencies, it must explain the significance of the dis-
crepancy or comment on the petitioner’s evasiveness when
asked about it. Bandari v. INS, 227 F.3d 1160, 1166 (9th Cir.
2000).
Our review focuses solely on the actual reasons relied upon
for the adverse credibility determination. Marcos v. Gonzales,
410 F.3d 1112, 1116 (9th Cir. 2005). However, as long as one
of the identified grounds underlying the credibility finding is
supported by substantial evidence and goes to the heart of the
Petitioners’ claims, we are bound to accept the adverse credi-
1
The REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231,
amended the Immigration and Nationality Act § 242, 8 U.S.C. § 1158. For
applications filed after 2005, the finder of fact does not have to consider
whether an inconsistency goes to the heart of the applicant’s claim. 8
U.S.C. § 1158(b)(1)(B)(iii); see also Jibril v. Gonzales, 423 F.3d 1129,
1138 n.1 (9th Cir. 2005). This case is not governed by the 2005 law
change because Petitioners filed their asylum applications in 2002.
KIN v. HOLDER 2599
bility findings. Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.
2004).
B
The government argues that we lack jurisdiction over the
Petition for Review because Petitioners failed to exhaust their
administrative remedies before the BIA. The government
maintains that Petitioners did not mention the IJ’s adverse
credibility finding in either their Notices of Appeal or their
joint brief to the BIA. According to the government, Petition-
ers’ complete failure to mention the IJ’s adverse credibility
findings distinguishes this case from Abebe v. Gonzales, 432
F.3d 1037, 1040 (9th Cir. 2005) (en banc),2 where we found
that even scant reference to an argument for asylum put the
BIA on notice and constituted exhaustion.
[1] The en banc panel in Abebe recognized that the BIA
could have refused to consider the asylum argument due to a
procedural defect. Id. at 1041. However, since the BIA
elected to ignore the procedural defect and consider the argu-
ment on its substantive merits, the reviewing court could not
then decline to consider the issue. Id. The same is true here.
Although Petitioners did not state that they were appealing the
IJ’s adverse credibility determination, that was precisely the
issue reviewed by the BIA. Thus, the policy concerns under-
lying the requirement of allowing an agency full opportunity
to resolve a controversy or correct its errors before judicial
intervention have been fulfilled. See id. We conclude that we
can properly exercise jurisdiction over the Petition for
Review.
2
Please note that this case is different from Abebe v. Gonzales, 493 F.3d
1092 (9th Cir. 2007) (en banc).
2600 KIN v. HOLDER
III
A
[2] Petitioners argue that the adverse credibility determina-
tion based on their demeanor is not supported by substantial
evidence. The BIA deferred to the demeanor findings made
by the IJ because the IJ was “uniquely positioned to make
such assessments.” Because the BIA deferred to the IJ’s
demeanor determination, we therefore “look to the IJ’s . . .
decision as a guide to what lay behind the BIA’s conclusion.”
Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008) (inter-
nal quotation omitted). The IJ stated that her adverse credibil-
ity findings were “not based solely on the examination of the
spoken word when compared to the written word, but also
based upon the [Petitioners’] demeanor as witnesses.” This is
the only reference the IJ made to Petitioners’ demeanor.
Although an IJ’s determination regarding demeanor is given
special deference, the IJ must still provide specific examples
of a petitioner’s demeanor that would support this basis for an
adverse credibility determination. See Arulampalam v. Ash-
croft, 353 F.3d 679, 686 (9th Cir. 2003) (refusing to give def-
erence to the IJ’s demeanor finding because the IJ did not
“specifically or cogently refer to any aspect” of the petition-
er’s demeanor).
[3] The IJ’s failure to provide specific examples explaining
why Petitioners’ demeanor called their testimony into ques-
tion compels the conclusion that the BIA’s adverse credibility
finding cannot be upheld on this basis. It would be unreason-
able to affirm the BIA’s findings based on the IJ’s blanket
statement about Petitioners’ demeanor when the hearing tran-
script did not provide evidence regarding their non-verbal
communication and the IJ did not make explicit reference to
particular unrecorded aspects of demeanor in her oral deci-
sion. See id. There is no evidence in the administrative record
that would support an adverse credibility determination based
on demeanor.
KIN v. HOLDER 2601
B
[4] The IJ and BIA explicitly relied upon both Prak’s and
Kin’s failure to even mention the 1998 political demonstration
in their separate asylum applications as a basis for the adverse
credibility findings. Petitioners contend that this omission is
an impermissible reason to make an adverse credibility deter-
mination. See Alvarez-Santos, 332 F.3d at 1254 (recognizing
that omissions from asylum applications are generally not a
sufficient basis for discrediting testimony). Omissions are not
given much significance because applicants usually do not
speak English and are not represented by counsel. Id. Simi-
larly, applicants frequently have someone prepare the applica-
tion for them, and applicants may be compelled to explain
facts included in the application by an unscrupulous preparer.
Id. However, we find this particular omission significant.
Petitioners compare their case to Smolniakova v. Gonzales,
422 F.3d 1037, 1045 (9th Cir. 2005), where we reversed the
adverse credibility finding because we found that the petition-
er’s failure to mention that her wrists were slashed was not a
discrepancy supporting an adverse credibility determination
because the wrist-slashing was simply a description of the
mistreatment that was alleged in her asylum application. The
government, on the other hand, likens this case to Alvarez-
Santos, 332 F.3d at 1254, where we upheld the adverse credi-
bility finding because the petitioner did not mention the inci-
dent in any asylum application or his original testimony.
Rather, the petitioner only remembered the “dramatic inci-
dent” after the conclusion of his testimony. Id.
[5] In order to avoid removal, an alien seeking asylum
bears the burden of establishing that he is being persecuted
based on his “race, religion, nationality, membership in a par-
ticular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A). Prak and Kin sought asylum based on their
political opinion, yet neglected to mention their participation
in the key political demonstration they later claimed was the
2602 KIN v. HOLDER
basis for their arrests and subsequent persecution. This is not
a situation where Petitioners failed to “remember non-
material, trivial details that were only incidentally related to
[their] claim of persecution.” Kaur v. Gonzales, 418 F.3d
1061, 1064 (9th Cir. 2005). Rather, Petitioners omitted any
mention of their participation in a demonstration that is the
entire basis for their claim for political asylum. When con-
fronted with the omission at the asylum hearing, Kin stated
that he felt inclusion in the asylum applications was not nec-
essary because the demonstration would be discussed at the
hearing. This explanation is not persuasive enough to compel
the conclusion that the omissions were immaterial.
[6] Petitioners’ omissions in this case are similar to the
omission in Alvarez-Santos. The 1998 political demonstration
and Petitioners’ participation in it were crucial to establishing
they were persecuted for their political opinion, yet no men-
tion was made of the demonstration until the merits hearing
on the applications. These omissions constitute substantial
evidence to support the BIA’s adverse credibility determina-
tions.
C
Petitioners argue that the BIA’s adverse credibility determi-
nations are not supported by substantial evidence because the
BIA should not have relied on inconsistencies between Kin’s
testimony and Senator Thach’s testimony when it made an
adverse credibility finding against Prak. We believe that sub-
stantial evidence does support the BIA’s adverse credibility
determinations because it is the BIA’s duty to consider all evi-
dence presented to it when making such findings.
[7] The asylum merits hearing before an IJ or the BIA pro-
vides the alien an opportunity to present testimony, documen-
tary evidence, and arguments in support of his claim for
asylum. Aliens are afforded the opportunity to explain incon-
sistencies within their own personal testimony because the
KIN v. HOLDER 2603
true story may get lost in translation. See Tekle, 533 F.3d at
1053 (finding legal error in not affording the alien an opportu-
nity to explain the purported inconsistency because the alien
may have been able to clarify her original answer); Zi Lin
Chen v. Ashcroft, 362 F.3d 611, 618 (9th Cir. 2004) (stating
that the IJ’s failure to question the alien further resulted in the
court speculating whether the alien did not understand the
question and whether there was a truthful explanation for the
inconsistency).
[8] When inconsistencies exist between the testimony of
multiple witnesses and documentary evidence, however, it is
not a matter of a communication problem requiring clarifica-
tion, but of determining how the evidence fits together.
Hence, it is not improper for the BIA to consider such incon-
sistencies when making credibility determinations. An asylum
merits hearing is no different than any other trial or hearing
in which the factfinder must resolve conflicts in the testi-
mony. For example, when the prosecution in a criminal case
puts on evidence that supports one version of events and the
defendant then testifies that the events occurred differently,
the prosecution is not given an opportunity to explain why the
defendant’s testimony is different. Instead, the finder of fact
shoulders the responsibility of examining all the evidence
presented and deciding which version of the events is true. In
an immigration hearing, it is the adjudicator’s duty to hear all
the evidence presented, consider it, and make that determina-
tion. Thus, it is proper for the IJ or the BIA to consider all the
evidence presented at the hearing before making an adverse
credibility determination.
[9] Our prior immigration decisions support this conclu-
sion because they recognize that any reviewing body, be it the
BIA or the Ninth Circuit, must examine all of the evidence
presented at the hearing. See Kaur, 418 F.3d at 1066 (“In
short, our case law does not mandate that we, or the IJ for that
matter, abandon our common sense in favor of rules of gen-
eral application. It is well established in this circuit that false
2604 KIN v. HOLDER
statements and other inconsistencies must be viewed in light
of all the evidence presented in the case.”); see also Kaur v.
Ashcroft, 379 F.3d 876, 889 (9th Cir. 2004) (“[M]is-
representations must instead be evaluated in light of all the
circumstances of the case . . . .”). When multiple witnesses
testify, the testimony of each must be considered, and the
adjudicator then must evaluate the conflicting and corroborat-
ing testimony to determine the relevant facts and make a deci-
sion on the merits of the alien’s application. Consequently,
the BIA must be allowed to consider the effect of every wit-
ness’s testimony on the claims made by each applicant cur-
rently before the BIA.
[10] Here, the IJ made an adverse credibility determination
as to both Prak and Kin in part because there were numerous
inconsistencies among their testimony, with the testimony of
Senator Thach, and with the documentary evidence submitted
by Petitioners. In reviewing the IJ’s determination, the BIA
specifically noted two inconsistencies: (1) Kin’s testimony
that Prak was at home when he was arrested and Prak’s testi-
mony that she had already been arrested at that time, meaning
she would have been in prison when Kin was arrested; and (2)
Senator Thach’s testimony that he never petitioned a Cambo-
dian court for either Petitioner’s release and Kin’s written
declaration that Senator Thach filed a complaint with the
Supreme Court of Cambodia for Kin’s release. It was proper
for the BIA to consider these inconsistencies when making a
credibility determination as to both Kin and Prak.
[11] These two specific findings constitute substantial evi-
dence in support of the BIA’s adverse credibility determina-
tions. The inconsistencies went to the truthfulness of the
circumstances surrounding Petitioners’ arrests and the inter-
vention needed to obtain their releases from prison. Thus,
these inconsistencies go to the heart of each Petitioner’s claim
for asylum. See Singh v. Gonzales, 439 F.3d 1100, 1108 (9th
Cir. 2006) (“An inconsistency goes to the heart of a claim if
KIN v. HOLDER 2605
it concerns events central to petitioner’s version of why he
was persecuted and fled.”).
IV
We hold that the BIA’s reasons for finding Prak and Kin
not credible on consolidated evidence are supported by sub-
stantial evidence as to each Petitioner. Therefore they cannot
satisfy their burden of showing entitlement to the relief they
sought.
Petition for review DENIED.