Last month, the Tenth Circuit in Denver issued a key opinion granting my client's petition for review of a Board of Immigration Appeals order in Takwi v. Garland, 22 F.4th 1180 (10th Cir. 2022).
The Petitioner is a member of the Anglophone community in Cameroon, which faces violent repression and persecution by the Francophone government. He was arrested and tortured by the Cameroonian military on two occasions, after being targeted based on his family's association with the Southern Cameroon National Council, a group that advocates against marginalization by the government. He fled for his life in 2018 and sought asylum in the United States. Although he gave credible and consistent testimony through his proceedings, an Immigration Judge (IJ) rejected his application based on perceived inconsistencies between his testimony and a supporting affidavit written by his brother.
The IJ did not expressly state whether she found the Petitioner to lack credibility. Although she expressed some doubts about his brother's affidavit, her final, edited ruling was vague in its reasoning, merely stating that he had "failed to persuade this Court that he has a well-founded fear of future persecution because his claim of future persecution is based on the same set of facts and circumstances the Court found not to be credible or, alternatively, persuasive."
The Board of Immigration Appeals (BIA) affirmed in brief opinion written by a single member, which treated the IJ's order as an adverse credibility determination that afforded the Petitioner no presumption of credibility. The BIA then concluded that the evidence was sufficient to support the IJ's finding under this standard. The BIA declined to remand for consideration of additional corroborating materials from other members of Petitioner's community, even though the IJ had said these would have been helpful to her determination.
A unanimous panel of the Tenth Circuit reversed. Although much of the briefing had focused on whether inconsistencies in a family member's affidavit alone were sufficient to meet the substantial evidence test articulated in Uanreroro v. Gonzales, 443 F.3d 1197 (10th Cir. 2006), the court did not reach this issue because it found that the Petitioner had been denied his affordable presumption of credibility, which applies unless an IJ has "explicitly made" an adverse credibility finding. This error tainted the entire proceeding in the BIA and warranted remand for further proceedings.
The court noted that other courts have recently held that the reluctance to make "clean determinations of credibility" appears to be a "disturbing feature" in immigration cases, and the Supreme Court has yet to clarify this area of law. Resolving a question of first impression in the Tenth Circuit, the panel concluded that the ordinary language meaning of the word "Explicit" means something "fully and clearly expressed; leaving nothing implied." Under this definition, the IJ's order was not sufficient to deny the Petitioner his presumption of credibility on appeal. "An ambiguous finding, which leaves us guessing about whether the IJ came to her determination because the applicant was not credible, or for some other reason, cannot serve as an explicit adverse credibility determination under 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1229a(c)(4)(C)."
Click here to read the full decision on the Court's website.