Thu v. Atty Gen USA

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
12-18-2007
Thu v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 06-3499
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No: 06-3499
______________
MYAT THU,
Petitioner
v.
ATTORNEY GENERAL USA,
Respondent
_______________
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A97-524-773)
Immigration Judge Margaret R. Reichenberg
_______________
Argued September 26, 2007
Before: AMBRO, JORDAN and ROTH, Circuit Judges.
(Filed: December 18, 2007)
_______________
Sandy Khine
299 Broadway, Suite 803
New York, NY 10007
William J. Vandenberg [ARGUED]
Hogan & Vandenberg
11 Bala Avenue, Suite 8
Bala Cynwyd, PA 19004
Counsel for Petitioner
Christopher J. Christie
Stuart A. Minkowitz [ARGUED]
United States Attorney’s Office
970 Broad Street, Room 700
Newark, NJ 07102
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Myat Thu (“Thu”) petitions for review of an Order of
the Board of Immigration Appeals (“BIA”) dismissing his
appeal of an Immigration Judge’s (“IJ”) denial of his
applications for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). After
deciding that Thu’s testimony was not credible, the IJ denied
Thu’s applications. The BIA found that the IJ’s adverse
2
credibility determination was reasonable and not clearly
erroneous. Because we find that the IJ failed to consider all
of the evidence in the record, including particularly the United
States Department of State Country Report on Human Rights
Practices in Burma, we will grant the petition for review and
remand the case to the BIA for further remand for a new
hearing.
I. Factual and Procedural Background
A. Airport Interview
Thu is a native and citizen of Burma, which is also
known as the Union of Myanmar. He arrived in New York at
John F. Kennedy Airport on September 24, 2005, with a false
passport, after having made stops in Singapore and Germany.
Although his native language is Burmese, Thu was
interviewed in English at the airport by an officer of the
United States Customs and Border Protection (an “asylum
officer”) because he said that he spoke “English and a little
Japanese.” (App. at 307-08.) When asked why he was
visiting the United States, Thu stated, “I want to escape
Burma for me and my family. I cannot do anything in Burma
because I have no military friends and the military controls all
the jobs.” (Id.) In response to whether the Burmese
government threatened him, Thu replied, “If I go back to
Burma, they will hurt me sometime.” (Id.) In response to
whether he had ever been arrested, Thu answered “No.” The
final questions at the interview were documented as follows:
3
Q. Why did you leave you[r] home country or
country of last residence?
A. I do not like the laws and rules in Burma.
Q. Do you have any fear or concern about being
returned to your home country or being
removed from the United States?
A. Yes I am afraid to return to Burma.
Q. Would you be harmed if you are returned to
your home country or country of last residence?
A. The police hurt me last time.
Q. Do you have any questions or is there anything
else you would like to add?
A. No.
(App. at 310.) Although Thu indicated that the Burmese
police “hurt [him] last time,” the asylum officer did not
further pursue that subject.
B. Credible Fear Interview
Thu was detained at the Elizabeth Detention Center in
Elizabeth, New Jersey, where he was interviewed by another
asylum officer on September 29, 2005. During that interview,
4
which was intended to aid in determining whether Thu had a
credible fear of future persecution, Thu spoke Burmese and
was assisted by an interpreter. Early in the interview, he
revealed that he had a cousin named Thu Hein who lived in
Miami, Florida. The asylum officer’s notes go on to indicate
that Thu spoke about why he feared returning to Burma. He
said that his father had been arrested in 1990, imprisoned for
three and one-half years, and tortured for being an elected
member of the National League for Democracy (“NLD”)
political party. Although Thu said that he was not himself a
member of the NLD, he did participate in 2003 in pro-
democracy demonstrations against the Burmese government.
Those demonstrations took place in Japan, and Thu
distributed leaflets, protested when the Prime Minister of
Burma came to Japan to speak at the Burmese Embassy, and
wrote a letter to President George W. Bush asking for the
United States to “intervene and help the people in Burma.”
Thu claimed that he illegally returned to Burma in
early 2005. He stated that he could not return to Burma
legally, or return to his hometown to work, because he “was
afraid the government would be aware of [his] political
activities in Japan.” (App. at 303.) Thu left Burma again in
September 2005 because he feared getting arrested after a
friend who returned to Burma with him in 2005 was arrested
on the basis of political activities in Japan. Regarding his fear
of arrest because of his own political activities in Japan, Thu
stated:
After my friend’s arrest I got scared and left the
country. Therefore, if I go back I will be
5
arrested and imprisoned for protesting against
the government in Japan. My prison time
would be up to 40 years. I was afraid to be
active in Burma because of what happened to
my father and my friend. However, I was active
in Japan. I cannot go back to Burma.
In sum, Thu explained his fear of returning to Burma as being
based on, first, the imprisonment and torture of his father for
engaging in political protest in Burma, second, his own
political activities in Japan, and, third, the arrest of his friend
for engaging in political activities similar to his in Japan. At
the end of the credible fear interview, the asylum officer
found that Thu had established a “[c]redible fear of
persecution,” and that “[t]here is a significant possibility that
the assertions underlying [Thu’s] claim could be found
credible in a full asylum or withholding of removal hearing.”
(App. at 304.)
C. Asylum Application
On October 25, 2005, Thu filed an asylum application.
On the application, Thu indicated that he was not fluent in
English. Thu also recounted his father’s imprisonment, and
stated that when he was in Japan he supported and worked
with members of the NLD. While explaining his father’s
political involvement, Thu also stated that Thu Hein, whom
he had earlier said was his cousin but whom he now identified
as his brother, “was interrogated and briefly detained in
Burma by government officials.” Thu Hein fled Burma in
6
1991 and received political asylum in the United States in
2001.
Thu was in Thailand in 1990 when his father was
arrested. He described his travels and activities after that:
I returned to Burma for a brief period and then
went to Singapore where I remained for 3 years.
In 1993 I returned to Burma where I worked as
a car broker. I got married in 1994 and had a
daughter in 1995. I was active in underground
pro-democracy groups beginning in 1995 when
I helped organize and spread information about
what the Burmese government was really doing.
I was fearful of being arrested so I moved
around a lot and didn’t remain at home with my
wife that often.
Thu then described, for the first time, his own arrest in
Burma:
In July 1998 while distributing pro-democracy
leaflets in Bo Kyaw Market in Yangon I was
arrested by 3 local police in civilian clothes who
noticed what I was doing. I was handcuffed and
taken away in their car to the local police station
in Mingala Tun Nyunt Toownshsip [sic]. I was
detained for two weeks. After arriving at the
police station I was interrogated. I did not
answer their questions so they became angry
with me. They punched me in the face and
7
chest, they kicked me in my back and shoulders
with their boots and they threw glass at me.
After two weeks I was released after signing a
statement that I would no longer engage in
political activities.
(App. at 384.)
By using a fake name, Thu obtained a Burmese
passport in 1998 and left Burma for Japan in November 1998.
Thu stayed in Japan until January 2005. As described in his
credible fear interview, Thu was involved in political protests
against Burma while in Japan, and he participated in NLD
meetings and prepared pamphlets and leaflets describing the
human rights abuses in Burma. Thu said he secretly returned
to Burma in January 2005 because he missed his wife and
daughter.
In September 2005, Thu learned that two fellow
activists, who had returned with him to Burma from Japan,
had been arrested and imprisoned. These activists had
demonstrated with Thu at the Burmese Embassy in Japan and
had worked with him in the underground pro-democracy
movement in Burma after they returned. Fearing for his
safety, Thu fled Burma on September 23, 2005, headed for
the United States.
D. Immigration Hearing
On January 13, 2006, Thu participated in an
immigration hearing. He testified in Burmese and had the aid
8
of a translator. At the outset of the hearing, he amended his
written statement to add two details and to correct the spelling
of his daughter’s name.1 On direct examination, Thu again
explained the circumstances of his 1998 arrest and
imprisonment, which he indicated resulted from his
distributing leaflets for the NLD. Thu described how he was
arrested by three policemen in civilian clothing who
transported him by car to a police station. Upon arrival, they
asked him why he was distributing the pro-democracy
literature and who had asked him to distribute it. While he
was being interrogated, two police recruits hit him with their
fists and kicked him in the back. Thu said he remained
imprisoned for two weeks.
Thu also recounted his activities in Japan with the
Burma Democratic Action Group (“BDA”) political party.
His lawyer submitted into evidence a letter dated December
31, 2005 on BDA letterhead by Nyi Zaw (the “Zaw letter”),
political adviser to the BDA, that stated that Thu was a BDA
“group member when he was in Japan,” and that Thu and Zaw
“were very strong supporters of NLD pro-democracy
1
There were two amendments made by Thu’s lawyer. The
first amendment added the language “four times” in reference
to the number of times Thu traveled to the Burmese border in
2005 to exchange information with other pro-democracy
groups. The second amendment added the words “and
daughter” to clarify that Thu met with both his wife and
daughter before leaving for the United States. Once on the
stand, Thu also corrected the spelling of his daughter’s name
in the written statement.
9
moments [sic] in Japan.” (App. at 319.) The letter also states
that Thu and Zaw helped to “organize and participate [in]
Burmese pro-democracy movements in Japan together.”
(Id.)2
Thu then described how he left Japan in 2005 to return
to Burma. He stated that because he missed his family, he
decided to risk being arrested in Burma for his activities in
Japan. Direct examination ended with Thu stating that if he
were to return to Burma, he would be arrested, just as his two
fellow activists were arrested prior to his departure.
During cross-examination, the lawyer for the
Department of Homeland Security (“DHS”) focused on Thu’s
representations in his asylum application that he “returned to
Burma for a brief period” after his father’s arrest in Thailand.
(App. at 384.) The DHS lawyer asked a series of questions
implying that, if Thu’s father’s arrest made Thu afraid of the
Burmese government, Thu would not have returned to Burma
2
An earlier, unsigned letter allegedly written by Nyi Zaw
was also submitted into evidence. This earlier letter was
dated December 23, 2005 and has slightly different content.
It does not state that Thu was a “member” of BDA, but does
state that Thu was a “very strong supporter[] of NLD pro-
democracy movements in Japan,” and that he helped to
“organize and participate [in] Burmese pro-democracy
movements in Japan.” (App. 326.) When asked on cross-
examination why Zaw sent two letters, Thu stated that it was
because Zaw forgot to sign the first letter. When asked why
the content of the letters varied slightly, Thu stated that he did
not know.
10
right after that arrest. Thu responded that he did not return to
Burma, but instead went directly from Thailand to Singapore
because once the military took power, he was not able to go
back to Burma. When asked to explain why his written
statement stated that he returned to Burma, Thu said that he
used a dictionary when reading the statement for accuracy and
must not have understood the sentence clearly, as he thought
it implied that he was not able to go back to Burma at that
time.
When the DHS lawyer and IJ demanded more
explanation for this perceived discrepancy, Thu stated that
perhaps the misstatement was due to mistranslation or to his
own misunderstanding. The IJ asked how it could be due to a
mistranslation, and Thu stated that perhaps the written
statement reflected a mistranslation by the asylum officer or
interpreter. That response rightly struck the IJ as odd, since
the statement was not prepared by the asylum officer but by
Thu and his lawyer. The IJ clarified with Thu which
document was being referred to and that the written statement
had been provided by Thu and his lawyer, not an asylum
officer. Thu responded that, either way, the information in
the statement was incorrect because he did not return to
Burma prior to moving to Singapore. Apparently unsatisfied
with Thu’s response that the written statement contained a
mistake, the IJ then instructed the DHS lawyer to ask Thu a
third time why the statement was different from his testimony.
Upon being asked a third time, Thu stated that “[w]hen I read
that sentence, my understanding of the sentence is that the
11
situation in Burma was so deteriorating that I could not go
back to Burma, that was what I understand.” (App. at 254.)3
Thu was also asked on cross-examination why he had
indicated during his airport interview that he had never been
arrested in Burma. Thu stated that he was confused during
the questioning and thought that the time frame he was being
questioned about was between January 2005 and September
2005. He also stated that he was very “excited” during
questioning and his English was not good. Furthermore, Thu
stated that he was “afraid [of the officer] from within [his]
heart,” and feared that, if he mentioned being arrested, the
officer would not like his answer. (App. at 266.)
Thu also testified that he was afraid to disclose the
1998 arrest during his credible fear interview. Thu explained
that he disclosed the arrest in his asylum application and at
the hearing because he had met with his lawyer and his
lawyer had told him that he should disclose everything.
Finally, Thu was asked why he had stated in his
credible fear interview that Thu Hein was his cousin, instead
3
On redirect, Thu’s lawyer elicited that Thu had in fact told
him (the lawyer) that he (Thu) did not go to Burma before
moving to Singapore from Thailand. In his closing argument,
Thu’s lawyer stated that the fact that the written statement
was never corrected to reflect that Thu did not return to
Burma was his (the lawyer’s) mistake, and that “the
respondent should not bear the burden of being thought
incredible regarding that.” (App. at 286.)
12
of his brother. He answered, “I was afraid that because of me
he might be in trouble. That was why I did not mention him
as my blood brother. ... So if we are not brothers, then if
something happened to me happen [sic] then I will be the only
person that have to face that problems [sic].” (App. at 270-
272.)
E. The IJ’s Decision
At the conclusion of the January 13, 2006 hearing, the
IJ denied Thu’s claims and ordered him removed. The IJ
based her decision on a finding that Thu was not credible in
his testimony. In particular, the IJ was troubled by the
discrepancy between Thu’s testimony and his written
statement about whether he had returned to Burma in 1990.
The IJ found it “completely incredible” that Thu could
“interpret a statement, ‘I returned to Burma,’ as anything
other than saying ‘I returned to Burma.’” (App. at 69.) The
IJ’s disbelief was also based on Thu’s having made
amendments to his written statement at the beginning of his
hearing but not changing the statement about returning to
Burma.4 The IJ acknowledged that on redirect there was
testimony that, one week before trial, Thu met with his lawyer
to discuss his case and clarified that he had not returned to
Burma prior to moving to Singapore from Thailand. The IJ,
however, stated that “I don’t have to rely on what happened a
week before the hearing. I am entitled to rely on what the
respondent told me under oath at the beginning of the hearing
on January 13th of 2006.” (App. at 69.)
4
See supra note 1.
13
The IJ also noted Thu’s failure to disclose the 1998
arrest during his airport interview and credible fear interview.
She described the arrest as “the centerpiece of any past
persecution claim ... since that would have been the only time
the respondent suffered any personal problem with the
Burmese Government.” (App. at 71.) According to the IJ,
Thu’s explanation that he was afraid to disclose the arrest at
the airport interview would have been plausible if Thu had not
also failed to mention it at his credible fear interview, where,
with a translator, he was told to disclose all significant events
and that the information would be kept confidential. The IJ
viewed the lack of documentation about the arrest as
important, suggesting that some documents or statements
should have been forthcoming from his family in Burma to
corroborate his arrest.
The IJ further found that if she ignored the 1998 arrest
and the credibility issues associated with Thu’s testimony
about it, and focused only on his activities in Japan with the
BDA and the NLD and the subsequent arrest of his fellow
demonstrators upon returning to Burma from Japan, those
political activities and consequences were not enough to
establish a well-founded fear of persecution. As support for
that finding, the IJ reasoned that there was no proof that the
Burmese government knows or cares that Thu demonstrated
outside of the Burmese embassy in Japan and supported the
BDA. Furthermore, the IJ said, because Thu had no
corroborating evidence to show that his fellow pro-democracy
demonstrators were arrested, their arrest could be fictional,
and, even if the arrests did occur, that did not mean that Thu
would be arrested if he returned to Burma. The IJ concluded
14
that, if she were to assume that Thu was arrested in 1998 and
later worked with the BDA in Japan, Thu’s case would be
stronger, and she could find that he had established a well-
founded fear of future persecution.
The IJ also denied Thu’s application for withholding of
removal. She reasoned that Thu’s failure to show a well-
founded fear of persecution, which is the standard for
receiving asylum, meant that he necessarily also failed to
meet the higher standard necessary for withholding of
removal. The IJ denied Thu’s claim under the CAT because
she found that he was not credible or persuasive in showing
that it is more likely than not that the Burmese government
would torture him upon his return.
F. The BIA Decision
On June 22, 2006, the BIA dismissed Thu’s appeal.
The BIA held that the IJ had identified inconsistencies in
Thu’s testimony that were not convincingly explained and
that the IJ’s credibility determination was therefore not clearly
erroneous. The BIA specifically noted Thu’s failure to reveal
his 1998 arrest during the airport interview and credible fear
interview as being a “significant omission,” and mentioned
Thu’s inability to corroborate his arrest by having family
members in Burma send pertinent documentation.
Thu now petitions this court for review of the BIA’s
decision.
II. Jurisdiction and Standard Of Review
15
We have jurisdiction to review the BIA’s final decision
pursuant to 8 U.S.C. § 1252(a)(1). In cases where the BIA
has based its decision on the IJ’s adverse credibility analysis,
we may review both the BIA’s opinion and the IJ’s opinion.
Fiadjoe v. Att’y Gen., 411 F.3d 135, 152-53 (3d Cir. 2005).
Adverse credibility determinations must be upheld if
supported by substantial evidence, INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992), and “can only be reversed if the
evidence is such that a reasonable factfinder would be
compelled to conclude otherwise.” Chavarria v. Gonzales,
446 F.3d 508, 515 (3d Cir. 2006). “In particular, we uphold
the IJ’s adverse credibility determinations if they are
supported by reasonable, substantial, and probative evidence
on the record considered as a whole. In making an adverse
credibility finding, the IJ must supply specific, cogent reasons
why the applicant is not credible.” Chukwu v. Attorney Gen.,
484 F.3d 185, 189 (3d Cir. 2007). Moreover, an examination
of the record must also reveal that “the alien has not supplied
a convincing explanation for ... discrepancies and omissions.”
Xie v. Ashcroft, 359 F.3d 239, 243 (3d Cir. 2004).
Although our review of the BIA’s rulings is limited,
“we are not foreclosed from determining whether the BIA
followed proper procedures and considered and appraised the
material evidence before it. If the administrative record fails
to reveal that such evidence has been fairly considered, the
proper course is to remand the case ... so that the [IJ] may
evaluate such evidence and consider its effect on the
application as a whole.” Sotto v. INS, 748 F.2d 832, 837 (3d
Cir. 1984).
16
III. Discussion
A. Asylum
Under 8 U.S.C. § 1158(b), “[t]he Attorney General
may grant asylum to an alien who demonstrates that he or she
is a refugee[.]” Gao v. Ashcroft, 299 F.3d 266, 271-72 (3d
Cir. 2002). A refugee is defined by statute as a person who is
“unable or unwilling to return to, and is unable or unwilling to
avail himself or herself of the protection of [the] country [of
that person’s origin or habitual residence] because of
persecution or a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1101(42)(A); see also
Gao, 299 F.3d at 271-72.
To establish eligibility for asylum on the basis of past
persecution, an applicant must show: “(1) an incident, or
incidents, that rise to the level of persecution; (2) that is ‘on
account of’ one of the statutorily-protected grounds; and (3) is
committed by the government or forces the government is
either ‘unable or unwilling’ to control.” Gao, 299 F.3d at 272
(quoting Navas v. INS, 217 F.3d 646, 655 (9th Cir. 2000)).
To establish eligibility for asylum based on a well-founded
fear of future persecution, an applicant must show “that she
has a genuine fear, and that a reasonable person in her
circumstances would fear persecution if returned to her native
country.” Id. (quoting Elnager v. INS, 930 F.2d 784, 786
(9th Cir. 1991)). Persecution has been defined by the Third
Circuit and the BIA “to include threats to life, confinement,
17
torture, and economic restrictions so severe that they
constitute a threat to life or freedom. By contrast, ... generally
harsh conditions shared by many other persons do not amount
to persecution.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.
1993) (internal citations and quotation marks omitted).
On appeal, Thu argues that the IJ’s denial of his
application for asylum was erroneous because he did suffer
past persecution and does have a well-founded fear of future
persecution. He contends that the inconsistencies cited by the
IJ were minor and do not go to the heart of his asylum claim.
Moreover, he says, the explanation as to why he did not
mention the 1998 arrest to the asylum officers is reasonable,
especially in light of the repressive practices of the Burmese
government. Finally, he argues that the IJ’s denial of his
asylum claim was erroneous because the IJ did not consider
evidence of human rights abuses in Burma, such as that set
forth in the 2005 U.S. Department of State Country Reports
on Human Rights Practices in Burma (the “Country Report”),
and in the 2006 Amnesty International Report, the 2006
Human Rights Watch Overview on Burma, and the U.S.
Department of Treasury Overview of Sanctions on Burma
(collectively the “other Burma reports”).
The IJ denied Thu’s claim for asylum for two reasons.
First, as earlier described, she found that his testimony lacked
credibility because of inconsistencies between his testimony
at the hearing and his statements in interviews during his first
week in the United States and in his asylum application.
Second, she found that, without taking into account his
alleged 1998 arrest, which she evidently believed did not
18
occur, his other experiences and those of his friends were not
enough to establish a well-founded fear of persecution. We
focus on her second reason first.
1. Well-founded fear of persecution
The IJ stated in her opinion that Thu’s pro-democracy
activities with the BDA in Japan and with the NLD in Burma
are not enough to establish a well-founded fear of persecution
on account of his political opinions. She did not elaborate on
why she believed that Thu’s political activities were not
enough to the meet the “well-founded fear” standard. Her
primary concern seemed to be that Thu had provided no proof
that the Burmese government was aware of his political
activities. It may be that the IJ had some additional reasons
for her finding that Thu’s activities would not raise a well-
founded fear of persecution, but we do not see any reflected in
the record. The relatively perfunctory dismissal of Thu’s
testimony about his fear is especially troubling because of the
conditions in Burma described in the State Department
Country Report and other Burma reports.
The Country Report describes Burma as a nation
repeatedly betrayed by its government in terrible ways. The
Report states that Burmese citizens are subject to arbitrary
arrest and detention,5 denial of fair judicial proceedings,6
5
“[T]he Government routinely used arbitrary arrest and
incommunicado detention. The Penal Code allows authorities
to extend sentences after prisoners have completed their
original sentence, and the Government makes regular use of
19
constant surveillance and monitoring of movements,7 virtual
elimination of freedom of speech and press,8 elimination of
any meaningful opportunity for peaceful assembly and
association,9 and elimination of freedom of religion.10 And
this provision ... .” (Supp’l App. at 360.)
6
“[T]he Government continued to rule by decree and was
not bound by any constitutional provisions providing for fair
public trials or any other rights.” (Supp’l App. at 362.)
7
“Through its pervasive intelligence network and
administrative procedures, the Government systematically
monitored the travel of all citizens and closely monitored the
activities of many citizens, particularly those known to be
active politically.” (Supp’l App. at 363.)
8
“The law permits the Government to restrict freedom of
speech and press ... . The Government continued to arrest,
detain, convict and imprison citizens for expressing political
opinions critical of the Government, and for distributing or
possessing publications in which opposition opinions were
expressed. Security services also monitored and harassed
persons believed to hold antigovernmental opinions ... . In all
regions of the country, the Government continued to use the
force to prohibit all public speech critical of it by all persons.”
(Supp’l App. at 367.)
9
“An ordinance officially prohibits unauthorized outdoor
assemblies of more than five persons ... . On April 17, the
Government allowed the NLD to re-open its Rangoon
headquarters, closed following the May 2003 attack.
20
this is only a partial listing of the depredations attributed to
the government in Rangoon.11
That is the background that must in fairness be
considered when reviewing Thu’s testimony. Thu explained
However, all other NLD offices remained closed by
Government order and the NLD could not conduct party
activities outside its headquarters building. The nine other
legally registered political parties were required to request
permission from the Government to hold meetings of their
members ... . The Government restricted freedom of
association, particularly in regard to members of the NLD,
pro-democracy supporters, and those who contacted exile
groups.” (Supp’l App. at 369.)
10
“The Government has governed without a Constitution
since 1988. Constitutional support for freedom of religion
does not exist ... . [R]eligious adherents [were forced to]
register[] with the authorities ... . The Government’s pervasive
internal security apparatus sought to infiltrate or monitor
meetings and activities of virtually all organizations,
including religious ones.” (Supp’l App. at 369.)
11
While not in the record, we note that Burma was featured
prominently in international news on the very day this case
was argued. The Burmese government was reportedly
preparing for a massive crackdown on pro-democracy
political demonstrations. See, e.g., Burma's Junta Imposes
Curfew, Bans Gatherings, Washington Post, Wednesday,
September 26, 2007, at A01.
21
that he had demonstrated outside of the Burmese embassy in
Japan against his country’s government, and that he had also
distributed pro-democracy literature and attended BDA
meetings in Japan. Furthermore, he testified that he was
active in the pro-democracy movement in Burma, that his
father was imprisoned for his activities with the pro-
democracy movement in Burma, that he has a brother who
was questioned by the Burmese authorities for his political
involvement and, as a result, fled to the United States for
asylum, and that two of his fellow pro-democracy
demonstrators were arrested by authorities upon their return to
Burma from Japan.
Thu introduced two letters that he claims prove he was
heavily involved in political activities disapproved by the
Burmese government, and which, if accepted as truthful,
show he is indeed likely to be someone of whom the Burmese
authorities are aware. First, he introduced the Zaw letter,
written on BDA letterhead, that stated Thu was a BDA “group
member when he was in Japan,” and that Thu and Zaw “were
very strong supporters of NLD pro-democracy moments [sic]
in Japan.” (App. at 319.) The Zaw letter goes on to state that
Thu helped to “organize and participate [in] Burmese pro-
democracy movements in Japan.” Second, Thu provided a
letter written by U Thang (the “Thang letter”) on December
14, 2005, which was not mentioned by the IJ in her opinion.12
12
This letter is in the record and was submitted to the IJ by
Thu’s counsel under title of a “supporting document” on
December 21, 2005, but it is not clear that it was introduced
into evidence at the hearing.
22
Thang stated in his letter that he is the Chief Editor of the
New Era Journal, which is financed by the National
Endowment for Democracy in Washington, D.C. and “edited
here in Florida, America and printed in Thailand to distribute
secretly inside Burma as an organ for democracy forces.”13
Thang’s letter reveals that Thu’s name is associated with the
pro-democracy movement in Japan, as he stated:
In my Tokyo files I had noticed that Myat Thu’s
name appeared occasionally. I learnt that he
was active there for the pro-democracy
movements. His name appeared with the
movements means his future is not good to
return to his mother land. I knew about many
men like him had disappeared in Burmese
military prisons upon their return. They went
back home after participating in the movements
abroad. They were not wise.
....
If [Thu] is sent back, certainly he would suffer a
long imprisonment till end of his life.
On remand, in making a determination as to whether
Thu’s political activities in Japan with the BDA and in Burma
with the NLD establish a well-founded fear of persecution, an
IJ should consider the Zaw letter, the Thang letter, the State
Department’s Country Report, and the other Burma reports,
13
Thang’s letter was accompanied by a copy of what
appears to be the journal’s front page.
23
all of which are deserving of some comment and analysis in
the course of making that determination.14 See Sotto, 748
F.2d at 837 (“If the administrative record fails to reveal that
such evidence has been fairly considered, the proper course is
to remand the case ... so that the [IJ] may evaluate such
evidence and consider its effect on the application as a
whole.”).
2. Credibility
We have provided a relatively extensive recitation of
facts to make the point that, while we do not presume to make
a credibility determination, this record appears to present a
close case. The IJ herself acknowledged as much, and at least
one asylum officer found, following the “credible fear”
interview on September 29, 2005, that Thu had indeed
established a credible fear of persecution.15 Taken in
14
Remand also gives the IJ an opportunity to consider more
recent evidence of country conditions. It may well be that
events since 2005 warrant attention.
15
“Now, assuming that he’s credible, that he was actually
arrested and mistreated in 1998 and then that he went after
that circumstance and was active in Japan, his case would be a
little bit stronger. He then might have some adverse history
with the Burmese government which would at least support
his speculation that maybe they would have some interest if
they located him again and then found out that he was
traveling on a regular basis to the border of Burma and
Thailand ... . I would find, although it’s a very close question,
24
consideration with evidence such as the Country Report,
which relates numerous abuses of the Burmese people by
their government, Thu’s explanations for the inconsistencies
in his testimony may be viewed differently than the IJ at first
viewed them. We do not imply that they should be; only that
they may be. We recognize that the IJ’s job in making
credibility determinations often poses significant challenges,
but they are challenges that can most effectively be met by
consideration of all of the facts available in the record.16
Thus, on remand an IJ should consider Thu’s explanations of
any discrepancies in his statements in light of the Country
Report and other evidence Thu has adduced or may be
permitted to adduce. Also, given the notoriously repressive
nature of the regime, an IJ should perhaps be reticent to draw
negative inferences from the lack of supportive
correspondence from Thu’s family in Burma. That lack of
support figured in the IJ’s original decision and may do so
again, but we counsel caution. Any reason for relying on the
lack of supportive documentation from Burma should be
thoroughly explained.
3. Withholding of Removal and CAT
that, if he were entirely credible, he would have established a
well-founded fear of future persecution based on the entirety
of the record before the Court.” (App. at 113-14.)
16
Consideration of all evidence does not require comment
on all evidence. However, the record of decision should
reflect “that such evidence has been fairly considered.” Sotto,
748 F.2d at 837.
25
We also remand this case for a new determination as
to whether Thu is entitled to withholding of removal and
relief under the CAT. We need not repeat the issues of
concern discussed in connection with the denial of asylum; it
is enough to note that the discussions regarding withholding
of removal and relief under the CAT must be reconsidered
based on all of the evidence, for the reasons already
discussed.
IV. Conclusion
The order of the BIA is vacated and the case is
remanded to the BIA for further remand for a new hearing
before an IJ.
26