Dehonzai v. Holder

United States Court of Appeals
For the First Circuit

No. 09-2071

ALPHONSE DEHONZAI,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

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

Before

Lynch, Chief Judge,
Boudin and Thompson, Circuit Judges.

Jeffrey B. Rubin was on brief for petitioner.
P. Michael Truman, Trial Attorney, Office of Immigration
Litigation, Tony West, Assistant Attorney General, Civil Division,
and Keith I. McManus, Senior Litigation Counsel, were on brief for
respondent.

May 23, 2011
 LYNCH, Chief Judge. Alphonse Dehonzai, of the Ivory

Coast, petitions for review of a July 10, 2009 order by the Board

of Immigration Appeals (BIA). The BIA, affirming an October 4,

2007 ruling of an Immigration Judge (IJ), denied Dehonzai's

application for asylum, withholding of removal, and protection

under the Convention Against Torture (CAT), finding he had not met

his burden under any of those claims. Dehonzai argues that the BIA

erred in finding he had not met his burden because there was error

in the IJ's adverse credibility determination. We deny the

petition. The record does not compel a reasonable factfinder to

reach an opposite conclusion as to Dehonzai's failure to meet his

burden or as to his credibility. See 8 U.S.C. § 1252(b)(4)(B).

I.

Dehonzai entered the United States without authorization

on July 25, 2000 from the Ivory Coast. He left his wife, Cecile,

their three children, his mother, and three of his siblings there.

In 2001, he applied for asylum, withholding of removal, and

protection under the CAT on the basis of political persecution.

His application was denied, and he was deemed eligible for removal

and issued a notice to appear on February 22, 2002. Dehonzai

conceded removability but sought leave to seek asylum, protection

under the CAT, and withholding of removal.

Dehonzai's refugee claims are predicated upon two

separate incidents of arrest and detention in the Ivory Coast in

-2-
1992 and 2000. He described those incidents and relevant

background facts to immigration officials on three occasions: (1)

within his I-589 asylum application, filed in 2001,1 (2) within an

affidavit executed on November 5, 2004 and submitted to the IJ in

2006, and (3) during testimony at a March 10, 2006 hearing before

the IJ, one of four hearings held before the IJ.2 We describe the

facts as set forth within Dehonzai's statements.

Dehonzai was born in the Ivory Coast in 1969. In 1988,

he graduated from a vocational school that specialized in

accounting. After his graduation, he began working as an

accountant at Cocody Medical Center, where he was employed until

April 2000.

While a student in 1985, Dehonzai joined the Fédération

Estudiantine et Scolaire de Côte D'Ivoire (FESCI), a political

organization comprised mainly of Ivorian students. Dehonzai also

became involved with the Rassemblement des Républicans (RDR), an

opposition political movement led by Allasane D. Ouattara.

1
Dehonzai prepared his 2001 asylum application with the
assistance of a non-lawyer. Although Dehonzai never asserted that
the non-lawyer held himself out as an attorney, during the December
16, 2003 hearing--by which time Dehonzai had received actual
counsel--the IJ criticized the non-lawyer's conduct as potentially
constituting the unauthorized practice of law, and subsequently
referred the matter to the Massachusetts Board of Bar Overseers.
2
Dehonzai also submitted and relied upon reports from the
U.S. State Department and Amnesty International to support his
refugee claims. These reports discuss the political climate within
the Ivory Coast from the early 1990s until the time of Dehonzai’s
departure from the Ivory Coast in 2000.

-3-
Dehonzai served as an advisor at the RDR's youth branch in Cocody

from 1991 until May 2000.

On February 18, 1992, Dehonzai and other members of both

FESCI and RDR participated in a peaceful march of protest against

the Ivorian government, primarily seeking the reinstatement of free

higher education. Following the march, Dehonzai and several other

members of FESCI and RDR were arrested. Dehonzai was held in the

Cocody police station for three days. During his 2006 testimony,

he stated for the first time that the police kicked him, hit him

with wires, and made him do pushups during his 1992 detention.

During his 2006 testimony he also stated for the first time that,

following his release in 1992, the police threatened to kill him if

he continued to oppose the government.

By his own account, Dehonzai did not have another

encounter with government officials after 1992 until 2000. In the

spring of that year, military personnel arrested the journalist

Joules Toualy, whom Dehonzai claimed was his cousin.3 Dehonzai

3
In his asylum application Dehonzai stated this arrest
occurred on May 29, 2000, the same day as his own arrest; in his
affidavit and during testimony, he stated it occurred on April 9,
2000. The IJ did not specifically comment on this. The IJ was not
required to offer "an explicit holding as to every factor that [he]
might find relevant in making a determination," Sulaiman v.
Gonzales, 429 F.3d 347, 350 (1st Cir. 2005), and when considering
"whether the clarity of an administrative decision is sufficient to
support our review . . . we are not . . . oblivious of the record
on which it is based," id. (quoting Xu v. Gonzales, 424 F.3d 45, 49
(1st Cir. 2005)) (alteration in original) (internal quotation marks
omitted).

-4-
asserted that two soldiers in plain clothes arrested Toualy at the

offices of "Le Jeune Democrate," the newspaper at which Toualy was

employed. Toualy was apparently arrested for having written an

article regarding military mutiny.

On April 12, 2000, Dehonzai criticized the government's

treatment of Toualy to at least twelve of his colleagues at the

Cocody Medical Center while they were dining in the employee

cafeteria. Dehonzai posited, but offered no proof, that one of

those colleagues was aware that Toualy was Dehonzai's cousin and

reported him to the Republican Guard--described by Dehonzai as the

"local FBI"--sometime thereafter. Dehonzai said he was fired from

his job at Cocody Medical Center on April 15, 2000, three days

after criticizing Toualy's arrest.

Dehonzai first mentioned his firing at the March 10, 2006

hearing. When asked why he was fired, he replied, "Well, first of

all, I went to jail and when I got out of jail, I started working.

And after that when the new boss came in and he was a member of the

government. And when I started working, they had arrested my

cousin." He also testified that in firing him, his new boss told

him that he was "not here to do politics" and that Toualy's arrest

and treatment were "none of this office's business." Dehonzai

provided no further information regarding the relationship between

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his termination and his criticism of Toualy or his subsequent

arrest.4

Dehonzai testified that on May 29, 2000, two soldiers of

the Republican Guard entered his house, arrested him, and

transported him to the Akwedo military camp where he was placed in

a small cell. Dehonzai claims his arrest and detention occurred as

a direct result of the statements criticizing Toualy's arrest that

he made six weeks prior. Other than his own testimony there is no

evidence that he was arrested, detained or persecuted in 2000.

Dehonzai maintains that he was detained for two days,5

during which he was subjected to various forms of mistreatment,

including being beaten, kicked, and flogged with wires. In his

asylum application and his affidavit, Dehonzai gave a vivid

description of his mistreatment following his arrest. He stated:

"They beat me with a bundle of electric wire with tennis ball at

the end, the ball continually struck my back."

This description virtually copies Toualy's description of

his own arrest and detention. Toualy's description was published

in a September 19, 2000 Amnesty International report submitted by

4
On cross examination, Dehonzai stated that he worked at
his job from Monday through Friday, and offered no response when it
was noted that April 15, 2000, the day he says he was fired, was a
Saturday.
5
Within his asylum application, Dehonzai stated he was
"detained in the military camp for about 5 days," but within his
affidavit and during testimony, he stated he was detained for two
days. We do not consider this discrepancy for our holding.

-6-
Dehonzai in support of his refugee claims: "They beat me again with

a bundle of electric wire with a tennis ball at the end. The ball

continually struck my back."

When questioned as to why his description of his

mistreatment in 2000 was nearly identical to the description used

by Toualy within the Amnesty International Report, Dehonzai did not

directly answer. He said, rather, "I apologize." He went on to

say, "In Africa when they've sent you to the police station, and

when they beat you, they do, that's what the police does. You have

to, they kick you. You have to be strong. And you have to crawl

in water." This last assertion regarding crawling in water was one

he had not given before.

Upon his release from the Akwedo military camp in 2000,

Dehonzai says he was told by police that "next time, we're going to

kill you for good." Fearful of returning to his own home, Dehonzai

testified he stayed at the home of his cousin, Jean Baptiste.

While there, Dehonzai says he learned through word of mouth that

military personnel had gone to his home and inquired as to his

whereabouts. Frightened by the news of their visit, Dehonzai

procured another person's passport with the help of Jean Baptiste

and fled the Ivory Coast without his wife or three children, whom

he believes are still in the Ivory Coast but with whom he now has

no contact. Dehonzai also left his mother and three of his

siblings behind in the Ivory Coast. At no time has Dehonzai

-7-
asserted that any of his relatives were ever subject to persecution

by the Ivory Coast government while there.

Dehonzai traveled directly from the Ivory Coast to the

United States, arriving in New York's John F. Kennedy Airport on

July 25, 2000.

At the March 10, 2006 hearing, Dehonzai was specifically

asked to clarify certain elements of this factual account, and was

often asked to do so repeatedly in light of the IJ's view that he

was evasive in answering questions. He was asked several times to

provide information regarding the passport he used to enter the

United States, including the name that was used on the document.

Dehonzai refused to provide any information, stating "when my

cousin got me this document, he had me swear because if I give the

name, they're going to kill my family." Later, at an April 6, 2007

hearing, Dehonzai did submit the name used on the passport.

When asked to provide support for his claim that Joules

Toualy was his cousin, Dehonzai submitted a letter allegedly from

Toualy--written by hand, in French, and dated April 12, 2004--which

states:

Good morning cousin Alphonse,
Life difficulties contribute to the formation of a
human being. I believe you know that. Here the
situation remains critique specially in the
political plan. The assault to the residences,
murder, and denunciation do happen frequently.
Probably if you were there you would be dead or
disappeared like the others. The case of your
handsome Toh Laurent since 2003 it is palpable.
Even the pianist Marcelin Yace and the comedian H

-8-
 would be killed by the unknown. It is how the
fear is here. In hiding, at moment, I wrote this
letter, I have no news about your children.
I stop here.
God be with you and regards to yours.
Yours,
Jules Toualy

There was no corroborating evidence the letter was in fact from

Toualy or that Toualy was in fact Dehonzai's cousin. Although he

was asked at the March 2006 hearing to provide additional support

for his claim that Toualy was his cousin before his next hearing in

April 2007, Dehonzai did not do so. Eventually, in a June 2007

submission to the IJ, he provided documents which he said were his

and Toualy's birth certificates.

The IJ repeatedly informed Dehonzai and his attorney that

Dehonzai's credibility was at issue. The IJ specifically noted

Dehonzai's failure to provide information as to the passport he

used to enter the United States. The IJ observed that because no

information regarding the passport was submitted and there was no

other corroborating evidence regarding Dehonzai's entry date,

"[i]t's going to be a tough call for me to say that [he] met his

burden of proof on timeliness, particularly when the respondent

declines, when asked, to provide that information, the very

information that could corroborate or not." This was pertinent to

the requirement that asylum applications be filed within one year

of the applicant's date of entry. See 8 U.S.C. § 1158(a)(2)(B).

-9-
The IJ also noted the lack of corroborating evidence regarding

Dehonzai's relationship with Toualy.

The March 10, 2006 hearing was continued to April 6,

2007, partially to give Dehonzai more time to prove his claims,

particularly in light of the IJ's questions about credibility.

When Dehonzai's attorney inquired as to the scope of additional

evidence he should provide in advance of the April 2007 hearing,

the IJ responded, "what you have to do is anything that occurs to

you based on the hearing we've had up until now, that would

corroborate your client's testimony. He doesn't have a lot of

corroboration. That doesn't mean it's not true. But I'm just

short of good pre-cross-examination. So, nota bene."

Despite these warnings, Dehonzai's counsel6 provided

little in the way of corroborating evidence before or at the April

6, 2007 hearing. Dehonzai failed to produce the passport that he

used to enter the United States, and instead only revealed that

"Alphonse Bah" was the name on the passport. The only other

evidence he offered at the April 6, 2007 hearing--besides

additional reports on country conditions in the Ivory Coast--was a

paper labeled "certificate of individual investigation," a document

6
Between the March 10, 2006 hearing and the April 6, 2007
hearing, Dehonzai's original counsel withdrew and was replaced by
another attorney. It is clear from the April 6, 2007 hearing
transcript that Dehonzai's new counsel understood the IJ's 2006
instruction to provide any additional and available evidence to
support Dehonzai's claims.

-10-
purportedly procured from the Ivory Coast government, though no

government entity is identified in it, which states that Dehonzai

was under investigation for his political activities. During the

hearing, the IJ stated that the paper was "highly unlikely to be

real" as he could not "imagine any kind of an organization that

does investigatory work for the government to certify that somebody

is under investigation for political activities." The IJ again

stated on the record that "there were some problems for the

respondent," including that there is an "eery similarity" between

Dehonzai's description of his treatment in detention and Toualy's

description of his own treatment.

The IJ once again delayed issuing his decision and

continued proceedings so that Dehonzai might further corroborate

his testimony. In June 2007 Dehonzai submitted copies of allegedly

official birth certificates for himself and Toualy. No other

corroborating evidence was ever provided.

The IJ issued his decision in an October 4, 2007 oral

ruling. First, the IJ observed that Dehonzai stated his date of

entry into the United States was July 25, 2000, and that although

his I-589 was date-stamped July 27, 2001, Dehonzai had signed the

form on May 30, 2001. In light of these facts, the IJ stated he

was "inclined to give the respondent the benefit of the doubt as to

a good faith effort to make a timely filing," and deemed Dehonzai's

asylum application timely under 8 U.S.C. § 1158(a)(2)(B).

-11-
 The IJ next turned to the issue of Dehonzai's

credibility, finding him not credible and articulating a number of

specific grounds for the adverse credibility determination. For

purposes of judicial review, we set forth three: (1) the language

in Dehonzai's asylum application and affidavit about his own

detention and mistreatment that virtually copies Toualy's

description in the September 19, 2000 Amnesty International Report

submitted by Dehonzai, and the IJ's view that Dehonzai's response

was inadequate as to why the replication existed; (2) the IJ's

assessment of the implausibility of Dehonzai's assertions,

specifically the unlikelihood that he would be arrested a full six

weeks after he claimed to have criticized Toualy's arrest in a work

setting, which Dehonzai said was the triggering event for his own

2000 arrest; and (3) the IJ's evaluation, after observing Dehonzai

and listening to his testimony, that Dehonzai was evasive, avoided

answering questions, and was unable to provide detailed testimony

at the March 10, 2006 hearing. In addition, the IJ noted

Dehonzai's failure to provide corroborating evidence to support his

claims, despite having been requested to do so.

The IJ rejected Dehonzai's asylum claim on the basis of

the adverse credibility finding. Having rejected Dehonzai's asylum

claim, the IJ determined he was not entitled to withholding of

removal or protection under the CAT.

-12-
 Dehonzai appealed to the BIA, primarily challenging the

IJ's credibility determination. The BIA denied the appeal. It

found no error in the IJ's adverse credibility determination,

holding that the IJ articulated specific "discrepancies in the

respondent's testimony which are present in the administrative

record and go to the heart of his claim, implausibilities in the

respondent's account of events and chronology, use of nearly

identical language as that used in an Amnesty International report

to describe his own experience, and evasive demeanor." With regard

to the specific inconsistencies between Dehonzai's 2001 asylum

application and Dehonzai's other representations to immigration

officials, the BIA rejected Dehonzai's explanation that those

inconsistencies resulted from the fact that he was aided by a non-

lawyer who did not speak his particular dialect of French, and who

allegedly put down false information on Dehonzai's asylum

application. The BIA noted both that Dehonzai was represented by

counsel from 2003, and that "the respondent swore to the veracity

of the information in his application and at no point prior to the

merits hearing or in his direct presentation of evidence [in 2006]

did he recant any of the information in his 2001 application as

inaccurate." The BIA also found that Dehonzai had offered no

explanation "as to why the non-lawyer [who assisted with Dehonzai's

I-589 asylum application] would have changed the substance of the

information that the respondent had given him to reflect different

-13-
dates, periods of detention, or other details than the respondent

provided." The BIA observed that "the only letter he submitted in

an attempt to corroborate the substance of his claim of being a

refugee did not address the factual circumstances of his claim,"

and found he failed to meet his burden of proof.

II.

Dehonzai petitions for review, arguing that the BIA erred

in finding no error in the IJ's adverse credibility determination.

We review factual findings, including credibility

determinations, under the familiar substantial evidence standard.

Rivas-Mira v. Holder, 556 F.3d 1, 4 (1st Cir. 2009). Credibility

determinations and other "administrative findings of fact are

conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see also Cuko

v. Mukasey, 522 F.3d 32, 37 (1st Cir. 2008). "Merely identifying

alternative findings that could be supported by substantial

evidence is insufficient to supplant the [IJ's and BIA's]

findings." Albathani v. INS, 318 F.3d 365, 372 (1st Cir. 2003).

Ordinarily, we review the decision of the BIA, but we

also "review those portions of the IJ's opinion that the BIA has

adopted." See Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004);

see also Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004)

("[W]hen the BIA both adopts the findings of the IJ and discusses

-14-
some of the bases for the IJ's decision, we have authority to

review the decisions of both the IJ and the BIA.").7

There is no doubt the inconsistencies identified by the

IJ and the BIA appear in the record. Dehonzai argues, rather, that

in rendering its credibility determination, the IJ "harped upon

minor inconsistencies" and ignored the "ample amount of evidence"

that he submitted to support his claims. That some of the

discrepancies relied upon were more significant than others does

not undercut the conclusion of the BIA and IJ. The BIA and IJ

decisions are supported by substantial evidence on key points. A

reasonable factfinder could find that Dehonzai's description of his

mistreatment in the same words as Toualy was not creditworthy, that

no other evidence supported Dehonzai's claims, and that the

inconsistencies in Dehonzai's testimony were not adequately

explained. A reasonable factfinder could also conclude that

Dehonzai failed to provide adequate supporting material to

7
Dehonzai argues that, under the United Nations High
Commission of Refugees Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention and the 1967
Protocol Relating to the Status of Refugees (Handbook), his
testimony is entitled to the "benefit of the doubt." Dehonzai
failed to raise this argument before the BIA. It is not exhausted.
Even if we were to consider the argument, it is
unavailing. By its own terms the Handbook does not support
Dehonzai's position, as it makes clear that any deference to the
complainant's testimony does not extend to credibility
determinations. See Handbook, at ¶ 196 ("[I]f the applicant's
account appears credible, he should, unless there are good reasons
to the contrary, be given the benefit of the doubt.") (emphasis
added).

-15-
substantiate his claim after he was explicitly warned that his

credibility was in question.

The BIA and IJ found it particularly troubling that the

language Dehonzai used within his asylum application and affidavit

to describe his mistreatment in 2000 was virtually identical to the

language attributed to Toualy within the Amnesty International

report. The IJ reasonably concluded this "suggests . . . that the

respondent has adopted the Toualy story for his own purposes."

Dehonzai argues that the similarity in language was "mere

coincidence." But the replication was severe, and neither the IJ

nor the BIA was required to view this as "mere coincidence."

Dehonzai wrote in 2001 and 2004: "They beat me with a bundle of

electric wire with tennis ball at the end, the ball continually

struck my back." Toualy's description, as published in the 2000

Amnesty International report, was: "They beat me again with a

bundle of electric wire with a tennis ball at the end. The ball

continually struck my back." The BIA and IJ's conclusions were

reasonable and supported.

Moreover, on two different occasions Dehonzai was asked

and "afforded 'a reasonable opportunity to explain'" why, in both

his 2001 asylum application and his 2004 affidavit, he had used

language that so closely replicated the language Toualy used to

describe his own experiences. Cuko, 522 F.3d at 39 (quoting Zi Lin

Chen v. Ashcroft, 362 F.3d 611, 618 (9th Cir. 2004)). It was

-16-
reasonable for the BIA and IJ to conclude the explanations offered

were inadequate. Upon being asked at the March 10, 2006 hearing

why the language within his asylum application and affidavit

virtually copied Toualy's description, Dehonzai did not assert his

description was accurate. At the April 6, 2007 hearing, the IJ

once again noted the "eery similarity" between Dehonzai's

statements and Toualy's first-person account, but Dehonzai again

failed to offer any explanation as to why that near identicality

existed.

The BIA and IJ also found it implausible that Dehonzai

was arrested, as he posited, as a result of his complaints to co-

workers at work about the government's treatment of Toualy. The IJ

reasonably concluded that "[t]he chronology just does not work as

far as respondent's story is concerned." Dehonzai claimed to have

made those complaints to his co-workers a full six weeks prior to

his May 29, 2000 arrest, and admits he had previously had no

difficulty with the government for over eight years. Dehonzai

argues this explanation for the IJ's determination is "too vague."

However, the evidence does not compel a reasonable factfinder to

accept Dehonzai's version of how and why his purported arrest

occurred.

The IJ also explicitly observed and noted Dehonzai's

"demeanor and manner of response to the straightforward questions,"

which it found to be "frequently evasive" and suggestive that

-17-
Dehonzai "intentionally misunderst[ood] the questions that were

direct." Because "the IJ has the best vantage point from which to

assess the witnesses' testimonies and demeanors, we accord

significant respect to these witness credibility determinations."

Cuko, 522 F.3d at 37. Numerous instances in the transcript support

the IJ's finding that his answers were vague and unresponsive, and

the BIA agreed, as it reasonably could, that Dehonzai was evasive.

Moreover, at various times during the hearings the IJ

explicitly stated that Dehonzai's credibility was in doubt, giving

Dehonzai more than fair warning of the need to buttress his case.8

The IJ even continued proceedings on two occasions to give Dehonzai

the opportunity to supplement the record with additional

evidentiary support. Despite these warnings and allowances,

Dehonzai failed to provide the IJ with adequate corroborating

evidence. The BIA and IJ did not err in finding that this failure

cast further doubt upon Dehonzai's credibility. See Matter of

Y-B-, 21 I. & N. Dec. 1136, 1139 (BIA 1998) ("[T]he weaker an

alien's testimony, the greater the need for corroborative

8
For example, at the March 10, 2006 hearing, the IJ
informed Dehonzai that, despite his counsel's view that Dehonzai's
testimony had not presented any credibility concerns, his
credibility remained at issue. At that hearing the IJ also
instructed Dehonzai's counsel to submit "anything that occurs to
you based on the hearing we've had up until now, that would
corroborate your client's testimony" because he "doesn't have a
lot of corroboration." At the April 6, 2007 hearing, the IJ
stated that there were still "some problems for the respondent,"
including the "eery similarity" between his description of his
mistreatment and Toualy's description of his own mistreatment.

-18-
evidence.").9 It also supports their determination that he did not

meet his burden.

The IJ and BIA noted that Dehonzai failed to submit

adequate evidence to prove that Toualy was in fact his cousin. A

reasonable factfinder could conclude, like the IJ and BIA, that the

corroborating documents Dehonzai did submit--the purported 2004

letter from Toualy and Toualy's and Dehonzai's purported birth

certificates--were insufficient for Dehonzai's comments regarding

his relationship with Toualy to be deemed credible. Regardless, on

petition for review Dehonzai does not challenge this element of the

IJ or BIA decisions. The argument is waived. Similarly, it was

reasonable for the IJ to disbelieve the authenticity of the

purported certificate of investigation--the only corroborating

evidence Dehonzai provided to support his claim that he was

persecuted on political grounds.

Some inconsistencies that the IJ identified within

Dehonzai's testimony, such as whether his detention in 2000 was for

9
We note that an applicant's testimony, "if credible, may
be sufficient to sustain [his] burden of proof without
corroboration." 8 C.F.R. § 1208.13(a). But where, as here, the
applicant "is found not to be entirely credible, corroborating
evidence 'may be used to bolster an applicant's credibility.'"
Dhima v. Gonzales, 416 F.3d 92, 95 (1st Cir. 2005) (quoting Diab v.
Ashcroft, 397 F.3d 35, 40 (1st Cir. 2005)); see also Hoxha v.
Gonzales, 446 F.3d 210, 219 (1st Cir. 2006) (explaining that an IJ
may permissibly consider whether corroborating evidence
rehabilitates a petitioner's credibility).

-19-
a two or five day period,10 were more minor, and would not be

significant if they stood alone. They are not needed to support

the lack of credibility finding, and, more, they do not stand

alone. That some of the reasons articulated for the credibility

determination are more persuasive than others does not alter the

fact that, upon an assessment of the record in its entirety, a

reasonable factfinder would not be compelled to make a contrary

determination to the finding the BIA and IJ did make. Cuko, 522

F.3d at 37. The credibility determination was based on components

of Dehonzai's testimony that go to the heart of Dehonzai's asylum

claim, see Hoxha v. Gonzales, 446 F.3d 210, 217 (1st Cir. 2006),11

that "generate specific and cogent reasons from which to infer that

petitioner . . . provided non-creditworthy testimony," Cuko, 522

F.3d at 37, and that Dehonzai did not adequately explain, id.

10
Nor do we rely on other minor inconsistencies between
Dehonzai's 2001 asylum application and his other representations,
even though the BIA specifically rejected Dehonzai's explanation
that these inconsistencies were the result of inadequate assistance
in completing his asylum application.
11
Following passage of the REAL ID Act, an adverse
credibility determination may be based on an inconsistency in the
applicant's testimony "without regard to whether [the]
inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant's claim." 8 U.S.C. 1158(b)(1)(B)(iii). Because
Dehonzai's asylum application was filed prior to the May 11, 2005
effective date of the Act, the previous standard applies. See
Kartasheva v. Holder, 582 F.3d 96, 104 n.7 (1st Cir. 2009) (noting
that in pre-REAL ID Act cases, "the IJ's adverse credibility
finding 'cannot rest on trivia but must be based on discrepancies
that involved the heart of the asylum claim.'" (quoting Hem v.
Mukasey, 514 F.3d 67, 69 (1st Cir. 2008))).

-20-
Despite Dehonzai's attempts to trivialize particular findings of

the BIA and IJ, in applying the substantial evidence standard in

review of an adverse credibility finding, "the whole sometimes can

exceed the sum of the parts, and the appropriate test focuses on

the totality of the circumstances." Mariko v. Holder, No. 09-1464,

slip op. at 10 (1st Cir. Jan. 24 2011). The finding that

Dehonzai's testimony was not credible is supported by substantial

evidence.

III.

The adverse credibility determination defeats Dehonzai's

asylum claim. Dine v. Gonzales, 464 F.3d 89, 93 (1st Cir. 2006)

("[W]hen a petitioner's case depends on the veracity of . . .

testimony, a fully supported adverse credibility determination,

without more, can sustain a denial of asylum." (quoting Olujoke v.

Gonzales, 411 F.3d 16, 22 (1st Cir. 2005))) (internal quotation

marks omitted). Dehonzai's claims for protection under the CAT and

withholding of removal also fail for the same reason. See

Balachandran v. Holder, 566 F.3d 269, 274 (1st Cir. 2009) (CAT

claim fails when based on same non-credible testimony as asylum

claim); Dine, 464 F.3d at 93 (withholding of removal claim fails

upon upholding adverse credibility finding).

The petition is denied.

-Dissenting Opinion Follows-

-21-
 THOMPSON, Circuit Judge, dissenting. The difficulty of

balancing deference against deficiency in the immigration context

provokes divided panels from time to time. See, e.g., Mejilla-

Romero v. Holder, 600 F.3d 63, 76 (1st Cir. 2010) (Stahl, J.,

dissenting), vacated on reh'g, 614 F.3d 572 (2010); Rasiah v.

Holder, 589 F.3d 1, 6 (1st Cir. 2009) (Lipez, J., dissenting);

Cuko v. Mukasey, 522 F.3d 32, 41 (1st Cir. 2008) (Cyr, J.,

dissenting). Unfortunately, today I find myself alone on such a

panel.12 I cannot conscientiously join my colleagues in

upholding the IJ's and BIA's error-riddled decisions denying

asylum relief to Petitioner Alphonse Dehonzai. This is a case

where, it seems to me, the degree of deference the majority

exercises "turns our review function into a hollow exercise in

rubber-stamping." Cuko, 600 F.3d at 41 (Cyr, J., dissenting).

Accordingly, I dissent.

Background

The record viewed as a whole – including documentary

evidence of conditions in Côte D'Ivoire – reveals the following:

On July 25, 2000, Dehonzai obtained entry to the United

States by presenting a friend's passport on arrival at J.F.K.

Airport in New York, New York. About a year later he filed for

asylum and other relief.

12
There is one exception: I agree with footnote 7 of the
majority opinion.

-22-
 When Dehonzai left Côte D'Ivoire, the country had

suffered from years of turmoil. According to the earliest

information provided by Dehonzai – a 1992 Amnesty International

report – following political demonstrations in February 1992,

more than 250 people were wrongfully arrested and detained. The

protesters, many of whom were members of the Fédération

Estudiantine et Scolaire de Côte d'Ivoire (FESCI), objected to

the Ivorian government's decision not to punish General Robert

Gueï for ordering an army raid on Abidjan University that

resulted in students being beaten and raped. Some of those

arrested were released, others were held without charges, and

still others, including persons who did not actually participate

in the demonstrations, were charged with crimes of association.

Years later, in December 1999, the Ivorian army seized

power of Côte D'Ivoire and installed General Gueï as Head of

State. In the wake of the coup, political freedom declined:

members of the deposed government were arrested by soldiers,

members of opposition parties were required to have government

clearance to move about or to leave the country, and political

demonstrations were banned. Search warrants, often lacking a

name or address, were issued and executed freely; government

watchdogs suspected that private correspondence was routinely and

widely monitored. Soldiers attacked friends and relatives of

politicians, beating them with guns, forcing them to do pushups

-23-
and crawl on the ground, binding and kicking them, and

threatening them with death. Soldiers sometimes arrested and

abused civilians on the basis of simple denunciations, without

any efforts to investigate or corroborate the claims. According

to the U.S. Department of State, it became common for civilians

to be detained – often at Akouedo military camp – for days

without being charged. Perhaps most disturbingly, the military

regime maintained a practice of summarily executing civilians,

including students and civil servants, often on the basis of

simple denunciations and without any investigation or concrete

evidence of wrongdoing. Some of the most common targets of the

post-coup Ivorian regime included supporters of Alassane

Ouattara,13 leader of the political party Rassemblement des

Républicains (RDR), students and FESCI members, and journalists.

Dehonzai included material detailing all these facts

with his application. In addition, Dehonzai represented in his

application that he had served as an advisor to Ouattara and

FESCI, that he had been arrested and detained for three days

after participating in one of the 1992 protests, and that he had

been arrested and detained after criticizing the government's

13
To depart from the record briefly, Ouattara was elected
President of Côte D'Ivoire in 2010. After months of bloody
struggle against outgoing President Laurent Gbagbo, Ouattara
appears to have gained control. The situation is now mixed:
although the conflict seems to have ended, Ivorians continue to
flee to refugee camps in neighboring Guinea and Liberia, and human
rights inspectors continue to discover unmarked mass graves.

-24-
abuse of his journalist cousin in 2000. Regarding the latter

incident, the application included the following representation

(sic): "I was severaly beaten as they did for my cousin Jules

Toualy. They beat me with a bundle of electric wire with tennis

ball at the end, the ball continually struck my back." The

application also referred specifically to an attached exhibit, an

Amnesty International report which included an account of the

government's detention and abuse of Jules Toualy. This document

contained a first-person account of Mr. Toualy's experience,

including the following phrase: "They beat me again with a bundle

of electric wire with a tennis ball at the end. The ball

continually struck my back." Finally, the application

represented that Dehonzai had been detained "for about 5 days . .

. tortured and severly [sic] beaten." Dehonzai signed the I-589

and dated the form May 30, 2001; Al Mondel, who was listed as the

form's preparer, signed the form and dated it June 15, 2001.

The INS denied the application and instead initiated

removal proceedings. On December 16, 2003, Dehonzai appeared in

immigration court and conceded his removability but sought leave

to pursue asylum and other relief. A series of hearings ensued,

during which Dehonzai testified that he had a fear of persecution

stemming largely from the 1992 and 2000 incidents.

Regarding the 1992 incident, Dehonzai testified to the

following facts. In February 1992, Dehonzai was arrested for his

-25-
participation in one of the student marches stemming from the

raid on Abidjan University. He was held for three days, over the

course of which he was interrogated, kicked, beaten with wires,

forced to stoop, and forced to do pushups. At the end of the

three-day period, he was released.

Regarding the 2000 incident, Dehonzai testified to the

following facts. Dehonzai's cousin, the journalist Jules Toualy,

was arrested and beaten by agents of the Ivorian government. On

April 12, 2000, Dehonzai spoke out at work against the detention

and torture of his cousin. Among the approximately twelve people

who heard Dehonzai's speech was a government informant who

reported Dehonzai to the government. On the night of May 29,

2000, government agents forcibly entered Dehonzai's home and

removed him to Akouedo military camp. He was held for two days,

over the course of which he was beaten with wood, beaten with

wires, kicked, and threatened with death. At the end of the two-

day period, he was released.

At a subsequent hearing, the IJ issued an oral decision

denying relief on the ground that Dehonzai's testimony lacked

credibility. The IJ based his decision on several factors,

including chronological implausibilities, language mirroring the

Amnesty International report, and Dehonzai's evasive manner of

answering questions. Dehonzai appealed the IJ's decision to the

BIA, which dismissed his appeal and ordered him removed. This

-26-
petition for review followed. The majority denies the petition;

I would grant it and remand.

Our Review of Credibility

The majority's decision hinges on upholding the IJ and

BIA's adverse credibility determination. It is true that we

review credibility determinations under the deferential

substantial evidence standard. See Kartasheva v. Holder, 582

F.3d 96, 105 (1st Cir. 2009). The majority spells out our

general policy of deference but implies that deference is the

alpha and omega of our review. This is not so.

Instead, we have recognized that "the fact that an IJ

considers a petitioner not to be credible constitutes the

beginning not the end of our inquiry." Wiratama v. Mukasey, 538

F.3d 1, 4 (1st Cir. 2008) (quoting Aguilera-Cota v. I.N.S., 914

F.2d 1375, 1381 (9th Cir. 1990)). "[O]ur deference is not

unlimited," Kartasheva, 582 F.3d at 105, and thus we must

determine whether the IJ's determination has "sturdy roots in the

administrative record," looking to the IJ's decision for

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

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

Wiratama, 538 F.3d at 4 (internal quotation marks removed).

"[W]e may not affirm the agency'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

-27-
entirety furnishes, including the body of evidence opposed to the

agency's view." Sok v. Mukasey, 526 F.3d 48, 53 (1st Cir. 2008)

(quoting Mukamusoni v. Ashcroft, 390 F.3d 110, 119 (1st Cir.

2004) (internal quotation marks and brackets removed)). Finally,

because Dehonzai's petition pre-dates the REAL ID Act, the IJ's

adverse credibility determination must be founded on

inconsistencies that "go to the heart of the claim and pertain to

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

Kartasheva, 582 F.3d at 105 (internal quotation marks removed).

These principles are well-recognized.

Indeed, applying our standard of review to past cases,

we have held that remand on the issue of credibility is required

where "the IJ and [BIA] misstate [an immigrant's] testimony,

apply labels (like inconsistent and evasive) that are at odds

with what the transcript shows, and draw inferences that appear

wholly speculative and without record support." Castaneda-

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

We have also held that remand is required where the IJ's decision

rests on specifically enumerated but "ultimately inadequate

reasons," and where "numerous translation difficulties" undercut

an IJ's finding of inconsistent testimony or evasive demeanor.

Kartasheva, 582 F.3d at 105-06, 107. To anchor these holdings

firmly to their statutory basis at 8 U.S.C. § 1252(b)(4)(B),

where determinations of the immigration courts reflect these

-28-
sorts of deficiencies, "any reasonable adjudicator would be

compelled to conclude to the contrary." Immigration courts may

not simply say "not credible" and free their faulty decisions

from the fetters of robust judicial review.

I am convinced that those authorities applied to these

facts compel remand. My reasoning follows.

Virtually Identical Language

The majority begins with Dehonzai and Toualy's

"virtually identical" language regarding their respective

beatings with a bundle of wire with a tennis ball on the end.

The IJ found the linguistic similarity troubling and concluded

that Dehonzai had "adopted the Toualy story for his own

purposes." The BIA and the majority agree. But I find myself

compelled to conclude otherwise: the IJ failed to consider

carefully the nature of the similarity, failed to apply adequate

procedural safeguards, ignored corroborating evidence, and

therefore erred.

In seeking affirmance of the BIA and IJ's adverse

credibility determination on the basis of similar language, the

government relies in large part on Mei Chai Ye v. U.S. Dept. of

Justice, 489 F.3d 517 (2d Cir. 2007), where a panel of the Second

Circuit upheld an adverse credibility determination based on the

immigrant's use of similar language to another immigrant from

another set of proceedings. Id. at 520. I agree that the case

-29-
is helpful, and I would follow it. The case deserves a thorough

discussion.

In Ye, the petitioner Mei Chai Ye sought asylum,

withholding of removal, and CAT protection on the basis of two

forced abortions she claimed to have suffered in her native

China. 489 F.3d at 520. In support of her application for

relief, she filed a statement detailing her alleged treatment in

China. Id. At a hearing on June 13, 2003, the IJ noted that

Ye's statement bore certain striking similarities to a statement

filed by another applicant in an entirely unrelated case. Id.

The IJ requested that DHS produce redacted versions of the two

statements so he could compare the two without impacting either's

privacy; DHS agreed. Id. at 521.

At the next hearing, DHS produced the documents

(demonstrating that the IJ's recollection had been spot-on), and

the IJ gave Ye's attorney a chance to respond to the

similarities. 489 F.3d at 521. The attorney suggested that the

similarities could be due to "a pattern of practice of the

Chinese government" or a consistent style of translation if the

statements had been translated by the same person. Id. The

hearing adjourned without any resolution. Id. Another hearing

followed, at which the IJ noted that he had provided the

attorneys with carefully annotated versions of the statements,

pointing out each of the many similarities. Id. at 522. He

-30-
again sought an adequate explanation for these near-identical

documents, but again no resolution occurred. Id. Still another

hearing followed, at which point Ye's attorney withdrew due to a

conflict, and the IJ finally issued an oral decision. Id. The

IJ denied Ye any relief, finding that her credibility had been

demolished by twenty-three discrete portions of the statement

whose language, grammar, and order were all but identical to

corresponding portions of the statement that had been filed by an

unrelated applicant in an unrelated case. Id. at 522-23. The IJ

specifically based this finding of unreliability on (1) Ye's

failure to provide any convincing explanation for the

similarities despite opportunities at multiple hearings, (2) the

absence of any evidence attributing the similarity to a

translator, and (3) the absence of evidence that the other

petitioner might have plagiarized Ye. Id. at 523. Ye appealed

this decision to the BIA, which summarily affirmed; a petition to

the Second Circuit followed. Id.

A panel of the Second Circuit denied Ye's petition for

review, citing the IJ's careful consideration of possible reasons

for the damaging similarities and his meticulous adherence to a

number of procedural precautions. 489 F.3d at 524-25.

Specifically, the court issued its holding in the form of a

multi-pronged rule that an adverse credibility determination may

be appropriate where an IJ: "(1) carefully identifies any

-31-
similarities; (2) closely considers the nature and number of

those particular similarities . . . and (3) rigorously complies

with . . . [certain] procedural protections . . . ." Id. at 526.

Expounding on the third prong, the court listed some specific

procedural protections, recommending that an IJ allow an

applicant (a) to respond to the allegedly offending similarities,

(b) to investigate potential plagiarism, and (c) to consider the

possibility of inaccurate or formulaic translation. Id.

However, the court suggested that these enumerated protections

were a floor, not a ceiling, noting that the IJ had gone much

further by:

(1) notifying Ye of the similarities, and
providing her with copies of his annotations;
(2) openly and exhaustively expressing to Ye
his concerns about the inter-proceeding
similarities; (3) granting Ye several
opportunities to comment on those
similarities; and (4) inviting Ye to offer
evidence of plagiarism, inaccurate
translations, or any other possible innocent
explanation.

Id. at 525. The court strongly suggested that adherence to the

IJ's cautious and deliberate procedure was the better course of

action. Id. at 527.

Throughout the opinion, the court followed a general

policy of reviewing an IJ's reliance on inter-proceeding

similarities "with an especially cautious eye." 489 F.3d at 520.

Indeed, the court suggested that an IJ's full compliance with the

rule above should result not in affirmance but only in deference;

-32-
on the other hand, any "less rigorous approach" by an IJ should

be met with outright skepticism. Id. at 527. I offer an

analysis under the Ye framework; given the peculiarity of finding

a statement less reliable because of close corroboration, it

seems only appropriate that we ought to review the procedure and

analysis the IJ followed here with the especially cautious eye

prescribed by the Second Circuit.

First, the IJ here did not carefully identify the

offending linguistic similarity before issuing his decision.

Instead, he noted broadly that "there is a eery [sic] similarity

between what happened to Mr. Toualy and what happened to the

respondent." In context, this statement doesn't even seem

addressed to linguistic similarity, but rather to the timing of

Dehonzai's and Toualy's arrests. The IJ's lack of clarity here

contrasts sharply with the IJ's meticulous annotations in Ye.

See 489 F.3d at 525. My skepticism is therefore piqued. See id.

at 527.

Second, the IJ did not closely consider the nature or

the number of the single similarity at issue here. Had he done

so, he would have noticed that Dehonzai introduced his statement

with the phrase "as they did for my cousin Jules Toualy" and went

on to refer explicitly to the Amnesty International report.

Dehonzai's choice to call the government's attention to this

similar language is more consistent with proper citation and

-33-
comparison than with plagiarism. Also, had the IJ closely

considered the similarity at issue, he would have recognized that

the two documents could easily reflect the respective stories of

cousins who were held at the same military camp by the same

repressive regime six weeks apart, and subjected to a single

instance each of the same mistreatment among other disparate

abuses. The intertwined nature of the accounts at issue here

stands in sharp contrast to the facts in Ye, which involved

unaffiliated immigrants in unrelated proceedings whose statements

matched point by point on at least twenty-three different

details. See 489 F.3d at 522-23. These circumstances are

different enough that they alone practically compel a different

result. Indeed, the nature and number of the similarity here – a

single, appropriately cited instance of similar treatment

occurring at the same place within a narrow time frame – cannot

reasonably support a finding of fabrication or plagiarism.

Third, the IJ did not rigorously adhere to any of the

procedural protections spelled out in Ye. Contrary to the

majority's conclusion, he did not afford Dehonzai any opportunity

to explain the similar language, except to the extent that he

allowed the following exchange to take place during cross

examination:

DHS: You copied that, didn't you, sir, out of
an article you read about Jules Toualy,
didn't you, sir? The Amnesty International
article where Jules Toualy gave a statement

-34-
 and said, the last line he said, that was not
enough for them. They beat me again with a
bundle of electric wire with a tennis ball at
the end. The ball continually struck my
back. The exact same words that you use in
your application, right, sir?

Dehonzai: I apologize. In Africa when
they've sent you to the police station, and
when they beat you, they do, that's what the
police does. You have to, they kick you.
You have to be strong. And you have to crawl
in water.

DHS: Well, sir, there's nothing.

Dehonzai: They don't really feed you, most
people. I'm sorry. I've just described what
they do continually all the time.

Allowing the government to ask a heated, accusatory, compound

question is hardly equivalent to the sort of careful, objective,

and repeated prompts that characterized the IJ's approach in Ye.

Cf. 489 F.3d at 520-22. And here the IJ's observation of the

"eery similarity" between Dehonzai's and Toualy's situations,

which the majority cites as providing a "reasonable opportunity"

for Dehonzai to explain the similar language, says nothing of the

similar language but instead has to do with the timing of

Dehonzai's and Toualy's arrests. In fact, I can discern no

procedural protections whatsoever in the IJ's approach here.

Thus, all three Ye factors counsel strongly against the IJ's

decision.

Other factors counsel rejection of linguistic

similarity as a basis for finding Dehonzai not credible. The Ye

-35-
court noted at one point the danger that "similarities may have

been inserted into the documents by the translators rather than

by the applicants themselves." 489 F.3d at 524. Given that

Dehonzai testified that he did not speak English at the time his

application was prepared, the IJ ought to have considered whether

the similar language might be attributable to the translator

rather than Dehonzai himself. More importantly, though, there is

ample material in the record to suggest that the language that

troubled the IJ is an accurate description of Dehonzai's

experience. In fact, all of the evidence suggests that both

Dehonzai and Toualy were arrested, detained, and abused by the

same regime at the same military camp. The Toualy letter

corroborates the familial relationship between him and

Dehonzai.14 The Amnesty International and State Department

country reports corroborate the regular arrest and detention at

Akouedo of journalists (including Toualy specifically) and

civilians denounced for expressing their political beliefs. The

country reports also demonstrate that civilians in detention were

commonly beaten with objects ranging from iron bars to whips.15

14
This is difficult to square with the IJ's specific and
incorrect finding that "[t]he respondent was unable to produce any
documentation to corroborate his alleged relationship with Jules
Toualy." (Emphasis added.) It seems to me that a flatly wrong
finding by the IJ would compel a reasonable adjudicator to reach a
contrary conclusion. The majority wishes away the IJ's error by
deeming the letter "insufficient." They do not explain why this is
so.
15
Although Toualy's is the only other account which
involves a bundle of wires with a tennis ball at the end, a brief

-36-
This corroborating evidence, which the IJ ignored, compels remand

in my view.

Plausible Implausibilities

Next the majority defers to the IJ's finding of

chronological "implausibilities" that supported his adverse

credibility finding. When reviewing credibility determinations

based on discrepancies or implausibilities, we normally conduct a

three-pronged analysis: first, we determine whether "the

discrepancies articulated by the IJ and/or the BIA are actually

present in the administrative record"; second, we look to whether

"the discrepancies generate specific and cogent reasons from

which to infer that petitioner or his witnesses provided

non-creditworthy testimony"; and third, we examine whether the

"petitioner failed to provide a persuasive explanation for these

discrepancies." Cuko, 522 F.3d at 37.

The IJ's finding glaringly fails the second prong. The

IJ found it "implausib[le] . . . that the respondent would be

arrested and beaten eight years after his protest march in

February of 1992." The purported chronological implausibility

also included the six-week gap between Dehonzai's statements at

work and his second detention. The IJ's reasoning for finding

catalogue illustrates the depraved creativity of the Ivorian
regime. In addition to iron bars, whips, and wire bundles, members
of the military and police used the following implements to conduct
beatings at various times: boards with nails, whips, truncheons,
rifle butts, sticks, belts, and branches.

-37-
these implausible was that "the chronology just does not work."

This analysis does not set forth any specific and cogent reason

as to why the chronology should be viewed as implausible in order

to support an adverse credibility determination. See Cuko, 522

F.3d at 37; see also Wiratama, 538 F.3d at 4. Indeed, not once

in these proceedings has anyone posited an actual rationale for

why this "chronology just does not work." Any reasonable

adjudicator would be compelled to find the IJ's conclusion a

baseless tautology; deferring to this shell of a legal analysis

renders our review meaningless.

What Evasive Demeanor?

Next the majority defers to the IJ's "observ[ation]

that the respondent's demeanor and manner of response to the

straightforward questions was frequently evasive and respondent

seemed to intentionally misunderstand the questions that were

direct." Despite the IJ's invocation of the word "demeanor," it

is clear from his analysis – relying on evasiveness and

apparently intentional misunderstandings – that the IJ was

actually referring to Dehonzai's manner of responding to

questions rather than his physical appearance on the stand.

Indeed, there is no discussion in the decision of any physical

manifestation of Dehonzai's demeanor that would support an

adverse credibility determination on that ground. I would

therefore proceed under the rule that credibility determinations

-38-
that "rest 'on an analysis of the petitioner's testimony and not

her demeanor . . . receive less than usual deference.'"

Wiratama, 538 F.3d at 4 (quoting Heng v. Gonzales, 493 F.3d 46,

48 (1st Cir. 2007)).

Dehonzai appears from the record to have candidly

discussed every topic that arose in questioning.16 A review of

his candid responses would entail a regurgitation of the whole of

his testimony, but it is worth noting that even the name on his

friend's passport, which he withheld for some time out of fear

for his friend's well-being, was eventually relinquished. In

fact, the only specific evidence the IJ pointed to in support of

his finding that Dehonzai was evasive is that Dehonzai "g[ave] no

detail whatsoever, regarding the effect of his arrest and

subsequent hiding with Jean Baptiste, in terms of the effect it

must have had on his wife and children." Here, the IJ seems to

be calling for speculation rather than testimony. Dehonzai

testified that he had no contact with his wife, but that "if my

life is in danger, she went to her parents." He also testified

that he did not know for certain where his wife or children were,

16
Even the portions of Dehonzai's testimony that seem most
to have troubled the IJ – where the IJ was asking about the
circumstances under which Dehonzai was fired from his job – are
remarkably consistent. Dehonzai first testified that the firing
was politically motivated, then attempted to explain the political
motivation, then, when prompted to limit his answer to one
sentence, he did so: "Well, when I criticized the military who had
beaten my cousin, and I did, I expressed this criticism in the
workplace."

-39-
and that logistically he could not have brought his family to

safety here. It does not appear from the record that the IJ or

counsel sought any further information or detail during this

exchange. Thus, Dehonzai's testimony regarding his family was

hardly evasive, and the IJ's reliance on this testimony simply

makes no sense. Any reasonable adjudicator would be compelled to

conclude that Dehonzai was not evasive.

Overlooked Evidence

The majority next mentions that Dehonzai had plenty of

notice "of the need to buttress his case." In fact, he did so.

Given our mandate to review the record as a whole, we ought to

take a look at the swaths of relevant material in the record that

the IJ and BIA skipped over in rendering their decisions. Some

of this material was specific to Dehonzai, including the Toualy

letter and the potential arrest warrant.17 This relevant

17
The government ridiculed and the IJ dismissed a French-
language document which Dehonzai suggested was an arrest warrant,
making reference to the translation of that document as a
"certificate of investigation" indicating that Dehonzai "was
investigated for political activity." It is true that most
repressive regimes likely would not issue certificates indicating
that they had investigated individuals for political activity.
However, my own reference to the online version of the Pocket
Oxford-Hachette French Dictionary indicates that the French phrase
"est recherché," which was translated as "was investigated," is
also an idiom for "is wanted," as in: "il est recherché par la
police: he's wanted by the police." See recherché, Dictionaire
Français-Anglais WordReference.com. Thus, the phrase "est
recherché" in the purported warrant appears better translated as
"is wanted" rather than "was investigated," and the possibility
that the document actually is an arrest warrant is suddenly
bolstered.
Corroborating evidence from the country reports documenting

-40-
evidence deserved thoughtful consideration; instead, it received

out-of-hand rejections on irrelevant grounds.

More importantly, however, the IJ and BIA appear to

have ignored the Amnesty International and State Department

country reports (with the sole and notable exception of the much-

discussed Jules Toualy quote) that make up much of the record.

Although DHS regulations no longer expressly require a

credibility determination to be conducted "in light of general

conditions in the applicant's country of nationality," 8 C.F.R. §

208.13 (1997) (superseded by current version), we may still find

error where the IJ and BIA "unreasonably ignored these reports,

and gave no explanation for why [they] did so." Mukamusoni, 390

F.3d at 124. Indeed, "[s]uch documentary evidence is extremely

important for contextualizing, in the absence of direct

corroboration, the events which [an applicant] claims constitute

persecution." Id. (internal quotation marks removed). This

context can help a fact-finder in the "endeavor not to allow

preconceptions garnered from life in the United States to color

[an] evaluation of events that took place in foreign lands."

the proliferation of free-form warrants further counsels that we
reject the IJ's careless dismissal of this document. See Sok, 526
F.3d at 55 (remanding where the record contained some support for
the petitioner but none for the IJ's assumption). And as to the
majority's suggestion that argument regarding the warrant is
waived, Dehonzai's brief discusses the warrant at pages 5-6, argues
that he produced ample evidence to support his fear of arrest at
page 13, and discusses the corroborative value of the country
report at pages 14-15.

-41-
Sok, 526 F.3d at 56. Such nuance was and is lacking in the IJ,

BIA, and majority's respective reviews.

To sum up my view, this is the sort of case where "the

IJ and [BIA] misstate[d] [an immigrant's] testimony, appl[ied]

labels (like inconsistent and evasive) that are at odds with what

the transcript shows, and dr[e]w inferences that appear wholly

speculative and without record support." Castaneda-Castillo, 488

F.3d at 24. Indeed, I have examined "the IJ's and [BIA]'s

grounds and f[ou]nd each flawed to varying degrees." Kartasheva,

582 F.3d at 106. Thus, I at least "cannot conscientiously find

that the evidence supporting that decision is substantial," and I

think we ought to overturn the IJ's and BIA's decisions and

remand for a determination of the merits of Dehonzai's asylum

application. See Sok, 523 F.3d at 53.

Put another way: "the whole sometimes can exceed the

sum of the parts," as the majority quotes Mariko v. Holder, 621

F.3d 1, 6 (1st Cir. 2011); here, if each of the immigration

courts' errors were individually a rotting fish, the whole of

their decisions' stench would be truly unbearable.

Conclusion

If our review began and ended with deference, then

there would be no point to the exercise. Instead, the law

directs us to remand when the immigration courts pass down

erroneous or deficient decisions. Today my colleagues avert

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their eyes from such errors and deficiencies in the name of

deference, with the result that Dehonzai will be cast into the

middle of the very turmoil that led him to seek refuge with our

own Mother of Exiles in the first place. I cannot, and therefore

dissent.

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