A-S

Interim Decision #3336

In re A-S-, Respondent

Decided February 19, 1998

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

(1) Although the Board of Immigration Appeals has de novo review authority, the Board
accords deference to an Immigration Judge’s findings concerning credibility and credibil-
ity-related issues.
(2) The Board of Immigration Appeals defers to an adverse credibility finding based upon
inconsistencies and omissions regarding events central to an alien’s asylum claim where a
review of the record reveals that (1) the discrepancies and omissions described by the Immi-
gration Judge are actually present; (2) these discrepancies and omissions provide specific
and cogent reasons to conclude that the alien provided incredible testimony; and (3) a con-
vincing explanation for the discrepancies and omissions has not been supplied by the alien.
(3) Since an Immigration Judge is in the unique position to observe the testimony of an alien, a
credibility finding which is supported by a reasonable adverse inference drawn from an
alien’s demeanor generally should be accorded a high degree of deference, especially where
such inference is supported by specific and cogent reasons for doubting the veracity of the
substance of the alien’s testimony.

FOR RESPONDENT: Robert A. Murtha, Jr., Esquire, Washington, D.C.

BEFORE: Board En Banc: DUNNE, Vice Chairman, VACCA, HEILMAN, HOLMES,
HURWITZ, VILLAGELIU, FILPPU, COLE, MATHON, and JONES, Board Members. Dis-
senting Opinions: SCHMIDT, Chairman, joined by GUENDELSBERGER, Board Member;
ROSENBERG, Board Member.

HURWITZ, Board Member:

In a decision dated September 3, 1996, an Immigration Judge found the
respondent deportable as charged and denied his applications for asylum
under section 208(a) of the Immigration and Nationality Act, 8 U.S.C.
§ 1158(a)(1994), and withholding of deportation under section 243(h) of the
Act, 8 U.S.C. § 1253(h) (1994). In lieu of deportation, the Immigration Judge
granted the respondent the privilege of voluntary departure under section
244(e)(1) of the Act, 8 U.S.C. § 1254(e)(1) (1994). The respondent has
timely appealed the Immigration Judge’s decision denying the applications
for asylum and withholding of deportation. For the following reasons, we
will dismiss the respondent’s appeal.

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I. FACTUAL BACKGROUND
The respondent is a 29-year-old native and citizen of Bangladesh who
claims that he suffered past persecution and has a well-founded fear of perse-
cution in his native country on account of his political opinion. The respon-
dent entered the United States on September 2, 1994, without valid
documentation and shortly thereafter filed an Application for Asylum and for
Withholding of Deportation (Form I-589). After the initiation of these pro-
ceedings, the respondent submitted a second asylum application.1
The respondent testified at his deportation hearing that in 1985 he joined
the Jatiyo Party, the political party of then-President Mohammed Ershad. He
claimed that in 1987, the Jatiyo Party appointed him to the position of “Orga-
nizing Secretary” for his sub-district, a job that involved numerous duties,
including meetings with President Ershad twice a month. The respondent tes-
tified that in 1991, after President Ershad was defeated in general elections,
members of the Bangladesh National Party (“BNP”) and Awami League, two
rival political parties, began to search for him. Members of these political
parties allegedly planned to recruit the respondent or to kill him in retaliation
for his role in the Jatiyo Party.
The respondent then described the various incidents that form the heart of
his persecution claim. First, the respondent testified that on July 12, 1993,
BNP members forcibly entered his house in an effort to find him. Although
the respondent was not home at the time, the intruders threatened his parents.
In contrast, the respondent’s asylum application states that this incident
occurred on March 12, 1991. Also differing from the oral testimony, the asy-
lum application states the respondent was at home at the time of the intrusion
but that he hid from the BNP members.
Second, the respondent testified that later that same month (July 1993),
BNP and Awami League members returned to his house, and as he attempted
to flee, they severely beat him about the head with a bamboo stick. The
respondent claimed that he was rendered unconscious from the beating and
required 3 weeks of medical treatment. In contrast, the respondent’s asylum
application states that this incident occurred on January 10, 1992.
Next, the respondent described a third incident which occurred sometime
that same month (July 1993). This incident involved members of the BNP
and Awami League forcibly entering his house at approximately 11:00 p.m.
When these political opponents allegedly discovered that the respondent was
not at home, they physically assaulted members of his family.2 This incident
is nowhere described in his asylum application. The asylum application does,

1 Pursuant to 8 C.F.R. § 208.3(b) (1997), “[a]n application for asylum shall be deemed to

constitute at the same time an application for withholding of deportation.”
2 Although this incident closely resembles the first incident described by the respondent, the

direct examination of the respondent elicited a description of three separate incidents which
allegedly occurred in July 1993.

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however, recount that the respondent was involved in a July 1993 demonstra-
tion at which police physically attacked him, necessitating several days of
medical treatment. The respondent did not offer any testimony about this
incident at his deportation hearing.
Finally, the respondent testified that police issued a warrant for his arrest
on July 15, 1994, which falsely alleged that he had committed various politi-
cal crimes. In contrast, his asylum application states that police issued this
warrant on January 15, 1994.
Because he feared arrest and believed that he would endure further perse-
cution, the respondent secured a false passport and fled Bangladesh. The
respondent fears returning to Bangladesh because he believes that his politi-
cal opponents will kill him. Members of the BNP and Awami League alleg-
edly have told the respondent’s father that they are looking for the respondent
and plan to kill him.

II. THE IMMIGRATION JUDGE’S DECISION
Citing Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), the Immigra-
tion Judge found that the respondent’s testimony could not “be relied upon,”
and “was vague and lacking in specifics and details,” especially considering
the respondent’s alleged high-level participation in the Jatiyo Party. In his
decision, the Immigration Judge (1) provided numerous examples of the
respondent’s inconsistent testimony involving dates that conflicted with the
asylum application; (2) pointed out that the respondent failed to offer any tes-
timony regarding his participation in the July 1993 demonstration; (3) stated
that the respondent “seemed to have some confusion about the February of
1991 elections,” and gave contradictory testimony about whether the Jatiyo
Party and President Ershad actually took part in the elections or won any
seats; and (4) refused to give significant weight to two letters submitted by
the respondent to prove his party membership. In offering further support for
his adverse credibility finding, the Immigration Judge also observed that the
respondent testified in a “very halting” and “hesitant” manner.
After noting these concerns, the Immigration Judge concluded that the
sparse documentary evidence of record failed to support the respondent’s
allegations of persecution. Finally, he found that the respondent’s fear of per-
secution was not well founded considering the recent participation of the
Jatiyo Party with the coalition government, and he therefore denied the appli-
cations for asylum and withholding of deportation. As noted above, the
Immigration Judge granted the respondent the privilege of voluntary depar-
ture from the United States.

III. ANALYSIS
The respondent alleges on appeal that the Immigration Judge “acted in an
arbitrary and capricious manner by discounting [his] detailed oral testimony.”

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Without addressing any of the concerns raised by the Immigration Judge
regarding his lack of credibility, the respondent states in a conclusory fashion
that “his testimony is believable and sufficiently detailed to meet the standard
articulated in the [Board’s] decision [in] Matter of Mogharrabi.”
It is axiomatic that the Board has the authority to employ a de novo stan-
dard of appellate review in deciding the ultimate disposition of a case. Matter
of Burbano, 20 I&N Dec. 872, 873 (BIA 1994) (citing 8 C.F.R. § 3.1(d)(1)
(1994)). However, it is also well established that because the Immigration
Judge has the advantage of observing the alien as the alien testifies, the Board
accords deference to the Immigration Judge’s findings concerning credibility
and credibility-related issues. See Matter of Burbano, supra, at 874; Matter
of Pula, 19 I&N Dec. 467, 471-72 (BIA 1987); Matter of Kulle, 19 I&N Dec.
318, 331-32 (BIA 1985), aff’d, 825 F.2d 1188 (7th Cir. 1987), cert. denied,
484 U.S. 1041 (1988). Under certain circumstances, the Board may not
accord deference to an Immigration Judge’s credibility finding where that
finding is not supported by the record. See, e.g., Matter of B-, 21 I&N Dec.
66, 70 (BIA 1995); Matter of B-, 7 I&N Dec. 1, 32 (BIA 1955; A.G. 1956).
In this case, the Immigration Judge’s decision comprehensively enumer-
ates the reasons underpinning the adverse credibility determination. The
Immigration Judge focused not only on the inconsistencies and omissions
regarding the dates of key events forming the heart of the respondent’s perse-
cution claim, but he also relied on observations of the respondent’s
demeanor. Because our review of the record reveals that the Immigration
Judge’s findings are supported by specific and cogent reasons, and that rea-
sonable inferences and conclusions were drawn by him with regard to credi-
bility, we will not substitute our judgment for that of the Immigration Judge.

A. Inconsistencies and Omissions
The Immigration Judge focused much of the adverse credibility finding on
the inconsistencies and omissions regarding dates and events central to the
respondent’s persecution claim. See de Leon-Barrios v. INS, 116 F.3d 391,
393-94 (9th Cir. 1997) (holding that the Board correctly determined that the
Immigration Judge’s adverse credibility finding was supported by discrepan-
cies involving the heart of the applicant’s claim). As relates to this analysis,
our review of the record reveals that (1) the discrepancies and omissions
described by the Immigration Judge are actually present; (2) these discrepan-
cies and omissions provide specific and cogent reasons to conclude that the
respondent provided incredible testimony; and (3) the respondent has not
provided a convincing explanation for the discrepancies and omissions. As
stated above, under these circumstances, we find no reason to disturb the
Immigration Judge’s adverse credibility determination.
First, the record supports the Immigration Judge’s finding that the respon-
dent did, in fact, provide dates inconsistent with his asylum application and

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also omitted seemingly important events on his asylum application and while
testifying. The respondent testified about three separate events (involving the
BNP and/or Awami League entering his house), even though his asylum
application described only two such events. The respondent also testified that
the first event occurred on July 12, 1993, while his application states that this
event occurred on March 12, 1991. Additionally, the respondent testified that
the event involving the beating with a bamboo stick occurred in July 1993,
while his application states that this event occurred on January 10, 1992.
Moreover, the respondent testified that police lodged criminal charges
against him on July 15, 1994, while his application states that this event
occurred on January 15, 1994. In addition to these discrepancies, the respon-
dent did not testify concerning the July 1993 demonstration, in which he
allegedly was attacked physically by members of the BNP and national
police, necessitating several days of medical treatment; nor did his asylum
application reference the third encounter involving the BNP and Awami
League members entering his house in July 1993.
Second, we conclude that the Immigration Judge relied on specific and
cogent reasons concerning the above-described inconsistencies and omis-
sions. See Aguilera-Cota v. INS, 914 F.2d 1375, 1381 (9th Cir. 1990) (hold-
ing that any inferences drawn concerning the implausibility of factual
allegations must be supported by substantial evidence). We recognize that in
some cases, an applicant who has fled persecution may have trouble remem-
bering exact dates when testifying before an Immigration Judge. For exam-
ple, the Board has found that under certain circumstances, the failure to
provide precise dates may not be an indication of deception. See Matter of B-,
21 I&N Dec. 66, 70. However, in this case, the dates provided by the respon-
dent during his testimony were inconsistent with those in his asylum applica-
tion by more than 2 years—a significant period of time considering that the
respondent fled Bangladesh only 1 year after the alleged incidents. Aside
from the discrepant dates provided, and perhaps even more significant, is the
fact that the respondent conflated into 1 month (July 1993) the three events
allegedly involving forced entries into his house by BNP and/or Awami
League members. Furthermore, while omissions of facts in an asylum appli-
cation or during testimony might not, in themselves, support an adverse cred-
ibility determination, in this case the omission of key events is coupled with
numerous inconsistencies, and it is therefore another specific and cogent rea-
son supporting the Immigration Judge’s adverse credibility finding.
Third, the respondent’s appellate brief fails specifically to address the
Immigration Judge’s adverse credibility determination. Therefore, the record
still lacks a convincing explanation for the inconsistencies or omissions
addressed in the Immigration Judge’s decision. Cf. Matter of B-, 21 I&N Dec.
66 (accepting the applicant’s convincing reasons to reject the Immigration
Judge’s adverse credibility determination).

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B. Demeanor
We observe that the above-described inconsistencies and omissions alone
would be sufficient to support the Immigration Judge’s adverse credibility
determination. However, in addition, the Immigration Judge made observa-
tions regarding the respondent’s demeanor, specifically stating that the
respondent testified in a “very halting” and “hesitant” manner. See Kokkinis
v. District Director, 429 F.2d 938, 941-42 (2d Cir. 1970) (holding that “great
weight” should be afforded to the findings of the special inquiry officer who
conducted the deportation hearing because he had the opportunity to observe
the respondent’s demeanor and cited persuasive reasons for his adverse cred-
ibility finding). Again, we emphasize that the Immigration Judge is in the
unique position of witnessing the live testimony of the alien at the hearing.
See Matter of V-T-S-, 21 I&N Dec. 792, 796 (BIA 1997) (recognizing the
Immigration Judge’s “advantage of observing the alien as he testifies”); see
also Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1395 (9th Cir. 1985) (holding
that an Immigration Judge is in the unique position to observe the alien’s tone
and demeanor, to explore inconsistencies in the testimony, and to determine
whether the testimony has “the ring of truth”). Because an appellate body
may not as easily review a demeanor finding from a paper record, a credibil-
ity finding which is supported by an adverse inference drawn from an alien’s
demeanor generally should be accorded a high degree of deference. See, e.g.,
Cordero-Trejo v. INS, 40 F.3d 482, 487 (1st Cir. 1994) (holding that credibil-
ity findings based on demeanor findings deserve more deference than those
based on testimonial analysis); Paredes-Urrestarazu v. INS, 36 F.3d 801,
818-21 (9th Cir. 1994) (holding that credibility findings based on demeanor
findings deserve “special deference” when compared with those based on
testimonial analysis; and holding that the adverse credibility finding in this
case drew on legitimate inferences based on the alien’s demeanor coupled
with an accurate assessment of the record).
This is not to say that demeanor findings are subject to no scrutiny or criti-
cism by the Board. Under certain circumstances, for example, the Board has
found insufficient evidence to indicate that the respondent’s tendency to look
at the wall or table, instead of at the Immigration Judge, necessarily indicates
deception. Matter of B-, 21 I&N Dec. 66, 70; see also Paredes- Urrestarazu
v. INS, supra, at 818 (stating that nervousness is a factor properly considered
in assessing an alien’s credibility). In this case, however, the Immigration
Judge’s reasonable determination that the respondent’s very halting and hesi-
tant manner of testifying indicated deception is bolstered by the Immigration
Judge’s full range of specific and cogent credibility findings. For example,
the Immigration Judge specifically commented that the respondent’s testi-
mony was “all too often . . . vague and lacking in specifics and details.”
Therefore, the facts of the instant case stand in sharp contrast to those in Mat-
ter of B-, supra, at 70, where the Board was “impressed with the indications

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of the applicant’s truthfulness,” and found that the testimony was “entirely
consistent with the applicant’s detailed” asylum application. The instant case
is not one in which the alien delivered halting and hesitant testimony which
was nonetheless detailed and consistent in its factual content. Rather, the
respondent’s testimony is marked by inconsistencies and omissions, and the
Immigration Judge’s findings regarding the substance of the respondent’s
testimony provide additional support for the reasonable conclusion that the
respondent’s testimonial demeanor called his credibility into doubt. See Mat-
ter of Burbano, supra, at 874 (“[W]e also may give significant consideration
to other findings of an immigration judge that are based upon his or her obser-
vance of witnesses when the basis for those findings are [sic] articulated in
the immigration judge’s decision.”); Matter of Teng, 15 I&N Dec. 516, 518
(BIA 1975) (adopting the Immigration Judge’s adverse credibility finding
based on demeanor and inconsistencies).

IV. CONCLUSION
As the Board has held, a credibility determination “apprehends the overall
evaluation of testimony in light of its rationality or internal consistency and
the manner in which it hangs together with other evidence.” Matter of
Lugo-Guadiana, 12 I&N Dec. 726, 729 (BIA 1968). Examined under this
standard, coupled with observations of demeanor, and given the deference it
deserves, the Immigration Judge’s adverse credibility determination finds
ample support in the record. Because we adopt the Immigration Judge’s
well-supported determination that the respondent’s testimony cannot be
accepted as credible, it follows that the respondent has failed to satisfy his
burdens of proof and persuasion. See Matter of V-T-S-, supra, at 795 (“[A]n
applicant for asylum bears the evidentiary burdens of proof and persuasion in
any application for asylum . . . .”); 62 Fed. Reg. 10,312, 10,342 (1997) (to be
codified at 8 C.F.R. § 208.13(a) (interim, effective Apr. 1, 1997).
Because the respondent has not established statutory eligibility for asy-
lum, we need not address the issue of whether he warrants a favorable exer-
cise of discretion. See generally Osorio v. INS, 18 F.3d 1017, 1021 (2d Cir.
1994); Matter of H-, 21 I&N Dec. 337 (BIA 1996); Matter of Pula, supra
(discussing factors to analyze in exercising discretion).
Inasmuch as the respondent has failed to satisfy the lower burden of proof
required for asylum, it follows that he also has failed to satisfy the clear prob-
ability standard of eligibility required for withholding of deportation. See
Matter of Mogharrabi, supra. The evidence does not establish that it is more
likely than not that the respondent would be subject to persecution on account
of one of the five grounds specified in section 243(h) of the Act. See INS v.
Cardoza-Fonseca, 480 U.S. 421 (1987); INS v. Stevic, 467 U.S. 407 (1984).
In light of the foregoing, we will enter the following orders.
ORDER: The respondent’s appeal is dismissed.

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FURTHER ORDER: Pursuant to the Immigration Judge’s order
and in accordance with our decision in Matter of Chouliaris, 16 I&N Dec.
168 (BIA 1977), the respondent is permitted to depart from the United States
voluntarily within 30 days from the date of this order or any extension
beyond that time as may be granted by the district director; and in the event of
failure so to depart, the respondent shall be deported as provided in the Immi-
gration Judge’s order.

DISSENTING OPINION: Paul W. Schmidt, Chairman, in which John
W. Guendelsberger, Board Member, joined

I respectfully dissent.
I disagree with the enhanced standard of deference to the Immigration
Judge set forth in the majority opinion. That standard, while
well-intentioned, unduly restricts the de novo review authority of Board
Members and, in this particular case, produces an erroneous denial of
asylum.
We have de novo authority to make fact findings upon appeal. Matter of
B-, 7 I&N Dec. 1 (BIA 1955; A.G. 1956). As Board Members, we are autho-
rized to exercise independent judgment in deciding cases within our jurisdic-
tion. 8 C.F.R. § 3.1(a)(1) (1997). Upon such de novo review, and exercising
my independent judgment, I find that the respondent testified in a credible
manner.
Accepting the truth of the respondent’s testimony, I conclude that he has
established past persecution and a well-founded fear of future persecution in
his native country of Bangladesh. Finding no discretionary reason to deny
asylum, I would sustain his appeal and grant him asylum.

I. DE NOVO REVIEW IS DIMINISHED
In my view, the majority basically concludes that if the Immigration
Judge’s credibility finding is within a zone that could be reached by a reason-
able adjudicator, cites problems that actually are reflected in the record, and
is not convincingly challenged on appeal, it must be upheld upon appellate
review.
I recognize and appreciate the thought and effort that went into developing
and articulating this standard. It is a substantial improvement over the
conclusory references to “deference” contained in our prior precedents, and it
provides a plausible intellectual framework for future adjudications. I also
realize that application of this standard may well promote a more uniform
approach to deference among our various panels and that it is desirable that
the public have meaningful guidance as to the standard under which we con-
duct our appellate review of credibility determinations. I have three problems
with the majority’s approach to deference.

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A. We Are an Expert Tribunal
First, the majority’s standard is more appropriate to an appellate court of
general jurisdiction than it is to a specialized, expert administrative appellate
body such as our Board. This is of particular concern in the important area of
asylum adjudication. Asylum applicants are entitled to a practical, deferen-
tial adjudication that recognizes both the frailties of the human mind and the
chaotic, traumatic situations in which asylum claims arise. See, e.g., Matter
of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).
In many cases, the expertise, independence, and sound judgment of this
Board is all that stands between an asylum applicant and return to a place
where he or she will face persecution or death. It is quite possible that we
review more asylum adjudications than any other tribunal in the world. Cer-
tainly, each Board Member adjudicates many more asylum cases, from a
wider variety of nationalities, than any individual Immigration Judge. We
also have nationwide jurisdiction and a perspective that is not present in the
Immigration Courts.
While we may lack the advantage of a face-to-face observation of the wit-
ness, we have the very substantial, and much underrated, advantage of being
able to review a written transcript. We also have a talented professional staff
to assist us in reviewing the record. In addition, the absence of personal inter-
action with the parties and their counsel in the trial courtroom insulates us
from the almost inevitable, and often distracting, frustrations and extraneous
factors that could accompany such personal interaction, particularly in a
“high-volume” trial system like the Immigration Court. Moreover, we have
the opportunity for collegial discussion and the application of shared exper-
tise to difficult appellate issues.
Therefore, it is not clear to me why our vantage point is necessarily less
revealing than that of the Immigration Judge and why we want to give such
great deference to the Immigration Judge, rather than relying on our own
expertise and sound, independent judgment after review of the written record
on appeal. I find it interesting that the majority embraces a rule that strongly
prefers the assessment of credibility below to that we might reach through an
exercise of our own independent, expert judgment on a de novo basis.

B. Putting Uniformity in Context
My second problem with the majority’s rule is that the uniformity we may
achieve through its application is likely to make it more difficult for an asy-
lum applicant who has received an adverse credibility finding to prevail on
appeal. The overwhelming majority of appeals that we adjudicate are from
aliens, rather than the Immigration and Naturalization Service. In the asylum
area, almost all credibility appeals involve an alien who has been found
incredible by an Immigration Judge. A significant number of appellants,

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even in asylum cases, are unrepresented, and others are represented in what
we might consider a marginal fashion.
In effect, we are instructing Board Members to defer to reasonable rulings
by Immigration Judges even where another outcome might have been justi-
fied on the record. I have considerable misgivings about this rule, particularly
in asylum cases, notwithstanding its apparent administrative and systemic
advantages. Also, while the majority’s rule is likely to achieve more uniform
affirmation of adverse credibility findings on appeal, it does not, in any way,
promote uniformity of credibility decisions among the many Immigration
Courts.

C. Correct Results?
While the majority’s rule might well help to promote appellate results that
are uniformly “within the zone of reasonable,” reasonable results are not nec-
essarily correct results in individual cases. Obviously, credibility findings are
often judgment calls, and reasonable adjudicators can, and often do, reach
opposite conclusions on the same or similar facts.
My primary problem with the majority’s rule is that, as applied to the case
before us, it produces a result that is, perhaps, within the zone of reasonable
outcomes, but not, in my view, the correct or best outcome. In the future, I
undoubtedly will be required by the majority’s standard of deference to vote
for other facially reasonable results that my expertise and judgment tell me
are wrong as applied to the individual appellant. Such a rule gives me pause.

II. DE NOVO REVIEW PRODUCES A DIFFERENT RESULT
A. The Respondent’s Testimony
In the particular case before us, the respondent is a 29-year-old native and
citizen of Bangladesh who entered the United States on September 2, 1994,
without valid documentation. The respondent testified at his deportation
hearing that in 1985 he joined the Jatiyo Party, the political party of
then-President Mohammed Ershad. In 1987, the respondent was appointed to
the position of Organizing Secretary for his sub-district, a job that involved
numerous duties, including weekly meetings with President Ershad. The
respondent testified that in 1991, after President Ershad was defeated in gen-
eral elections, members of the Bangladesh National Party (“BNP”) and
Awami League, two rival political parties, began to search for him. Members
of these political parties allegedly planned to recruit the respondent or to kill
him in retaliation for his role in the Jatiyo Party.
The respondent testified that on July 12, 1993, BNP members forcibly
entered his house in an effort to find him. Although the respondent was not at
home at the time, the intruders threatened his parents and physically
assaulted other family members in the house. Later that month, BNP and

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Awami League members returned to the respondent’s house, and as he
attempted to flee, they severely beat him about the head with a bamboo stick.
The respondent, who was rendered unconscious from the beating, required
medical treatment for 3 weeks after the incident. Finally, the respondent testi-
fied that police issued a warrant for his arrest on July 15, 1994, falsely alleg-
ing that he had committed various political crimes.
Because he feared arrest and believed he would endure further persecu-
tion, the respondent secured a false passport and fled Bangladesh. The
respondent fears returning to Bangladesh because he believes that his perse-
cutors will kill him. Members of the BNP and Awami League have told the
respondent’s father that they are looking for the respondent and plan to kill
him.

B. The Immigration Judge’s Decision
Citing Matter of Mogharrabi, supra, the Immigration Judge found that the
respondent’s testimony “was vague and lacking in specifics and details.” In
his decision, the Immigration Judge provided various examples of the
respondent’s inconsistent testimony, most of which involved dates that con-
flicted with his asylum application. The Immigration Judge concluded that
the sparse documentary evidence of record failed to support the respondent’s
unbelievable allegations of persecution. Finally, the Immigration Judge
found that the respondent’s fear of persecution was not well founded consid-
ering the recent participation of the Jatiyo Party with the coalition govern-
ment, and he therefore denied the applications for asylum and withholding of
deportation.

C. De Novo Analysis
The respondent alleges on appeal that the Immigration Judge erred “by
discounting the detailed oral testimony of [the respondent].” The respondent
contends that his testimony was believable and sufficiently detailed to sup-
port adequately his asylum claim. The Ser6ice has not filed an appella4e brief
addressing this argument.
Although the Immigration Judge recognized that the respondent submit-
ted documentary evidence and background materials to support his asylum
application, the Immigration Judge decided to give “little weight” to certain
pieces of this evidence. Specifically, the Immigration Judge afforded little
weight to two letters submitted by the respondent from the president and sec-
retary of the local chapter of the Jatiyo Party in Bangladesh’s Shunamgonj
District. I disagree with the Immigration Judge’s assessment that the respon-
dent “seemed to have very little knowledge as to how those letters were
obtained.”
I observe, as did the Immigration Judge, that these letters are undated.
However, the respondent testified at his hearing that he asked his father, who

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still lives in Bangladesh, to secure these letters from the Jatiyo Party in order
to substantiate his claim of party membership. He also testified, plausibly,
that his father mailed the letters to him in the United States approximately 4
to 6 months prior to the deportation hearing. I do not agree, therefore, that the
letters deserved limited probative weight.
Next, the Immigration Judge concluded that the respondent’s testimony
was “vague, lacking in specifics and details,” and was delivered in a halting
manner. However, the record reveals that the respondent provided numerous
specific details to support his claim. For example, the respondent demon-
strated his knowledge of how President Ershad organized Bangladesh into
district and sub-district level administration. The respondent testified that
there were 360 subdistricts and 64 districts in Bangladesh. He also provided
details regarding his position as a party “organizing secretary” at the
sub-district level.
Furthermore, although I obviously did not have the benefit of observing
the manner in which the respondent testified, I decline to assume that his
“halting” manner of testifying indicated that he was untruthful, especially
when considering the nervousness that is often precipitated by appearing at a
tribunal in any country, let alone a foreign country. See Matter of B-, 21 I&N
Dec. 66 (BIA 1995) (finding that the respondent’s tendency to look at the
wall or table, instead of at the Immigration Judge, did not necessarily indicate
deception). See generally Paredes-Urrestarazu v. INS, 36 F.3d 801, 818 (9th
Cir. 1994) (stating that nervousness is a factor properly considered in assess-
ing credibility). My own professional experience and observation is that halt-
ing delivery of a presentation in a formal setting often has causes other than
untruthfulness.
The Immigration Judge also stated in his oral decision that the respondent
“seemed to have some confusion about the February of 1991 elections,” and
gave contradictory testimony about whether the Jatiyo Party and President
Ershad actually took part in the elections or won any seats. However, my
reading of the record indicates otherwise.
Although the respondent first stated that the general elections occurred in
September 1991, he soon thereafter stated correctly that they occurred in
February 1991. The respondent demonstrated his familiarity with the elec-
tion results, explaining that Jatiyo Party members were elected and that Presi-
dent Ershad contested the election. The respondent also testified that
President Ershad was imprisoned, but was “nominated from prison” for the
presidency. The Department of State’s Comments on Country Conditions
and Asylum Claims for Bangladesh confirm that the Jatiyo Party won 35 Par-
liamentary seats in the 1991 elections and that President Ershad remains in
prison (although this source does not reveal when President Ershad was
imprisoned). Bureau of Democracy, Human Rights and Labor, U.S. Dep’t of
State, Bangladesh - Comments on Country Conditions and Asylum Claims
(May 1995) [hereinafter Comments]. In light of these facts, I do not agree that

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the respondent supplied vague or confusing testimony about the participation
of the Jatiyo Party or President Ershad in the 1991 elections.
The Immigration Judge’s concerns about the respondent’s credibility also
centered on testimony concerning dates when he met with President Ershad.
After testifying that he joined the Jatiyo Party in 1985, the respondent stated
that he met with President Ershad in 1982. When confronted with that dis-
crepancy, the respondent stated that he could not give the exact dates because
he did not quite remember them. I note that the respondent testified that he
has trouble remembering things, which could be one of a number of reasons
for the discrepancy.
I also recognize that the respondent gave dates in his testimony about
when rival political parties harmed or attempted to harm him that differed
from his written asylum application. The Immigration Judge noted that the
respondent testified that members of rival political parties looked for him at
his family’s house in July 1993. The respondent also testified that later the
same month, the same people returned and found the respondent, thereupon
beating him with a bamboo stick. The Immigration Judge contrasted this tes-
timony with the respondent’s asylum application, which states that in March
1991, members of rival political parties looked for him at his family house
and that in January 1992, the same people beat him with a bamboo stick. The
Immigration Judge also noted that the respondent failed to testify about an
incident described in his asylum application, which states that in July 1993,
members of the BNP and the police beat him while he was demonstrating.
The dates provided in the respondent’s testimony do not match the dates
provided in his asylum application. However, as discussed above, the respon-
dent asserted while testifying that he has trouble remembering dates, a char-
acteristic that was most likely compounded by the fact that many incidents
involving the respondent and rival political parties occurred. Difficulties in
remembering dates are certainly a common problem with respect to victims
of persecution. See generally Tina Rosenberg, To Hell and Back, New York
Times Magazine, Dec. 28, 1997, at 32, 34. For example, according to that
recent article on refugees who had been victims of torture:
Early studies suggest that the brain processes a traumatic event very differently from an
everyday one and might keep the trauma from being integrated with other memories. That
may explain why trauma sufferers have amnesia or can retrieve only fragments, like a smell
or sound, or cannot put the events behind them.
Id. at 34.
Our decisions have been circumspect about using dates as a basis for
adverse credibility findings in asylum cases. See Matter of B-, 21 I&N Dec.
66, 70. I also observe that the respondent was not given an opportunity to
explain the events surrounding the July 1993 demonstration, and he
remarked at the end of his hearing that he had not completely addressed the
full range of events while testifying.

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Overall, the respondent presented oral testimony that was sufficiently
detailed and plausible when considered in conjunction with the background
evidence in the record concerning conditions in Bangladesh. See Matter of
Mogharrabi, supra. The “omissions” from the asylum application relied
upon by the majority do not seem remarkable or particularly significant in the
overall context of the case. The real issue is whether respondent’s testimony
is negated because it contains dates that differ from those in the respondent’s
written asylum application.
The majority concludes, as reasonable adjudicators perhaps could, that the
respondent is likely an imposter who has fabricated his claim, or the material
portions of it. I, on the other hand, take him for what he appears to me to be: a
persecuted individual with a less than perfect memory who was not properly
prepared to testify at his asylum hearing.
The majority also relies on the failure of counsel to specifically address the
adverse credibility determination on appeal. While it undoubtedly would
have been helpful if counsel had done a better job in his brief, he did, in fact,
identify credibility as a disputed issue. The failure of counsel to be more spe-
cific is certainly annoying and inconvenient for us, but obviously has not pre-
vented us in any meaningful way from being able to identify and discuss in
detail the relevant issues raised by this appellate record.
I tend to doubt that important issues such as asylum should turn to such a
great degree on the amount of enlightenment that counsel is able to provide to
us, an already expert Board whose sole function it is to review appellate
records. It is also noteworthy that imperfect though counsel’s appellate effort
might have been, it is still more edifying than that put forth by the Service,
which, thanks to the majority’s generous definition of deference, has pre-
vailed in this case without even bothering to take a position on appeal.
In reviewing the record de novo, I find that it does not warrant an overall
adverse credibility finding. See Matter of V-T-S-, 21 I&N Dec. 792, 796 (BIA
1997) (citing Matter of Dass, 20 I&N Dec. 120 (BIA 1989), modified on
other grounds, Matter of Mogharrabi, supra); Matter of Kasinga, 21 I&N
Dec. 357, at 364 (BIA 1996). In my view, the confusion or discrepancies con-
cerning temporal details does not indicate that the respondent fabricated his
claim, nor does it undermine his claim to such a degree as to negate the
claim’s substance. See Matter of Lugo-Guadiana, 12 I&N Dec. 726, 729
(BIA 1968) (holding that a credibility determination “apprehends the overall
evaluation of testimony in light of its rationality or internal consistency and
the manner in which it hangs together with other evidence”) (citation omit-
ted). See generally Paredes-Urrestarazu v. INS, supra, at 817.

D. Past Persecution
Accepting as true the events related in the respondent’s testimony, I find
that the respondent was persecuted by members of the BNP and Awami

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League “on account of” his political opinion. See section 101(a)(42)(A) of the
Act, 8 U.S.C. § 1101(a)(42)(A) (1994); Perlera- Escobar v. Executive Office
for Immigration, 894 F.2d 1292 (11th Cir. 1990); Matter of H-, 21 I&N Dec.
337 (BIA 1996); 62 Fed. Reg. 10,312, 10,342 (1997) (to be codified at 8
C.F.R. § 208.13(b)(1) (interim, effective Apr. 1, 1997). The respondent’s tes-
timony, which is supported by documentary evidence, reveals that the respon-
dent was a member of the Jatiyo Party and enjoyed access to President Ershad.
The evidence establishes that members of the BNP and Awami League, who
were aware of the respondent’s party membership, severely beat him because
of his political opinion. The respondent also testified credibly that the
BNP-controlled government police issued a warrant for his arrest, based on
false allegations, using their authority under the Special Powers Act of 1974.
The respondent’s claim finds support in the State Department’s Comments,
supra, at 7, which acknowledge that the Special Powers Act “is used as a
method of preventive detention and in some cases to settle political scores.”

E. Future Persecution
“A finding of past persecution gives rise to a regulatory presumption that
the applicant has a well-founded fear of future persecution.” Matter of H-,
supra, at 346. Here, I find that the Service did not rebut the presumption that
the respondent has a well-founded fear of persecution upon returning to Ban-
gladesh. See INS v. Elias-Zacarias, 502 U.S. 478 (1992); INS v.
Cardoza-Fonseca, 480 U.S. 421 (1987); Matter of C-A-L-, 21 I&N Dec.
3305, at 4 (BIA 1997) (citing Matter of Mogharrabi, supra); 8 C.F.R.
§ 208.13.
From this record, it is reasonable to conclude that government authorities
and political party members who targeted the respondent in the past continue
to have the inclination and the ability to punish the respondent for his politi-
cal beliefs. See Matter of D-V-, 21 I&N Dec. 77 (BIA 1993). This is espe-
cially true considering that the respondent fled Bangladesh while a warrant
for his arrest (on allegedly trumped-up charges) remains outstanding. Evi-
dence of current country conditions in Bangladesh also supports the respon-
dent’s concerns for his physical safety should he return to his native country.
Although the Comments, supra, at 7, assert that Jatiyo Party members “are
not subject to systematic persecution by the government,” the State Depart-
ment’s Country Reports on Human Rights Practices for 1995 (incorporated
by reference into the Comments and the State Department Advisory Opinion)
provide some support for the respondent’s well-founded fear of persecution.
Committees on International Relations and Foreign Relations, 104th Cong.,
2d Sess., Country Reports on Human Rights Practices for 1995 (Joint
Comm. Print 1996) [hereinafter Country Reports]. Specifically, the Country
Reports indicate that “[v]iolence, often resulting in killings, is a feature of the
political process.” Id. at 1295.

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The record also contains a State Department Advisory Opinion dated
August 9, 1996. See 62 Fed. Reg. 10,312, 10,341-42 (1997) (to be codified at
8 C.F.R. § 208.11) (interim, effective Apr. 1, 1997) (entitled “Comments
from the Department of State”). Notwithstanding that the State Department
Opinion recognizes that the Jatiyo Party won 29 Parliamentary seats in the
June 1996 elections and is supporting the Awami League-led government,
the opinion concludes that “politics in Bangladesh is violence-prone.”
Against this factual context, I find that a reasonable person in the respon-
dent’s circumstances would fear persecution upon return to Bangladesh, and
the Service has provided insufficient evidence to rebut this presumption with
respect to this individual respondent.
Based on the foregoing, I conclude that the respondent suffered past perse-
cution on the basis of his political opinion, and that a reasonable person in his
position would have an objective basis (that is, a 10 percent chance) to fear
persecution on the basis of political opinion. See INS v. Cardoza-Fonseca,
supra, at 430-32.
Although the respondent entered the United States with fraudulent docu-
mentation, I find that this does not warrant an unfavorable exercise of discre-
tion in this case. I therefore would grant the respondent’s request for asylum.
See Nkacoang v. INS, 83 F.3d 353 (11th Cir. 1996); Matter of H-, supra; Mat-
ter of Pula, 19 I&N Dec. 467 (BIA 1987) (discussing factors to analyze in
exercising discretion); 62 Fed. Reg. 10,312, 10,342-43 (1997) (to be codified
at 8 C.F.R. § 208.14) (interim, effective Apr. 1, 1997).

III. CONCLUSION
Perhaps the future of this Board is to move away from de novo review of
factual issues and to confine ourselves to the more comfortable area of
resolving disputed legal points. Maybe, in the long run, we should function
more like an appellate court than a group of subject matter experts seeking to
do justice in individual cases within our jurisdiction. Possibly, the appellate
uniformity and restraint promoted by the majority’s rule will outweigh the
disadvantage of requiring individual Board Members to affirm reasonable,
but arguably incorrect, decisions by Immigration Judges in certain cases.
Nevertheless, at present, I am not convinced that the majority’s concept of
deference justifies its restriction on true de novo review. I also believe that it
has led them to the wrong result in this asylum case.
Consequently, I respectfully dissent.
DISSENTING OPINION: Lory D. Rosenberg, Board Member
I respectfully dissent.
In denying the appeal before us and designating it as a precedent decision,
the Board majority articulates, as an adjunct to its recent precedent decisions
governing asylum adjudications, a three-part test related to determining

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credibility. Notwithstanding my agreement that, theoretically, establishing
guidelines furthers the cause of fairly and reasonably assessing evidence in
the asylum context where the issues presented often involve life and death
consequences, I cannot join this decision.
In my opinion, the usefulness of the test announced today, and its value as
a means either to assess the factual underpinnings of an asylum seeker’s
claim or to determine the legal conclusions we draw under INS v.
Cardoza-Fonseca, 480 U.S. 421 (1987), is belied by the outcome reached by
the majority. Whatever the intentions of those joining the majority decision,
this test was invoked today to deny the existence of a well-founded fear of
persecution. I dare say, based on my participation in recent published deci-
sions and my reexamination of past published decisions, it will not be the last
time.
In the context of asylum claims, credibility determinations are findings
that are inextricably tied to the respondent’s burden of proof and can make or
break a claim. I do not agree that the burden of proof imposed generally on
asylum seekers by the majority’s test in this case or in its predecessors is an
appropriate one. See, e.g., Matter of Y-B-, 21 I&N Dec. 1136 (BIA 1997); id.
(Rosenberg, dissenting); Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997); id.
(Rosenberg, concurring); see also Matter of O-D-, 21 I&N Dec. 1079 (BIA
1998); id. (Rosenberg, dissenting). Even if the imposition of this burden as
articulated were appropriate, I have not found the factual records made in the
majority of hearings that I have reviewed over the past 2 1/2 years to be fully
considered and assessed by either the Immigration Judge or the Board. My
differences with the majority’s readings of the factual records in many cases
and the legal conclusions they have drawn from them are addressed in my
separate opinions in Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997); Matter
of E-P-, 21 I&N Dec. 860 (BIA 1997); Matter of T-M-B-, 21 I&N Dec. 775
(BIA 1997); Matter of V-T-S-, 21 I&N Dec. 792 (BIA 1997); and Matter of
C-A-L, 21 I&N Dec. 754 (BIA 1997). The concerns with the limitations pre-
sented by the standard we articulated and about which I cautioned in Matter
of S-M-J-, supra (Rosenberg, concurring), have, regrettably, been realized.
In addition, unlike the Chairman, I do not view the approach taken by the
majority in this case as merely one way, among reasonable possibilities, to
adjudicate the respondent’s claim on appeal. I find the three-part test imposed
by the majority to be unreasonable, both in conception and in application, and
to fall short of what is required of us by law. Consequently, I dissent and
write separately in an effort to clarify both where I believe that the majority
has erred, and to suggest what a prudent asylum seeker must do to satisfy the
asylum law as we apply it at the Board of Immigration Appeals, which, for
most practical purposes, is how we apply it in this country.

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I. TREATMENT OF DISPARITIES IN AN ASYLUM CLAIM IN
RELATION TO THE ASYLUM SEEKER’S CREDIBILITY AND
BURDEN OF PROOF
I will not belabor the particulars of the respondent’s claim or the better
ways to interpret and judge it, as Chairman Paul W. Schmidt has done a yeo-
man’s job in articulating the salient points in that regard in his dissent. Suf-
fice it to say that, as I read the heart of the claim as presented in the record
before us, the respondent has provided evidence of his membership in a polit-
ical party and evidence of persecutory actions taken against him by opposing
political forces as a result of his membership and political affiliation.
These basic facts are not controverted or contradicted in any way,
although the record contains disparities between the respondent’s application
for asylum and the testimony he provided at his hearing with regard to the
dates on which he and his family were attacked by members of the opposing
political parties. Inasmuch as our process, in practice, does not provide the
possibility of a meaningful clarification of these discrepancies, based on the
fact that I do not find these discrepancies to go to the heart of the respondent’s
claim and the principle that asylum seekers should be given the benefit of the
doubt, I would grant asylum.
The crux of the matter in this case is whether, despite his having to make
corrections during his testimony as to when the events testified to occurred,
the respondent failed to provide evidence that is credible. Put another way, is
it reasonable, fair, appropriate, or lawful for the majority to uphold the deci-
sion of the Immigration Judge that the respondent lacked credibility requir-
ing denial of his claim? I do not think that question can be answered in the
affirmative. As I noted in my concurrence in Matter of S-M-J-, supra, at 733:
Perhaps what is most important about this decision is what we are not holding. Nowhere do
we propose that an asylum seeker is presumed to be fabricating her claim or otherwise to
lack credibility. Figeroa v. INS, 886 F.2d 76 (4th Cir. 1989) (emphasizing that the fact an
applicant is an alien does not mean the Board is entitled to presume he is a liar). . . . In other
words, there is no presumption that an asylum applicant’s testimony is to be treated as other
than truthful . . . .
But that is not what we are holding here today, is it? Today, according to
the majority, we are stating that certain discrepancies, alleged to be “actual”
and supported by allegedly specific and cogent reasons, undermine the
respondent’s claim of persecution. That an asylum seeker’s testimony before
the Immigration Judge is internally consistent does not seem to matter. That
an asylum seeker provided an explanation for discrepancies between his
written application and his testimony regarding the dates he assigned to
events that make up the core of his claim of persecution also is disregarded.

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A. Proper Allocation of Presumptions and Burdens
The majority treats the disparities in the respondent’s recitation of the
dates on which the attacks against him and his family occurred at worst, as
revealing his claim, in its entirety, to be a sham, and at best, as defeating his
burden of proof. Rather than rule on the merits of the respondent’s appeal on
the record as a whole, the majority has chosen to sidestep that determination
and curtail administrative appellate review in favor of what amounts to a pre-
sumption that any discrepancies in the record made in the case of an asylum
seeker cast doubt on the entirety of his claim, relieving us of our responsibil-
ity to review his claim on appeal. See Matter of O-D-, supra. Nevertheless,
given the cited disparities in the record before us, the critical question for
both the Immigration Judge and the Board is—or should be—what further
steps should we take to ascertain what occurred and to judge the respondent’s
claim?1 Matter of S-M-J-, supra.
If we wish to reduce asylum admissions and simply deny the claim out-
right, we can pinpoint every discrepancy, claiming that each goes to the heart
of the claim. We can applaud, or at least not criticize, the Immigration Judge,
no matter what shortcomings appear in his or her decision and what outstand-
ing questions or concerns remain in our minds. We can differentiate our role
as an appellate administrative Board and simply, narrowly interpret our
appellate authority and defer to the decisions made in the denials appealed to
us. And we can, at the same time, alleviate any burden on the Immigration
Judge to actually determine the underlying facts making up the asserted
claim of persecution. In my view, in imposing its three-part test, the majority
has elected to do all of the foregoing. These are not my objectives, and even if
they are not meant to be the objectives of those joining the majority, they are
furthered by this decision.
As a practical matter, a presumption, at worst of fraud and at best of inade-
quacy, has insinuated its way into all asylum adjudications made by the
Board. I venture to guess that such a presumption exists in many adjudica-
tions of asylum claims conducted by Immigration Judges. By contrast, this is
not consistent with the humanitarian nature of asylum determinations. See
Matter of Pula, 19 I&N Dec. 467, 476 (BIA 1987) (Heilman, concurring)
(recognizing that asylum provisions are humanitarian in their essence and
that the “normal” immigration laws cannot be applied in their usual manner
to refugees).
There is no basis in the law for such a presumption. Indeed, in Matter of
S-M-J-, supra, we cited with approval the guidelines for asylum adjudicators
set forth in the Handbook on Procedures and Criteria for Determining Refu-
gee Status under the 1951 Convention and the 1967 Protocol relating to the
Status of Refugees (Geneva, 1992) [hereinafter Handbook], observing that
1 I address the role to be played by the asylum seeker, and his or her attorney, if represented,

below.

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“while the burden of proof in principle rests on the applicant, the duty to
ascertain and evaluate all the relevant facts is shared between the applicant
and the examiner.” Matter of S-M-J-, supra, at 729 (quoting Handbook,
supra, para. 196, at 47) (emphasis added). Moreover, we advised that it is the
Immigration Judge’s role to “[e]nsure that the applicant presents his case as
fully as possible and with all available evidence.” Id. (quoting Handbook,
supra, para. 205(b)(i), at 49). Our citation of these provisions is consistent
with the teaching of the Handbook that “it may be necessary for the examiner
to clarify any apparent inconsistencies and to resolve any contradictions in a
further interview, and to find an explanation for any misrepresentation or
concealment of material facts.” Handbook, supra, para. 199, at 47.
In addition, as we recognized in Matter of Fefe, 20 I&N Dec. 116 (BIA
1989), an application for asylum requires the asylum seeker’s testimony. As
that case made clear, while the minimum testimonial requirement is to swear
to the truth of the written application, rarely does the examination stop at this
point. Indeed, the Board specifically contemplated that there would also be
instances “where an alien establishes eligibility for asylum by means of his
oral testimony when such eligibility would not have been established by the
documents alone.” Id. at 118 (emphasis added). I note that the Handbook,
supra, also anticipates that completion of a “standard questionnaire” ordi-
narily will not provide an adequate basis on which to judge the claim, and that
it will be necessary to gain the confidence of the asylum seeker “in order to
assist the latter in putting forward his case and in fully explaining his opin-
ions and feelings.” Id. para. 200, at 47-48 (emphasis added).
These authorities seem to envision the role of the adjudicator as one of
assisting the asylum seeker to clarify and substantiate his case, not as one of
defeating his asylum claim by contrasting his application with his testimony.
None of these authorities support a sub silentio presumption of fraud or fail-
ure to meet the burden of proof, a presumption which I believe the majority
has applied and will continue to apply under the test announced today.
Although the respondent may bear the burden of proof, and although he
may be represented by counsel, a hearing involving a claim for asylum is not
merely an adversarial contest on an abstract or intellectual level in which two
parties spar with one another until one loses. A removal hearing involving the
possibility of deportation, even when the threat to life and safety are absent, is
not a sporting event. The Board has long acknowledged that ready dismissal
of a respondent’s claims on technicalities will not do. See Matter of Marti-
nez-Solis, 14 I&N Dec. 93, 95 (BIA 1972) (holding that a contested deporta-
tion hearing is a “quest for truth,” not a sporting event); Matter of K-H-C-, 5
I&N Dec. 312, 314 (BIA 1953). While it is true that the Immigration and Nat-
uralization Service bears some responsibility in this regard as well, adjudica-
tors, including Immigration Judges and the Board, should assist in perfecting
and clarifying the asylum claims presented to them. In my view, the major-
ity’s decision obviates that responsibility.

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B. The Substantial Evidence Standard Requires
Consideration of the Record as a Whole
The majority’s decision, as discussed by the Chairman in his separate
opinion, and as I discuss below, is not supported by substantial evidence in
the record. To be sustained, substantial evidence must support the agency’s
decision, and the agency may not choose to rely selectively on only that part
of the evidence that may support its conclusion. Rather, an agency’s consid-
eration of an application for asylum requires that the adjudicator provide a
reasoned decision which reflects that he or she considered and weighed the
evidence on the record as a whole. Universal Camera Corp. v. NLRB, 340
U.S. 474, 491 (1951) (holding that the “substantial evidence” standard has
been understood to mean that the adjudicator’s conclusions are expected to
take into account, and reflect in his or her decision, consideration of both
those facts in the record that support the conclusion, and the evidence in the
record that detracts from it); see also Cordero-Trejo v. INS, 40 F.3d 482, 487
(1st Cir. 1994) (stating that deference is not due to the agency “where find-
ings and conclusions are based on inferences or presumptions that are not
reasonably grounded in the record, viewed as a whole or are merely personal
views of the immigration judge”) (citations omitted).
There is longstanding authority recognizing the importance of testimony.
See Matter of Sihasale, 11 I&N Dec. 531, 532-33 (BIA 1966) (holding that
the asylum applicant’s testimony must be accorded the most careful and
objective evaluation possible as it may be the only evidence available); see
also Matter of Joseph, 13 I&N Dec. 70, 74 (BIA 1968) (stating the applicant
must have a “reasonable opportunity” to present his proofs for the “stakes are
high”). I do not read these authorities as permitting us to rely on testimony
that, although internally consistent, appears to contain discrepancies in rela-
tion to a written asylum application, as a basis to deny asylum claims. Cf.
Matter of Fefe, supra.
Rather, I read these authorities as emphasizing the importance of testi-
mony in the asylum context, and as requiring us to consider and clarify expla-
nations for any inconsistencies between testimony and a written application.
I view it as appropriate to go even further and seek out the actual facts under-
lying the claim asserted by the asylum seeker. See Handbook, supra, paras.
196, 199, 200, 205, at 47-49. Moreover, recognition of the special circum-
stances faced by persons seeking asylum has not been obliterated, at least on
paper. Matter of S-M-J-, supra (citing the Handbook and finding that the ben-
efit of the doubt is to be extended to an asylum applicant who may be unable
to substantiate his statements but whose testimony is generally credible and
does not run counter to generally known facts).
At the time I wrote my concurrence in Matter of S-M-J-, supra, I joined the
majority and limited my concerns to a concurrence, hoping that the Board
might deal fairly with the claims of asylum applicants. Over the past year,

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however, our precedent decisions have reflected that the matters about which
I had hesitation in joining Matter of S-M-J- have taken full hold. For exam-
ple, although the majority decision in Matter of S-M-J- emphasizes that the
Immigration Judge is expected to assist in clarifying and bringing out evi-
dence in support of the asylum seeker’s claim, this record is devoid of any
indication that the Immigration Judge took any steps to encourage or assist
the applicant in providing any such additional evidence or clarification.
Circumstances such as these, in which the Immigration Judge fails to
develop the facts during a hearing on an asylum application and then criti-
cizes an asylum seeker for presenting inconsistent evidence or not presenting
some evidence the Immigration Judge finds to be important, should not con-
stitute a reasonable basis to dismiss an asylum claim on the grounds the
respondent did not establish his credibility or meet his burden of proof. But it
is under circumstances such as these that the majority now is pronouncing a
deferential test that relies almost exclusively and uncritically on the Immi-
gration Judge’s conduct of the hearing.
The majority’s decision in this and other cases fails to consider all of the
evidence of record and to weigh it fairly in its totality. Regrettably, the major-
ity’s decision seems to prefer the quickest way out of exercising our authority
to adjudicate on review the tough questions posed by asylum claims, and opts
for acquiescence to the decision of an individual Immigration Judge. Were it
not for the fact that well over 90 percent of the appeals taken to the Board
from decisions of Immigration Judges generally, and from asylum decisions
specifically, are taken by individuals whose claims have been denied and
who have been ordered removed, the majority’s deference might not be of
such import. As it is, the majority’s position virtually obviates the asylum
seeker’s right of appeal within the administrative context.

C. The Approach Taken by the Majority Violates
the Respondent’s Appellate Rights
The approach taken by the majority violates the due process right to
administrative appeal provided by regulation and in accordance both with
constitutional considerations and the Handbook.2 See 8 C.F.R. §§ 3.38, 242.2
(1997); see also Maldonado-Perez v. INS, 865 F.2d 328, 333 (D.C. Cir.
1989) (holding that the Act implements the constitutional requirements of a
fair hearing); Handbook, supra, paras. 190-192(vi), at 45-46.
The regulations explicitly recognize the Board as an appellate authority
and authorize the Board to exercise its independent (de novo) judgment in
appeals, empowering us to take whatever action is appropriate and necessary
to achieve a disposition of the case. 8 C.F.R. § 3.1(a)(1) (1997). I read this
2 Although not binding on the Immigration Judge or the Board, I believe that adherence to

the letter and spirit of these guidelines is consistent with the purpose of the 1967 Protocol, to
which the United States is a signatory. See also INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

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appellate imperative as referring to our responsibility to achieve a fair and
reasonable disposition, taking into account the entire record. In my view, a
standard favoring affirmance of the Immigration Judge, such as that adopted
by the majority in this precedent, and other recent asylum decisions, fails to
satisfy this delegation of authority both in spirit and in name. See, e.g., Matter
of O-D-, supra; Matter of Y-B-, supra; Matter of A-E-M-, 21 I&N Dec. 1157
(BIA 1998) (see also Rosenberg, dissenting in each of those decisions).
In addition, even were appeal to the Board not provided by regulation, the
basic procedural requirements proposed by paragraphs 190, 191, and 192 of
the Handbook, supra, at 45-46, provide that, if the applicant is not recognized
as a refugee, he should be given a reasonable time to appeal for a “formal
reconsideration” of the decision, either to the same or to a different authority.
Id. para. 192(vi), at 46. Clearly, federal appellate review under our system
does not purport to constitute “reconsideration” of the decision; independent
administrative review, however, is de novo and does allow, in essence, for
“reconsideration” of an adverse refugee determination.
The limitations on independent review imposed by the majority not only
in this decision, but in its series of recent opinions such as Matter of O-D-,
supra, and Matter of Y-B-, supra, and in several, significant, but unpublished,
en banc opinions issued over the past year, make clear the intentions of the
majority to limit substantive administrative appellate review, and to uphold
the decisions reached by Immigration Judges without regard to whether they
are correct. Those decisions, like this one, impermissibly restrict our review
and violate the rights of appellants coming before us.

II. ANALYSIS OF THE MAJORITY’S NEW TEST AS APPLIED
Let us see how this respondent rates under the majority’s new test for
upholding adverse credibility findings (supporting the dismissal of asylum
claims):
First, the “inconsistencies and omissions actually present” (and going to
the heart of the claim) dismissal ground. According to the majority the
respondent failed the three-part test because he was inconsistent about the
dates when things happened to him. The majority twists this to mean he was
inconsistent about matters going to the heart of his claim, when in fact that is
not true, and when, in fact, the very circuit they cite in support of this test has
stated quite distinctly and repeatedly that errors about dates do not necessar-
ily undermine a claim. See Osorio v. INS, 99 F.3d 928, 931 (9th Cir. 1996);
Aguilera-Cota v. INS, 914 F.2d 1375, 1381 (9th Cir. 1990) (citing Turcios v.
INS, 821 F.2d 1396, 1399 (9th Cir. 1987)); cf. de Leon-Barrios v. INS, 116
F.3d 391 (9th Cir. 1997).
The essence of the respondent’s claim is consistent. He has been an active
member of the Jatiyo Party and nothing in the record directly controverts or
contradicts that asserted fact; he held a particular position as a local secretary

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and nothing controverts or contradicts that asserted fact. He was attacked and
injured, and his home was invaded and his family questioned, and nothing
controverts or contradicts those asserted facts. He attributed the attacks and
harm he suffered to the BNP, who he contends have worked in the service of
the ruling party that ousted General Ershad, who led the Jatiyo Party to which
he belonged, and nothing in the record controverts or contradicts those
asserted facts; in fact the Department of State reports in the record support it.
As the record reveals, the majority’s reliance on de Leon-Barrios v. INS,
supra, is inapposite. Indeed, to the extent a hearing before an Immigration
Judge is an adversarial one, it is the Service, rather than the Immigration
Judge or the Board, who should be the respondent’s adversary. In this case,
the Service has submitted no evidence to contravene the respondent’s claim. I
note that the respondent’s testimony at the hearing is internally consistent. It
is his asylum application (made just after he fled Bangladesh, came to the
United States, and applied for asylum), and his testimony at the hearing,
where he provided significant detail not included in his application, that dif-
fers. This testimony is competent evidence. Matter of Fefe, supra; Hand-
book, supra.
In addition, the respondent provided a reasonable explanation—that he has
problems remembering dates—for the inconsistencies in dates that the major-
ity finds are “actually present.” This explanation is plausible in light of the
fact that there is no evidence that the respondent normally has a razor sharp
memory and is posing at having a bad memory to cover up bungling a fabri-
cated claim. It also comports with what we know generally about the effects
of trauma on memory. When he provided the basics of his asylum claim in
completing the application, the respondent had just arrived in the United
States and his focus was on quickly relating what had happened to him and
what he feared would happen. When he testified, he was more removed from
the exigencies that prompted his flight, and was in a position to elaborate and
provide the kinds of detail and specifics we expect of asylum applicants.
What, then, is undermining his claim? Could it be that what is undermin-
ing his claim is the majority’s new test and how the majority has elected to
apply it? In particular, did the Immigration Judge provide “numerous exam-
ples” of inconsistencies as the majority claims he did? No. He provided two
examples of misstated dates and concluded that these “cast doubt on the reli-
ability of the respondent’s claim in its entirety.”
Did the Immigration Judge provide a “comprehensive decision” as the
majority claims he did? No, he did not. He provided a decision that raised
questions he never pursued during the hearing, although he had the respon-
dent right before him and he had the authority to inquire, to clarify, and even
to assist the respondent in “putting forward his case and in fully explaining
his opinions and feelings,” as the Handbook contemplates an adjudicator
might do in determining the truth of a claim involving undeniably politically
motivated harm. Handbook, supra, para. 200, at 47-48.

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Second, the “Immigration Judge relied on specific and cogent reasons”
dismissal ground. It may be specific to say that the respondent got the dates
wrong or gave differing dates on which the reported incidents occurred. But,
I do not consider reliance on inconsistencies regarding the dates of traumatic
occurrences that took place 4 or 5 years before the date on which they were
either recorded or discussed to constitute a cogent reason for rejecting the
heart of the claim—that this asylum seeker was persecuted and continues to
be sought out on account of his opinion and his affiliation with a political
party that is not in power. This is particularly so when the record reflects evi-
dence that the respondent had problems with his memory.
Given their apologetic protestations that they recognize how an applicant
who fled persecution may have trouble remembering dates, I doubt the
majority believes such reasons are cogent either. Matter of A-S-, 21 I&N Dec.
1106, 1110 (BIA 1998). The majority, however, is content to apply a new
“too big a gap, too cramped a memory” rule as a corollary to part two of their
new test. This new corollary places significance on the breadth of difference
in times of persecutory events reported, as though getting the dates of these
occurrences wrong by 1 month or 6 weeks might be reasonable, but testifying
to a 2-year discrepancy is unreasonable.
The new rule also seems to suggest that conflating the events forming the
heart of one’s claim into a 1-month period is “even more significant.” Matter
of A-S-, supra, at 1110. As with the first of the questions associated with this
new “too big a gap” corollary, the majority opinion fails to indicate why this
error is probative of a finding the respondent provided incredible testimony.
There is no evidence that such an error reeks of fabrication because it was off
by more than a year or because the respondent visualized or recalled the
attacks on him and his home as occurring in a compressed period of time.
Furthermore, the respondent’s halting and hesitant manner is equally or more
attributable to poor memory and nervousness for legitimate reasons, as it is to
fabrication.
The majority’s support of the Immigration Judge’s reliance on disparities
in dates, where he has sought no explanation during the course of the hearing,
is only a step away from the Board’s looking to every other possible reason
for a respondent facing threatened harm rather than accepting that the nature
of the harm was political. See Osorio v. INS, 18 F.3d 1017, 1031 (2d Cir.
1994) (finding that the Board’s reasoning would result in Solzhenitzn’s dis-
pute with the Soviet Union being characterized as literary rather than politi-
cal). The message given is, let us not bother to determine what really went on
during the period respondent remained in Bangladesh between Ershad’s
ouster and the time the respondent fled, just as we shall not bother to fairly
consider what is at the root of the respondent’s experiences. In either case, the
respondent need not be considered for a grant of asylum if we can settle on a
basis to deny his claim.

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Third, the rule of explaining on appeal. Although the majority says they
require only a convincing explanation for discrepancies and omissions, they
have introduced, in effect, a super-burden. We already hold that the burden of
proof is the respondent’s. See Matter of S-M-J-, supra; Matter of Y-B-, supra.
Now we hold that in the event he doesn’t get a fair hearing in which the Immi-
gration Judge follows the guidelines we have articulated in our precedent
decision and seeks an explanation or assist the respondent in setting forth a
consistent and coherent claim during the hearing, it is the respondent’s fault
if he does not present the explanations necessary to clarify discrepancies on
appeal.
Now, I certainly do not disagree that it is appropriate for a respondent to
provide explanations for discrepancies in the record. But the respondent may
not be able to do so during the course of the hearing, because oftentimes the
respondent is not aware that the Immigration Judge considers corrections or
clarifications made in the course of testimony or on cross-examination to be
inconsistencies that undermine the respondent’s veracity. Rather, the respon-
dent believes these changes are intended to set the record straight and that
they will be taken as clarifying simple errors resulting from language,
trauma, memory, confusion, anxiety, or any number of other impediments
likely to be experienced by any asylum seeker.
The asylum seeker is not necessarily approaching the hearing with the
understanding that the Immigration Judge or the Board is apt to think that he
is fabricating his story—either from the outset, or once any discrepancy
arises. Unaware that the Immigration Judge—or until recently the
Board—will rely on these discrepancies, even if corrected, to deny the claim,
the respondent may persist in the belief that because he responded to the
questions presented and clarified the facts, providing the correct dates, his
claim no longer contains discrepancies or requires explanations.
Moreover, although it certainly would be prudent for an appellant to make
legal arguments in support of any challenge made to an adverse credibility
finding, these are not explanations. Established Board precedent holds that
statements made in a brief or pleading do not constitute evidence. See Matter
of Ramirez-Sanchez, 17 I&N Dec. 503,507 (BIA 1980). It also holds that we
consider only the record made below and, with rare exceptions, do not accept
or consider new information produced. Matter of Fedorenko, 19 I&N Dec. 57
(BIA 1984). I trust that in light of this decision, the majority is contemplating
lifting those rules to accept reasonable explanations from asylum seekers
who are now expected to provide such on appeal to the Board. I note, how-
ever, that the respondent in this case had no such notice that he should or
could provide such explanations on appeal.

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III. APPROPRIATE AND NECESSARY STEPS
TO COMPLY WITH THE BOARD’S RULE
In my view, the Board’s rule, while facially reasonable and certainly
workable as used by federal circuit courts of appeal, imposes unreasonable
and unrealistic expectations as applied, which conflict with accepted norms
and guidelines for administrative asylum adjudications. Since our decisions
are equally binding on represented and unrepresented asylum seekers alike, I
feel it appropriate to warn and notify all asylum seekers directly concerning
the practical requirements imposed by today’s decision.3
First, do not, under any circumstances, make any false statements or sim-
ply sign off on an application prepared for you by someone else. Make cer-
tain that you understand and agree with each and every statement made in
your asylum application before signing it.
If you have already submitted an application, or your case in on appeal to
the Board, have someone help you to review it at the soonest possible
moment. Make sure to correct any statements that are not accurate or true
according to your own understanding and experience. If you need to correct
any statements or any part of the application, make sure you also explain in
detail in a sworn affidavit why you need to correct it. If you are not accus-
tomed to explaining so much about the reasons that you do things, explain
that.4
Second, in preparing your asylum claim, find someone who you can trust
to tell the deepest and possibly the most painful secrets of your life. Search
your memory, make notes, and check with others who shared your experi-
ences to make sure of every detail, and state anything and everything of rele-
vance that ever occurred relating to your claim of persecution in your initial
application. Hire a translator, after a thorough screening of several candi-
dates, who is going to translate every nuance of your statements and hire a
second one to check the work of the first.
Make sure to articulate your story in a manner that would be best under-
stood by a college educated adjudicator, because that is who will evaluate
your claim. That is, be as articulate as possible, but do not use words that you
cannot define, or allow whoever is representing you to use words other than
those you yourself understand, because it is likely that you will be questioned
about them during the hearing and if you cannot explain what they mean,
your testimony will be discredited.

3 The entire text in this section is written rhetorically, reflecting my own individual opinion

for purposes of dissent, and does not constitute and should not be taken to constitute or to
substitute for individual legal advice rendered by an accredited representative or licensed
attorney.
4 If your case is on appeal to the Board, it might be appropriate to file a “Motion to Amend

and Correct the Record or to Remand,” based on the decision in this case, including your
affidavit containing your sworn corrections and explanations.

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Third, to corroborate your claims, obtain and submit official documents or
other evidence such as affidavits, letters, lab reports, certificates, and any
other document that verifies your identity, your membership or affiliation,
your beliefs, and any harm or threats of harm you experienced. This should
include verification of your shock, terror, panic, fear, depression, sorrow, or
grief, and your medical or hospital reports made at the time of any incidents
involving arrest or physical harm, or other evidence that supports your story.
Before submitting this evidence, have the letters or certificates checked both
by a forensics expert and an expert familiar with the circumstances in your
country. Get a sworn and notarized statement concerning the paper on which
the information is written, the credentials of the person making the statement
or certificate, and a description of how, where, and when official documents
are issued, who prepares them, how, where, and when you got them, and, if
possible, provide an explanation for any variance from the normal condition
of the document, in terms of the ink used on the document, the seals stamped
on the document, the condition of the paper, and how the documents were
either taken out of the country or delivered to you.
No matter when the hearing took place or when the appeal was briefed, it
appears that the claim will be expected to have been documented with iden-
tity documents, formal certificates or degrees, official government or medi-
cal records, contemporaneous news articles confirming the existence of
associates, leaders, parties, demonstrations, insurrections, arrests, and
detentions. A thorough appendix of corroborating documentation should
probably also include not only the actual corroborating documents pertaining
to the asylum applicant, but the identification papers, evidence of titles on
official stationary, and perhaps additional official statements, corroborating
the positions of those persons whose third party affidavits the applicant for
asylum is submitting in support and corroboration of his own claim. See, e.g.,
Matter of S-M-J-, supra (Rosenberg, concurring).
Fourth, after you have explained your political views and your racial or
tribal or family-based relationships, and after you have described each and
every thing that happened to you or that hurt you or your family because of
those views or relationships and made you fear persecution (including the
dates when and where it happened and what anybody said and who else was
there), make sure to include an explanation of why you applied for asylum
when you did, particularly if it was sometime after you first arrived in the
United States. If you had roommates or knew others who applied for asylum,
make sure you explain why you did not do so at the same time or why you did
not understand the process just because someone you knew was pursuing it.
Make sure to explain how you felt about discussing your claim even with
close friends or family, and if you hesitated in doing so, explain what made
you hesitate.
In the event that you are illiterate or semi-literate, explain how you
remember significant things like when certain births and deaths happen or

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significant holidays, and tell us in as much detail as possible how you express
the happening of these things. If you are illiterate or semi-literate or from a
culture other than a Western one, make sure to explain whether the calendar
used in the United States is the one used in your country, and make sure to
explain whether you mark time by some other method such as significant
religious holidays, or seasons of the year.
Fifth, at your hearing, be sure to testify about each and every item con-
tained in your application, whether or not you are asked to do so on direct or
cross-examination, or by the Immigration Judge. If the Immigration Judge
resists hearing your testimony, make an “offer of proof”—meaning state on
the record what you would prove if you were allowed to present evidence—
making sure to advise the Immigration Judge while the tape recorder is
turned on, “on the record,” of what you would testify to if allowed to testify.
If you have hired an attorney to represent you, make sure your attorney does
all these things. In case the Immigration Judge does not allow you to present
certain evidence or admits evidence about which you object, it is probably
best for the attorney to file a “brief” or written document arguing what the
law requires and why your evidence or your explanation should be
considered.
Sixth, if you are appealing a denial of your asylum claim, in addition to
explaining discrepancies that may be gleaned from the record once it is tran-
scribed, it would be prudent not only to respond to, but to anticipate and
address certain other possible concerns that you might not have had reason to
know to explain in your original application, including, (1) why, if you did
not apply for asylum immediately, you did not do so; (2) why, if you had
roommates or acquaintances from the same country, particularly if they had
applied for asylum, you waited to apply; (3) why, if you had relatives any-
where in the world, you did not obtain letters from them corroborating the
fact of their nationality and the persecutory events that were threatened or
occurred; (4) why, if you submitted letters from family or associates address-
ing the circumstances of their persecution or country conditions, these letters
went beyond the typical “how are you/news from home” content that would
be expected of such letters and addressed those topics; (5) why, if you had
physical or psychological injuries, you did not obtain treatment before your
flight or immediately after arrival in the United States; (6) why you have a
passport or could not obtain a passport, or why you were able to obtain a pass-
port once in the United States; and (7) why, if there was a lapse of time
between the submission of your application form and the hearing, you did not
review the form and specifically correct any errors, omissions, or discrepan-
cies prior to the hearing, explaining of course, how the errors occurred, and
why they were not discovered at the time of signing and submitting the
application.
If your hearing already has concluded and your case is on appeal, make
certain that you file a brief and provide all the explanations in your brief on

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appeal. Even if you already have filed a brief, it may be possible to supple-
ment it before the case is decided by filing the supplementary brief with a
“Motion to Supplement Brief on Appeal” in light of this case. If your case
already has been denied, it might be possible to have the decision reopened or
reconsidered so your explanations can be considered, provided that you file
the motion within the time limits imposed by statute and regulation and that
the motion meets all the requirements set forth in the regulations.
Finally, if you have an attorney or had one who did not do all these things,
find out why they were not done. Although every relationship with an attor-
ney is an individual one between you, the client, and the attorney, these
things are not special or unusual; attorneys representing people in asylum
hearings are expected to do them. If you depended on your attorney to do
these things and the attorney did not do them, prepare a statement with the
help of someone else, send that statement to the attorney, and submit a copy
of it to the bar association or licensing board for attorneys in your local area.
Then send copies of all that information to the Immigration Judge (if your
case was not appealed) or to the Board (if your case was appealed) with a
motion to reopen claiming that you had “ineffective assistance of counsel.”
Be sure to indicate how your case was prejudiced because of what your attor-
ney did or did not do.

IV. CONCLUSION
If we wish to ensure the protection of legitimate asylum seekers according
to our domestic and international commitments, we cannot allow either the
development of a competent and professional Immigration Judge corps, our
concerns about fraudulent asylum claims, or the demands of an overwhelm-
ing appellate docket to dictate our imposing an effective presumption of fab-
rication on every asylum seeker, or to rationalize limiting appellate review by
this Board. That having been said, I recognize that the majority of this Board
does not believe that we impose an objectionable presumption or improperly
shy away from our appellate review responsibilities, or that the instant deci-
sion frustrates or will frustrate legitimate asylum claims. I hope that they will
be proved correct, and that my foreboding will be proved wrong. In the mean-
time, I dissent.

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