Todorovic v. U.S. Attorney General

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 27, 2010
No. 09-11652 JOHN LEY
________________________ CLERK

Agency No. A096-279-269

MLADEN ZELJKO TODOROVIC,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(September 27, 2010)

Before BARKETT and MARCUS, Circuit Judges, and HOOD,* District Judge.

MARCUS, Circuit Judge:

*
Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
 Mladen Zeljko Todorovic petitions for review of the decision of the Board

of Immigration Appeals (“BIA” or “Board”) denying his applications for asylum

and withholding of removal. Todorovic claimed that he was persecuted, for years

and often violently, in his native Serbia on account of his sexual orientation. In

removal proceedings before an Immigration Judge (“IJ”), Todorovic primarily

offered his own testimony in support of his claims. In an oral opinion, the IJ held

that the asylum petition was untimely, and that Todorovic was not a credible

witness, so that his testimony could not support his claim for withholding. The

BIA agreed with the IJ that the applicant was not a credible witness.

Todorovic claims that the agency’s adverse credibility determinations are

not supported by substantial evidence, and in actuality are based in large part on

impermissible stereotypes about homosexuals wholly divorced from any evidential

foundation. We agree with Todorovic that the IJ relied impermissibly on

stereotypes about homosexuals, stereotypes which tainted the proceedings and

prevent us from conducting a meaningful review of the agency decision.

Accordingly, we grant Todorovic’s petition for review, vacate the agency’s

decision, and remand the cause to the agency for further proceedings.

I.

Todorovic is a Serbian citizen who entered the United States as a member of

the crew of a cruise ship on November 23, 2000. After living in South Florida for
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around two years, he filed an application on January 30, 2003, for asylum and

withholding of removal under the Immigration and Nationality Act (“INA”) and

the Convention Against Torture (“CAT”). In a hearing before an immigration

judge, he testified about numerous acts of persecution he said he endured in Serbia,

many of them at the hands of the government, on account of being homosexual.

We briefly summarize that testimony.

Todorovic’s difficulties began in high school, where he was continually

harassed on account of his sexual orientation. On one occasion, he said, a group of

students followed him into an elevator and tried to sexually assault him, later

warning him not to report the attack. Todorovic stopped attending school after this

incident. When he disclosed his sexual orientation to his parents in January of

1999, his father beat him, threw him out of the house, and declared he would rather

Todorovic be dead.

Todorovic testified that his father used personal connections to have his son

called into the Serbian army to “make a man out of [him].” AR 91. Todorovic

received a conscription letter and reported for duty. As a result of the conflict in

Kosovo and the subsequent NATO bombing campaign against Serbia, Todorovic

received minimal training; he served as a sentry at a makeshift base located at a

former resort outside of Belgrade. Although he did not disclose his sexual

orientation to anyone but a physician who initially examined him, Todorovic was
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harassed from the start, likely, he believed, because one of his high school

classmates serving in the same unit had outed him. Todorovic was verbally and

sexually abused by other soldiers and at least one commanding officer. While on a

night shift, for example, an officer put a gun to his head and ordered him to

perform oral sex. Later, he claimed, while most of his unit was off celebrating the

end of the NATO bombing campaign, the same officer and another soldier, both

intoxicated, found Todorovic alone in his lodgings and took turns forcibly

sodomizing him. The men threatened Todorovic and warned him not to report the

incident, but Todorovic did so anyway. He was given a discharge letter several

weeks later, but was instructed to report periodically to the military for several

years. Todorovic was told that the rapists would be imprisoned for a few days for

disorderly conduct.

In mid-October 1999, after leaving the army, Todorovic and his then-

boyfriend were stopped by the police while walking in a street in Belgrade; the

police appeared to know they were gay because Todorovic’s boyfriend was a gay

rights activist, and the police, Todorovic testified, are known to keep track of gay

men. The two were taken to a police station, where one of the officers placed

Todorovic in a group cell and told the other prisoners that he had “brought a

hooker up here so you can have some fun.” AR 120. The inmates chose the

“filthiest” prisoner and forced Todorovic to perform oral sex on him. A few hours
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later, Todorovic was questioned at length about the gay rights organization to

which his boyfriend belonged. Todorovic testified that the police officer began

interrogating him by hitting him in the knee with a rubber stick, while stating that

“he hates fucking faggots and that . . . he hopes that there are no faggots in Serbia,

that we should all die. That we should get all like exterminated.” AR 122. The

officer then beat Todorovic at intervals before eventually releasing him. When

Todorovic returned home, he discovered that his boyfriend’s ribs had been broken.

Not long after, Todorovic was in a gay-friendly bar in Belgrade, where at

one o’clock in the morning, around twenty men entered the premises, armed with

baseball bats, chains, wooden sticks, and knives. Todorovic claimed that they

began to destroy the bar and to shout slurs at the gay patrons. Todorovic and

others attempted to flee, but another group of armed men was waiting outside the

bar. Todorovic was struck in the head with a chain and fell to the ground, where

the men outside the bar beat him unconscious with baseball bats. He was

eventually taken to a hospital by an ambulance, where he remained for ten days.

When he was able to walk again, Todorovic contacted an agent for a cruise

line and applied for a job. He was hired as a snack steward for the MS Regal

Empress, and left Serbia to meet the ship in Miami, Florida, on April 20, 2000. A

few months later, his boyfriend informed him that a gay pride parade, the first of

its kind in Serbia, had been attacked by “hooligans, skinhead[s],” and others, who
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threw rocks and beat the parade marchers. Upon learning of the incident,

Todorovic decided he could not return to Serbia; he later said that he continued to

have nightmares about his life there.

Todorovic eventually applied for asylum, and the Department of Homeland

Security referred his application to an IJ for asylum-only removal proceedings.

Aside from his testimony, Todorovic offered medical records indicating that he had

sustained injuries during a “brawl” in January of 2000 -- corresponding to the

incident in the bar -- including a fractured jaw, a hematoma on both sides of the

thoracic cavity, a left knee sprain, a broken nose, and a fracture of the right

collarbone. AR 263-66. He also submitted an “Order to Report for Military

Service” instructing him to report to the military on October 17, 2002, apparently

one of many letters he continued to receive from the Serbian army following his

conditional discharge.

Todorovic also submitted a number of background articles regarding the

treatment of homosexuals in Serbia. Some of them referenced the attack on the

gay pride parade, and one noted that in the aftermath of the attack, the Serbian

Prime Minister and Belgrade’s Chief of Police said that Serbia was not ready to

tolerate homosexuality. AR 323. Other materials documented threats and violent

attacks against gays, including beatings by the police, and harassment by “youth

gangs” known as “dizelasi.” AR 346-49. A copy of the State Department’s Serbia
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Country Report on Human Rights Practices for 2006 noted that violence and

discrimination against homosexuals was a continuing problem in Serbia, and that

gays and lesbians were reported to experience “widespread threats, hate speech,

verbal assault, and physical violence.” AR 286.

In an oral decision, the IJ denied Todorovic’s asylum petition as untimely,

and found that Todorovic was not a credible witness. As for credibility, the IJ

began this way:

The Court would first note that the respondent says that he is singled
out for persecution because he is gay in his home country. The Court
studied the demeanor of this individual very carefully throughout his
testimony in Court today, and this gentleman does not appear to be
overtly gay. The Court does not know whether he is or not, his
testimony is that he is overtly gay and has been since he was 17 years
old. Be that as it may, it is not readily apparent to a person who
would see this gentleman for the first time that, that is the case, since
he bears no effeminate traits or any other trait that would mark him as
a homosexual.

AR 28-29. The IJ then explained that the “most serious problem” he had with

Todorovic’s testimony concerned his experience in the military. AR 29. For one,

the IJ said Todorovic’s account lacked a sufficiently detailed explanation of how

his father was able to have him called into the military. Even more problematic,

the IJ found, was Todorovic’s claim that the makeshift military base where he was

stationed contained anti-aircraft guns, despite his earlier comment that the base was

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meant to be “secluded and secret,” so that it could not be identified by satellites.

The IJ found several lesser inconsistencies as well.

Since he did not find Todorovic credible, the IJ concluded that Todorovic

had “failed to prove to a preponderance of the evidence that his life or freedom

would be threatened if he were returned to his native country.” AR 36. The IJ

reiterated that “it is clear that this gentleman is not overtly homosexual and there is

no reason he would be immediately recognized as such.” Id. Thus, the IJ said,

“even if the respondent’s testimony were taken at face value, . . . the respondent

would not qualify in the Court’s opinion for withholding because he has failed to

meet his burden of proof.” Id.

On appeal, the BIA affirmed the IJ’s determination that Todorovic’s asylum

application was untimely. AR 3-4. The Board also “agree[d] with the Immigration

Judge that the applicant was not a credible witness.” AR 4. In support of that

conclusion, it offered one rationale of its own and then highlighted two aspects of

the IJ’s findings that it considered persuasive. First, the Board explained that while

Todorovic claimed to fear returning to Serbia, he had admitted that when he left to

work on the cruise ship, he intended eventually to return to Serbia. The Board said

that “[s]uch plainly incompatible contentions undermine the subjective sincerity of

the applicant’s claimed fear of persecution and, by logical extension, the factual

bases on which the claim is founded.” AR 5. Next, the Board “agree[d] with the
8
Immigration Judge that the applicant’s testimony regarding his alleged period of

service in Serbia is ‘highly suspect.’” Id. (quoting Oral Decision of IJ). The Board

highlighted two examples cited by the IJ, namely, that “[t]he applicant could not

satisfactorily detail how he even came to be enlisted in the Serbian military,” and

that he “provided undetailed and contradictory testimony to the nature of his

training and duties while in the Serbian military.” Id. Like the IJ, the Board

concluded that the lack of credible testimony precluded relief under the INA or the

CAT. Id.

Todorovic timely petitioned this Court for review.

II.

We review administrative fact findings, including credibility determinations,

under the “highly deferential” substantial evidence test. Adefemi v. Ashcroft, 386

F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). Substantial evidence is “such

relevant evidence as a reasonable person would accept as adequate to support a

conclusion.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). We “view

the record evidence in the light most favorable to the agency’s decision and draw

all reasonable inferences in favor of that decision,” Adefemi, 386 F.3d at 1027, and

we will reverse the agency’s findings “only if the evidence ‘compels’ a reasonable

fact finder to find otherwise,” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230

(11th Cir. 2005) (citations omitted). Where the BIA issues its own opinion, we
9
review only that opinion, except to the extent that it expressly adopts the

immigration judge’s reasoning. Chen, 463 F.3d at 1230. If the BIA does so, we

review the relevant portions of the IJ’s opinion as well. Id.

An applicant may establish eligibility for withholding of removal under the

INA by showing that his “life or freedom would be threatened in the proposed

country of removal on account of . . . membership in a particular social group.” 8

C.F.R. § 208.16(b). The applicant must demonstrate “that it is ‘more likely than

not’ [he] will be persecuted or tortured upon being returned to [his] country.”

Sepulveda, 401 F.3d at 1232. To establish eligibility for CAT relief, an applicant

must show that it is more likely than not that he will be tortured by, or with the

acquiescence of, government officials if returned to the designated country of

removal. 8 C.F.R. § 208.16(c)(2).

“If an alien’s testimony is credible, it may be sufficient, without

corroboration, to satisfy [his] burden of proof in establishing [his] eligibility for

relief from removal.” Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1276 (11th Cir.

2009); see also 8 C.F.R. § 208.16(b). Conversely, a denial of relief can be based

entirely on an adverse credibility determination if the applicant fails to provide

sufficient corroborating evidence. Tang, 578 F.3d at 1276-77. Credibility

determinations made by an IJ must rest on substantial evidence. Id. at 1276, 1278.

III.
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 Todorovic does not contest the agency’s determination that his asylum

application is time-barred, but argues that its adverse credibility determination is

not supported by substantial evidence. He says, first, that the IJ’s decision was

infected with impermissible stereotypes about homosexuals; second, that there is

nothing inconsistent or insincere about his lack of an intent to leave Serbia

permanently and his fear of being persecuted if he returns; and third, that there is

no inconsistency in his account of his military service.

After thorough review, we conclude that the IJ’s decision was so colored by

impermissible stereotyping of homosexuals, under the guise of a determination on

“demeanor,” that we cannot conduct meaningful appellate review of that decision,

or of the BIA’s opinion essentially adopting it.

In determining an applicant’s credibility, an Immigration Judge must

consider the totality of the circumstances, including the applicant’s demeanor, the

inherent plausibility of the applicant’s story, and the consistency among the

applicant’s written and oral statements and other evidence of record. In other

words, like any fact-finder, the Immigration Judge will make a determination “on

the basis of evidence, which is on the record, interpreted in light of demeanor,

which is not.” United States v. Shonubi, 895 F. Supp. 460, 480 (E.D.N.Y. 1995),

rev’d on other grounds, 103 F.3d 1085 (2d Cir. 1997). The IJ alone is positioned

to make determinations about demeanor -- by observing the alien and assessing his
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or her tone and appearance -- and in that sense is “uniquely qualified to decide

whether an alien’s testimony has about it the ring of truth.” Abdulrahman v.

Ashcroft, 330 F.3d 587, 597 (3d Cir. 2003) (citation omitted).

As a consequence, we afford great deference to an IJ’s assessment of

“demeanor,” see Hu v. Holder, 579 F.3d 155, 159 (2d Cir. 2009), which refers to

the “carriage, behavior, bearing, manner and appearance of a witness,” Dyer v.

MacDougall, 201 F.2d 265, 268-69 (2d Cir. 1953). Indeed, evaluating demeanor

has long been recognized as a core function of the trier of fact. See, e.g., United

States v. Reeves, 730 F.2d 1189, 1195 (8th Cir. 1984) (noting that assessing the

“demeanor of the witnesses . . . is peculiarly the province of the fact finder”);

Henriod v. Henriod, 89 P.2d 222, 225 (Wash. 1938) (“To watch the attitude and

demeanor of a witness testifying at a trial is not only the right but also the duty of

the trier of facts.”). Credibility determinations, so far as they involve demeanor,

have thus been characterized as largely “unreviewable.” Hambsch v. Dep’t of the

Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986); see also N.L.R.B. v. Dinion Coil

Co., 201 F.2d 484, 487 (2d Cir. 1952).

At the same time, because of the “immense discretion” conferred on those,

such as an IJ, who find facts on the basis of oral testimony and demeanor, Dinion

Coil Co., 201 F.2d at 488, we require that credibility determinations made by an IJ

rest on substantial evidence, rather than on conjecture or speculation, Tang, 578
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F.3d at 1276, 1278. One clearly impermissible form of conjecture and speculation,

sometimes disguised as a “demeanor” determination, is the use of stereotypes as a

substitute for evidence. Indeed, a number of our sister circuits have rejected

credibility determinations that rest on stereotypes about how persons belonging to

a particular group would act, sound, or appear.

In Razkane v. Holder, 562 F.3d 1283 (10th Cir. 2009), for example, just as

in this case, the IJ’s credibility determination and findings on the merits were

impermissibly influenced by stereotypes about homosexuals. The IJ had explained

that the applicant’s “appearance does not have anything about it that would

designate [him] as being gay. [He] does not dress in an effeminate manner or

affect any effeminate mannerisms.” Id. at 1286 (alterations in original). As the

Tenth Circuit explained,

[t]he IJ’s reliance on his own views of the appearance, dress, and
affect of a homosexual led to his conclusion that [the applicant] would
not be identified as a homosexual. From that conclusion, the IJ
determined [the applicant] had not made a showing it was more likely
than not that he would face persecution in [his home country].

Id. at 1288. The appellate court refused to “condone this style of judging,

unhinged from the prerequisite of substantial evidence,” which, it said, “would

inevitably lead to unpredictable, inconsistent, and unreviewable results.” Id. The

court explained that “[t]he fair adjudication of a claim for restriction on removal is

dependent on a system grounded in the requirement of substantial evidence and
13
free from vagaries flowing from notions of the assigned IJ.” Id. The IJ’s

“homosexual stereotyping . . . preclude[d] meaningful review” of the agency

decision. Id.

Similarly, in Ali v. Mukasey, 529 F.3d 478 (2d Cir. 2008), the Second

Circuit vacated the agency’s decision where it too rested, in part, on improper

remarks about homosexuals, such as “that no one would perceive [the applicant] as

a homosexual unless he had a ‘partner or cooperating person.’” Id. at 491. These

remarks, untethered to the record, impermissibly “derive[d] from stereotypes about

homosexuality and how it is made identifiable to others.” Id. at 491-92. And in

Shahinaj v. Gonzales, 481 F.3d 1027 (8th Cir. 2007), the Eighth Circuit overturned

the agency’s credibility determination where it rested in part on “the IJ’s personal

and improper opinion [that] [the applicant] did not dress or speak like or exhibit

the mannerisms of a homosexual.” Id. at 1029. The court could not be certain, it

said, that the IJ’s findings as a whole were not tainted by this obvious bias.

This case presents similar problems, inasmuch as the IJ relied on

impermissible stereotypes about gay people as a substitute for substantial evidence.

Notably, Todorovic never testified that he was “overtly gay” or that this was the

reason for his persecution; rather, the abuses to which he testified were the result of

hostility by people who appeared to know he was gay for reasons other than his

appearance or behavior. See AR 103, 109-11, 118-19, 123, 127-28. Yet, the very
14
first reason offered by the IJ for his decision was that, although the applicant “says

that he is singled out for persecution because he is gay in his home country[,] . . .

[t]he Court studied the demeanor of this individual very carefully throughout his

testimony in Court today, and this gentleman does not appear to be overtly gay.”

AR 28-29. Specifically, the IJ observed that “it is not readily apparent to a person

who would see this gentleman for the first time that, that is the case, since he bears

no effeminate traits or any other trait that would mark him as a homosexual.” AR

29. And indeed, toward the end of his oral opinion, the IJ again referenced that the

petitioner “is not overly homosexual,” and, therefore, that there was no reason to

believe he would be “immediately recognized” as gay. AR 36.

As we see it, this so-called “demeanor” determination rests on wholly

speculative assumptions made by the IJ; it is untethered from any evidential

foundation; and it is thoroughly vague in its reference to “other trait[s]” that would

mark the petitioner as a homosexual. Whatever else these offensive observations

made by the fact-finder were, they were not credibility findings based on

demeanor, but instead were driven by stereotypes about how a homosexual is

supposed to look. Cf. Cosa v. Mukasey, 543 F.3d 1066, 1069 (9th Cir. 2008). The

IJ’s comments elevated these ungrounded assumptions to demeanor evidence, and

the IJ drew adverse inferences about the petitioner’s credibility and legal

conclusions from them. See Razkane, 562 F.3d at 1288. These stereotypes most
15
assuredly are not substantial evidence. They “would not be tolerated in other

contexts, such as race or religion.” Razkane, 562 F.3d at 1288-89. See also Cosa,

543 F.3d at 1069 (reversing adverse credibility finding because it “stemmed from

pure speculation about how a [member of the applicant’s religion] might look and

act”); Huang v. Gonzales, 403 F.3d 945, 949 (7th Cir. 2005) (“[The IJ’s] personal

beliefs or some perceived common knowledge about the religion . . . [are] . . . not a

proper basis for an adverse credibility finding.”). We see no reason to tolerate

them here.

The IJ’s reliance on impermissible stereotypes taints his credibility

determination as a whole, and thus prevents us from conducting any fair

assessment of this record. We recognize that the IJ also determined that there were

inconsistencies in Todorovic’s testimony. But we have no occasion to address, and

do not address, whether any of the purportedly inconsistent testimony would

amount to “substantial evidence” supporting an adverse credibility determination --

in other words, whether the subject testimony is inconsistent enough or material

enough that rejecting the applicant’s entire account would be a “reasonable”

decision for an IJ to make, after considering the totality of the circumstances and

the record as a whole. See Kadia, 501 F.3d at 820-23; see also Moore, 405 F.3d at

1211. On this record, we simply cannot be sure that the IJ’s impermissible

stereotyping of gay men did not animate his adverse credibility determination,
16
especially where the very first reason he offered for disbelieving Todorovic’s

detailed testimony was that Todorovic did not appear to be overtly gay or

effeminate, and where he reiterated that same “finding” in his conclusion. Given

the “immense discretion” lodged in an administrative fact-finder like the IJ in

making credibility determinations, Dinion Coil Co., 201 F.2d at 488, it is not too

much to require that these critical determinations be made without the taint of

improper and offensive stereotypes like the one invoked in this case.

The Board’s opinion is similarly unreviewable because we cannot tell

whether it, too, was tainted by the IJ’s improper stereotyping of homosexuals.

Almost at the outset of its opinion, the Board tells us unequivocally that it

“agree[d] with the Immigration Judge that the applicant was not a credible

witness.” AR 4. Rather than distancing itself in some obvious and pronounced

way from the IJ’s so-called “demeanor” determination, the Board appears to have

broadly embraced the IJ’s credibility determination. The Board highlights, in a

single sentence, two examples of supposedly inconsistent testimony cited by the IJ

in support of his determination, see AR 5 (“The applicant could not satisfactorily

detail how he even came to be enlisted in the Serbian military, and the applicant

provided undetailed and contradictory testimony to the nature of his training and

duties while in the Serbian military.” (record citations omitted)). In fact, the Board

has offered precious little analysis that is different from the IJ’s reasoning or
17
conclusion. The only other rationale offered by the Board is that Todorovic’s

intention to return to Serbia at the time he went to work on the cruise ship

undermines the sincerity of his claimed fear that he would be persecuted if he

returned.

While the Board may well have made its credibility determination for

reasons wholly divorced from the impermissible stereotyping that appears to have

driven the IJ’s determination, again, it is not too much to ask the fact-finder to

make its credibility determinations without the stain of this stereotyping, utterly

unconnected to any evidence. Quite simply, we cannot tell with any degree of

confidence what the basis for the Board’s opinion was. As a result, we are

precluded from engaging in meaningful appellate review. Accordingly, we vacate

the agency’s decision and remand for a new factual hearing, free of any

impermissible stereotyping or ungrounded assumptions about how gay men are

supposed to look or act.

PETITION GRANTED; VACATED AND REMANDED.

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