The Ninth Circuit Court of Appeals recently held that the Board of Immigration Appeals violated an asylum applicant’s due process rights when it decided that he is not credible without giving him a reasonable opportunity to explain the apparent inconsistencies in the record of his case.  The appeals court decision resulted after the BIA, on its own initiative and without giving the applicant an opportunity to address issues about his credibility, had reversed an immigration judge’s holding that the petitioner is credible and qualifies for asylum.

The applicant, a citizen of Bulgaria, entered the United States on a tourist visa in 1992 and applied for asylum on Sep. 14, 1992.  The Immigration and Naturalization Service denied his initial asylum application and issued an Order to Show Cause.  He then submitted a second application.  He had an asylum merits hearing at which the IJ reviewed both asylum applications.

In his two asylum applications and in testimony before the IJ, the applicant testified that in Mar. 1992 he attended a political rally of Turkish and other minorities in Sofia, where he lived.  Two radio reporters interviewed him at the rally; they asked what his name was, why he was there, and how he viewed the situation of minority groups in Bulgaria.  In his second application for asylum, the applicant indicated that he tried to explain to the interviewers that he felt all Bulgarians needed to cooperate during this time of change and to work together to slowly bring about changes in the country.  He felt that minority people had been deprived of certain rights—such as the use of their own language and names—and they wanted these problems rectified as soon as possible.  He continued by saying that this would be difficult to achieve and that change had to be made slowly.  The interview was broadcast on the radio.

Following the rally, the applicant and his wife received about 25 threatening telephone calls at their home.  He testified that he was sure they were in reaction to the radio interview he gave at the rally.

During the same period, the applicant was attacked three times by different people he did not know.  In the first attack, a man accosted the applicant and beat him while making statements such as, "You know who you are" and, "You know what you did."  The second time, two men beat him and repeated the kinds of statements the first attacker made.  The applicant testified before the IJ that he lost a tooth as a result of this attack.  During the third attack, according to the second asylum application and the applicant’s testimony before the IJ, the attacker tried unsuccessfully to stab him with a knife.  The attacker repeated the statements that the applicant’s earlier attackers had made to him.  He testified that he was certain the attacks, like the telephone calls, were the work of extremists within the Turkish community who objected to the views he expressed during the radio interview.

The IJ found the applicant credible and granted him asylum, after which the INS appealed the asylum grant but did not contest the IJ’s credibility finding.  On its own initiative, the BIA raised the issue of the applicant’s credibility and reversed the IJ’s finding after concluding that the applicant was not credible.

The BIA listed four inadequacies that it perceived in the asylum application to support its conclusion regarding the applicant’s credibility.  First, it contended that in the initial asylum application the applicant stated that he had been stabbed in the third attack. In the second application and testimony related to it, he stated that he had been threatened with a knife but not stabbed.  Second, the BIA indicated that in the first application, the applicant stated that members of both the Turkish and gypsy minority groups had persecuted him.  In his later application and testimony, he stated that the gypsies were not involved.  Third, the BIA indicated that in his testimony before the IJ, the applicant had stated that his tooth was broken during his second beating, but later in his testimony he stated that it had happened during his third beating.  And, in his applications, he had not mentioned a tooth being broken.  Fourth, the applicant had failed to produce any documentary or other objective evidence to corroborate his allegations.

After finding the applicant not credible, the BIA addressed the merits of the case in just one sentence.  It concluded that the applicant’s experiences in Bulgaria do not rise to the level of persecution or that he would encounter any difficulties upon his return to Bulgaria, years after the radio interview was reportedly broadcast.

In its decision, the Ninth Circuit noted that the INS did not raise the issue of the applicant’s credibility in its appellate brief to the BIA and that the BIA raised the issue on its own initiative.  Thus, the applicant had no notice of, or opportunity to be heard on, the credibility issue before the BIA rendered its decision.  The court concluded that the BIA violated the applicant’s due process rights in making an adverse credibility finding without affording him any opportunity to explain the supposed inconsistencies in his written and oral testimony.

The appeals court also noted that the BIA’s treatment of the merits of the applicant’s claim was contained in only one sentence.  Such a conclusory statement, the court held, does not amount to a sufficient analysis of the merits of the applicant’s claim, and the BIA must provide a reasoned analysis of the legal basis for its ruling, specifying the particular facts on which that ruling relies.

The court vacated the BIA’s denial of asylum and remanded the case so the applicant could be provided a reasonable opportunity to explain the inconsistencies the BIA perceived in his application.  In any case, the court noted that if the BIA persists in finding the applicant not credible, it must provide a "legitimate articulable basis" for its finding and "must offer a specific, cogent reason for any stated disbelief."  The Ninth Circuit also cautioned the BIA that minor inconsistencies cannot support an adverse credibility finding and that "trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible."  It noted in particular that where an applicant initially gives one account of persecution but then revises his story so as to "lessen the degree of persecution he experienced rather than to increase it," the discrepancy generally does not support an adverse credibility finding.

Stoyanov v. INS, __ F.3d __,1999 WL 228336 (9th Cir. Apr. 21, 1999).