United States Court of Appeals
For the First Circuit
No. 06-1479
DANY HENG,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General,
Respondent.
ON PETITION FOR REVIEW OF A DECISION OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Circuit Judge,
Selya, Senior Circuit Judge,
and Shadur,* Senior District Judge.
Martin J. McNulty on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Terri J.
Scadron, Assistant Director, Civil Division and Janet A. Bradley,
Trial Attorney, Civil Division, Office of Immigration Litigation,
United States Department of Justice, on brief for respondent.
July 12, 2007
*Of the Northern District of Illinois, sitting by designation.
HOWARD, Circuit Judge. Dany Heng petitions for review of
an order of the Board of Immigration Appeals (BIA) rejecting her
claims for asylum and withholding of removal. Heng is a native of
Cambodia who came to the United States on a tourist visa in
February 2001. In March 2003, she applied for asylum, claiming
that she had been persecuted on account of her membership in a
Cambodian political party. Three months later, the Department of
Homeland Security commenced removal proceedings against Heng for
overstaying her visa. Heng appeared before an immigration judge
(IJ) and conceded removability but sought asylum. The IJ ruled
that Heng's asylum application was untimely and that the late
filing was not excused by extraordinary circumstances or changed
conditions. See 8 U.S.C. § 1158(a)(2). The IJ therefore treated
Heng's asylum request as a request for withholding of removal.
Heng was the only witness at her removal hearing.
Through a translator, she testified as follows. Heng was born in
Cambodia in 1958 and married Seng Sophal in 1984. She and her
husband were members of the Sam Rainsy Party (SRP), a political
rival to the Cambodian People's Party headed by Prime Minister Hun
Sen, a former member of the Khmer Rouge. Heng's mother and older
sister had been killed by the Khmer Rouge during Pol Pot's reign.
Heng's husband worked on behalf of the SRP every day.
Heng was less active but did raise funds to support the party. In
April 1996, police officers loyal to the People's Party came to
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Heng's house and held Heng and her husband at gun point. The
officers told Heng and her husband to cease their political
activities and to take down a pro-SRP poster hanging on their wall.
When Heng's husband refused to take down the poster, the officers
threatened to kill him.
Just before the 1998 national election, People's Party
members tried to kill members of the SRP. Heng and her husband
were able to escape the violence and temporarily relocated to
another part of the country. When they returned home, they
continued working for the SRP. Shortly after their return, Heng
and her husband were assaulted by People's Party officials while
attempting to distribute SRP literature. At that time, the
officers threatened to kill Heng and hit her on the shoulder with
a gun.
The People's Party won the 1998 national election.
Shortly thereafter, government officials arrested Heng's husband,
but he was able to escape. In September 1998, Heng and her husband
were detained while leading another protest. The police beat
Heng's husband in front of her and then separated them. Heng was
detained for three days, given no water, and was almost suffocated
while imprisoned. SRP officials were, however, able to secure
Heng's release.
In November 2000, a battle broke out between government
forces and the SRP. The government forces murdered several of
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Heng's husband's associates and wanted to murder him as well, but
he escaped. This was the last time that Heng saw her husband.
Heng came to the United States in February 2001. In January 2003,
Heng learned from her sister that her husband had been murdered by
People's Party officials.
The IJ rejected Heng's withholding of removal claim on
the ground that she was not a credible witness. The IJ gave four
reasons for this credibility determination: (1) it was not
believable that People's Party members would come to Heng's house
to order her to take down an SRP poster hanging on an interior
wall; (2) Heng stated at her hearing that SRP members secured her
release from prison but stated in her asylum application that human
rights workers obtained her release; (3) Heng testified that her
husband was arrested after the 1998 national election but did not
mention this incident in her asylum application; and (4) Heng first
testified that she learned about her husband's death while in
Cambodia but then testified that she learned about his death after
coming to the United States. Heng appealed to the BIA, which
affirmed in a per curiam order adopting the IJ's opinion.
Heng initially challenges the ruling that her asylum
application was untimely. We lack jurisdiction over this aspect of
her petition for review and therefore consider only whether her
claim for withholding of removal was properly denied. See Stroni
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v. Gonzales, 454 F.3d 82, 87 (1st Cir. 2006); Mehilli v. Gonzales,
433 F.3d 86, 92 (1st Cir. 2005).
Withholding of removal is available if "the alien's life
or freedom would be threatened in the destination country because
of the alien's race, religion, nationality, membership in a
particular social group, or political opinion." Da Silva v.
Ashcroft, 394 F.3d 1, 4 (1st Cir. 2005) (quoting 8 U.S.C.
§1231(b)(3)(A)). To qualify for withholding of removal, the alien
must demonstrate either that she has suffered past persecution on
account of a protected ground (thus creating a rebuttable
presumption that she may suffer future persecution) or that it is
more likely than not that she will be persecuted on account of a
protected ground if sent to the destination country. Id.; see Ang
v. Gonzales, 430 F.3d 50, 58 (1st Cir. 2005) (explaining that
applicant for withholding of removal must show a "clear
probability" of persecution upon removal from the United States).
While we normally review the BIA decision, where as here
the BIA adopted the IJ's decision we review the IJ's decision
directly. Simo v. Gonzales, 445 F.3d 7, 11 (1st Cir. 2006). When
reviewing a determination that a petitioner was not credible, we
ask whether the adverse credibility determination is "supported by
reasonable, substantial, and probative evidence on the record
considered as a whole." Id. Under this standard, we will not
upset the IJ's determination "unless any reasonable adjudicator
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would be compelled to conclude to the contrary." Hoxha v.
Gonzales, 446 F.3d 210, 216 (1st Cir. 2006). However, a
petitioner's testimony may not be rejected unless the IJ has
provided a specific, cogent, and supportable explanation for this
conclusion. Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004).
Moreover, where an IJ's adverse credibility finding rests on an
analysis of the petitioner's testimony and not her demeanor, the
finding may receive "less than [the] usual deference." Toloza-
Jimenez v. Gonzales, 457 F.3d 155, 159 (1st Cir. 2006).
We have reviewed the IJ's grounds for the adverse
credibility determination and find them inadequate, alone and in
combination. The IJ's first ground was his disbelief that People's
Party operatives would enter Heng's house to remove an SRP sign
hanging on an interior wall. The IJ's description of Heng's
testimony is inaccurate. Heng did not testify that the operatives
came to her house to remove the sign. Rather, she testified that
the operatives knew that her husband was a leader of the SRP and
came to the house to threaten violence if he continued his
political activities. As part of the threat, they ripped down the
sign.
Second, the IJ stated that Heng's testimony concerning
her release from prison was inconsistent with her asylum
application because, at her hearing, she testified that SRP
officials won her release, while in her application she credited
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"human rights workers." When government counsel questioned Heng
about this apparent inconsistency, she stated that it resulted from
a mistranslation by the individuals who helped her prepare her
asylum application. See He v. Ashcroft, 328 F.3d 593, 598 (9th
Cir. 2003) (stating that "faulty or unreliable translations can
undermine evidence on which an adverse credibility determination is
based"); accord Ememe v. Ashcroft, 358 F.3d 446, 452 (7th Cir.
2004); Balasubramanrim v. INS, 143 F.3d 157, 164 (3d Cir. 1998).
Moreover, this alleged discrepancy does not "involve the heart" of
Heng's claim. Bojorques-Villanueva v. INS, 194 F.3d 14, 16 (1st
Cir. 1999) (stating that an adverse credibility finding may not be
based on discrepancy in testimony that does not go to "the heart"
of petitioner's claim). The essence of Heng's claim was that she
had been arrested at a political rally by government officials and
held in detention for three days without water while almost
suffocating. The accuracy of the description she applied to the
people who helped secure her release was not a central fact. See
Ren v. Ashcroft, 145 Fed. Appx. 378, 382 (1st Cir. 2005)
(concluding that the discrepancy regarding why government officials
were searching for petitioner did not go to the "heart of the
asylum claim," even though it was not "entirely unrelated" to it).
Finally, we are not sure that this is even properly characterized
as a discrepancy. A witness could understandably refer to someone
who saved her from political imprisonment as a "human rights
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worker," even if the person was also a member of a political party.
Third, the IJ faulted Heng for testifying that her
husband was arrested after the 1998 election because she did not
include this incident in her asylum application. "Asylum
applicants are not required to list every incident of persecution."
Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006); accord Pop v. INS,
270 F.3d 527, 531-32 (7th Cir. 2001) ("We hesitate to find that one
seeking asylum must state in his or her application every incident
of persecution lest the applicant have his or her credibility
questioned if the incident is later elicited in direct
testimony."); Aguilera-Cote v. INS, 914 F.2d 1375, 1382 (9th Cir.
1990) (stating that an alien's "failure to file an application form
that was as complete as might be desired cannot, without more,
properly serve as the basis for finding a lack of credibility").
Here, the omitted incident was not one of the major claims
underlying Heng's request for relief. Indeed, her entire testimony
concerning this incident accounted for less than a half page of
transcript. In light of Heng's allegation that she was held in
confinement without water for three days, and that her husband was
subsequently murdered by People's Party officials, the failure to
include this less serious event in her application should not be
fatal to her claim.
Finally, the IJ doubted Heng's testimony because of a
purported inconsistency concerning when she learned that her
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husband had been murdered. The IJ understood Heng as first
testifying that she learned of the murder while she was in
Cambodia, and later testifying that she learned about the murder
after coming to the United States. This latter testimony was
consistent with the information in her asylum application. This
discrepancy is insufficient to ground the IJ's credibility finding.
Heng corrected her testimony almost immediately, and before anyone
brought to her attention the discrepancy between her testimony and
her application. Moreover, Heng's hearing was marked by numerous
translation difficulties, and it appears to us that the alleged
discrepancy resulted from confusion, and not from an attempt at
fabrication. As the Seventh Circuit recently observed:
Translation is a complex and tiring task;
errors are bound to occur even in the best of
circumstances with the most competent
translators. Errors cannot be avoided, but
immigration judges must be sensitive to the
complexities of receiving testimony through a
translator and take into account these
difficulties when assessing credibility.
Giday v. Gonzales, 434 F.3d 543, 549 n.2 (7th Cir. 2006).
For the reasons stated, the IJ's credibility determination
is not supported by substantial evidence. We therefore grant the
petition for review, vacate the order of removal, and remand to the
BIA for further proceedings.
So ordered.
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