Immigration law - First Circuit's deferential standard for reviewing adverse credibility determinations in asylum cases remains unchanged - Cuko v. Mukasey.

• Author: Dolan, Jeffrey E.

An Immigration Judge (IJ) or the Board of Immigration Appeals (BIA) will commonly deny an application for asylum in the United States as a result of an adverse credibility determination. (1) Appellate Courts give adverse credibility determinations great deference on appeal if the IJ gave specific reasons justifying the finding. (2) In Cuko v. Mukasey, (3) the First Circuit Court of Appeals considered whether an adverse credibility determination based on perceived inconsistencies in testimony and the applicant's demeanor should be upheld under this deferential standard of review. (4) The First Circuit, applying the substantial evidence standard, denied the petition for review because the record did not compel a decision contrary to that of the IJ and BIA. (5)

Vllasi Cuko, a citizen of Albania, filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) in response to removal proceedings initiated in July 2001. (6) During the hearing, Cuko testified that prior to leaving Albania he was persecuted by the Albanian government because of his affiliation with the Democratic Party and was thus seeking asylum in the United States. (7) According to the IJ's decision, Cuko changed his testimony multiple times with regard to how he obtained his Democratic Party membership card, seemingly because he realized it was inconsistent with his prior testimony. (8) The IJ also made note of the fact that a certificate from the Democratic Party branch office dated December 28, 2001 contradicted Cuko's testimony that he was an active member of the party until March 2001. (9) The IJ found that these two discrepancies were material because they went to the heart of his claim; consequently, Cuko was not eligible for asylum because his testimony was not credible. (10) The IJ also mentioned other discrepancies that were not themselves material, but "became material in combination with Cuko's other perjurious testimony," and gave additional evidence for an adverse credibility finding. (11)

The IJ, relying on inconsistencies in Cuko's testimony and an assessment of Cuko's overall demeanor, denied Cuko's applications on the grounds that Cuko had not presented credible evidence of a well-founded fear of persecution in Albania. (12) Furthermore, the IJ noted that even if Cuko could show past persecution, the State Department country reports showed changed conditions in Albania that overcame the presumption of a well-founded fear of persecution. (13) Cuko then appealed the IJ's decision to the BIA, which affirmed and adopted the decision of the IJ upholding the adverse credibility finding and the determination that the State Department reports overcame the presumption of well-founded fear based on past persecution. (14) Cuko then petitioned to the First Circuit Court of Appeals for review of the BIA's order, arguing that the IJ's adverse credibility finding was not supported by the record. (15) After reviewing both the IJ's and the BIA's opinions, the First Circuit held that the record did not compel it to overrule the IJ's adverse credibility finding and therefore denied the petition for review. (16)

In order to qualify for asylum, applicants must present credible evidence demonstrating that they qualify as a "refugee," as defined by the Refugee Act of 1980. (17) Under this standard, applicants must establish an unwillingness to return to their home country because of either past persecution or a "well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." (18) If, during the course of the proceeding, the IJ makes a determination that an applicant is not a credible witness, and there is insufficient evidence introduced to corroborate that testimony, the applicant will not meet the requisite burden, and the IJ will consequently deny the application. (19) Additionally, for asylum applications filed prior to the passage of the REAL ID Act, an adverse credibility finding by the IJ must rest on discrepancies that go to the "heart of the asylum claim" and not on inconsequential inconsistencies in the applicant's testimony. (20)

Provided the IJ puts forth specific reasons for making an adverse credibility determination, its findings are reviewed under a deferential "substantial evidence standard." (21) Under this standard, the IJ's findings will only be overturned if the record would compel a reasonable fact-finder to conclude differently. (22) The First Circuit will review the decisions of both the IJ and the BIA if the BIA has adopted and affirmed the IJ's credibility determinations and discussed some of the bases of the IJ's determination. (23) Furthermore, pursuant to the three-pronged test set forth in Hoxha v. Gonzales, (24) the First Circuit will uphold an adverse credibility determination if the discrepancies and inconsistencies are actually present in the record, the discrepancies and inconsistencies provided specific and cogent reasons for an adverse credibility determination, and the applicant did not provide a convincing explanation for the discrepancies. (25)

When reviewing adverse credibility determinations, some circuits distinguish between self-evident discrepancies and non-obvious discrepancies. (26) The Second Circuit has held that if the inconsistencies in the applicant's testimony are so obvious that the applicant should be aware of them without the IJ identifying them during the proceeding, then the IJ may rely on them in making an adverse credibility determination without seeking further explanation. (27) Regarding non-obvious discrepancies, however, the Second, Seventh, and Ninth Circuits have held that IJs cannot base adverse credibility determinations on minor or trivial inconsistencies unless they afforded the applicant an opportunity to explain the inconsistency. (28)

In Cuko v. Mukasey, the First Circuit reviewed the IJ's adverse credibility determination under the substantial evidence standard and denied Cuko's petition for review because the record did not compel a contrary determination from that of the IJ and BIA. (29) The court examined each of the discrepancies cited by the IJ separately and applied the Hoxha standard to determine whether the record compelled a contrary decision. (30) The majority first noted that the primary discrepancies relied upon by the IJ were present in the record and went to the heart of Cuko's claim of persecution for his political beliefs. (31) Secondly, the court noted that the IJ based his adverse credibility determination on these specific inconsistencies and Cuko's demeanor as a witness. (32) Finally, the court concluded that the judge was at least reasonable in determining that any explanations given by Cuko were inadequate. (33) After this application of the Hoxha standard, the court held that the record did not compel a different decision from that of the IJ, and Cuko's petition was therefore denied. (34)

The First Circuit correctly upheld the...