Faustin Ilunga v. Eric Holder, Jr.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2064
FAUSTIN MUKADI ILUNGA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: October 28, 2014 Decided: January 27, 2015
Before GREGORY, FLOYD, and THACKER, Circuit Judges.
Petition for review granted; vacated and remanded by published
opinion. Judge Gregory wrote the opinion, in which Judge Floyd
and Judge Thacker joined.
ARGUED: Dana Joo Moss, COOLEY LLP, Washington, D.C., for
Petitioner. Catherine Bye, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Stuart F. Delery,
Assistant Attorney General, Cindy S. Ferrier, Assistant
Director, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
GREGORY, Circuit Judge:
Faustin Mukadi Ilunga, a citizen of the Democratic Republic
of the Congo, appeals the denial of his application for asylum
and protection under the Convention Against Torture (“CAT”). We
hold that the rejection of Ilunga’s asylum application, largely
on the basis of an adverse credibility finding, was not
supported by substantial evidence. We thus remand for further
proceedings.
I.
The following description of Ilunga’s travails in the Congo
and his journey to the United States is based on his asylum
application, testimony before the Immigration Judge (“IJ”), and
corroborating documentation in the record. The IJ’s adverse
credibility determination necessarily called into question the
trustworthiness of many of the facts alleged.
A.
Before fleeing to the United States, Ilunga lived in the
Congo with his wife and five children. In 2003, he joined the
Movement for the Liberation of the Congo (“MLC”), a political
party that actively opposed President Joseph Kabila in the
country’s 2006 elections. Ilunga was a paid employee and member
of the party, participating in highly visible campaign
activities and public appearances in the city of Lubumbashi.
2
After the MLC candidate lost the 2006 election to President
Kabila, Ilunga’s political activism endangered him. Local
police and others loyal to President Kabila threatened Ilunga’s
life and vandalized his home. The police also killed two MLC
supporters with whom Ilunga worked during the campaign.
Increasingly fearful, Ilunga wrote a letter to his childhood
friend living in neighboring Zambia, Bernard Kabeya, expressing
his anxiety while accusing the president of assassinating his
father.
The letter was intercepted by government agents working for
the Congolese intelligence agency, the Agence Nationale de
Renseignements (“ANR”). On December 23, 2006, an undercover ANR
agent went to Ilunga’s home, blindfolded him, and drove him to
prison where he was interrogated. Ilunga admitted that he
authored the letter, and the ANR agent stated that Ilunga “would
be killed” as a result. A.R. 61. 1
The government sent Ilunga to prison where he spent more
than a month in a small cell shared with Jean Nkongolo Kalala.
Ilunga suffered daily torture. Prison guards stabbed him and
poured battery acid in the wounds. They shocked him with an
electrical club, routinely whipped him, and raped him.
1
Citations to the “A.R.” refer to the Administrative Record
filed by the parties in this appeal.
3
On February 2, 2007, Ilunga and Kalala escaped from prison
with the help of a guard whom they paid off. The pair fled to
Zambia in the bed of a truck hauling copper. While Ilunga
remained in Zambia, the government tortured his family, raped
his wife, and burned his home.
On June 22, 2008, Ilunga and Kalala boarded a plane for the
United States. Ilunga’s wife and children fled to a Zambian
refugee camp.
B.
Ilunga arrived at Washington Dulles International Airport
without a visa. He told an immigration officer that he “left
[his] country for political reasons” and was “looking for
asylum.” A.R. 2006. He further specified that he was “afraid
to go back home” and had “no doubt” that he would be harmed
again if he returned to the Congo. A.R. 2006.
At a credibility hearing three weeks later, Ilunga attested
to his party membership, the threats against him as a result of
his political activity, the circumstances surrounding his
arrest, the torture he endured in prison, and his escape. The
asylum officer determined that Ilunga established a credible
fear of persecution.
C.
In May 2009, Ilunga filed his application for asylum,
withholding of removal, and CAT protection. The application is
4
consistent with the account he gave at the credibility hearing,
and it provides greater detail about the arrest and torture in
prison, including incidents when Ilunga was stabbed, shocked
with an electrical device on the genitals, sexually assaulted,
and beaten.
For supporting documentation, Ilunga provided:
• His affidavit, detailing his abuse and escape;
• A medical affidavit from Dr. Michael Viola, who
examined Ilunga in the United States and found that:
(1) Ilunga’s “reporting of his torture history and
symptoms are notable because of his consistent and
precise description of specific details and the
correlation of his history to his present symptoms and
physical findings”; (2) Ilunga’s psychological
symptoms are consistent with moderate post-traumatic
stress disorder (“PTSD”); (3) Ilunga’s physical
injuries are consistent with cuts with a sharp object,
and his chest wound is consistent with “delayed
healing of a wound secondary to infection or the
reported pouring of acid into the cut”; and (4)
Ilunga’s fear of return to the Congo is credible;
• An affidavit from Kalala, Ilunga’s cellmate, that is
consistent with Ilunga’s statements but does not speak
to the specific torture that Ilunga suffered in
prison;
• An affidavit from Bernard Kabeya, Ilunga’s friend in
Zambia, who confirmed Ilunga’s account of his time in
that country;
• Extensive documentation of country conditions in the
Congo, including descriptions of politically-motivated
violence, state-sponsored executions, forced
disappearances, torture in prison, and impunity for
rape;
• Ilunga’s reissued MLC membership card and a letter
from the MLC expressing concern “about his survival”
and attesting that his “activism on behalf of
5
democracy in our country has caused him a lot of
trouble from the security officers who are in power
(ANR)”;
• Photographs purporting to show scars on Ilunga’s body
caused by his torture in prison;
• Letters from Ilunga’s wife and family warning about
conditions in the Congo and detailing their flight to
Zambia; and
• The refugee card, and registration attestation, issued
to Ilunga’s wife by the United Nations High
Commissioner for Refugees (“UNHCR”).
D.
Ilunga and Kalala testified at Ilunga’s removal hearing.
Ilunga’s primary language is Tshiluba, but he claimed to speak
French fluently, and a contract French interpreter translated
the proceedings. After reviewing the two days of testimony and
the record, the IJ found that Ilunga was not credible and denied
his application for asylum, withholding of removal, and CAT
relief.
Three pieces of testimony were central to the IJ’s
credibility determination. First, the IJ cited supposedly
inconsistent statements about the location of Ilunga’s torture
inside the prison, and whether Kalala witnessed it. Ilunga, the
IJ observed, stated that he was beaten away from his cell and
that only guards witnessed the beatings. In seeming
incongruity, Kalala’s translated testimony provides that “these
things took place in the same room where they spent their
nights” and that Kalala “was there” when guards stabbed Ilunga.
6
The IJ determined that such an inconsistency “cannot be
explained by a translation error, particularly as one claimed to
have witnessed the beatings in the same room in which they slept
while the other testified to have been taken to a different part
of the prison and to have been beaten with only guards present.”
Second, the IJ found inconsistencies in testimony regarding
the prayer practices of Ilunga and Kalala. Ilunga, the IJ
determined, was initially non-responsive when asked exactly how
the cellmates prayed together, and he was vague when pressed
about the timing and content of the prayers. Moreover, the IJ
claimed Ilunga was “hesitant and vague” when answering questions
about the frequency and timing of prayer.
Third, the IJ agreed with the government that there were
material inconsistencies in the dates on the MLC documentation
provided. The date on the membership card and the letter, the
IJ determined, was the day before Ilunga’s detention, even
though Ilunga claimed that his wife obtained the documents much
later while he was living in the United States. Moreover, the
IJ believed it was significant that the MLC letter did not
mention Ilunga’s arrest, “which would be expected if it had been
written when claimed and if there was a typographical error in
the date.”
Regarding the testimony as a whole, the IJ found that
Ilunga’s demeanor also supported the adverse credibility
7
finding, noting in a single sentence that Ilunga was non-
responsive and appeared uncomfortable answering some questions.
The IJ added in passing that “DHS has also raised some valid
concerns regarding plausibility and vagueness.”
Finding Ilunga incredible, the IJ determined, “necessarily
calls into question all aspects of [his] claim.” The IJ further
concluded in two sentences that Ilunga was not entitled to
asylum based on any independent evidence unrelated to those
credibility findings.
As for Ilunga’s application for CAT relief, the IJ
separately held that “there [was] not sufficient reliable,
independent evidence in the record to demonstrate that it is
more likely than not that the Respondent would be tortured if he
had to go back to the Democratic Republic of the Congo.”
E.
On July 25, 2013, the Board of Immigration Appeals (“BIA”)
upheld each of the IJ’s determinations, largely adopting the
IJ’s factual findings and reasoning. Specifically, the BIA
credited the IJ’s account of testimonial inconsistencies,
deferred to her demeanor observations, and agreed with her
assessment of the documentary evidence. The BIA additionally
affirmed the denial of CAT relief.
8
II.
The Immigration and Nationality Act (“INA”) gives the
Attorney General the discretionary power “to grant asylum to
aliens who qualify as ‘refugees.’” Dankam v. Gonzales, 495 F.3d
113, 115 (4th Cir. 2007). To qualify, applicants must establish
they are unable or unwilling to return to their country of
nationality because of past 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(a)(42); see also id. § 1231(b)(3). An applicant
can establish eligibility simply by providing credible testimony
about his or her experiences. 8 C.F.R. § 208.13(a).
When the BIA affirms and adopts an IJ’s decision, this
Court reviews both decisions as the final agency action.
Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010). An
asylum order must be upheld unless “manifestly contrary to the
law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D). Our
review of an adverse credibility determination is specifically
limited to ensuring that substantial evidence supports it. See
Qing Hua Lin v. Holder, 736 F.3d 343, 351 (4th Cir. 2013)
(citing Dankam, 495 F.3d at 119). Although broad deference
extends to the agency’s determination, it “must provide
specific, cogent reasons” supporting its decision. Djadjou v.
Holder, 662 F.3d 265, 273 (4th Cir. 2011).
9
A.
The REAL ID Act of 2005 requires that credibility
determinations be based on the totality of the circumstances,
including:
the demeanor, candor, or responsiveness of the
applicant or witness, the inherent plausibility of the
applicant’s or witness’s account, the consistency
between the applicant’s or witness’s written and oral
statements (whenever made and whether or not under
oath, and considering the circumstances under which
the statements were made), 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, without
regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim.
. . .
8 U.S.C. § 1158(b)(1)(B)(iii). As this Court has held,
“omissions, inconsistent statements, contradictory evidence, and
inherently improbable testimony are appropriate bases for making
an adverse credibility determination.” Djadjou, 662 F.3d at
273.
The totality of the circumstances standard thus provides an
IJ with ample discretion in assessing credibility. It does not,
however, permit a judge to “cherry pick” facts or
inconsistencies to support an adverse credibility finding that
is unsupported by the record as a whole. Ai Jun Zhi v. Holder,
751 F.3d 1088, 1091 (9th Cir. 2014) (quoting Shrestha v. Holder,
590 F.3d 1034, 1040 (9th Cir. 2010)); see also Hanaj v.
Gonzales, 446 F.3d 694, 700 (7th Cir. 2006) (“The IJ cannot
10
selectively examine evidence. . . .”); Shah v. Att’y Gen. of
U.S., 446 F.3d 429, 437 (3d Cir. 2006) (same). Instead, an IJ’s
determination must take into account all the evidence submitted,
including independent documentary support. See Shah, 446 F.3d
at 437. Thus, at a minimum the IJ must consider the
petitioner’s explanation for any inconsistency to verify that an
inconsistency actually exists, and then evaluate whether the
discrepancy renders the entire testimony incredible in light of
the record as a whole. See Shrestha, 590 F.3d at 1044.
As described above, the IJ based her credibility
determination on four grounds: (1) testimony about the location
of Ilunga’s torture in prison; (2) testimony about the prayer
practices of Ilunga and Kalala inside their cell; (3) the dates
on the MLC membership card and letter obtained by Ilunga; and
(4) Ilunga’s demeanor during testimony. We consider each in
turn.
1.
When asked where he was “whipped” in prison, Ilunga first
testified that it was “inside the cell” and then stated he did
not understand a follow-up question about whether he was “in the
cell” with his cellmate at the time. Asked to elaborate,
Ilunga’s translated reply was: “Being as they called, they take
one out. They whipped you good and they take you back inside.”
Minutes later, when asked why he had told a doctor that he was
11
attacked outside his cell, Ilunga stated “[the abuse] was inside
the prison but not in the cell where I was staying in.” He
again struggled to understand follow-up questions about whether
he was additionally tortured “inside” the “cell.”
Kalala, meanwhile, testified that “he was there” when
Ilunga was tortured, and that the abuse “was in the same room
where we spent our nights.” On re-direct, in front of a
different translator, Kalala stated that the first translator
had used the French word for “jailhouse” instead of “room”,
leading to any discrepancy between his testimony and that of
Ilunga.
A single testimonial discrepancy, particularly when
supported by other facts in the record, may be sufficient to
find an applicant incredible in some circumstances. See
Djadjou, 662 F.3d at 275 (affirming an adverse credibility
finding when the applicant had testified she was in hiding, but
an eviction notice indicated that she was in her store on the
same day). But such an inconsistency provides inadequate
justification when, as here, there is a strong indication it
results from translation errors or language-based
misunderstanding, particularly when it is belied by an extensive
record of otherwise consistent statements and corroborating
evidence. See Shrestha, 590 F.3d at 1040 (observing that an IJ
may not “cherry pick solely facts favoring an adverse
12
credibility determination while ignoring facts that undermine
that result”).
As an initial matter, the trustworthiness of any
translation, when at issue, must be a relevant factor in the
agency’s analysis of the totality of the circumstances
supporting a credibility finding. Simply put, there must be
reasonable assurances that any inconsistencies in testimony are,
in fact, real and not the product of interpretation errors,
language-based confusion, or similar factors. See Perez-Lastor
v. INS, 208 F.3d 773, 778 (9th Cir. 2000) (“[A]n incorrect or
incomplete translation is the functional equivalent of no
translation: the alien must be able to understand the questions
posed to him and to communicate his answers to the IJ.”).
As is well established, a defective translation of an
immigration proceeding can amount to a constitutional due
process violation when: (1) the plaintiff can show he or she
did not “receive a full and fair hearing on [his or her]
claims,” Rusu v. INS, 296 F.3d 316, 321-22 (4th Cir. 2002), and
(2) the violation caused prejudice such that the results of the
proceedings were likely impacted, id. at 324 (citing Farrokhi v.
INS, 900 F.2d 697, 703 n.7 (4th Cir. 1990)). But even absent a
constitutional violation, “faulty or unreliable translations can
undermine the evidence on which an adverse credibility
determination is based.” He v. Ashcroft, 328 F.3d 593, 598 (9th
13
Cir. 2003) (citing Balasubramanrim v. INS, 143 F.3d 157, 162-64
(3d Cir. 1998)).
Determining whether a flawed interpretation fatally
undermines a credibility determination requires an examination
of direct and indirect evidence of error. The Eighth and Ninth
Circuits have sensibly identified three types of evidence that
“tend to prove that a translation was incompetent.” Perez-
Lastor, 208 F.3d at 778; Tun v. Gonzales, 485 F.3d 1014, 1029-30
(8th Cir. 2007) (adopting the Perez-Lastor framework). As
Perez-Lastor established:
First, direct evidence of incorrectly translated
words is persuasive evidence of an incompetent
translation. Second, unresponsive answers by the
witness provide circumstantial evidence of
translation problems. A third indicator of an
incompetent translation is the witness’s
expression of difficulty understanding what is
said to him.
208 F.3d at 778 (citations omitted).
Ilunga’s hearing transcript bears all three hallmarks of
unreliability. Before turning to the specific testimony
regarding the location of torture in the prison, it is
instructive to examine the hearing as a whole. The two days of
testimony were translated by two different interpreters, with
nearly all instances of potential confusion arising on the first
day. The transcript of that day reveals:
• An instance when the interpreter failed to
translate Ilunga’s statement that he was
14
sexually assaulted in jail, an omission
caught by Ilunga’s attorney, leading to the
translator’s opaque admission after the fact
that he thought Ilunga “was not speaking
clearly and this interpreter, perhaps, what
he could hear from him [sic]” (A.R. 615);
• A repeated disconnect between questions and
answers (see A.R. 598 (Ilunga’s attorney
asked about threats made, and Ilunga
responded with a statement about damage done
in a store); A.R. 609 (the IJ asked about how
Ilunga was arrested, and Ilunga replied that
he had been told that two of his colleagues
had been killed, and that he was afraid);
A.R. 612-13 (Ilunga’s counsel asked Ilunga to
describe his prison, and Ilunga answered “I
do not know” and provided other disconnected
answers); A.R. 616 (Ilunga’s attorney asked
where his largest scar was, and Ilunga
pointed to his chest but answered it was “on
the right arm and on the right knee”); A.R.
639 (the government asked about where
Ilunga’s wife obtained an MLC letter, and
Ilunga replied “[b]ecause our party quarters
are located in Kinshasa”); A.R. 661 (the
government asked where an event took place,
and Kalala answered with when it took
place));
• At least 16 times during the first day’s
testimony when Ilunga or Kalala stated they
did not understand a question (see A.R. 592
(twice), 595, 604 (three times), 608, 609,
631, 636, 638, 641, 644, 646, 652, 653);
• An instance when Ilunga’s attorney believed
the interpreter translated Ilunga’s statement
as saying he suffered at the hands of the
political party he worked for, instead of the
party he opposed (A.R. 606);
• Confusion about whether Ilunga testified that
he told his wife and children to flee their
home while he was still in prison or after
(A.R. 634);
15
• At least 11 times when the interpreter needed
a question repeated (see A.R. 585, 591, 593,
597, 602, 605-06, 609, 610, 621, 640, 643,
650); and
• Frequent grammatical errors and questionable
word choices (see, e.g., A.R. 585, 597-98).
Those red flags should inspire special caution before an IJ
parses translated statements to assess inconsistencies.
Indeed, here it is impossible to say that Ilunga’s
testimony was inconsistent with that of Kalala regarding the
location of torture because we do not know precisely what the
men testified to. Instead, the transcript reveals that the
cellmates were consistently, and genuinely, confused about the
questions regarding location. As one example, the IJ observed
that Kalala stated he saw the torture inflicted on Ilunga, in
apparent tension with Ilunga’s statement that he was beaten in a
different part of the prison with only guards present. Kalala,
however, was only translated as stating that he was “there” when
the stabbing and beatings took place. Thus, even taking the
translation on its face, it is unclear whether Kalala testified
that he “saw” the abuse or not. Furthermore, according to
Kalala’s statement during the second day of testimony, the first
translator used a French word that connotes “jailhouse” instead
of “room” when describing the cell in question, causing
confusion in his testimony. See A.R. 717. Neither the IJ nor
the BIA resolved which word was used, or whether Kalala’s claim
16
was correct. Instead, the BIA observed that Kalala nonetheless
testified that Ilunga “was beaten in the 10 square foot room
where they both slept.” Kalala, however, is only translated as
stating that he himself had been beaten in that “room,” not that
Ilunga was ever beaten there.
Against that backdrop, the IJ’s reliance on the alleged
testimonial inconsistency was unfounded. 2
2.
The IJ also based her credibility determination on asserted
inconsistencies in testimony regarding the prayer practices of
Ilunga and Kalala in prison. The IJ specifically determined
that Ilunga was initially non-responsive and then vague when
asked about his prayer practices. Moreover, the IJ found he was
“hesitant and vague” when asked about the frequency and timing
of his prayers.
2
That conclusion is further supported by the record as a
whole, indicating that Ilunga’s account of his arrest and
torture was otherwise consistent from the moment he stepped off
the airplane at Washington Dulles. His account is also
consistent with both the independent country condition reports
in the record and other independent documentary evidence. Such
documentary evidence includes confirmation of his family’s
flight from the Congo into Zambia, Ilunga’s MLC party membership
card and letter attesting to problems he faced as a result of
his activism, photographs of his wounds and burned home, letters
from family and friends, and the medical affidavit from
Dr. Viola. Dr. Viola, who examined Ilunga in the United States,
specifically concluded that Ilunga’s “reporting of his torture
history and symptoms are notable because of his consistent and
precise description of specific details and the correlation of
his history to his present symptoms and physical findings.”
17
Tellingly, the BIA did not treat the prayer testimony as
inconsistent, but rather as part of the IJ’s demeanor
assessment. For good reason. The transcript reveals that there
was not a single substantive inconsistency between the testimony
of Ilunga and Kalala. Both testified they prayed together.
Both testified they knelt to pray. And both testified they
prayed for their release from jail. Nothing more was asked of
them.
Moreover, any hesitancy and vagueness cited by the IJ is
consistent with the repeated disconnect between questions and
answers throughout the proceeding – strong indirect evidence of
interpretation problems. The relevant portion of the transcript
is as follows:
Q: How often did you and he pray together?
A: I cannot say how many times.
Q: Okay. My question is how often? How many times a
day did you pray with him?
A: Every time.
Q: And exactly how did you and he pray together?
A: First, after my arrival in the prison, I did not
know him and I was afraid of him. I did not want
to know who he was. And the day I was cut on the
knee, that’s when I started praying in my native
language, in Tshiluba. And he heard me praying.
Then he said we are the same. We are coming from
the same region. Then he explained to me where he
came from. That’s when we decided to start praying
together.
18
Q: And my question was, exactly how did you and he
pray together?
A: I don’t know.
Q: You don’t know how you and he prayed together?
A: We kneel down and we pray in our native tongue.
Such a labored exchange, when considered in the context of the
entire transcript, says more about communication failures than
it does about Ilunga’s credibility in answering the questions.
See Tun, 485 F.3d at 1031 (observing that language-based
difficulties in understanding can lend “an air of evasiveness
and confusion to the proceedings”).
The agency’s credibility determination, however, again
failed to consider the quality of the interpretation. And given
the otherwise consistent nature of the substantive testimony
regarding prayer practices, it was an abuse of discretion to use
such testimony to find Ilunga incredible.
3.
The IJ further cited Ilunga’s MLC membership card and
letter from the party as supporting an adverse credibility
finding. Both are dated December 24, 2006, the day after
Ilunga’s arrest. 3 Ilunga, however, testified that he asked his
wife to obtain the documents after he arrived in the United
3
The IJ incorrectly claimed that the card and letter are
dated a day before Ilunga’s arrest.
19
States in 2008. Such a discrepancy, the IJ concluded,
constituted a “material inconsistenc[y].”
The BIA, however, failed to meaningfully consider Ilunga’s
reasonable explanation for the apparent inconsistency.
According to Ilunga, MLC officials dated the documents to show
no lapse in membership after the ANR ripped up his original card
when he was arrested. Ilunga openly acknowledged in his
affidavit and live testimony that the card in the record was a
reissued replacement, and that his wife obtained it to help with
his asylum claim. Moreover, his description of the destruction
of his original card at the hands of security officials is
consistent with the documented practice “for government
officials to illegally arrest MLC party members and confiscate
their MLC party cards.” Br. of Appellants 31 (citing Amnesty
Int’l, Democratic Republic of Congo: Torture and Killings by
State Security Agents Still Endemic 328 (October 2007) (included
in the record at A.R. 386)).
In rejecting Ilunga’s account, the BIA merely observed that
he failed to make his explanation before the IJ, but the BIA
cited no authority for why it could not consider the explanation
on appeal. We conclude that any ambiguity that may exist about
the date on the card and letter is insufficient to sustain an
adverse credibility determination given Ilunga’s plausible
explanation, the agency’s conclusory treatment of it, the
20
absence of any contrary evidence, and the extensive record
corroborating Ilunga’s claim. The IJ’s presumption that MLC
officials should have dated the documents when Ilunga’s wife
requested them amounts to speculation and conjecture. See Ayi
v. Gonzales, 460 F.3d 876, 883-84 (7th Cir. 2006) (rejecting an
IJ’s “speculative leap” and determination that a party
membership card was forged based on a forensics analysis that
showed a “paper disturbance” on the card); Zuh v. Mukasey, 547
F.3d 504, 510 (4th Cir. 2008) (questioning “the appropriateness
of speculating about foreign documents” (citing Ayi, 460 F.3d at
883)); Lin-Jian v. Gonzales, 489 F.3d 182, 189 (4th Cir. 2007)
(observing that “we will not defer to an adverse credibility
finding that is based on speculation, conjecture, or an
otherwise unsupported personal opinion” (quoting Tewabe v.
Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (internal quotation
marks omitted)).
The IJ, however, also reasoned that if the letter had been
written when Ilunga claimed, it should have mentioned Ilunga’s
arrest. As we have previously observed, letters written by
political parties attesting to an individual’s political
involvement need not mention such arrests to be credible. Tassi
v. Holder, 660 F.3d 710, 724 (4th Cir. 2011) (finding
unpersuasive the government’s argument that letters describing
an individual’s political activities should have mentioned
21
arrests). In this case, Ilunga obtained the document to
corroborate his political involvement with the party, not as
evidence of his arrest. It is entirely speculative to suggest
that the party official should have both known of Ilunga’s
arrest and included it in the letter. Furthermore, the letter
does provide further independent confirmation that Ilunga
suffered persecution at the hands of the state on account of his
political activities. It specifically expresses concern “about
[Ilunga’s] survival” and attests that his “activism on behalf of
democracy in our country has caused him a lot of trouble from
the security officers who are in power. . . . It is in this
way that he has been threatened many times, searched and
intimidated during the presidential elections of 2006.”
The agency’s reliance on the MLC documentation to support
an adverse credibility determination was thus also unfounded
given the record as a whole.
4.
Finally, Ilunga urges this Court to reject the IJ’s
demeanor-based findings because the IJ failed to ground her
conclusions in specific facts. The IJ offered two principal
demeanor observations: (1) Ilunga and Kalala “appeared
uncomfortable when asked detailed questions concerning their
claimed time together;” and (2) Ilunga “appeared non-responsive
at times and uncomfortable answering some questions.” Such
22
statements echo those made regarding the prayer practice
testimony. Ilunga maintains that such broad-brush statements
are insufficient to provide a specific, cogent ground for an
adverse credibility determination.
An inherent tension exists in evaluating an IJ’s demeanor-
based conclusions in asylum proceedings. On the one hand, broad
deference understandably extends to a judge who is in the best
position to gauge the demeanor of a witness and the presentation
of testimony. See Rusu, 296 F.3d at 323. On the other hand,
linguistic and cultural differences, combined with the effects
of trauma, caution against normative determinations. See Dia v.
Ashcroft, 353 F.3d 228, 274, 277 n.6 (3d Cir. 2003) (en banc)
(McKee, J., concurring in part and dissenting in part) (sounding
caution about demeanor assessments based on cultural norms,
particularly for those who have been traumatized). Furthermore,
as previously observed, difficulties in understanding during an
asylum hearing can also lend “an air of evasiveness and
confusion to the proceedings.” Tun, 485 F.3d at 1031.
In affirming the IJ, the BIA summarily disagreed with
Ilunga’s argument that it was normal for a victim of torture to
appear “uncomfortable” given his experiences. The BIA’s
disagreement manifests a basic misunderstanding of the human
condition. In this case, the record suggests that Ilunga was
subjected to a pattern of vicious abuse, leaving both body and
23
mind scarred by the experience. As Dr. Viola diagnosed, Ilunga
suffered from moderate PTSD as a result of his experiences.
Forced to revisit that trauma at the immigration hearing, Ilunga
specifically testified about being raped by prison guards and
subjected to other forms of sexual abuse. The record also
indicates that he cried while testifying about the torture he
endured. For the BIA to dismiss the potential impact of such
torture on Ilunga’s testimonial disposition is unsettling. 4
Indeed, the ability to testify in a cool and collected manner
about an experience of torture would arguably raise greater
credibility concerns.
Finally, the IJ cited no specific behavior or mannerisms
that gave her pause. Instead, she merely stated that Ilunga
appeared “uncomfortable.” Such a conclusion fails to provide a
“specific, cogent reason[]” supporting a credibility
determination, particularly given both the aforementioned
4
In the context of a credibility determination, one should
expect moderate PTSD, which Ilunga was diagnosed with, to
influence the content of testimony at times, in addition to
testimonial demeanor. The agency’s totality of the
circumstances analysis should take into account the inherent
instability of memories that are naturally misshapen by time and
disfigured by trauma. See Zubeda v. Ashcroft, 333 F.3d 463, 476
(3d Cir. 2003) (counseling caution when analyzing testimonial
discrepancies that may be due to “numerous factors that might
make it difficult for an alien to articulate his/her
circumstances with the degree of consistency one might expect
from someone who is neither burdened with the language
difficulties, nor haunted by the traumatic memories”).
24
interpretation issues and the nature of the testimony at issue.
See Djadjou, 662 F.3d at 273.
B.
Even if his testimony was incredible, we additionally find
that the IJ failed to sufficiently consider whether Ilunga
presented adequate independent documentary evidence to establish
asylum eligibility. As we held in Camara v. Ashcroft,
independent evidence may establish past persecution on a
protected ground even if an IJ finds the victim’s testimony to
be incredible. 378 F.3d 361, 370-71 (4th Cir. 2004); see also
Djadjou, 662 F.3d at 275. When actual past persecution can be
shown, “a presumption arises that [the applicant] has the
requisite level of fear of persecution, and thus she need not
prove the subjective component of ‘well-founded fear.’” Camara,
378 F.3d at 369-70 (quoting 8 C.F.R. § 208.13(b)(1)).
The central question here is thus whether the non-
testimonial evidence independently established that Ilunga
suffered persecution as a result of his political activities.
Such evidence need not include a “smoking gun” or direct proof
of persecution on account of political opinion. See INS v.
Elias-Zacarias, 502 U.S. 478, 483 (1992) (observing that an
asylum applicant must provide some “direct or circumstantial”
evidence of a persecutor’s motives). Instead, an applicant may
meet his or her burden by presenting a consistent body of
25
circumstantial evidence. See id. Here, the strongest pieces of
such independent evidence are: (1) the doctor’s report obtained
in the United States that concludes Ilunga’s wounds are
consistent with the torture he described; (2) the MLC membership
card and letter that expresses concern “about his survival” and
links Ilunga’s political activity with his suffering “a lot of
trouble from the security officers who are in power”; (3) the
UNHCR refugee card and registration attestation issued to
Ilunga’s wife, corroborating Ilunga’s statements that she was
forced to flee the Congo; (4) photographs, including those of
Ilunga’s scarred body and burned house; (5) Ilunga’s passport
showing he left the Congo for Zambia before entering the United
States; and (6) extensive documentation of country conditions,
describing pervasive violence against minority political parties
and activists.
Confronted with that body of evidence, the IJ discounted
the MLC documentation during her credibility analysis for the
reasons described above. She also stated that the medical
affidavit “does not prove what caused the medical issues noted”
and that additional letters from friends and family “do not
overcome the credibility concerns.”
We agree with the IJ that absent the MLC membership card
and letter, there is insufficient independent evidence in the
record to support Ilunga’s asylum claim. But in light of our
26
determination that the IJ improperly discredited the MLC
documentation, the agency should consider on remand whether the
documents, when combined with the other circumstantial evidence
in the record, establish that Ilunga was a member of the MLC,
was active in the party, and was persecuted as a result of his
political opinions. See Li v. Gonzales, 405 F.3d 171, 177 (4th
Cir. 2005) (observing that “[p]ersecution involves the
infliction or threat of death, torture, or injury to one’s
person or freedom, on account of one of the enumerated
grounds”).
III.
We thus grant Ilunga’s petition for review insofar as it
challenges the denial of his application for asylum, and we
vacate the BIA and IJ’s orders with regard thereto. 5 We remand
the case to the BIA for further proceedings consistent with this
opinion. If the BIA chooses to further remand the matter to an
5
We do not reach the question of whether Ilunga has
separately met his burden for CAT relief by demonstrating it is
more likely than not he would be tortured if returned to the
Congo. If the agency declines to grant Ilunga asylum on remand,
it should reconsider his CAT claim in a manner consistent with
the findings of this opinion.
27
IJ, we recommend that it schedule the case before a different
judge.
PETITION FOR REVIEW GRANTED;
VACATED AND REMANDED
28