Kartasheva v. Holder

United States Court of Appeals
For the First Circuit

No. 08-2243

EVGENIYA KARTASHEVA,
Petitioner,

v.

ERIC H. HOLDER,* JR.,
UNITED STATES ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Selya, and Stahl, Circuit Judges.

Gary J. Yerman for petitioner.
Tracie N. Jones, with Michael F. Hertz, Acting Assistant
Attorney General, and Michelle Gorden Latour, Assistant Director,
for respondent.

September 11, 2009

*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric
H. Holder, Jr. has been substituted for former Attorney General
Michael B. Mukasey as the respondent.
 STAHL, Circuit Judge. Petitioner Evgeniya Kartasheva, a

native of the Soviet Union and citizen of Uzbekistan, seeks review

of a Board of Immigration Appeals ("Board") order denying her

asylum, withholding of removal, and protection under the Convention

Against Torture ("CAT"). The Board adopted and affirmed the

decision of an Immigration Judge ("IJ") who found that Kartasheva

was not credible and that she had failed to establish eligibility

for relief. Kartasheva's principal argument is that the Board, in

adopting the IJ's conclusions, reached inappropriate conclusions

about the credibility of her testimony. After careful

consideration of the decision and the record below, we vacate and

remand for additional proceedings.

I.

The petitioner entered the United States on January 11,

2004, as a nonimmigrant B-2 visitor for pleasure with authorization

to remain in the country for a temporary period not to exceed July

10, 2004. On August 5, 2004, well within the one-year filing

deadline, she applied for asylum, withholding of removal, and CAT

protection with the Department of Homeland Security ("DHS"). DHS

then filed a Notice to Appear, claiming that Kartasheva was subject

to removal as an nonimmigrant who had remained in the United States

for a period longer than permitted. See 8 U.S.C. §§ 1101(a)(15),

1227(a)(1)(B). We recount the evidence as Kartasheva presented it

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in her documentation and during her removal proceedings. We next

discuss the IJ's and Board's evaluation of that evidence.

A. Summary of Evidence

Kartasheva testified that her family moved to Uzbekistan

from Russia in 1963 when she was nine years old. She suffered a

childhood of taunting and teasing. Problems for the petitioner

intensified in 1991, when Uzbekistan declared its independence. In

1998, the petitioner was attacked near her home by several Uzbek

men who pushed and inappropriately touched her and made lewd sexual

comments, calling her, for example, a "Russian whore" and stating,

"I'm going to show you some Uzbek love, you Russian bitch."1

1
The testimony regarding this incident caused some confusion.
Kartesheva wrote in her asylum application that following the
incident, she contacted a police inspector who came to her home but
made no arrests: "When the inspector came, he asked me about the
attack, and then he searched my home, and told me that the police
was [sic] keeping an eye on all Russian 'occupiers' and that the
fact that some Uzbek men scared me didn't bother him at all."
At her asylum interview, the petitioner indicated that she
called the police and told them to go the area of the attack but
that an officer came to her apartment to complete a report. Then,
during cross-examination at the merits hearing, Kartasheva
explained that she identified the perpetrators through a window in
her apartment. The government attorney seized upon this testimony,
pointing out that the petitioner had not mentioned the
identification in her asylum application or during her interview.
In his adverse credibility determination, the IJ observed that
Kartasheva's account of the 1998 incident had changed. However, at
several places in his opinion, the IJ clearly confused the
petitioner's testimony regarding two separate events -- the 1998
incident and a later incident in 2003 -- to support his finding
that the petitioner's changing story regarding the 1998 incident
supported his adverse credibility determination.

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 At the time of the attack, Kartasheva worked for a

government adult education center, teaching a home economics

course. After 21 years of employment, during which she was denied

promotions and given limited hours, Kartasheva was terminated in

2000 because, she speculated, her position was filled by an Uzbek

woman. Thereafter, she supported herself and her two daughters as

a dressmaker working from home for private clients.

In June 2003, two days after Kartaheva's return from a

trip to the United States, a police inspector visited her home and

questioned her about her reasons for the trip. When the petitioner

explained that she had traveled for vacation, the inspector became

irritated, slapped her in the face, and stated that she really

traveled abroad "to be infected by democracy." He warned her that

the Uzbek police would be watching her and all other Russians

residing in Uzbekistan. Kartasheva went to the local protection

committee to register a complaint but was met with indifference.

Depressed after this encounter, Kartasheva visited a

friend in Russia. Although she intended to stay for a month, the

Russian police would grant only a residency permit good for not

more than ten days because she was traveling from the "Republic of

the Monkeys." When the petitioner protested that she was

ethnically Russian, the official replied, "You're all the same --

apes." Kartasheva later paid a police officer roughly ninety

dollars in order to remain an additional three days.

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 On August 18, 2003, as she left her church, the

petitioner witnessed three Uzbek men harassing a Russian woman.

Kartasheva attempted to intervene and was assaulted, pushed to the

ground, and kicked. Police officers arrived, and when pressed,

Kartasheva gave them her contact information. But when the

officers summoned her to the station a few days later, they told

her that she was becoming a nuisance and fined her roughly sixty

dollars for disturbing the peace. After the attack, the petitioner

sought medical care at a local clinic for injuries to her face and

knee. She testified that she received various forms of physical

therapy for these injuries.

The following month, on September 1, 2003, a friend and

activist in the Human Rights Society of Uzbekistan ("HRSU") invited

Kartasheva to attend a demonstration. Karasheva agreed and decided

to join the participants upon observing the peaceful protest

calling for free elections and personal freedoms. When police

arrived, she was beaten and taken to the police station, where she

was locked in a cell for approximately eight hours and then fined

one hundred and twenty dollars.2 After her release, the petitioner

went to a clinic for treatment of her back and arm.

On October 14, 2003, and again on November 15, 2003, the

petitioner was attacked physically by some of her Uzbek neighbors

2
Kartasheva mentioned neither the sixty dollars fine after the
August 18, 2003, arrest nor this one hundred and twenty dollars
fine during her interview with the asylum officer.

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in the courtyard and foyer of her building. After the first

incident, Kartasheva visited the clinic for treatment and

medication to reduce facial swelling and bruises. She testified

that she also contacted the HRSU and decided to assist the

organization by passing out leaflets on several occasions. That

same month, she received a phone call from an individual named

Malzakhanov who identified himself as a lieutenant of the security

forces; he spoke disapprovingly of her involvement with the HRSU.3

On December 14, 2003, four agents of the National

Security Service ("SNB"), including Lieutenant Malzakhanov, arrived

at the petitioner's home. After searching her apartment and

finding several HRSU brochures and leaflets, they arrested

Kartasheva. The commotion woke her daughters who pleaded with the

agents not to arrest their mother. One of the SNB agents slapped

Kartasheva's eldest daughter and pushed both of the daughters into

another room.4 The petitioner then was handcuffed and taken to SNB

headquarters where she was detained for three days. During her

detention, she was interrogated and beaten until she agreed to sign

3
Although Kartasheva noted this phone call in her written
asylum application, she omitted mention of it during her interview
with the asylum officer. On cross-examination, she explained, "I
want to emphasize [the asylum officer] did not allow me to speak
like I was afforded the opportunity here. She just asked me the
question, and I gave her responses. That's all."
4
Kartasheva, in her initial asylum application, asserted that
the officers "beat" her daughter. In her amended statement,
Kartasheva explained that the officers "slapped" her daughter,
attributing the prior misstatement to a translation error.

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a confession.5 Kartasheva was warned that if she were caught

again, she would be killed. After her release, she received

treatment for injuries to her skull, ear, neck, and arms at a

clinic. The petitioner then decided to leave Uzbekistan for the

United States.

B. Procedural History

On July 19, 2004, an asylum officer interviewed

Kartasheva about the claims in her asylum application. Kartasheva

appeared without counsel. The asylum officer denied Kartasheva

relief, finding her incredible and determining that statements made

during her interview were inconsistent with statements on her

written application. Specifically, the officer noted that the

petitioner did not mention the November 2003 phone call, the two

fines from the Uzbek police, and particular aspects of her December

2003 arrest. See supra notes 2-3, 5. The officer concluded that

the omissions were "material inconsistencies on the issue of

persecution" and referred the case to an immigration judge for

further consideration.

5
In his written assessment, the asylum officer noted that
Kartasheva, during her interview, discussed neither the beating of
her daughter nor specific aspects of her treatment in detention,
namely, that she was placed in a dark cell and not fed while in
custody. Apparently, Kartasheva did mention the length of her
detention and the beatings she endured. On cross-examination, the
petitioner attempted to explain the omission: "Most likely she
didn't ask me. . . . [T]here's no way I wouldn't have told her
this. . . . I only answered the questions that I was asked. I was
not telling my story."

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 After a master calendar hearing in May 2005, Kartasheva

appeared for merits hearings on August 4, 2005, and September 18,

2006, before the IJ and testified to the above-recounted events.

When asked how many times she had traveled to the United States,

the petitioner first replied that she had visited five times,

although in her asylum application, she listed only three visits

prior to her last entry on January 11, 2004. Upon further

questioning, Kartesheva acknowledged that she had traveled to the

United States six times. She submitted that she could afford her

trips, generally lasting several months, because "I had savings.

. . . And I also have a brother in Russia that [sic] . . . was able

to send me money."

Kartasheva additionally testified that her two daughters

currently reside in Tashkent, Uzbekistan. Her younger daughter

attends college and receives a merit-based government scholarship

to cover her tuition. Her brother is a citizen and resident of

Russia. Kartesheva claimed that, as an Uzbek citizen, she is

ineligible for citizenship in Russia but admitted that she had

never attempted to apply for Russian citizenship.

To support her claims, Kartasheva provided relevant

excerpts from her medical history as prepared by the Tashkent

Caterpillar Factory Polyclinic, obtained by Kartasheva's eldest

daughter after her mother left the country; signed statements from

her daughters and several friends; and country conditions evidence.

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The medical report, signed by both the clinic's head physician and

a surgeon, provided synopses of treatments for trauma including

bruising, hemorrhages, and contusions on dates corresponding with

those of the attacks. Meanwhile, two friends provided statements

confirming that Kartasheva sympathized with the HRSU and was

arrested during the September 1, 2003, demonstration, and a third

indicated that the petitioner was imprisoned and fined after the

September 2003 demonstration, and in October 2003, began attending

HRSU meetings and disseminating materials. Finally, the record

contains two letters from Kartasheva's daughters -- one merely

indicating that they love and miss their mother and the other

recounting the December 15, 2003, search of their apartment.6

On November 22, 2006, the IJ found Kartasheva removable

as charged and denied her application for asylum, withholding of

removal, and protection under the CAT. Specifically, the IJ held

that Kartasheva failed to meet her burden of proof because her

testimony was not credible: "[Kartasheva] was not credible because

her account of some of the primary events that form[ed] her claim

6
The IJ did not discuss this latter letter nor the third
friend's signed statement in his decision, and neither party
mentioned the documents in its brief. It is unclear from the
record the exact nature of these documents although they are
prepared in an identical fashion to the other signed statements
that the IJ considered. Nonetheless, we are not only empowered but
rather obligated to review the entire administrative record to
assess whether the IJ's findings were supported by substantial
evidence. See Lin v. Mukasey, 521 F.3d 22, 25-26 (1st Cir. 2008);
Mukamusoni v. Ashcroft, 390 F.3d 110, 122 (1st Cir. 2004).

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of persecution varied significantly between her in-Court testimony,

her asylum interview testimony, and her initial application for

asylum." Noting that the REAL ID Act was not applicable,7 the IJ

found that the inconsistencies were material and went to the heart

of the petitioner's claim.

The IJ listed as problematic Kartasheva's account of the

1998 incident;8 her changing description of the SNB agent's

altercation with her daughter; the failure to tell the asylum

officer about the 2003 phone call from the SNB lieutenant and the

two fines from the Uzbek police; and her confusion regarding the

number of visits to the United States. The IJ further found that

the documentary evidence could not compensate for these issues. He

noted that the medical evidence did not explain who might have

beaten Kartasheva and asserted that the friends' statements, though

they confirmed that Kartasheva sympathized with the HRSU and was

arrested at the demonstration, "do not establish that the

7
Nonmaterial inconsistencies or discrepancies in an alien's
story were not sufficient to support an adverse credibility
determination until Congress amended the Immigration and National
Act's asylum provisions with the REAL ID Act. See 8 U.S.C. §
1158(b)(1)(B)(iii). Because Kartasheva's asylum application was
filed before May 11, 2005, the effective date of the Act, the
previous standard applies. See, e.g., Ly v. Mukasey, 524 F.3d 126,
131 n.1 (1st Cir. 2008). Thus, the IJ's adverse credibility
finding "cannot rest on trivia but must be based on discrepancies
that involved the heart of the asylum claim." Hem v. Mukasey, 514
F.3d 67, 69 (1st Cir. 2008) (internal quotations omitted).
8
As noted above, see supra note 1, the IJ in several places
confused Kartasheva's testimony about the 1998 attack with the
August 2003 incident at her church.

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respondent was an [HRSU] member or that she was arrested . . . as

a result of her [HRSU] affiliation." He acknowledged neither the

letter from the third friend which stated that Kartasheva was

involved with HRSU activities nor the daughters' statement

confirming the December 2003 search and arrest. Of the background

information on Uzbekistan, the IJ stated that much dealt with the

lack of religious freedom, a claim Kartasheva had failed to

establish.

The Board adopted and affirmed the IJ's decision.

Although it agreed with the petitioner that "not all of the

Immigration Judge's concerns would by themselves support an adverse

credibility assessment," it observed that the IJ's "observations

were logically tied to material points of the [petitioner's]

testimony," noting Kartasheva's omission of the 2003 phone call

from Lieutenant Malzakhanov and her changing description of the

beating (to slapping) of her daughter. The Board thus found "no

clear error in [the IJ's] negative credibility determination when

the factors are weighed cumulatively."

II.

In order to qualify for asylum, Kartasheva must

demonstrate that she is a "refugee," 8 U.S.C. § 1101(a)(42),

defined as a person unwilling or unable to return to her native

country because of "persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership

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in a particular social group, or political opinion," id. §

1101(a)(42)(A).9 In order to support an asylum claim, "the

applicant must provide credible, persuasive, and sufficiently

detailed testimony." Kasneci v. Gonzales, 415 F.3d 202, 204 (1st

Cir. 2005).

We review the agency's factual findings, including

credibility determinations, under the deferential substantial

evidence standard, Gao v. Gonzales, 467 F.3d 33, 37 (1st Cir.

2006), asking whether the adverse credibility determination is

"supported by reasonable, substantial, and probative evidence on

the record considered as a whole," Simo v. Gonzales, 445 F.3d 7, 11

(1st Cir. 2006) (citation omitted), and affirming "unless any

responsible adjudicator would be compelled to conclude to the

contrary," 8 U.S.C. § 1252(b)(4)(B). See Sok v. Mukasey, 526 F.3d

48, 52-53 (1st Cir. 2008). Where, as here, "the BIA has written

separately while deferring to and affirming the decision of an IJ,

we review both the BIA's decision and the relevant portions of the

9
While an applicant for asylum must show that a reasonable
person in his circumstances would fear persecution, withholding of
removal requires proof of a clear probability of persecution.
Palma-Mazariegos v. Gonzáles, 428 F.3d 30, 37 (1st Cir. 2005). To
warrant CAT protection, an alien must prove that "it is more likely
than not that he or she would be tortured if removed to the
proposed country of removal," 8 C.F.R. § 1208.16(c)(2), and that
this torture will occur "at the hands of the government or with the
consent or acquiescence of the government," De Oliveria v. Mukasey,
520 F.3d 78, 79 (1st Cir. 2008).

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IJ's decision." Lutaaya v. Mukasey, 535 F.3d 63, 70 (1st Cir.

2008).

We give great respect to the IJ so long as he provides

"'specific and cogent reasons' why an inconsistency, or a series of

inconsistencies, render the alien's testimony not credible."

Wiratama v. Mukasey, 538 F.3d 1, 4 (1st Cir. 2008) (quoting Hoxha

v. Gonzales, 446 F.3d 210, 214 (1st Cir. 2006)). These

inconsistencies must go to the heart of the claim and pertain to

material facts, "not merely to peripheral or trivial matters."

Zheng v. Gonzeles, 464 F.3d 60, 63 (1st Cir. 2006).10

Thus, our deference is not unlimited, and this is

particularly so where we are concerned with legal analysis

regarding the petitioner's testimony rather than demeanor evidence.

See Ly, 524 F.3d at 131; Heng v. Gonzales, 493 F.3d 46, 48 (1st

Cir. 2007). Ultimately, "we may not affirm the BIA's decision

'when [we] cannot conscientiously find that the evidence supporting

that decision is substantial, when viewed in the light that the

record in its entirety furnishes, including the body of evidence

opposed to the Board's view.'" Gailius v. INS, 147 F.3d 34, 44

(1st Cir. 1998) (quoting Univ. Camera Corp. v. NLRB, 340 U.S. 474,

488 (1951)).

While an IJ may assume an asylum officer's report is

accurate and thus support an adverse credibility finding with

10
See supra note 7.

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statements made at an asylum interview, see, e.g., Pan v. Gonzales,

489 F.3d 80, 86 (1st Cir. 2007), the IJ must make an individualized

assessment of the petitioner's credibility, Long v. Gonzales, 422

F.3d 37, 40-41 (1st Cir. 2005). This requirement recognizes the

procedural differences between an asylum interview and the hearing

before the IJ. See Singh v. Gonzales, 403 F.3d 1081, 1089-90 (9th

Cir. 2005) ("The Assessment To Refer does not contain any record of

the questions and answers at the asylum interview, or other

detailed, contemporary, chronological notes of the interview, but

only a short, conclusory summary-essentially, an opinion. There is

no transcript of the interview. There is no indication of the

language of the interview or of the administration of an oath

before it took place. The asylum officer did not testify at the

removal hearing."). We do not mean to suggest that hearing

testimony invariably trumps asylum interview statements; we suggest

only that the procedural differences should be weighed in the

balance. How that balance is struck will vary case by case,

depending on the facts and circumstances.

In the present case, we are compelled to hold that the

IJ's adverse credibility determination must be set aside. The IJ

and Board listed several ultimately inadequate reasons, though not

demeanor, for finding Kartasheva incredible. We turn now to the

IJ's and Board's grounds and find each flawed to varying degrees.

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 The IJ's first ground for finding Kartasheva incredible

centered on her testimony regarding the 1998 attack near her home.

Specifically, the IJ noted that Kartasheva did not explain until

her immigration hearing that she had identified her attackers to a

reporting officer through a window. We find the IJ's reasoning

here defective for several reasons, not the least of which is his

own misdescription of the event in which he transposed details of

the 2003 church attack into his narration of Karatasheva's

testimony about the 1998 attack. Cf. Zheng, 464 F.3d at 64 ("Even

if an IJ's credibility determination is based in part on an

incorrect analysis of hearing testimony, however, we may

nonetheless affirm where we conclude that no realistic possibility

exists that, absent the error, the IJ would have reached a

different conclusion."). While Kartasheva added a detail about

this event during her testimony, it was not implausible given her

previous descriptions of the incident. Cf. Jin Lin v. Holder, 561

F.3d 68, 72-73 (1st Cir. 2009) (affirming negative credibility

finding where petitioner changed both location of arrest and

circumstances of release).

Moreover, we agree with Kartasheva that the omission of

her identification of the attackers in the application and at the

asylum interview was central neither to the event in question,

namely, a physical attack followed by official indifference to

which she attested in her application and at both her interview and

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the hearing, nor to her claim as a whole. The 1998 incident

occurred nearly eight years before the immigration hearing, which

occurred more than two years after the filing of the application

and interview. Cf. Bojorques-Villaneuva v. INS, 194 F.3d 14, 17-18

(1st Cir. 1999) (noting that testimony occurred within six months

of application). And it predated the more serious incidents of

2003 by at least four years. See also Heng, 493 F.3d at 49

("Asylum applicants are not required to list every incident of

persecution.") (quotation omitted).

By this same reasoning, we deal summarily with

Kartasheva's omissions during her asylum interview of two fines

following arrests, the phone call from Lieutenant Malzakhanov, and

elements of her December 2003 arrest. Standing alone, the omission

of such details during the asylum interview did not render the

petitioner incredible. The two fines and the 2003 phone call were

peripheral to her claim, and she was consistent about their

existence in both her application and during her testimony.

Moreover, she did not change her story during the asylum interview

but simply omitted small details. Cf. Munoz-Monsalve v. Mukasey,

551 F.3d 1, 8 (1st Cir. 2008) ("Simply put, this is a case in which

the petitioner has told different tales at different times.");

Long, 422 F.3d at 39 (asylum officer noted that the petitioner

could not recall significant details about his political group and

his imprisonment and changed his explanation of whether authorities

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threatened his business). Further, Kartasheva's explanation for

the minor omissions, particularly given the translation issues

evident during the hearing, was appreciable -- while she answered

all questions truthfully, she constrained the interview to those

questions posed to her. Cf. Lutaaya, 535 F.3d at 71 (observing

that petitioner denied making statements during interview and then

suggested that a printing error had occurred).

The IJ also expressed concern that the petitioner first

described her daughter as being beaten and later amended her

statement to explain that the SNB officer slapped her daughter.

But Kartasheva voluntarily amended her description of the

altercation, see Ly, 524 F.3d at 131; the detail was not a central

fact of her arrest and subsequent imprisonment and beating, see

Heng, 493 F.3d at 48 (noting essence of claim was arrest and

detention without water); and particularly given Kartesheva's

language difficulties, we are not convinced that this change in

language actually can be characterized as a discrepancy, see id. at

49 (noting that petitioner first crediting political members and

then human rights workers for her release was not necessarily

inconsistent).

The IJ finally noted Kartasheva's "implausible level of

confusion regarding her number of visits to the United States."

We agree that Kartasheva's initial failure to account accurately

for her visits is somewhat troubling, particularly as it marks her

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one instance of inconsistency, rather than omission. But we do not

find her level of confusion, evident on the face of the record,

implausible. Rather, this portion of the hearing was marked by

numerous translation difficulties. See Heng, 493 F.3d at 49. And

Kartasheva was not evasive; instead, once she understood the

questions posed, she candidly admitted each trip. See Castañeda-

Castillo v. Gonzales, 488 F.3d 17, 24 (1st Cir. 2007) (en banc)

(disagreeing with IJ's characterization of petitioner as evasive).

Given our discussion of the other grounds on which the Board rested

its adverse credibility determination, we cannot conscientiously

find Kartasheva's confusion in this instance sufficiently

substantial to support the Board's ultimate conclusion.

Additionally, we find the IJ's attention to Kartasheva's

documentary evidence concerning. First, the IJ dismissed the

petitioner's medical history report, which confirmed that she was

beaten on several occasions, because it did not explain who had

beaten her. Such a requirement to us is preposterous -- we are

unaware of such a procedural requirement even here in the United

States, and nothing in the record suggests such detailed reporting

is required in Uzbekistan. Cf. Sok, 526 F.3d at 55 ("[T]he record

. . . contains no evidence that the procedures the IJ assumed to

exist in Cambodia are commonplace."). Moreover, the medical report

corroborates the petitioner's claim. It lists dates of medical

treatments that correspond with dates on which Kartasheva was

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attacked by either civilians or the police. For example, on

December 18, 2003, four days after the SNB officers' search of

Kartasheva's apartment and following her subsequent arrest, days-

long imprisonment, and beatings, the clinic treated her for a

closed-skull brain injury, a hemorrhage on the top of her head, a

contusion of the left ear lobe, a contusion and hemorrhage on the

rib cage, and bruises on the lower left jaw and neck. This entry

thus stands to contradict the IJ's claim that though Kartasheva

included information about prison abuse, she had "provided no

evidence beyond her own testimony that any such abuse befell her."

We disagree also with the IJ's assessment of the letters

from the petitioner's friends and daughters. The IJ found that the

friends' letters did not establish a link between Kartasheva's

arrests and HRSU involvement. The first friend confirmed that

Kartasheva sympathized with the HRSU and the second that Kartasheva

was "arrested by Police from a Demonstration organized by the HRSU

organization." Our view of these statements, particularly the

latter, is that they in fact do provide some authentication for

issues relevant to Kartasheva's claim that her arrests were due to

political activity. Moreover, a third letter from A. Korchagin,

also translated, certified, and accompanied by photocopied

Uzbekistan photograph identification card, attests that Korchagin

invited the petitioner to participate in the September 1, 2003,

HRSU demonstration for which they were arrested, held in detention,

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and fined, and that in October 2003, Kartasheva attended an HRSU

meeting and began disseminating materials. Although the IJ did not

mention this letter in his opinion, it is part of the record and

provides solid evidence of a causal relationship between

Kartasheva's political activities and her arrests.11

While the IJ correctly observed that a letter marked

Exhibit 12 from Kartasheva's daughters "provides no corroboration

of her account of her experiences in Uzbekistan," a second

translated and certified letter appears in the record which

recounts the December 15, 2003, apartment search and arrest of

Kartasheva. The IJ did not note this letter, but as it is in the

administrative record before us, we include it in our consideration

as part of "the body of evidence opposed to the Board's view.'"

Gailius, 147 F.3d at 44 (quoting Univ. Camera Corp., 340 U.S. at

488).

Finally, we disapprove of the attention that the IJ gave

to the background information about Uzbekistan provided by

Kartasheva. The IJ summarily claimed that "[m]uch of the

respondent's information on country conditions in Uzbekistan

concerns the lack of religious freedom in this country . . ." But

by our count, only seventeen of the sixty-two documents in Exhibit

4 relate to religious persecution. The rest involve human rights

11
See supra note 6.

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reports, information on mistreatment and torture in prisons, and

accounts of crackdowns on political meetings.

III.

In sum, the IJ's credibility determination is both

confused and confusingly explained. We find lacking an itemization

of the substantial evidence necessary for an adverse credibility

determination, and thus, the determination cannot be allowed to

stand. Because the Board limited its reasoning to the adverse

credibility finding and did not discuss Kartasheva's eligibility

for relief, "we must remand to the agency to make a well-reasoned

and well-explained determination of [Kartasheva's] eligibility."

Sok, 526 F.3d at 58. "[T]his task may well require the

presentation of additional evidence and further arguments by the

parties." Id.

For the foregoing reasons, the petitioner's petition for

review is granted, and the case is remanded for further proceedings

consistent with this opinion. The Board's order of removal is

vacated.

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