Faustin Ilunga v. Eric Holder, Jr.

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-2064

FAUSTIN MUKADI ILUNGA,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Argued: October 28, 2014 Decided: January 27, 2015

Before GREGORY, FLOYD, and THACKER, Circuit Judges.

Petition for review granted; vacated and remanded by published
opinion. Judge Gregory wrote the opinion, in which Judge Floyd
and Judge Thacker joined.

ARGUED: Dana Joo Moss, COOLEY LLP, Washington, D.C., for
Petitioner. Catherine Bye, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Stuart F. Delery,
Assistant Attorney General, Cindy S. Ferrier, Assistant
Director, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
GREGORY, Circuit Judge:

Faustin Mukadi Ilunga, a citizen of the Democratic Republic

of the Congo, appeals the denial of his application for asylum

and protection under the Convention Against Torture (“CAT”). We

hold that the rejection of Ilunga’s asylum application, largely

on the basis of an adverse credibility finding, was not

supported by substantial evidence. We thus remand for further

proceedings.

I.

The following description of Ilunga’s travails in the Congo

and his journey to the United States is based on his asylum

application, testimony before the Immigration Judge (“IJ”), and

corroborating documentation in the record. The IJ’s adverse

credibility determination necessarily called into question the

trustworthiness of many of the facts alleged.

A.

Before fleeing to the United States, Ilunga lived in the

Congo with his wife and five children. In 2003, he joined the

Movement for the Liberation of the Congo (“MLC”), a political

party that actively opposed President Joseph Kabila in the

country’s 2006 elections. Ilunga was a paid employee and member

of the party, participating in highly visible campaign

activities and public appearances in the city of Lubumbashi.

2
 After the MLC candidate lost the 2006 election to President

Kabila, Ilunga’s political activism endangered him. Local

police and others loyal to President Kabila threatened Ilunga’s

life and vandalized his home. The police also killed two MLC

supporters with whom Ilunga worked during the campaign.

Increasingly fearful, Ilunga wrote a letter to his childhood

friend living in neighboring Zambia, Bernard Kabeya, expressing

his anxiety while accusing the president of assassinating his

father.

The letter was intercepted by government agents working for

the Congolese intelligence agency, the Agence Nationale de

Renseignements (“ANR”). On December 23, 2006, an undercover ANR

agent went to Ilunga’s home, blindfolded him, and drove him to

prison where he was interrogated. Ilunga admitted that he

authored the letter, and the ANR agent stated that Ilunga “would

be killed” as a result. A.R. 61. 1

The government sent Ilunga to prison where he spent more

than a month in a small cell shared with Jean Nkongolo Kalala.

Ilunga suffered daily torture. Prison guards stabbed him and

poured battery acid in the wounds. They shocked him with an

electrical club, routinely whipped him, and raped him.

1
Citations to the “A.R.” refer to the Administrative Record
filed by the parties in this appeal.

3
 On February 2, 2007, Ilunga and Kalala escaped from prison

with the help of a guard whom they paid off. The pair fled to

Zambia in the bed of a truck hauling copper. While Ilunga

remained in Zambia, the government tortured his family, raped

his wife, and burned his home.

On June 22, 2008, Ilunga and Kalala boarded a plane for the

United States. Ilunga’s wife and children fled to a Zambian

refugee camp.

B.

Ilunga arrived at Washington Dulles International Airport

without a visa. He told an immigration officer that he “left

[his] country for political reasons” and was “looking for

asylum.” A.R. 2006. He further specified that he was “afraid

to go back home” and had “no doubt” that he would be harmed

again if he returned to the Congo. A.R. 2006.

At a credibility hearing three weeks later, Ilunga attested

to his party membership, the threats against him as a result of

his political activity, the circumstances surrounding his

arrest, the torture he endured in prison, and his escape. The

asylum officer determined that Ilunga established a credible

fear of persecution.

C.

In May 2009, Ilunga filed his application for asylum,

withholding of removal, and CAT protection. The application is

4
consistent with the account he gave at the credibility hearing,

and it provides greater detail about the arrest and torture in

prison, including incidents when Ilunga was stabbed, shocked

with an electrical device on the genitals, sexually assaulted,

and beaten.

For supporting documentation, Ilunga provided:

• His affidavit, detailing his abuse and escape;

• A medical affidavit from Dr. Michael Viola, who
examined Ilunga in the United States and found that:
(1) Ilunga’s “reporting of his torture history and
symptoms are notable because of his consistent and
precise description of specific details and the
correlation of his history to his present symptoms and
physical findings”; (2) Ilunga’s psychological
symptoms are consistent with moderate post-traumatic
stress disorder (“PTSD”); (3) Ilunga’s physical
injuries are consistent with cuts with a sharp object,
and his chest wound is consistent with “delayed
healing of a wound secondary to infection or the
reported pouring of acid into the cut”; and (4)
Ilunga’s fear of return to the Congo is credible;

• An affidavit from Kalala, Ilunga’s cellmate, that is
consistent with Ilunga’s statements but does not speak
to the specific torture that Ilunga suffered in
prison;

• An affidavit from Bernard Kabeya, Ilunga’s friend in
Zambia, who confirmed Ilunga’s account of his time in
that country;

• Extensive documentation of country conditions in the
Congo, including descriptions of politically-motivated
violence, state-sponsored executions, forced
disappearances, torture in prison, and impunity for
rape;

• Ilunga’s reissued MLC membership card and a letter
from the MLC expressing concern “about his survival”
and attesting that his “activism on behalf of

5
 democracy in our country has caused him a lot of
trouble from the security officers who are in power
(ANR)”;

• Photographs purporting to show scars on Ilunga’s body
caused by his torture in prison;

• Letters from Ilunga’s wife and family warning about
conditions in the Congo and detailing their flight to
Zambia; and

• The refugee card, and registration attestation, issued
to Ilunga’s wife by the United Nations High
Commissioner for Refugees (“UNHCR”).
D.

Ilunga and Kalala testified at Ilunga’s removal hearing.

Ilunga’s primary language is Tshiluba, but he claimed to speak

French fluently, and a contract French interpreter translated

the proceedings. After reviewing the two days of testimony and

the record, the IJ found that Ilunga was not credible and denied

his application for asylum, withholding of removal, and CAT

relief.

Three pieces of testimony were central to the IJ’s

credibility determination. First, the IJ cited supposedly

inconsistent statements about the location of Ilunga’s torture

inside the prison, and whether Kalala witnessed it. Ilunga, the

IJ observed, stated that he was beaten away from his cell and

that only guards witnessed the beatings. In seeming

incongruity, Kalala’s translated testimony provides that “these

things took place in the same room where they spent their

nights” and that Kalala “was there” when guards stabbed Ilunga.

6
The IJ determined that such an inconsistency “cannot be

explained by a translation error, particularly as one claimed to

have witnessed the beatings in the same room in which they slept

while the other testified to have been taken to a different part

of the prison and to have been beaten with only guards present.”

Second, the IJ found inconsistencies in testimony regarding

the prayer practices of Ilunga and Kalala. Ilunga, the IJ

determined, was initially non-responsive when asked exactly how

the cellmates prayed together, and he was vague when pressed

about the timing and content of the prayers. Moreover, the IJ

claimed Ilunga was “hesitant and vague” when answering questions

about the frequency and timing of prayer.

Third, the IJ agreed with the government that there were

material inconsistencies in the dates on the MLC documentation

provided. The date on the membership card and the letter, the

IJ determined, was the day before Ilunga’s detention, even

though Ilunga claimed that his wife obtained the documents much

later while he was living in the United States. Moreover, the

IJ believed it was significant that the MLC letter did not

mention Ilunga’s arrest, “which would be expected if it had been

written when claimed and if there was a typographical error in

the date.”

Regarding the testimony as a whole, the IJ found that

Ilunga’s demeanor also supported the adverse credibility

7
finding, noting in a single sentence that Ilunga was non-

responsive and appeared uncomfortable answering some questions.

The IJ added in passing that “DHS has also raised some valid

concerns regarding plausibility and vagueness.”

Finding Ilunga incredible, the IJ determined, “necessarily

calls into question all aspects of [his] claim.” The IJ further

concluded in two sentences that Ilunga was not entitled to

asylum based on any independent evidence unrelated to those

credibility findings.

As for Ilunga’s application for CAT relief, the IJ

separately held that “there [was] not sufficient reliable,

independent evidence in the record to demonstrate that it is

more likely than not that the Respondent would be tortured if he

had to go back to the Democratic Republic of the Congo.”

E.

On July 25, 2013, the Board of Immigration Appeals (“BIA”)

upheld each of the IJ’s determinations, largely adopting the

IJ’s factual findings and reasoning. Specifically, the BIA

credited the IJ’s account of testimonial inconsistencies,

deferred to her demeanor observations, and agreed with her

assessment of the documentary evidence. The BIA additionally

affirmed the denial of CAT relief.

8
 II.

The Immigration and Nationality Act (“INA”) gives the

Attorney General the discretionary power “to grant asylum to

aliens who qualify as ‘refugees.’” Dankam v. Gonzales, 495 F.3d

113, 115 (4th Cir. 2007). To qualify, applicants must establish

they are unable or unwilling to return to their country of

nationality because of past persecution “or a well-founded fear

of persecution on account of race, religion, nationality,

membership in a particular social group or political opinion.”

8 U.S.C. § 1101(a)(42); see also id. § 1231(b)(3). An applicant

can establish eligibility simply by providing credible testimony

about his or her experiences. 8 C.F.R. § 208.13(a).

When the BIA affirms and adopts an IJ’s decision, this

Court reviews both decisions as the final agency action.

Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010). An

asylum order must be upheld unless “manifestly contrary to the

law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D). Our

review of an adverse credibility determination is specifically

limited to ensuring that substantial evidence supports it. See

Qing Hua Lin v. Holder, 736 F.3d 343, 351 (4th Cir. 2013)

(citing Dankam, 495 F.3d at 119). Although broad deference

extends to the agency’s determination, it “must provide

specific, cogent reasons” supporting its decision. Djadjou v.

Holder, 662 F.3d 265, 273 (4th Cir. 2011).

9
 A.

The REAL ID Act of 2005 requires that credibility

determinations be based on the totality of the circumstances,

including:

the demeanor, candor, or responsiveness of the
applicant or witness, the inherent plausibility of the
applicant’s or witness’s account, the consistency
between the applicant’s or witness’s written and oral
statements (whenever made and whether or not under
oath, and considering the circumstances under which
the statements were made), the internal consistency of
each such statement, the consistency of such
statements with other evidence of record . . . and any
inaccuracies or falsehoods in such statements, without
regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim.
. . .

8 U.S.C. § 1158(b)(1)(B)(iii). As this Court has held,

“omissions, inconsistent statements, contradictory evidence, and

inherently improbable testimony are appropriate bases for making

an adverse credibility determination.” Djadjou, 662 F.3d at

273.

The totality of the circumstances standard thus provides an

IJ with ample discretion in assessing credibility. It does not,

however, permit a judge to “cherry pick” facts or

inconsistencies to support an adverse credibility finding that

is unsupported by the record as a whole. Ai Jun Zhi v. Holder,

751 F.3d 1088, 1091 (9th Cir. 2014) (quoting Shrestha v. Holder,

590 F.3d 1034, 1040 (9th Cir. 2010)); see also Hanaj v.

Gonzales, 446 F.3d 694, 700 (7th Cir. 2006) (“The IJ cannot

10
selectively examine evidence. . . .”); Shah v. Att’y Gen. of

U.S., 446 F.3d 429, 437 (3d Cir. 2006) (same). Instead, an IJ’s

determination must take into account all the evidence submitted,

including independent documentary support. See Shah, 446 F.3d

at 437. Thus, at a minimum the IJ must consider the

petitioner’s explanation for any inconsistency to verify that an

inconsistency actually exists, and then evaluate whether the

discrepancy renders the entire testimony incredible in light of

the record as a whole. See Shrestha, 590 F.3d at 1044.

As described above, the IJ based her credibility

determination on four grounds: (1) testimony about the location

of Ilunga’s torture in prison; (2) testimony about the prayer

practices of Ilunga and Kalala inside their cell; (3) the dates

on the MLC membership card and letter obtained by Ilunga; and

(4) Ilunga’s demeanor during testimony. We consider each in

turn.

1.

When asked where he was “whipped” in prison, Ilunga first

testified that it was “inside the cell” and then stated he did

not understand a follow-up question about whether he was “in the

cell” with his cellmate at the time. Asked to elaborate,

Ilunga’s translated reply was: “Being as they called, they take

one out. They whipped you good and they take you back inside.”

Minutes later, when asked why he had told a doctor that he was

11
attacked outside his cell, Ilunga stated “[the abuse] was inside

the prison but not in the cell where I was staying in.” He

again struggled to understand follow-up questions about whether

he was additionally tortured “inside” the “cell.”

Kalala, meanwhile, testified that “he was there” when

Ilunga was tortured, and that the abuse “was in the same room

where we spent our nights.” On re-direct, in front of a

different translator, Kalala stated that the first translator

had used the French word for “jailhouse” instead of “room”,

leading to any discrepancy between his testimony and that of

Ilunga.

A single testimonial discrepancy, particularly when

supported by other facts in the record, may be sufficient to

find an applicant incredible in some circumstances. See

Djadjou, 662 F.3d at 275 (affirming an adverse credibility

finding when the applicant had testified she was in hiding, but

an eviction notice indicated that she was in her store on the

same day). But such an inconsistency provides inadequate

justification when, as here, there is a strong indication it

results from translation errors or language-based

misunderstanding, particularly when it is belied by an extensive

record of otherwise consistent statements and corroborating

evidence. See Shrestha, 590 F.3d at 1040 (observing that an IJ

may not “cherry pick solely facts favoring an adverse

12
credibility determination while ignoring facts that undermine

that result”).

As an initial matter, the trustworthiness of any

translation, when at issue, must be a relevant factor in the

agency’s analysis of the totality of the circumstances

supporting a credibility finding. Simply put, there must be

reasonable assurances that any inconsistencies in testimony are,

in fact, real and not the product of interpretation errors,

language-based confusion, or similar factors. See Perez-Lastor

v. INS, 208 F.3d 773, 778 (9th Cir. 2000) (“[A]n incorrect or

incomplete translation is the functional equivalent of no

translation: the alien must be able to understand the questions

posed to him and to communicate his answers to the IJ.”).

As is well established, a defective translation of an

immigration proceeding can amount to a constitutional due

process violation when: (1) the plaintiff can show he or she

did not “receive a full and fair hearing on [his or her]

claims,” Rusu v. INS, 296 F.3d 316, 321-22 (4th Cir. 2002), and

(2) the violation caused prejudice such that the results of the

proceedings were likely impacted, id. at 324 (citing Farrokhi v.

INS, 900 F.2d 697, 703 n.7 (4th Cir. 1990)). But even absent a

constitutional violation, “faulty or unreliable translations can

undermine the evidence on which an adverse credibility

determination is based.” He v. Ashcroft, 328 F.3d 593, 598 (9th

13
Cir. 2003) (citing Balasubramanrim v. INS, 143 F.3d 157, 162-64

(3d Cir. 1998)).

Determining whether a flawed interpretation fatally

undermines a credibility determination requires an examination

of direct and indirect evidence of error. The Eighth and Ninth

Circuits have sensibly identified three types of evidence that

“tend to prove that a translation was incompetent.” Perez-

Lastor, 208 F.3d at 778; Tun v. Gonzales, 485 F.3d 1014, 1029-30

(8th Cir. 2007) (adopting the Perez-Lastor framework). As

Perez-Lastor established:

First, direct evidence of incorrectly translated
words is persuasive evidence of an incompetent
translation. Second, unresponsive answers by the
witness provide circumstantial evidence of
translation problems. A third indicator of an
incompetent translation is the witness’s
expression of difficulty understanding what is
said to him.

208 F.3d at 778 (citations omitted).

Ilunga’s hearing transcript bears all three hallmarks of

unreliability. Before turning to the specific testimony

regarding the location of torture in the prison, it is

instructive to examine the hearing as a whole. The two days of

testimony were translated by two different interpreters, with

nearly all instances of potential confusion arising on the first

day. The transcript of that day reveals:

• An instance when the interpreter failed to
translate Ilunga’s statement that he was

14
 sexually assaulted in jail, an omission
caught by Ilunga’s attorney, leading to the
translator’s opaque admission after the fact
that he thought Ilunga “was not speaking
clearly and this interpreter, perhaps, what
he could hear from him [sic]” (A.R. 615);

• A repeated disconnect between questions and
answers (see A.R. 598 (Ilunga’s attorney
asked about threats made, and Ilunga
responded with a statement about damage done
in a store); A.R. 609 (the IJ asked about how
Ilunga was arrested, and Ilunga replied that
he had been told that two of his colleagues
had been killed, and that he was afraid);
A.R. 612-13 (Ilunga’s counsel asked Ilunga to
describe his prison, and Ilunga answered “I
do not know” and provided other disconnected
answers); A.R. 616 (Ilunga’s attorney asked
where his largest scar was, and Ilunga
pointed to his chest but answered it was “on
the right arm and on the right knee”); A.R.
639 (the government asked about where
Ilunga’s wife obtained an MLC letter, and
Ilunga replied “[b]ecause our party quarters
are located in Kinshasa”); A.R. 661 (the
government asked where an event took place,
and Kalala answered with when it took
place));

• At least 16 times during the first day’s
testimony when Ilunga or Kalala stated they
did not understand a question (see A.R. 592
(twice), 595, 604 (three times), 608, 609,
631, 636, 638, 641, 644, 646, 652, 653);

• An instance when Ilunga’s attorney believed
the interpreter translated Ilunga’s statement
as saying he suffered at the hands of the
political party he worked for, instead of the
party he opposed (A.R. 606);

• Confusion about whether Ilunga testified that
he told his wife and children to flee their
home while he was still in prison or after
(A.R. 634);

15
 • At least 11 times when the interpreter needed
a question repeated (see A.R. 585, 591, 593,
597, 602, 605-06, 609, 610, 621, 640, 643,
650); and

• Frequent grammatical errors and questionable
word choices (see, e.g., A.R. 585, 597-98).

Those red flags should inspire special caution before an IJ

parses translated statements to assess inconsistencies.

Indeed, here it is impossible to say that Ilunga’s

testimony was inconsistent with that of Kalala regarding the

location of torture because we do not know precisely what the

men testified to. Instead, the transcript reveals that the

cellmates were consistently, and genuinely, confused about the

questions regarding location. As one example, the IJ observed

that Kalala stated he saw the torture inflicted on Ilunga, in

apparent tension with Ilunga’s statement that he was beaten in a

different part of the prison with only guards present. Kalala,

however, was only translated as stating that he was “there” when

the stabbing and beatings took place. Thus, even taking the

translation on its face, it is unclear whether Kalala testified

that he “saw” the abuse or not. Furthermore, according to

Kalala’s statement during the second day of testimony, the first

translator used a French word that connotes “jailhouse” instead

of “room” when describing the cell in question, causing

confusion in his testimony. See A.R. 717. Neither the IJ nor

the BIA resolved which word was used, or whether Kalala’s claim

16
was correct. Instead, the BIA observed that Kalala nonetheless

testified that Ilunga “was beaten in the 10 square foot room

where they both slept.” Kalala, however, is only translated as

stating that he himself had been beaten in that “room,” not that

Ilunga was ever beaten there.

Against that backdrop, the IJ’s reliance on the alleged

testimonial inconsistency was unfounded. 2

2.

The IJ also based her credibility determination on asserted

inconsistencies in testimony regarding the prayer practices of

Ilunga and Kalala in prison. The IJ specifically determined

that Ilunga was initially non-responsive and then vague when

asked about his prayer practices. Moreover, the IJ found he was

“hesitant and vague” when asked about the frequency and timing

of his prayers.

2
That conclusion is further supported by the record as a
whole, indicating that Ilunga’s account of his arrest and
torture was otherwise consistent from the moment he stepped off
the airplane at Washington Dulles. His account is also
consistent with both the independent country condition reports
in the record and other independent documentary evidence. Such
documentary evidence includes confirmation of his family’s
flight from the Congo into Zambia, Ilunga’s MLC party membership
card and letter attesting to problems he faced as a result of
his activism, photographs of his wounds and burned home, letters
from family and friends, and the medical affidavit from
Dr. Viola. Dr. Viola, who examined Ilunga in the United States,
specifically concluded that Ilunga’s “reporting of his torture
history and symptoms are notable because of his consistent and
precise description of specific details and the correlation of
his history to his present symptoms and physical findings.”

17
 Tellingly, the BIA did not treat the prayer testimony as

inconsistent, but rather as part of the IJ’s demeanor

assessment. For good reason. The transcript reveals that there

was not a single substantive inconsistency between the testimony

of Ilunga and Kalala. Both testified they prayed together.

Both testified they knelt to pray. And both testified they

prayed for their release from jail. Nothing more was asked of

them.

Moreover, any hesitancy and vagueness cited by the IJ is

consistent with the repeated disconnect between questions and

answers throughout the proceeding – strong indirect evidence of

interpretation problems. The relevant portion of the transcript

is as follows:

Q: How often did you and he pray together?

A: I cannot say how many times.

Q: Okay. My question is how often? How many times a
day did you pray with him?

A: Every time.

Q: And exactly how did you and he pray together?

A: First, after my arrival in the prison, I did not
know him and I was afraid of him. I did not want
to know who he was. And the day I was cut on the
knee, that’s when I started praying in my native
language, in Tshiluba. And he heard me praying.
Then he said we are the same. We are coming from
the same region. Then he explained to me where he
came from. That’s when we decided to start praying
together.

18
 Q: And my question was, exactly how did you and he
pray together?

A: I don’t know.

Q: You don’t know how you and he prayed together?

A: We kneel down and we pray in our native tongue.

Such a labored exchange, when considered in the context of the

entire transcript, says more about communication failures than

it does about Ilunga’s credibility in answering the questions.

See Tun, 485 F.3d at 1031 (observing that language-based

difficulties in understanding can lend “an air of evasiveness

and confusion to the proceedings”).

The agency’s credibility determination, however, again

failed to consider the quality of the interpretation. And given

the otherwise consistent nature of the substantive testimony

regarding prayer practices, it was an abuse of discretion to use

such testimony to find Ilunga incredible.

3.

The IJ further cited Ilunga’s MLC membership card and

letter from the party as supporting an adverse credibility

finding. Both are dated December 24, 2006, the day after

Ilunga’s arrest. 3 Ilunga, however, testified that he asked his

wife to obtain the documents after he arrived in the United

3
The IJ incorrectly claimed that the card and letter are
dated a day before Ilunga’s arrest.

19
States in 2008. Such a discrepancy, the IJ concluded,

constituted a “material inconsistenc[y].”

The BIA, however, failed to meaningfully consider Ilunga’s

reasonable explanation for the apparent inconsistency.

According to Ilunga, MLC officials dated the documents to show

no lapse in membership after the ANR ripped up his original card

when he was arrested. Ilunga openly acknowledged in his

affidavit and live testimony that the card in the record was a

reissued replacement, and that his wife obtained it to help with

his asylum claim. Moreover, his description of the destruction

of his original card at the hands of security officials is

consistent with the documented practice “for government

officials to illegally arrest MLC party members and confiscate

their MLC party cards.” Br. of Appellants 31 (citing Amnesty

Int’l, Democratic Republic of Congo: Torture and Killings by

State Security Agents Still Endemic 328 (October 2007) (included

in the record at A.R. 386)).

In rejecting Ilunga’s account, the BIA merely observed that

he failed to make his explanation before the IJ, but the BIA

cited no authority for why it could not consider the explanation

on appeal. We conclude that any ambiguity that may exist about

the date on the card and letter is insufficient to sustain an

adverse credibility determination given Ilunga’s plausible

explanation, the agency’s conclusory treatment of it, the

20
absence of any contrary evidence, and the extensive record

corroborating Ilunga’s claim. The IJ’s presumption that MLC

officials should have dated the documents when Ilunga’s wife

requested them amounts to speculation and conjecture. See Ayi

v. Gonzales, 460 F.3d 876, 883-84 (7th Cir. 2006) (rejecting an

IJ’s “speculative leap” and determination that a party

membership card was forged based on a forensics analysis that

showed a “paper disturbance” on the card); Zuh v. Mukasey, 547

F.3d 504, 510 (4th Cir. 2008) (questioning “the appropriateness

of speculating about foreign documents” (citing Ayi, 460 F.3d at

883)); Lin-Jian v. Gonzales, 489 F.3d 182, 189 (4th Cir. 2007)

(observing that “we will not defer to an adverse credibility

finding that is based on speculation, conjecture, or an

otherwise unsupported personal opinion” (quoting Tewabe v.

Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (internal quotation

marks omitted)).

The IJ, however, also reasoned that if the letter had been

written when Ilunga claimed, it should have mentioned Ilunga’s

arrest. As we have previously observed, letters written by

political parties attesting to an individual’s political

involvement need not mention such arrests to be credible. Tassi

v. Holder, 660 F.3d 710, 724 (4th Cir. 2011) (finding

unpersuasive the government’s argument that letters describing

an individual’s political activities should have mentioned

21
arrests). In this case, Ilunga obtained the document to

corroborate his political involvement with the party, not as

evidence of his arrest. It is entirely speculative to suggest

that the party official should have both known of Ilunga’s

arrest and included it in the letter. Furthermore, the letter

does provide further independent confirmation that Ilunga

suffered persecution at the hands of the state on account of his

political activities. It specifically expresses concern “about

[Ilunga’s] survival” and attests that his “activism on behalf of

democracy in our country has caused him a lot of trouble from

the security officers who are in power. . . . It is in this

way that he has been threatened many times, searched and

intimidated during the presidential elections of 2006.”

The agency’s reliance on the MLC documentation to support

an adverse credibility determination was thus also unfounded

given the record as a whole.

4.

Finally, Ilunga urges this Court to reject the IJ’s

demeanor-based findings because the IJ failed to ground her

conclusions in specific facts. The IJ offered two principal

demeanor observations: (1) Ilunga and Kalala “appeared

uncomfortable when asked detailed questions concerning their

claimed time together;” and (2) Ilunga “appeared non-responsive

at times and uncomfortable answering some questions.” Such

22
statements echo those made regarding the prayer practice

testimony. Ilunga maintains that such broad-brush statements

are insufficient to provide a specific, cogent ground for an

adverse credibility determination.

An inherent tension exists in evaluating an IJ’s demeanor-

based conclusions in asylum proceedings. On the one hand, broad

deference understandably extends to a judge who is in the best

position to gauge the demeanor of a witness and the presentation

of testimony. See Rusu, 296 F.3d at 323. On the other hand,

linguistic and cultural differences, combined with the effects

of trauma, caution against normative determinations. See Dia v.

Ashcroft, 353 F.3d 228, 274, 277 n.6 (3d Cir. 2003) (en banc)

(McKee, J., concurring in part and dissenting in part) (sounding

caution about demeanor assessments based on cultural norms,

particularly for those who have been traumatized). Furthermore,

as previously observed, difficulties in understanding during an

asylum hearing can also lend “an air of evasiveness and

confusion to the proceedings.” Tun, 485 F.3d at 1031.

In affirming the IJ, the BIA summarily disagreed with

Ilunga’s argument that it was normal for a victim of torture to

appear “uncomfortable” given his experiences. The BIA’s

disagreement manifests a basic misunderstanding of the human

condition. In this case, the record suggests that Ilunga was

subjected to a pattern of vicious abuse, leaving both body and

23
mind scarred by the experience. As Dr. Viola diagnosed, Ilunga

suffered from moderate PTSD as a result of his experiences.

Forced to revisit that trauma at the immigration hearing, Ilunga

specifically testified about being raped by prison guards and

subjected to other forms of sexual abuse. The record also

indicates that he cried while testifying about the torture he

endured. For the BIA to dismiss the potential impact of such

torture on Ilunga’s testimonial disposition is unsettling. 4

Indeed, the ability to testify in a cool and collected manner

about an experience of torture would arguably raise greater

credibility concerns.

Finally, the IJ cited no specific behavior or mannerisms

that gave her pause. Instead, she merely stated that Ilunga

appeared “uncomfortable.” Such a conclusion fails to provide a

“specific, cogent reason[]” supporting a credibility

determination, particularly given both the aforementioned

4
In the context of a credibility determination, one should
expect moderate PTSD, which Ilunga was diagnosed with, to
influence the content of testimony at times, in addition to
testimonial demeanor. The agency’s totality of the
circumstances analysis should take into account the inherent
instability of memories that are naturally misshapen by time and
disfigured by trauma. See Zubeda v. Ashcroft, 333 F.3d 463, 476
(3d Cir. 2003) (counseling caution when analyzing testimonial
discrepancies that may be due to “numerous factors that might
make it difficult for an alien to articulate his/her
circumstances with the degree of consistency one might expect
from someone who is neither burdened with the language
difficulties, nor haunted by the traumatic memories”).

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interpretation issues and the nature of the testimony at issue.

See Djadjou, 662 F.3d at 273.

B.

Even if his testimony was incredible, we additionally find

that the IJ failed to sufficiently consider whether Ilunga

presented adequate independent documentary evidence to establish

asylum eligibility. As we held in Camara v. Ashcroft,

independent evidence may establish past persecution on a

protected ground even if an IJ finds the victim’s testimony to

be incredible. 378 F.3d 361, 370-71 (4th Cir. 2004); see also

Djadjou, 662 F.3d at 275. When actual past persecution can be

shown, “a presumption arises that [the applicant] has the

requisite level of fear of persecution, and thus she need not

prove the subjective component of ‘well-founded fear.’” Camara,

378 F.3d at 369-70 (quoting 8 C.F.R. § 208.13(b)(1)).

The central question here is thus whether the non-

testimonial evidence independently established that Ilunga

suffered persecution as a result of his political activities.

Such evidence need not include a “smoking gun” or direct proof

of persecution on account of political opinion. See INS v.

Elias-Zacarias, 502 U.S. 478, 483 (1992) (observing that an

asylum applicant must provide some “direct or circumstantial”

evidence of a persecutor’s motives). Instead, an applicant may

meet his or her burden by presenting a consistent body of

25
circumstantial evidence. See id. Here, the strongest pieces of

such independent evidence are: (1) the doctor’s report obtained

in the United States that concludes Ilunga’s wounds are

consistent with the torture he described; (2) the MLC membership

card and letter that expresses concern “about his survival” and

links Ilunga’s political activity with his suffering “a lot of

trouble from the security officers who are in power”; (3) the

UNHCR refugee card and registration attestation issued to

Ilunga’s wife, corroborating Ilunga’s statements that she was

forced to flee the Congo; (4) photographs, including those of

Ilunga’s scarred body and burned house; (5) Ilunga’s passport

showing he left the Congo for Zambia before entering the United

States; and (6) extensive documentation of country conditions,

describing pervasive violence against minority political parties

and activists.

Confronted with that body of evidence, the IJ discounted

the MLC documentation during her credibility analysis for the

reasons described above. She also stated that the medical

affidavit “does not prove what caused the medical issues noted”

and that additional letters from friends and family “do not

overcome the credibility concerns.”

We agree with the IJ that absent the MLC membership card

and letter, there is insufficient independent evidence in the

record to support Ilunga’s asylum claim. But in light of our

26
determination that the IJ improperly discredited the MLC

documentation, the agency should consider on remand whether the

documents, when combined with the other circumstantial evidence

in the record, establish that Ilunga was a member of the MLC,

was active in the party, and was persecuted as a result of his

political opinions. See Li v. Gonzales, 405 F.3d 171, 177 (4th

Cir. 2005) (observing that “[p]ersecution involves the

infliction or threat of death, torture, or injury to one’s

person or freedom, on account of one of the enumerated

grounds”).

III.

We thus grant Ilunga’s petition for review insofar as it

challenges the denial of his application for asylum, and we

vacate the BIA and IJ’s orders with regard thereto. 5 We remand

the case to the BIA for further proceedings consistent with this

opinion. If the BIA chooses to further remand the matter to an

5
We do not reach the question of whether Ilunga has
separately met his burden for CAT relief by demonstrating it is
more likely than not he would be tortured if returned to the
Congo. If the agency declines to grant Ilunga asylum on remand,
it should reconsider his CAT claim in a manner consistent with
the findings of this opinion.

27
IJ, we recommend that it schedule the case before a different

judge.

PETITION FOR REVIEW GRANTED;
VACATED AND REMANDED

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