PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHI ALFRED ZUH, a/k/a Chi A.
Zuh,
Petitioner,
v. No. 06-2050
MICHAEL B. MUKASEY, Attorney
General,
Respondent.
On Petition for Review of an Order of
the Board of Immigration Appeals.
Argued: September 25, 2008
Decided: November 25, 2008
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Vacated and remanded by published opinion. Judge Motz
wrote the opinion, in which Judge King and Judge Duncan
joined.
COUNSEL
ARGUED: Sarah M. Brackney, ARNOLD & PORTER,
L.L.P., Washington, D.C., for Petitioner. Thomas Henderson
Dupree, Jr., UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Respondent. ON BRIEF: Rod
2 ZUH v. MUKASEY
J. Rosenstein, United States Attorney, Alex S. Gordon, Assis-
tant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Respon-
dent.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
An Immigration Judge (IJ) found Chi Alfred Zuh eligible
for asylum and granted him withholding of removal and pro-
tection under Article 3 of the United Nations Convention
Against Torture. Despite Zuh’s eligibility, the IJ denied asy-
lum as a matter of discretion. The Board of Immigration
Appeals (BIA) affirmed without opinion. Zuh petitions for
review of this final order. Finding that the IJ failed to consider
the totality of the circumstances in denying Zuh asylum, we
vacate and remand for further proceedings consistent with this
opinion.
I.
Zuh, a native of Cameroon, came to this country in 2001
and soon thereafter sought asylum. He claims to have been
subject to severe torture and beatings in Cameroon due to his
political activities in two opposition parties, the Social Demo-
cratic Front (SDF) and the Southern Cameroon National
Council (SCNC).
Specifically, Zuh testified that the Cameroonian govern-
ment arrested and tortured him on four separate occasions: in
February 1995, in January 1997, in May 1997, and finally in
September 2001. On all four occasions, Zuh was stripped
naked, severely beaten, confined for extended periods in inhu-
mane quarters, and given little food, water, or medicine. He
had to be hospitalized after being released and suffered per-
ZUH v. MUKASEY 3
manent injuries, which he documented through medical certif-
icates from a Cameroonian doctor and a letter from an
American doctor.
Fearing for his life after the fourth imprisonment, Zuh
escaped from prison and immediately thereafter, with the help
of his uncle, borrowed a French passport. He then flew to the
United States and took up residence with his uncle’s friend,
Peter Clarkson Fon. Zuh belongs to the American chapters of
both the SDF and the SCNC. He believes that the Cameroo-
nian government will arrest, torture, and possibly kill him if
the United States returns him to Cameroon.1
At Zuh’s first hearing, the IJ denied him all relief. The IJ
found Zuh’s supporting documentation to be of limited proba-
tive value and faulted him for presenting insufficient corrobo-
rating evidence, such as other witnesses or letters from family
members in Cameroon. As a result, the IJ found that although
Zuh carried his burden of proof as to general conditions in
Cameroon, he did not present sufficient evidence of danger
specific to himself. Significantly, however, the IJ did not fault
Zuh’s veracity or find him incredible.
On appeal, the BIA remanded the case to the IJ in light of
new evidence Zuh presented to the Board. At the second hear-
ing before the IJ, Zuh testified that at the first hearing he had
been reluctant to involve his family for fear of endangering
them. But, in what he described as an agonizing decision, he
decided to provide new documentary evidence from his fam-
1
Zuh is not the only member of his family to suffer oppression. He testi-
fied that the Cameroonian government also subjected his brother to politi-
cal persecution, imprisoning him in 1997; Zuh has not heard from his
brother since that date. In addition, in the course of their efforts to find
Zuh after his departure from Cameroon, government security forces have
harassed and beaten his parents, fiancée, and children. The government
has also threatened to kidnap Zuh’s children. And because his uncle
helped Zuh escape Cameroon, the Cameroonian government harassed and
then imprisoned the uncle.
4 ZUH v. MUKASEY
ily. Two witnesses also testified on Zuh’s behalf: a friend of
his fiancée’s, Henrietta Bettah, and the man with whom he
lives in the United States, Peter Clarkson Fon.
After the conclusion of the second hearing, the IJ granted
Zuh withholding of removal and protection under the Conven-
tion Against Torture. The IJ reasoned that Zuh—ostensibly
through the testimony of his two witnesses—had shown a
"clear probability that someone in [Zuh’s] position . . . would
face the prospect of torture." But "in the exercise of [her] dis-
cretion" the IJ denied Zuh asylum because of Zuh’s assertedly
"incredible documentation" and "not completely truthful" tes-
timony. In reaching this conclusion, the IJ entered what she
characterized as a "split credibility finding," stating that
although Zuh’s witnesses were credible, he was not. She also
based this "split credibility finding" on her conclusion that
Zuh’s documents had "little or no probative value" either
because they did not constitute affidavits or because they con-
tained alleged irregularities.
The BIA, through a single member, affirmed without opin-
ion. Zuh then filed this petition for review.
II.
A.
We have jurisdiction over final orders of removal under 8
U.S.C. § 1252(a)(1) (2006). When the BIA summarily affirms
the IJ’s decision, we review the correctness of the BIA’s final
order but review the reasoning of the IJ’s opinion, "recogniz-
ing that the Board has concluded that any error in reasoning
is ‘harmless or nonmaterial.’" Camara v. Ashcroft, 378 F.3d
361, 366 (4th Cir. 2004) (quoting 8 C.F.R. § 1003.1(e)(4)).
We review an IJ’s discretionary denial of asylum for abuse
of discretion. Dankam v. Gonzales, 495 F.3d 113, 119 n.2 (4th
Cir. 2007). Although this standard of review is deferential, it
ZUH v. MUKASEY 5
does not offer an IJ a blank check. See Huang v. INS, 436
F.3d 89, 97 (2d Cir. 2006) (noting that the courts and the BIA
have established "extensive limitations on an IJ’s exercise of
discretion in the context of asylum-eligible refugees"). Rather,
an IJ must weigh all relevant evidence under the totality of the
circumstances. Dankam, 495 F.3d at 119 n.2; Kalubi v. Ash-
croft, 364 F.3d 1134, 1139 (9th Cir. 2004); Shahandeh-Pey v.
INS, 831 F.2d 1384, 1387 (7th Cir. 1987). Moreover, as we
have long recognized, an IJ must "‘offer a specific, cogent
reason for [his or her] disbelief’" of the applicant, Figeroa v.
INS, 886 F.2d 76, 78 (4th Cir. 1989) (quoting Turcios v. INS,
821 F.2d 1396, 1399 (9th Cir. 1987)), and we will not defer
to adverse credibility findings based on "‘speculation, conjec-
ture, or an otherwise unsupported personal opinion.’" Tewabe
v. Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (quoting Dia
v. Ashcroft, 353 F.3d 228, 250 (3d Cir. 2003) (en banc)).
B.
Zuh applied for three different protections: asylum under 8
U.S.C. § 1158(b) (2006), withholding of removal under 8
U.S.C. § 1231(b)(3) (2006), and protection under Article 3 of
the United Nations Convention Against Torture (CAT). The
IJ, the BIA, and the Government do not contend that Zuh
failed to meet the standards for the last two—withholding of
removal and CAT protection—both of which entail a greater
burden of proof than the first—asylum eligibility.2 Nor do
2
The preponderance of the evidence standard applies to withholding of
removal. INS v. Stevic, 467 U.S. 407, 429–30 (1984). The applicable bur-
den of proof for protection under Article 3 of the Convention Against Tor-
ture is similar, requiring a showing that it is "more likely than not that [the
applicant] would be tortured if removed to the proposed country of
removal." 8 C.F.R. § 208.16(c)(2) (2008). In contrast, asylum eligibility
involves a lower burden of proof. The applicant need only prove that he
is "unable or unwilling to return" to his country of nationality or the coun-
try in which he last habitually resided "because of persecution or a well-
founded fear of persecution on account of race, religion, nationality, mem-
bership in a particular social group, or political opinion." 8 U.S.C.
§§ 1158(b)(1)(A), 1101(a)(42) (2006); Anim v. Mukasey, 535 F.3d 243,
252 (4th Cir. 2008).
6 ZUH v. MUKASEY
they contend that any statutory factors bar Zuh from asylum.
See 8 U.S.C. § 1158(b)(2) (2006). Thus, indisputably Zuh has
established asylum eligibility. The question before us is
whether the IJ appropriately exercised her discretion in deny-
ing Zuh this relief.
An asylum applicant who meets the legal standard for asy-
lum is only "eligible for asylum," which the Attorney General
(or his or her designee) "in his [or her] discretion" may grant.
INS v. Cardoza-Fonseca, 480 U.S. 421, 443 (1987). Although
discretionary denials of asylum do occur, such denials are
"exceedingly rare," Huang, 436 F.3d at 92, and are generally
based on egregious conduct by the applicant. See, e.g., Aioub
v. Mukasey, 540 F.3d 609, 612 (7th Cir. 2008) (applicant’s
fraudulent marriage); Kouljinski v. Keisler, 505 F.3d 534, 543
(6th Cir. 2007) (applicant’s three drunk-driving convictions).
A discretionary denial of asylum is even more rare when
the IJ or BIA has found the applicant entitled to withholding
of removal or protection under the CAT. Although applicable
regulations permit an IJ to grant withholding of removal while
denying discretionary asylum, see 8 C.F.R. § 208.16 (2008),
the Board has affirmed such a disposition in very few cases
and only when the Government has demonstrated egregious
negative activity by the applicant. See, e.g., Matter of Shirdel,
19 I. & N. Dec. 33, 37–38 (B.I.A. 1984) (applicant circum-
vented orderly refugee procedures by using a smuggler to
gain entry into the United States). Furthermore, we know of
only one (unpublished) Court of Appeals decision upholding
such a disposition. Aden v. Ashcroft, 112 F. App’x 852, 854
(3d Cir. 2004) (applicant repeatedly failed to disclose his prior
grant of asylum in a third country). On the other hand, two
other Courts of Appeals, addressing similar situations, have
soundly rejected this course. See Huang, 436 F.3d at 97–102;
Kalubi, 364 F.3d at 1138–39. Indeed, the Attorney General
himself acknowledges in a motion filed in this court that the
IJ’s holding in this case is "internally inconsistent."
ZUH v. MUKASEY 7
We agree with the Second Circuit that this sort of resolu-
tion places an applicant in an "unusual legal status," in which
he is ineligible to become a lawful permanent resident here,
unable to reunite his family as derivative asylees, and subject
to deportation to a willing third country. Huang, 436 F.3d at
95. We bear this in mind as we turn to the rationale offered
by the IJ in this case.
III.
Based on her "split credibility finding," the IJ exercised her
discretion to deny Zuh asylum. Zuh contends that no substan-
tial evidence supports this finding. He notes that at his first
hearing, the IJ did not enter an adverse credibility determina-
tion and that at his second hearing the IJ refused to allow him
to testify at length, stating that she did not want to cover "old
ground." Thus, he contends that although the IJ did not make
an adverse credibility finding at the first hearing, her subse-
quent "split credibility finding" effectively invalidated the
bulk of his testimony from that first hearing.
A.
The IJ appears to rest her determination that Zuh was not
"particularly credible" on what she characterized as an incon-
sistency between his testimony at the first and second hear-
ings. This asserted inconsistency concerned the failure of the
person with whom Zuh lives in the United States, Peter Clark-
son Fon, to testify at Zuh’s first hearing.
A straightforward reading of the record reveals there sim-
ply is no inconsistency. The IJ suggested that at the first hear-
ing Zuh represented that Clarkson was unwilling to testify,
whereas at the second hearing Clarkson not only testified but
also stated that he would have testified at the first hearing if
asked. But the record reveals that at the first hearing Zuh
apparently thought that an affidavit from Clarkson (a busy cab
driver) would suffice, while at the second hearing, given the
8 ZUH v. MUKASEY
IJ’s initial dismissal of his claim, Zuh concluded that he
needed Clarkson’s testimony to bolster his case. In short, Zuh
never asserted that Clarkson had been unwilling to testify at
the first hearing.
Even if this did constitute an inconsistency, it provides a
thin reed on which to rest the conclusion that Zuh does not
constitute a "particularly credible witness."3 We have previ-
ously faulted an IJ for "attach[ing] the bare label ‘implausible’
to [a petitioner’s] testimony without providing specific and
cogent reasons for doing so." Tewabe, 446 F.3d at 539. Given
that Zuh’s testimony was "not inherently implausible," we
likewise find "unsustainable" this IJ’s "unexplained character-
ization" of Zuh. Id.
B.
The IJ dismissed letters from Zuh’s family because they
lacked sworn affidavits, even though Zuh authenticated the
letters through his testimony and the Government never
objected to the lack of affidavits.
We recognize that sworn affidavits may often deserve
greater weight than simple letters. But no statute or case law
suggests that documents at immigration hearings must be
sworn. Rather, without so much as pausing to note the
unsworn nature of a document, numerous courts—including
this one—have relied on such documents when considering
claims of asylum applicants. See, e.g., Tewabe, 446 F.3d at
537; Camara, 378 F.3d at 369; Shahandeh-Pey, 831 F.2d at
1386; In re Casillas, 22 I. & N. Dec. 154, 157 n.3 (B.I.A.
1998) (noting that an applicant can demonstrate marriage
through "letters or affidavits from family, friends, or acquaint-
3
We note that the IJ did preface her discussion of this "inconsistency"
with the phrase "[f]or example," implying that additional factors contrib-
uted to her credibility finding. But we can only evaluate a credibility
determination on the grounds actually articulated.
ZUH v. MUKASEY 9
ances"). Moreover, it seems untenable to require a sworn
statement from a person harassed because of a relationship
with an asylum applicant and potentially endangered by help-
ing that applicant in a country with conditions that the IJ her-
self described as "deplorable." See Hor v. Gonzales, 421 F.3d
497, 501 (7th Cir. 2005) ("It seems unlikely that Hor’s co-
workers, who surely have a healthy respect for the murderous
potential of [a radical Islamic group in Algeria], would submit
affidavits to the U.S. immigration authorities.").
The unsworn nature of the many documents relied on by
Zuh thus provides no basis for the IJ’s refusal to credit them.
C.
The IJ also found fault with two aspects of medical certifi-
cates submitted by Zuh to corroborate the injuries he suffered
from torture.
First, the IJ found it significant that the handwriting on a
letter from Zuh’s Cameroonian doctor does not seem to match
the handwriting on the text of medical certificates that the
doctor prepared. We note, however, that in addition to the let-
ter, the doctor submitted an affidavit certifying the authentic-
ity of both medical certificates, and the signature and seal on
the affidavit match the signature and seal on both certificates.
Thus, whatever the differences between the two sets of docu-
ments, clearly the Cameroonian doctor signed and affixed his
seal attesting to the accuracy of both the affidavit and the cer-
tificates. Zuh also testified to the authenticity of the certifi-
cates, and no witness contradicted either the doctor’s affidavit
or Zuh’s testimony. For these reasons the IJ’s apparent reli-
ance on the handwriting in the letters does not seem well
founded.
The IJ also found it implausible that the medical certifi-
cates, although assertedly prepared months apart, contain
serial numbers separated by only four digits. The Government
10 ZUH v. MUKASEY
did not comment on this issue until its closing argument at the
first hearing, when it suggested that "perhaps more than just
four certificates would’ve been issued during that period of
time." The IJ dismissed out of hand Zuh’s response that Cam-
eroonians rarely request these "medico-legal" certificates
because they are expensive and because most injury claims in
Cameroon are settled.
Zuh has consistently maintained this explanation through-
out his testimony at both hearings and it certainly is not inher-
ently implausible. See Tewabe, 446 F.3d at 539. Moreover,
his Cameroonian doctor offered the same explanation. As the
Seventh Circuit has noted, "The notion that documentation is
as regular, multicopied, and ubiquitous in disordered nations
as in the United States, a notion that crops up frequently in
decisions by immigration judges, is unrealistic concerning
conditions actually prevailing in the Third World." Hor, 421
F.3d at 501 (citations omitted).
For these reasons, the IJ’s brief analysis of these serial
numbers seems to us mere speculation or conjecture. Tewabe,
446 F.3d at 538.
D.
Finally, the IJ found a newspaper article discussing Zuh
and his uncle incredible because it contained non-consecutive
page numbers and was set forth on seemingly mismatched
paper. Like the medical certificate issue, the Government law-
yer did not raise this contention until closing argument (this
time at the second hearing), when he asserted that it was "in-
teresting" that the page numbers were not consecutive and
that "I’m not an expert, but it does appear as though the paper
used for that insert is slightly different than the paper on the
rest of the newspaper."
Essentially, the IJ, adopting the Government’s contention,
concluded that Zuh fabricated the newspaper article out of
ZUH v. MUKASEY 11
whole cloth, complete with consistent page headers, adver-
tisements, pictures, and other articles. Once again, we ques-
tion the appropriateness of speculating about foreign
documents, see Ayi v. Gonzales, 460 F.3d 876, 883 (7th Cir.
2006), and holding a Cameroonian dissident newspaper to the
same standard as the New York Times or even the Baltimore
Sun.
E.
Having exhausted our analysis of the possible reasons for
the IJ’s negative credibility finding, the standard of review
requires us also to consider the cumulative effect of those rea-
sons. See, e.g., Dankam, 495 F.3d at 122–23. In this case each
of the IJ’s stated problems gains no stature when considered
in combination with the others. We thus have serious misgiv-
ings with the IJ’s "split credibility finding." Nevertheless, we
will assume, without deciding, that substantial evidence sup-
ported this credibility determination because we conclude
below that the IJ did not—as she must—consider the totality
of the circumstances in exercising her discretion.
IV.
A.
Zuh’s central contention is that the IJ abused her discretion
in denying him asylum given the record in this case and the
IJ’s findings as to his eligibility for withholding of removal
and protection under the CAT.
To date we have not outlined the relevant factors to be con-
sidered when determining whether to grant or deny discretion-
ary asylum relief. Relevant regulations, decisions of other
courts, and administrative opinions, however, provide sub-
stantial assistance in this regard. See, e.g., 8 C.F.R.
§ 208.14(a) (2008) (general provision granting IJs discretion-
ary power to grant or deny asylum); id. § 208.16(e) (mandat-
12 ZUH v. MUKASEY
ing reconsideration of a discretionary denial of asylum where
the applicant will be separated from his spouse and minor
children by virtue of a grant only of withholding of removal);
Shahandeh-Pey, 831 F.2d at 1387–88; In re H-, 21 I. & N.
Dec. 337, 347–48 (B.I.A. 1996); Matter of Burbano, 20 I. &
N. Dec. 872, 874–79 (B.I.A. 1994); Matter of Chen, 20 I. &
N. Dec. 16, 18–22 (B.I.A. 1989); Matter of Pula, 19 I. & N.
Dec. 467, 472–75 (B.I.A. 1987); Matter of Marin, 16 I. & N.
Dec. 581, 584–87 (B.I.A. 1978).
In light of these authorities, we believe that courts and IJs
should consider, when relevant, the following non-exhaustive
list of factors as part of the totality of the circumstances. See
Dankam, 495 F.3d at 119 n.2. On the positive side, an IJ
should consider:
1) Family, business, community, and employment
ties to the United States, and length of residence
and property ownership in this country;
2) Evidence of hardship to the alien and his family
if deported to any country, or if denied asylum
such that the alien cannot be reunited with fam-
ily members (as derivative asylees) in this coun-
try;
3) Evidence of good character, value, or service to
the community, including proof of genuine
rehabilitation if a criminal record is present;
4) General humanitarian reasons, such as age or
health;
5) Evidence of severe past persecution and/or well-
founded fear of future persecution, including
consideration of other relief granted or denied
the applicant (e.g., withholding of removal or
CAT protection).
ZUH v. MUKASEY 13
On the negative side, relevant factors include the:
1) Nature and underlying circumstances of the
exclusion ground;
2) Presence of significant violations of immigra-
tion laws;4
3) Presence of a criminal record and the nature,
recency, and seriousness of that record, includ-
ing evidence of recidivism;
4) Lack of candor with immigration officials,
including an actual adverse credibility finding
by the IJ;
5) Other evidence that indicates bad character or
undesirability for permanent residence in the
United States.
We emphasize that an IJ need not analyze or even list every
factor. See Casalena v. INS, 984 F.2d 105, 107 (4th Cir.
1993). To the contrary, we explicitly reject such an "inflexible
test" and recognize the "undesirability and ‘difficulty, if not
impossibility, of defining any standard in discretionary mat-
ters of this character.’" Marin, 16 I. & N. Dec. at 584 (quoting
Matter of L-, 3 I. & N. Dec. 767, 770 (B.I.A. 1949)). But at
the very least, an IJ must demonstrate that he or she reviewed
4
Some elaboration is necessary concerning the presence of immigration
law violations. Although this factor "is a proper and relevant discretionary
factor," the BIA has cautioned against affording it too much weight. Pula,
19 I. & N. Dec. at 473 (noting that overly weighting this factor would
have the "practical effect [of] deny[ing] relief in virtually all cases").
Instead, this factor itself involves a totality of the circumstances inquiry,
such that the IJ must examine the "actions of an alien in his flight from
the country where he fears persecution." Id. When an alien uses fraudulent
documents to escape imminent capture or further persecution, courts and
IJs may give this factor little to no weight.
14 ZUH v. MUKASEY
the record and balanced the relevant factors and must discuss
the positive or adverse factors that support his or her decision.
Casalena, 984 F.2d at 107; Marin, 16 I. & N. Dec. at 585
("The basis for the immigration judge’s decision must be
enunciated in his opinion.").
B.
In the case at hand, the IJ offered only the following expla-
nation as the basis for her decision to deny asylum:
The application for asylum is denied in the exercise
of discretion because under the Board’s decision in
Matter of O-D-, the Court finds that the respondent
is responsible for some of the incredible documenta-
tion that he has provided. The Court holds him also
accountable for testimony, which the Court believes
was not completely truthful.
The IJ thus stated that she based her decision to deny asylum
solely on Zuh’s testimony and "incredible" documentation
without discussing the wealth of other corroborating evidence
he presented. This, at the very least, suggests that she did not
consider all relevant factors. See Huang, 436 F.3d at 99.
Besides the IJ’s dubious "split credibility finding," we can
find only one factor—never mentioned by the IJ –- that lends
any support to her decision to deny asylum: Zuh entered the
United States on a borrowed passport. But the record makes
it clear that Zuh obtained this passport immediately after
escaping from detention and torture in Cameroon and so rea-
sonably believed the passport necessary to escape further
imminent persecution.
Not a single other factor appears to support the IJ’s conclu-
sion. Zuh has no criminal record and has never participated in
torture or persecution. Furthermore, after entering this coun-
try, Zuh obtained a work permit, attended tractor-trailer train-
ZUH v. MUKASEY 15
ing school, and befriended someone who testified to his good
character. The IJ apparently failed to consider these factors or
that Zuh has a fiancée and two young children still in Camer-
oon, who continue to be harassed by the government. Because
withholding of removal, unlike asylum, does not allow the
applicant to bring his family to this country, Huang, 436 F.3d
at 100–01, the IJ should certainly have considered this factor.
Perhaps most troubling, the IJ does not appear to have fac-
tored evidence of either Zuh’s past persecution or his well-
founded fear of future persecution into her determination to
deny him asylum relief. This factor "outweigh[s] all but the
most egregious adverse factors . . . [and] [t]he actual experi-
ence of past persecution should also weigh in favor of a grant
of asylum." Huang, 436 F.3d at 98 (citations and emphasis
omitted); see also Dankam, 495 F.3d at 119 n.2 (quoting
Huang, 436 F.3d at 98); Shahandeh-Pey, 831 F.2d at 1388
(noting that it was "[r]emarkabl[e]" that the IJ failed to weigh
the applicant’s well-founded fear of persecution).5
Indisputably, Zuh has advanced consistent, credible evi-
dence in support of his contention that he has suffered severe
persecution and faces a danger of persecution if returned.
First, as even the IJ acknowledged, Zuh provided an ava-
lanche of country condition documentation, which convinced
5
At oral argument, the Government asserted that an IJ need only weigh
an applicant’s well-founded fear of persecution when the IJ has denied all
other types of relief. This argument seems premised on the notion that
because the grant of withholding of removal prevents the Government
from returning the applicant to his native country, it renders the danger of
persecution in that country irrelevant. Certainly, an IJ must give an appli-
cant’s fear of persecution greater weight when she denies the applicant all
other relief. See Pula, 19 I. & N. Dec. at 474. But we reject the categorical
approach urged by the Government. As the Second Circuit noted, "if one
accepted this position, those very asylum-seekers who met the higher stan-
dard of proof of persecution required for withholding of removal (and thus
those persons most in need of this nation’s asylum relief) would be the
ones who received less protection." Huang, 436 F.3d at 98 n.11.
16 ZUH v. MUKASEY
the IJ that "the human rights situation in . . . Cameroon today
is deplorable."
Second, Zuh provided various details about his arrests that
remained remarkably consistent throughout both hearings.
Not only did Zuh’s direct testimony accord with his own
cross-examination and with his father’s letter, but also—
although unmentioned by the IJ—a letter from an American
doctor corroborated Zuh’s description of the injuries torture
caused him. Indeed, this doctor expressly stated, "I thus con-
clude that Chi Alfred Zuh did suffer the torture and abuse that
he claims."
Third, although in her first decision the IJ faulted Zuh for
not having letters from his family corroborating his testimony,
she apparently failed to consider that at the second hearing
Zuh presented three letters from his fiancée and letters from
his father, his sister, his mother, his uncle, and one of his
uncle’s employees. Moreover, Zuh’s explanation for not
offering this evidence at the first hearing—that he feared
endangering his family—seems entirely plausible.
Finally, we must note a particular tension in the IJ’s opin-
ion. Her adverse credibility finding rested on her disbelief of
Zuh and his documents. But she found Zuh’s witnesses, Bet-
tah and Clarkson, credible and explicitly rested Zuh’s eligibil-
ity for withholding of removal and CAT protection on their
testimony. An honest reading of the record renders this con-
clusion untenable given that the testimony of these two wit-
nesses provides little more than ancillary detail.6 Therefore, in
6
The testimony of Bettah and Clarkson, standing alone, does not appear
sufficient to meet the burden of proof for withholding of removal. Bettah,
who herself has been granted asylum, testified only that she rode in a car
with Zuh for ten minutes on the way to an SDF meeting, thus verifying
his membership in the SDF and corroborating a very minor part of his tes-
timony. Clarkson testified only about the circumstances of Zuh’s arrival
in the United States and about a trip to Cameroon during which he verified
that the Cameroonian government continues to harass Zuh’s family.
ZUH v. MUKASEY 17
granting withholding of removal and CAT protection, the IJ
must have relied on the very documents and testimony she
found incredible in denying discretionary asylum.
An IJ cannot have it both ways, finding an applicant and his
documents incredible for one purpose and yet relying on them
for another. Kalubi, 364 F.3d at 1138–39 ("[I]f an applicant’s
testimony on a particular issue is not found incredible for pur-
poses of determining whether he is eligible for asylum, it
must be taken as true—and cannot be found incredible—on
the same issue for purposes of determining whether he is enti-
tled to asylum."). This sort of judicial sleight of hand consti-
tutes the very definition of an abuse of discretion.
For all of these reasons, we cannot uphold the IJ’s decision
based on the stated rationale. We recognize, however, that our
role is not to weigh the evidence and "determine which of the
competing views is more compelling." Gonahasa v. INS, 181
F.3d 538, 542 (4th Cir. 1999). Accordingly, we must remand
the case so that an IJ may consider the totality of the relevant
evidence in determining whether Zuh merits discretionary
asylum relief.
V.
Before concluding, we note that academic literature and
court decisions have grown increasingly strident in their criti-
cism of the immigration review process. Our finding today
adds to this rising tide of criticism.
Academic literature critical of the current state of immigra-
tion law abounds. Perhaps the most prominent is a recent
empirical study that criticizes immigration judges, the BIA,
and the federal courts for failing to adjudicate asylum cases
consistently. Jaya Ramji-Nogales et al., Refugee Roulette:
Disparities in Asylum Adjudication, 60 Stan. L. Rev. 295
(2007). But this is by no means the only academic commen-
tary to take issue with the administration of immigration law
18 ZUH v. MUKASEY
and to emphasize the importance of appropriate judicial
review. See, e.g., Eric M. Fink, Liars and Terrorists and
Judges, Oh My: Moral Panic and the Symbolic Politics of
Appellate Review in Asylum Cases, 83 Notre Dame L. Rev.
2019 (2008).
At a broad level of generality, we note that the Supreme
Court has emphasized the importance of judicial review in the
immigration context. See INS v. St. Cyr, 533 U.S. 289,
298–99 (2001). Moreover, courts have grown increasingly
skeptical of the high error rate within the immigration system.
In a remarkable opinion, Judge Posner recently noted that the
Seventh Circuit had "reversed the Board of Immigration
Appeals in whole or part in a staggering 40 percent of the 136
petitions to review . . . on the merits" over the prior year. Ben-
slimane v. Gonzales, 430 F.3d 828, 829 (7th Cir. 2005). He
concluded that "the adjudication of [immigration] cases at the
administrative level has fallen below the minimum standards
of legal justice." Id. at 830. Similar judicial criticism of immi-
gration adjudications appears in a variety of other contexts.
See, e.g., Wang v. Att’y Gen., 423 F.3d 260, 269 (3d Cir.
2005) ("The tone, the tenor, the disparagement, and the sar-
casm of the IJ seem more appropriate to a court television
show than a federal court proceeding."); Lopez-Umanzor v.
Gonzales, 405 F.3d 1049, 1054 (9th Cir. 2005) ("[T]he IJ’s
assessment of [p]etitioner’s credibility was skewed by pre-
judgment, personal speculation, bias, and conjecture . . . .");
Adam Liptak, Courts Criticize Judges’ Handling of Asylum
Cases, N.Y. Times, Dec. 26, 2005, at A1.
This circuit, too, has criticized immigration judges’ deci-
sions. See, e.g., Dankam, 495 F.3d at 124–25 (Shedd, J., con-
curring) (questioning portions of the IJ’s credibility
determination); Tewabe, 446 F.3d at 540 (faulting the IJ for
giving "no cogent explanation based on common sense, the
record, or any other relevant factor for disbelieving [the peti-
tioner]"); Camara, 378 F.3d at 370, 372 (criticizing the IJ for
ZUH v. MUKASEY 19
"completely ignor[ing]" independent evidence and for "fail-
[ing] to follow the [agency]’s own regulations").
We note, however, that like most issues, the weight of
opinion does not fall entirely on one side. For example, Judge
Kozinski has excoriated his colleagues for "a systemic effort
to dismantle the reasons immigration judges give for their
decisions." Abovian v. INS, 257 F.3d 971, 980 (9th Cir. 2001)
(Kozinski, J., dissenting from denial of rehearing en banc);
see also Fiadjoe v. Att’y Gen., 411 F.3d 135, 169 (3d Cir.
2005) (Smith, J., dissenting) ("In my view, the majority’s
approach is effectively one of de novo review. The law for-
bids us from substituting our judgment for that of the BIA . . .
."); Stephen H. Legomsky, Learning To Live with Unequal
Justice: Asylum and the Limits to Consistency, 60 Stan. L.
Rev. 413 (2007). Therefore, at this juncture we are not pre-
pared to join Judge Posner or others in their wholesale cri-
tique of IJs.
But we must perform our statutory duty. Although the leg-
islature has constricted our review of immigration decisions
like this one, it certainly has not eliminated our role. Rather,
Congress has established a multi-layered system for adjudica-
tion of immigrant claims. See, e.g., 8 U.S.C. §§ 1158, 1229a,
1252 (2006); 8 C.F.R. §§ 1003.1, 1003.10 (2008). The admin-
istration of that system lies in the first instance with hard-
working immigration judges and the Board of Immigration
Appeals, but the Courts of Appeals ensure that the system
works properly. We do so not by substituting our judgment
for that of the IJs, but rather by ensuring adherence to law,
proper support of findings in the record, and the considered
and proper exercise of discretion.
For these reasons, we grant the petition for review, vacate
the BIA’s order affirming the IJ’s decision, and remand the
case for further consideration consistent with this opinion. In
addition, we urge the BIA to "recommend that the Chief
20 ZUH v. MUKASEY
Immigration Judge schedule this case on remand before a dif-
ferent IJ." Camara, 378 F.3d at 372.7
VACATED AND REMANDED
7
We note Zuh’s argument that the BIA erred in not assigning his appeal
to a three-member panel. See 8 C.F.R. § 1003.1(e)(4) (2008). Although we
agree that this case warranted review by such a panel, our disposition
moots this point.