Joseph v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MARC ANTOINE JOSEPH, 
Petitioner, No. 05-74390
v.
 Agency No.
A098-005-438
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
February 1, 2010—Pasadena, California

Filed April 14, 2010

Before: Betty B. Fletcher, Harry Pregerson, and
Susan P. Graber, Circuit Judges.

Opinion by Judge Pregerson;
Concurrence by Judge Graber

5565
 JOSEPH v. HOLDER 5569

COUNSEL

Josh Chatten-Brown and Carmen Chavez, Casa Cornelia Law
Center, San Diego, California, for the petitioner.

Melody K. Eaton and Molly L. DeBusschere, U.S. Depart-
ment of Justice Office of Immigration Litigation, Washington,
D.C., for the respondent.

OPINION

PREGERSON, Circuit Judge:

Marc Antoine Joseph petitions for review of the Board of
Immigration Appeals’ (“BIA”) decision affirming an immi-
gration judge’s (“IJ”) denial of his applications for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). We have jurisdiction under 8
U.S.C. § 1252. The IJ found that Joseph was not credible. The
main issue here is whether an IJ, who presides over the same
petitioner’s bond hearing and removal hearing, may use her
notes from the unrecorded bond hearing in reaching her deci-
sion in the removal hearing. We conclude that she may not.
Because the other bases of the IJ’s and BIA’s adverse credi-
bility finding were also erroneous, we grant the petition for
review and remand to the BIA for it to determine whether,
accepting Joseph’s testimony as true, he is eligible for relief.
5570 JOSEPH v. HOLDER
I. FACTS AND PROCEDURAL HISTORY

A. Joseph’s Testimony at his Removal Hearing

We summarize the testimony Joseph gave at his removal
hearing on January 25, 2005. Joseph, a 29-year-old Haitian
musician, started his own band in his hometown of Petite Riv-
iere de l’Artibonite (“Artibonite”). In 2000, President Aristide
visited Artibonite. After hearing Joseph sing, Aristide asked
Joseph to create a musical group to support the Aristide
movement in the Artibonite region. Joseph wrote music for
the group,1 played the cornet, and was the spokesman and
contact person for the group.

After this initial encounter with Aristide, Joseph became
involved with Aristide’s political party, “Lavalas.” Joseph
organized meetings and protests for Lavalas in the Artibonite
region and attended around 20 to 25 Lavalas meetings him-
self. Joseph testified that he supported Aristide “simply”
because he thought that “Aristide would have changed the
economy of the country, and he had changed the poverty of
the people” and because he believed that “Aristide was the
one to change that. . . . He tried to change the economy of
Haiti to put Haiti at a higher standard.”

On April 22, 2004, Joseph held a Lavalas meeting at his
house. Joseph testified that a man named “Dario,” who was
a member and director of “Ramikos,” a group opposing Lav-
alas, came to Joseph’s house to disrupt the meeting. Dario
pressured Joseph to join Ramikos and threatened to kill
Joseph if he refused to join. When Joseph asked Dario to
1
The lyrics from the songs that Joseph composed for Aristide were
admitted into evidence in immigration court. In court, Joseph sang one of
the songs, which roughly translated as: “The rich, the people above, we
are the bottom, you know, we are misery, we are misery. The people up
there, they’re rich, they’re pushing us down, we’re still in misery, we’re
still in misery.”
 JOSEPH v. HOLDER 5571
leave, Dario threw stones at Joseph, hitting him on the head.
Dario then punched Joseph in the face. Joseph believes that
if the other people present at the Lavalas meeting had not sep-
arated them, Dario would have killed Joseph because Dario
was “known as a very dangerous man.” Later that night,
between midnight and one in the morning, Dario returned,
broke down the front gate of Joseph’s house, and started
shooting. Joseph believed that Dario had returned to kill him.
Joseph’s mother told Joseph to leave the house and “go very
far away.”

Joseph fled from Artibonite to Lincour, where his friend
Vladimir lived. Vladimir later returned to Joseph’s house and
found that Ramikos members had severely beaten Joseph’s
mother and raped Joseph’s sister. On June 1, 2004, Vladimir
and his friends were playing dominoes in front of the house
when they saw Dario and around 20 other Ramikos members
approaching. Joseph, believing that Dario had come to kill
him, fled from Lincour to Port-au-Prince. When Joseph
arrived in Port-au-Prince he stayed with Vladimir’s friend,
Herold, for 23 days before leaving Haiti.2

After Joseph left Haiti, on July 29, 2004, Joseph’s cousin,
Dumarsais Riker, visited Joseph’s mother in Artibonite.
Joseph and his cousin were similar in appearance and wore
the same clothes. Joseph believes that Ramikos shot and
killed Dumarsais, burned Dumarsais’s car, and destroyed
Joseph’s mother’s house because they mistook Dumarsais for
Joseph. Joseph submitted into evidence photographs of
Dumarsais’s body, his car, and the destroyed house.
2
Joseph had applied for and secured a Mexican visa in December 2003,
which expired on May 11, 2004, because he wanted to go to Mexico to
study computer engineering. Joseph had previously studied computers in
Haiti for 5 months. Joseph decided not to leave Haiti as planned in January
2004 because he was “very busy in preparation of independence day in
Haiti,” organizing events on behalf of Lavalas. After the incidents with
Ramikos in April and June 2004, Joseph secured a second Mexican visa
and traveled through Mexico to the United States.
5572 JOSEPH v. HOLDER
According to Joseph, his mother and sister moved to avoid
further harassment by Ramikos. Joseph’s girlfriend ended
their relationship because of harassment from Dario and
Ramikos.

Joseph left Haiti because “members of the group of
Ramikos and Dario were looking for [him] to kill” him.
Joseph explained that Ramikos had become even more power-
ful and is now associated with a group named “184.” Joseph
testified that Ramikos and 184 can do whatever they want in
Haiti and would kill Joseph if he returned. Joseph believes
that the groups opposed to Lavalas, including 184, would
“know [his] name and would eventually kill [him]” anywhere
in Haiti.

Joseph entered the U.S. from Mexico, without documents,
on or around July 2, 2004. On July 4, 2004, U.S. Border
Patrol Officers apprehended Joseph and issued a Notice to
Appear charging Joseph with entering the U.S. without
inspection. On August 5, 2004, Joseph appeared without
counsel at his master calendar hearing before an IJ. Joseph
was also unrepresented at his August 27, 2004, bond hearing
in front of the same IJ who denied his application for bond.
No transcript of the bond hearing exists.

B. The IJ Considered Her Bond Hearing Notes During
Joseph’s Removal Hearing

According to the IJ’s bond hearing notes and contrary to
the testimony Joseph gave during his removal hearing, Joseph
“testified that he left Haiti because a group of President Aris-
tide’s wants to kill him.” The bond hearing notes indicate that
Joseph also testified that he was a member of a band that
played every Easter. According to the IJ’s bond hearing notes,
Joseph testified that Dario was a member of a pro-Aristide
group, rather than an anti-Aristide group as Joseph later testi-
fied during his removal hearing. Further, the IJ’s bond hearing
notes reflect that Dario argued with Joseph and threw rocks
 JOSEPH v. HOLDER 5573
at him because Dario wanted to break up Joseph’s band, not
because, as Joseph later testified at his removal hearing, Dario
wanted Joseph to join Ramikos, the anti-Aristide group.

On January 25, 2005, the same IJ presided over Joseph’s
removal hearing. At this hearing the IJ sought to supplement
the record with her notes from Joseph’s bond hearing.
Joseph’s counsel challenged the propriety of including the
bond hearing notes in the record of Joseph’s removal hearing
because there was no transcript of the bond hearing. Nonethe-
less, the IJ’s bond hearing notes were typed into a bond mem-
orandum and included in the record of Joseph’s removal
hearing.

C. The IJ and BIA decisions

On January 25, 2005, the IJ denied Joseph’s claim for asy-
lum, withholding of removal, and relief under CAT because
she had “very real concerns regarding the credibility of
[Joseph’s] claim.” The IJ found that Joseph submitted a
detailed declaration and detailed testimony at his removal
hearing. Because of that detail, the IJ stated that she “would
have expected . . . a more thorough explanation, during the
bond hearing, with respect to [Joseph’s] fear, his past persecu-
tion.” Specifically, the IJ “would have expected to have been
told of persecution and assaults on [Joseph’s] family” when
she asked Joseph at his bond hearing why he had left Haiti.

The BIA affirmed the IJ’s decision and specifically stated
that it found that the record supported the IJ’s adverse credi-
bility finding. The BIA found “no error on the part of the [IJ]
in noting the inconsistencies between the claim presented by
[Joseph] during his bond hearing and that presented subse-
quently during his merits hearing.” The BIA also denied
Joseph’s motion to remand, which Joseph had filed alongside
his appeal.
5574 JOSEPH v. HOLDER
II. STANDARD AND SCOPE OF REVIEW

Where the BIA cites Matter of Burbano, 20 I. & N. Dec.
872 (B.I.A. 1994), and does not express disagreement with
any part of the IJ’s decision, the BIA adopts the IJ’s decision
in its entirety. See, e.g., Abebe v. Gonzales, 432 F.3d 1037,
1040 (9th Cir. 2005) (en banc). Where, however, the BIA
conducts its own review of the evidence and law, the court’s
“review is limited to the BIA’s decision, except to the extent
the IJ’s opinion is expressly adopted.” Hosseini v. Gonzales,
471 F.3d 953, 957 (9th Cir. 2006) (internal quotation marks
omitted).

Here, the BIA cited Matter of Burbano and emphasized that
it found the IJ’s adverse credibility finding “supported by the
record.” After the BIA explained why it agreed with the IJ’s
adverse credibility finding, it addressed Joseph’s arguments
that the IJ had improperly based her adverse credibility find-
ing on Joseph’s testimony at the bond hearing. Because the
BIA expressly adopted the IJ’s decision under Matter of Bur-
bano, but also provided its own review of the evidence and
the law, we review both the IJ and the BIA’s decision.
Hosseini, 471 F.3d at 957.

Credibility determinations are reviewed under the substan-
tial evidence standard. Soto-Olarte v. Holder, 555 F.3d 1089,
1091 (9th Cir. 2009).3 Under the substantial evidence stan-
dard, credibility findings are upheld unless the evidence com-
pels a contrary result. Don v. Gonzales, 476 F.3d 738, 741
(9th Cir. 2007).
3
We apply pre-REAL ID Act standards because Joseph filed his appli-
cation for relief on December 3, 2004, which was before May 11, 2005,
the effective date of the REAL ID Act. See Sinha v. Holder, 564 F.3d
1015, 1021 n.3 (9th Cir. 2009) (applying pre-REAL ID Act standards
because the petitioner’s asylum application was filed before May 11,
2005).
 JOSEPH v. HOLDER 5575
III. DISCUSSION

A. The IJ Erred by Considering Her Bond Hearing
Notes During the Removal Hearing

[1] We must decide whether the IJ erred in considering her
unrecorded notes from Joseph’s bond hearing during his later
removal hearing. The BIA found that the IJ had not erred in
“noting the inconsistencies between the claim presented by
[Joseph] during his bond hearing, and that presented subse-
quently during his merits hearing.” Joseph argues that the IJ’s
consideration of her notes from Joseph’s unrecorded bond
hearing was an error. In support of his claim, Joseph cites 8
C.F.R. § 1003.19(d). This regulation, which pertains to bond
hearings, states that “[c]onsideration by the [IJ] of an applica-
tion or request of a respondent regarding custody or bond
under this section shall be separate and apart from, and shall
form no part of, any deportation or removal hearing or pro-
ceedings.” 8 C.F.R. § 1003.19 (emphasis added).4
4
Title 8 C.F.R. § 1003.19(d) refers to the contents of the bond hearing
as a whole, rather than just an “application or request” for bond, because
no such application or formal request is required. Section 1003.19(b)
states that an application for bond “may be made orally, in writing, or, at
the discretion of the [IJ] by telephone.” The Immigration Court Practice
Manual, first published in February 2008 at the direction of the Attorney
General, states that a “request for bond hearing may be made in writing.
In addition . . . a request for bond hearing may be made orally in court or,
at the discretion of the Immigration Judge, by telephone.” The Office of
the Chief Immigration Judge, Immigration Court Practice Manual,
§ 9.3(c), available at http://www.justice.gov/eoir/vll/OJICPracManual/
Chap9.pdf (last visited Apr. 2, 2010). Section 9.3(e)(v) states that the doc-
uments for an IJ to consider are “filed in open court or, if the request for
a bond hearing was made in writing, together with the request.” The
detained immigrant “should make an oral statement . . . addressing
whether the alien’s release would pose a danger to property or persons,
whether the alien is likely to appear for future immigration proceedings,
and whether the alien poses a danger to national security.” Id. Thus,
because there is no written “application” or “request” regarding bond, 8
C.F.R. § 1003.19(d) refers to the entire bond hearing, and not only the
written application or request for bond.
5576 JOSEPH v. HOLDER
[2] In response, the government cites 8 C.F.R. § 1240.7(a),
pertaining to removal hearings, which states that the IJ “may
receive in evidence any oral or written statement that is mate-
rial and relevant to any issue in the case previously made by
the respondent or any other person during any investigation,
examination, hearing, or trial.” The government argues that
this regulation renders the IJ’s bond hearing notes admissible.
We hold that 8 C.F.R. § 1240.7(a) does not apply in this case.

1. 8 C.F.R. § 1240.7(a) Does Not Apply Here

[3] At first blush, 8 C.F.R. § 1003.19(d) and 8 C.F.R.
§ 1240.7(a) seem to be in conflict. We need not, however,
resolve that conflict here or attempt to harmonize the regula-
tions because § 1240.7(a) does not apply to Joseph’s case.
Section 1240.7(a) allows the receipt in evidence of an “oral
or written statement” made by the asylum seeker, or another
person, during “any investigation, examination, hearing, or
trial.” Here, the evidence was not of such a “statement”;
rather, the evidence in question was the IJ’s own notes, not
part of the record, taken by the IJ during Joseph’s unrecorded,
uncounseled bond hearing. No transcript exists for Joseph’s
bond hearing.5 No effort was made to introduce specific evi-
5
This is in keeping with the general practice for bond hearings. Section
9.3(e) of the Immigration Court Practice Manual states: “Bond hearings
are less formal than immigration court proceedings.” § 9.3(e); see also
Matter of Chirinos, 16 I. & N. Dec. 276 (B.I.A. 1977). The BIA Practice
Manual states that “[b]ond hearings are seldom recorded and are not rou-
tinely transcribed.” BIA Practice Manual at § 7.3(b)(ii), available at
http://www.justice.gov/eoir/vll/qapracmanual/pracmanual/chap7.pdf (last
visited Apr. 2, 2010); see also Immigration Court Practice Manual
§ 9.3(e)(iii) (“Bond hearings are generally not recorded.”); § 9.3(vi) (“At
the [IJ’s] discretion, witnesses may be placed under oath and testimony
taken. However, parties should be mindful that bond hearings are gener-
ally briefer and less formal than hearings in removal proceedings.”).
Although only one published federal decision has cited the Immigration
Court Practice Manual, we find it to be a useful resource to determine the
procedure before the IJ. See Vongsa Sengkeo v. Horgan, 2009 U.S. Dist.
LEXIS 109899, at *9 n.5 (D. Mass. Nov. 24, 2009) (citing Practice Man-
ual).
 JOSEPH v. HOLDER 5577
dence of the precise content of Joseph’s oral statements made
at his unrecorded bond hearing. Because 8 C.F.R. § 1240.7(a)
does not apply, we need not reconcile this regulation with 8
C.F.R. § 1003.19(d) or determine which regulation, if any,
would govern in the event of a conflict. Moreover, as we dis-
cuss below, § 1003.19(d) does not, as a rule, permit an IJ sit-
ting in removal proceedings to rely on her notes from a bond
hearing.

2. Bond and Removal Hearings are Distinct and
Evidence from a Bond Hearing Should Not be
Considered in a Removal Hearing

The case law, although sparse, supports Joseph’s argument
that § 1003.19(d) precludes the IJ from considering evidence
from a bond hearing, in this case the IJ’s notes, in determining
a petitioner’s credibility at a removal hearing. The BIA has
noted that “bond and removal are distinctly separate proceed-
ings.” In re R-S-H-, 23 I. & N. Dec. 629, 630 n.7 (B.I.A.
2003) (citing 8 C.F.R. § 1003.19(d)); see also Bobb v. Attor-
ney Gen. of U.S., 458 F.3d 213, 216 (3d Cir. 2006) (noting an
IJ’s decision, affirmed by the BIA, that a determination at the
bond hearing that an alien’s conviction was not an aggravated
felony was not controlling in the removal hearing); Pina v.
Horgan, No. 07-11036, 2007 U.S. Dist. LEXIS 86912, at *3-
4 (D. Mass. Nov. 27, 2007) (noting that bond and removal
hearings are separate).

[4] Although the Ninth Circuit has not interpreted 8 C.F.R.
§ 1003.19(d), the Seventh Circuit discussed 8 C.F.R.
§ 1003.19(d) in Flores-Leon v. INS, 272 F.3d 433 (7th Cir.
2001). In that case, the petitioner, Flores-Leon, asserted a
denial of his due process rights because the IJ presided over
both the bond hearing and the removal hearing. Id. at 440.
The Seventh Circuit found that nothing in the regulations pre-
cluded the IJ from conducting both proceedings. Id. Further,
the court concluded that the IJ did not err because the IJ did
not use any information provided at the bond hearing to ren-
5578 JOSEPH v. HOLDER
der his decision in Flores-Leon’s removal hearing. Id. In so
holding, the Flores-Leon court suggests that it would have
been improper for the IJ to consider any of the information
provided at the bond hearing to render a decision at the
removal hearing. This is exactly what happened in Joseph’s
case. In this case, although the IJ properly presided over both
proceedings, unlike the IJ in Flores-Leon, the IJ did use the
information she gathered at Joseph’s bond hearing to find
Joseph not credible in his removal hearing.

[5] The BIA has not specifically interpreted this aspect of
8 C.F.R. § 1003.19(d) in a published opinion. The case most
closely on point is In re Adeniji, in which the BIA held that
evidence presented in an alien’s removal hearing, which was
conducted before the bond hearing, could not be considered
during the separate bond hearing unless it was made part of
the bond record. 22 I. & N. Dec. 1102, 1115 (B.I.A. 1999) (en
banc). Although In re Adeniji indicates that evidence from a
removal hearing, if made part of the record, can be considered
in a bond hearing, it gives us strong reason to believe that the
converse is not true. That is, In re Adeniji suggests that evi-
dence from a bond hearing should not be considered during
a removal hearing. In particular, in her concurrence and dis-
sent, BIA Member Lory Rosenberg explains that the “under-
lying purpose of the regulation [§ 1003.19(d)] is not to limit
the information an [IJ] may consider in redetermining bond,
but to [ensure] that evidence presented in the far more infor-
mal bond hearing does not taint the ultimate adjudication of
the charges of removability.” Id. at 1126. Thus, the BIA’s
decision that evidence from a removal hearing may be consid-
ered in redetermining bond is “notwithstanding the rule that
evidence presented at a bond hearing cannot be used to estab-
lish removability.” Id. We find this explanation highly persua-
sive in support of our conclusion that § 1003.19(d) precluded
the IJ in Joseph’s case from relying on her notes from the
bond hearing.

The Immigration Court Practice Manual also suggests that
Joseph’s interpretation of the regulation is correct. Section
 JOSEPH v. HOLDER 5579
9.3(a) cites 8 C.F.R. § 1003.19(d) and states that “[b]ond pro-
ceedings are separate from removal proceedings.” Further,
§ 9.3(e)(iv) of the Immigration Court Practice Manual states
that, in a bond hearing, the IJ “creates a record, which is kept
separate from the Records of Proceedings for other Immigra-
tion Court proceedings involving the alien.” There would be
little utility in keeping separate records of the proceedings if
the IJ could freely commingle these records.

The Immigration Court Practice Manual also shows that the
purpose of a bond hearing departs significantly from the pur-
pose of an asylum hearing. According to the Practice Manual,
the purpose of a bond hearing is for the detained immigrant
to “make an oral statement . . . addressing whether the alien’s
release would pose a danger to property or persons, whether
the alien is likely to appear for future immigration proceed-
ings, and whether the alien poses a danger to national securi-
ty.” Practice Manual § 9.3(e)(vi). Thus, the purpose of a bond
hearing, to determine whether an alien in custody should be
released, markedly differs from the purpose of a removal
hearing, which is to determine whether the petitioner is
removable and whether he or she is eligible for relief from
removal.

[6] Therefore, the IJ in Joseph’s case strayed from the pur-
pose of a bond hearing when she apparently asked him why
he left Haiti. Further, the IJ had no reason to “expect” to be
told of “persecution and assaults” on Joseph’s family during
his bond hearing. The IJ impermissibly considered her notes
from Joseph’s bond hearing to evaluate Joseph’s credibility
during his removal hearing. Thus, the inconsistencies between
Joseph’s bond hearing testimony according to the IJ’s notes
and his testimony during his removal hearing do not consti-
tute substantial evidence to support the IJ’s adverse credibility
finding.
5580 JOSEPH v. HOLDER
3. Statements from Less Formal Proceedings Do Not
Undermine an Applicant’s Credibility During the
Applicant’s Removal Hearing

[7] Our precedent gives us reason to preclude the IJ from
relying in removal proceedings on notes from a bond hearing.
We have rejected adverse credibility findings that relied on
differences between statements a petitioner made during
removal proceedings and those made during less formal, rou-
tinely unrecorded proceedings. Two examples of these less
formal proceedings are airport interviews and affirmative asy-
lum interviews.

In Singh v. INS, we recognized that “[r]equiring evidentiary
detail from an airport interview not only ignores the reality of
the interview process, but would, in effect, create an unprece-
dented preasylum process.” 292 F.3d 1017, 1021 (9th Cir.
2002). We therefore held that the agency’s adverse credibility
finding could not rest solely on the lack of detail in the appli-
cant’s initial statements at the airport as compared to his later
hearing testimony. Id. at 1021-24. Similarly, in Arulampalam
v. Ashcroft, we found that a petitioner’s omission during an
airport interview of specific details of torture revealed later
during the petitioner’s removal hearing did not support the
agency’s negative credibility finding. 353 F.3d 679, 688 (9th
Cir. 2003).

In another case, Singh v. Gonzales, we found that “[c]ertain
features of an asylum interview make it a potentially unreli-
able point of comparison to a petitioner’s testimony for pur-
poses of a credibility determination.” 403 F.3d 1081, 1087
(9th Cir. 2005). Specifically, the Singh v. Gonzales court
noted that there is no requirement that an asylum officer take
evidence under oath. Id. at 1087-88 (citing 8 C.F.R.
§ 208.9(c)). The court held that a contradiction between the
petitioner’s asylum interview and the removal hearing was not
substantial evidence justifying an adverse credibility finding.
See id. at 1087.
 JOSEPH v. HOLDER 5581
[8] Bond hearings, like airport interviews and affirmative
asylum interviews, are far less formal than removal hearings.6
It is also worth noting the low levels of legal representation
for detained immigrants, those who undergo a bond hearing.7
In this case, the IJ herself explained that “respondents who are
unrepresented by counsel oftentimes do not give a complete
explanation of events causing them to leave their home coun-
try.” Because the bond hearing lacks procedural safeguards to
ensure reliability, including the requirement of an oath and a
transcript of the proceedings, testimony given in bond hear-
ings, as stated under 8 C.F.R. § 1003.19(d), shall be “separate
and apart from, and shall form no part of, any deportation or
removal hearing or proceedings.”

4. The IJ Erred in Finding Joseph Not Credible
Based on His Omission of Detail at His Bond
Hearing

[9] As discussed above, the IJ erred in considering her
notes from Joseph’s bond hearing in reaching a decision in his
removal hearing. Because of this error, any omission of detail
regarding Joseph’s fear of persecution at his bond hearing
cannot undermine his credibility for the purposes of the
claims Joseph asserted during his removal hearing.
6
See discussion supra note 5.
7
The American Bar Association’s Commission on Immigration has doc-
umented the low levels of representation for detained immigrants. In a
2004 report, the ABA reports that “only ten percent of people detained by
ICE secure legal representation in their cases.” ABA Commission on
Immigration, Immigration Detainee Guide, 1 (ABA 2004), available at
http://www.abanet.org/publicserv/immigration/probonoguidefinal.pdf (last
visited Apr. 2, 2010). In a 2010 report, the ABA reports that 84% of
detained immigrants do not have representation. ABA Commission on
Immigration, Executive Summary on Reforming the Immigration System:
Proposals to Promote Independence, Fairness, Efficiency, and Profession-
alism in the Adjudication of Removal Proceedings, ES-7, ES-39 (ABA
2010), available at http://new.abanet.org/Immigration/Documents/
ReformingtheImmigrationSystemExecutiveSummary.pdf (last visited Apr.
2, 2010).
5582 JOSEPH v. HOLDER
In this case, the IJ found Joseph not credible in part because
she claimed he did not discuss the harm suffered by his
mother and sister in Haiti during his bond hearing. The IJ also
stated that, “in light of [Joseph’s] detailed declaration and tes-
timony,” the court would have expected “a more thorough
explanation, during the bond hearing, with respect to
[Joseph’s] fear, his past persecution.” The government, citing
Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir. 2003),
and Li v. Ashcroft, 378 F.3d 959, 963 (9th Cir. 2004), argues
that the omission of detail can be fatal to credibility. In both
Alvarez-Santos and Li, however, the omission of detail was
from the petitioner’s testimony given during the removal
hearing itself or in the asylum application, not from a bond
hearing. Even if the IJ could properly consider the lack of
detail Joseph gave at his bond hearing, “a general response to
questioning, followed by a more specific, consistent response
to further questioning is not a cogent reason for supporting a
negative credibility finding.” Kaur v. Ashcroft, 379 F.3d 876,
887 (9th Cir. 2004); Akinmade v. INS, 196 F.3d 951, 957 (9th
Cir. 1999) (finding testimony sufficiently detailed, especially
where the petitioner was not on notice to provide such addi-
tional information).

As discussed above, however, the IJ should never have
considered her notes from Joseph’s unrecorded bond hearing.
If the IJ had not improperly considered those notes during
Joseph’s removal hearing, there would have been no issue as
to omission of detail.

B. Substantial Evidence Does Not Support the IJ’s
Adverse Credibility Finding

The next issue is whether the IJ’s other findings support her
adverse credibility finding. The BIA and IJ erred in basing
their adverse credibility finding on several findings: 1)
Joseph’s failure to provide Dario’s last name; 2) Joseph’s lack
of understanding of the complex political situation in Haiti; 3)
 JOSEPH v. HOLDER 5583
Joseph’s failure to depart Haiti sooner; and 4) Joseph’s failure
to submit sufficient corroborating evidence.

1. The BIA Erred in Finding Joseph Not Credible
Because Joseph Did Not Provide Dario’s Last
Name

[10] The BIA commented that Joseph had never given
Dario’s last name. At the removal hearing, this issue was
never raised. The BIA thus did not provide Joseph with an
opportunity to offer an explanation for his failure to give
Dario’s last name. See Campos-Sanchez v. INS, 164 F.3d 448,
450 (9th Cir. 1999); Soto-Olarte, 555 F.3d at 1092 (adverse
credibility finding not supported by substantial evidence
where agency failed to offer the petitioner an opportunity to
explain the inconsistency upon which the adverse credibility
determination was partially based). Further, Joseph’s failure
to disclose Dario’s last name does not go to the heart of
Joseph’s asylum claim. See Singh v. Ashcroft, 301 F.3d 1109,
1111-12 (9th Cir. 2002) (finding that an adverse credibility
finding is warranted only where inconsistencies go to the
“heart of the asylum claim”). Thus, the BIA erred to the
extent that it relied on Joseph’s failure to provide Dario’s last
name to find Joseph not credible.

2. The IJ Erred in Basing her Adverse Credibility
Finding on Joseph’s Lack of Understanding of
Haiti’s Complex Political Situation

The IJ claimed that Joseph “makes the argument that he
was a high ranking member of Lavalas, and an easily identi-
fied public figure.” The IJ found that, “[d]espite this claim,
[Joseph] has a very simple and rudimentary understanding of
the complexity of the political strife in Haiti.” The IJ stated
in her decision that she was “not willing to conclude that
[Joseph’s] understanding of the actual political problems in
[Haiti] is limited to his belief that President Aristide would
5584 JOSEPH v. HOLDER
end poverty and improve the economy in Haiti.” The IJ found
Joseph’s “understanding” to be

somewhat alarming in light of the fact that he was in
Haiti during the period of time when there was great
violence being committed by pro-Aristide vigilantes,
chimeres. The country condition report, which the
Court has reviewed, clearly established that prior to
the departure of President Aristide from Haiti in Feb-
ruary 2004, that although there were anti-
Government demonstrations and rallies, President
Aristide had given the civil population authority to
act outside the law. The fact that [Joseph] is unaware
of this situation is of concern to this Court.

The IJ later found that Joseph testified that Aristide “did not
have armed militias, and were not involved in violence,” but
the IJ determined that Joseph’s testimony contradicted “the
objective evidence.”

[11] Under Shah v. INS, “[s]peculation and conjecture can-
not form the basis of an adverse credibility finding, which
must instead be based on substantial evidence.” 220 F.3d
1062, 1071 (9th Cir. 2000). The record reveals that Joseph did
not claim to be a director of Lavalas, but just a member and
the group leader or “director” of the musical band. It was
speculation for the IJ to assume that Joseph, as a member of
Lavalas and a song-writer for Aristide, would have a sophisti-
cated understanding of Haiti’s political situation. Thus, the
IJ’s adverse credibility finding cannot stand based on this
speculation.

3. The IJ and BIA Erred in Basing Their Adverse
Credibility Finding on Joseph’s Failure to Leave
Haiti Sooner

The IJ also erred when she improperly speculated that
Joseph never intended to travel to Mexico to study computer
 JOSEPH v. HOLDER 5585
science. The IJ found that his testimony regarding his flight
from Haiti was not credible. The IJ concluded that the “record
establishes that [Joseph] left Haiti not in response to persecu-
tion, but when he had the non-immigrant visa, and made the
decision to depart.” The BIA affirmed the IJ’s opinion on this
issue, finding that Joseph “failed to adequately explain why
he did not depart his country until June 24, 2004, although the
alleged attacks occurred in April 2004, and he was then in
possession of a valid visa which did not expire until May
2004.”

Joseph first experienced a problem with Dario and Ramikos
on April 22, 2004, and departed Haiti two months and two
days later. In April 22, 2004, Joseph fled from Artibonite to
Lincour. He remained there safely until June 1, 2004, when
Dario came looking for him. On June 1, 2004, he fled from
Lincour to Port-au-Prince where he presumably secured his
second Mexican visa.

[12] The IJ and BIA engaged in speculation when they
assumed that Joseph’s failure to leave Haiti sooner under-
mined his credibility. See Paramasamy v. Ashcroft, 295 F.3d
1047, 1052 (9th Cir. 2002) (holding that the IJ’s hypothesis
regarding what motivated the applicant’s departure from Sri
Lanka was speculative). Joseph explained that he had decided
not to leave Haiti back in January 2004 because he was pre-
paring for the Haitian independence day celebrations. Thus,
when Joseph’s problems with Ramikos began on April 22,
2004, he had not planned to leave the country by the expira-
tion of his Mexican visa on May 11, 2004. Joseph left his
house in the midst of shooting and in fear of his life on April
22, 2004. It is speculative to conclude that Joseph’s failure to
leave Haiti any sooner undermines his credibility. The IJ and
BIA’s conclusion assumes that it would even have been possi-
ble to secure transportation and make all the necessary
arrangements in less than two months and two days. The BIA
also found that Joseph’s ability “to apply for and obtain a
replacement [Mexican] visa in June 2004 and depart [Haiti]
5586 JOSEPH v. HOLDER
. . . undermine[d] his claimed fear of harm.” The BIA does
not explain how or why Joseph’s ability to obtain a visa from
the Mexican consulate undermines his fear of harm. Logi-
cally, every applicant for asylum would be denied if the abil-
ity to leave the country without harm undermined the
applicant’s fear of harm. Thus, the IJ and the BIA erred to the
extent that they based their adverse credibility finding on
Joseph’s failure to leave Haiti sooner.

4. The IJ and BIA Erred in Basing Their Adverse
Credibility Finding on Joseph’s Failure to
Provide Corroborative Evidence

[13] The IJ required corroborative evidence because she
found that Joseph’s credibility was undermined by his incon-
sistent accounts of his reasons for leaving Haiti according to
the notes the IJ took during Joseph’s bond hearing and
Joseph’s testimony during his removal hearing. As discussed
above, the IJ erred in relying on her notes from the bond hear-
ing and the other findings the BIA and IJ made in reaching the
adverse credibility determination were also erroneous. Sub-
stantial evidence does not support the adverse credibility find-
ing. Thus, Joseph is deemed credible and, under the law
pertaining to his case,8 no corroborating evidence is required.9
8
Because Joseph filed his claim for asylum before May 11, 2005, we
apply the Pre-REAL ID Act standard for corroborating evidence. Under
the pre-REAL ID Act case law, corroborating evidence cannot be required
from an applicant who testifies credibly. See Ladha v. INS, 215 F.3d 889,
901 (9th Cir. 2000) (affirming that an “alien’s testimony, if unrefuted and
credible, direct and specific, is sufficient to establish the facts testified
without the need for any corroboration”) overruled on other grounds by
Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per
curiam), petition for cert. filed, 78 U.S.L.W. 3322 (Nov. 16, 2009) (No.
09-600); Kataria v. INS, 232 F.3d 1107, 1113 (9th Cir. 2000) (noting that
“the BIA may not require independent corroborating evidence from an
asylum applicant who testifies credibly. . . .”).
9
The IJ also erred by not giving Joseph an opportunity to explain his
failure to provide additional corroborating evidence. See Sidhu v. INS, 220
 JOSEPH v. HOLDER 5587
C. The BIA Must Accept Joseph’s Testimony as True

[14] We remand to the BIA to determine Joseph’s eligibil-
ity for relief from removal. In the facts and circumstances of
this case, we hold that the BIA must accept Joseph’s testi-
mony as true. See Soto-Olarte, 555 F.3d at 1095 (“If it is
apparent from the record before us that the IJ and BIA have
listed all possible reasons to support an adverse credibility
determination, and they are inadequate in law or not sup-
ported by substantial evidence, then there may be cases where
on remand we can sensibly say that a petitioner should be
deemed credible.”).

D. Motion to Remand

Because we grant Joseph’s petition for review, vacate the
BIA’s adverse credibility finding, and remand pursuant to INS
v. Orlando Ventura, 537 U.S. 12, 16 (2002) (per curiam), we
need not decide whether the BIA erred in denying Joseph’s
motion to remand based on his submission of new evidence.

IV. CONCLUSION

We hold that an IJ may not consider her notes from a peti-
tioner’s bond hearing in that petitioner’s removal hearing.
Bond hearings and removal hearings are separate proceedings

F.3d 1085, 1091 (9th Cir. 2000); Arulampalam, 353 F.3d at 688. The IJ
stated for the first time while rendering her oral decision that she would
require, “at a minimum, a death certificate establishing the cause of
[Joseph’s] cousin’s death. . . . [and] documentation establishing the owner-
ship of the vehicle represented in the photograph showing that vehicle on
fire.” Joseph was not provided with an opportunity to explain why he had
not submitted a death certificate or any documentation regarding the own-
ership of his cousin’s car. See Campos-Sanchez, 164 F.3d at 450. The BIA
similarly erred in not giving Joseph an opportunity to explain his failure
to provide corroborating evidence to support his claim that Ramikos mem-
bers had beaten his mother and raped his sister.
5588 JOSEPH v. HOLDER
and serve separate purposes. Further, bond hearings lack pro-
cedural safeguards to ensure reliability, including the require-
ment of an oath and a transcript of the proceedings. Thus,
testimony given in bond hearings, as stated under 8 C.F.R.
§ 1003.19(d) shall be “separate and apart from, and shall form
no part of, any deportation or removal hearing or proceed-
ings.”

Because the IJ erred in considering her bond hearing notes
in Joseph’s removal hearing, to the extent that her adverse
credibility relies on those notes, it is not supported by sub-
stantial evidence. Apart from the IJ’s error in considering her
bond hearing notes, the remaining grounds upon which the IJ
and BIA based their adverse credibility finding are not sup-
ported by substantial evidence because the IJ failed to give
Joseph an opportunity to explain the discrepancy, relied on
speculation and conjecture, and imposed an erroneous
requirement of corroborative evidence. Therefore we deem
Joseph credible.

Joseph argues that he has established past persecution and
a well-founded fear of future persecution. Because the IJ’s
adverse credibility finding was not supported by substantial
evidence, this court should grant Joseph’s petition and remand
to the BIA for further proceedings to determine whether,
accepting Joseph’s testimony as credible, he is eligible for
relief. See, e.g., Singh v. Gonzales, 439 F.3d 1100, 1113 (9th
Cir. 2006).

The government shall bear the costs for this petition for
review.

The petition for review is GRANTED and REMANDED.

GRABER, Circuit Judge, specially concurring:

I agree that the petition in this case must be granted. But
I write separately to express my view that, in situations other
 JOSEPH v. HOLDER 5589
than the particular one presented here, statements made at a
bond hearing may be admissible and may support an adverse
credibility determination.

A bond hearing is informal. It lacks many procedural safe-
guards and serves a purpose unrelated to eligibility for relief
from removal. Here, the notes taken by the immigration judge
(“IJ”) lack sufficient indicia of reliability to constitute an ade-
quate basis for an adverse credibility determination. See Singh
v. Gonzales, 403 F.3d 1081, 1087-90 (9th Cir. 2005) (holding
that an asylum officer’s “Assessment to Refer” usually cannot
support an adverse credibility determination); Singh v. INS,
292 F.3d 1017, 1021-24 (9th Cir. 2002) (holding that an
alien’s airport interview usually cannot support an adverse
credibility determination).

I reach this conclusion largely because of the nature of the
alleged conflicts between the IJ’s notes and Petitioner’s testi-
mony. The IJ relied on a perceived lack of detail, but that reli-
ance is insufficient. Singh, 292 F.3d at 1022. The only conflict
between the IJ’s notes and Petitioner’s testimony is whether
Dario was pro-Aristide or anti-Aristide. As an initial matter,
it is puzzling what relevance that fact would have to a bond
hearing. Perhaps because the fact was not relevant, I think that
the IJ’s “pro” notation was a mere transcription error of the
sort that is likely to occur when a person takes informal notes
at an informal proceeding. Because there is no recording or
transcript of the bond hearing, there is no way to test the cor-
rectness of the IJ’s notes on this tiny and previously irrelevant
detail. For those reasons, the adverse credibility determination
cannot be supported by the IJ’s reference to her own notes at
the earlier bond hearing.1

In other situations, however, statements made at a bond
1
I agree with the majority opinion that the IJ’s other reasons for the
adverse credibility determination are not supported by substantial evi-
dence.
5590 JOSEPH v. HOLDER
hearing might be admissible and might support an adverse
credibility determination. For instance, if a transcript of the
proceeding were available, neither the regulations nor com-
mon sense would prohibit the use of statements made by the
petitioner or by other witnesses. In that situation, the regula-
tions permit consideration of any witness’ prior statements. 8
C.F.R. § 1240.7(a).

In my view, 8 C.F.R. § 1003.19(d) is not to the contrary.
That regulation states, in relevant part, that “[c]onsideration
by the Immigration Judge of an application or request of a
respondent regarding custody or bond under this section shall
be separate and apart from, and shall form no part of, any
deportation or removal hearing or proceeding.” That is, at a
later removal hearing, the IJ may not consider the fact that an
alien has applied for or requested bond, but the regulation
does not prohibit the IJ from considering relevant statements
made at a bond hearing.