United States v. Brown

USCA1 Opinion

United States Court of Appeals

For the First Circuit

No. 07-1273

VLLASI CUKO,

Petitioner,

v.

MICHAEL B. MUKASEY,

ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

Before

Torruella, Circuit Judge ,

Cyr, Senior Circuit Judge ,

and Lynch, Circuit Judge .

Michael D. Greenberg and Law Offices of Michael D. Greenberg

on brief for petitioner.

Robbin K. Blaya , Attorney, Office of Immigration Litigation,

U.S. Department of Justice, Peter D. Keisler , Acting Attorney

General, Anthony W. Norwood , Senior Litigation Counsel, on brief

for respondent.

March 31, 2008

LYNCH, Circuit Judge . Vllasi Cuko, a citizen and

national of Albania, petitions for review of an order of the Board

of Immigration Appeals (BIA), which affirmed an immigration judge's

(IJ) denial of his application for political asylum.

I

BACKGROUND

After Cuko entered the United States via Italy in July

2001, he was placed in removal proceedings and filed an application

for asylum, withholding of removal, and protection under the

Convention Against Torture (CAT), predicated on allegations of

persecution based on his political opinions. At the removal

hearing, Cuko testified that the former Communist government of

Albania forcibly interned his family in a concentration camp during

the 1970s and 1980s. After the fall of the Communist government in

1990, Cuko became an active member of his hometown chapter of the

Democratic Party. The Democratic Party's major political opponent

is the Socialist Party, the legal successor to the Albanian

Communist Party.

Cuko also testified that, in November 2000, he allowed

his official membership in the local chapter of the Democratic

Party to lapse because he had decided to sell his home and relocate

his family to the capital, but that he ultimately was unable to

acquire a new house.

Cuko testified that, in February 2001, he helped to

organize, and participated in, a Democratic Party election rally in

Fier. Later that evening, his house was stoned and his family

terrorized by unknown masked individuals. Shortly thereafter, Cuko

and his wife began receiving anonymous telephone threats that their

son would be kidnapped if Cuko did not cease his activities with

the Democratic Party, and Cuko paid to have his wife and son

smuggled into the United States. When Cuko held another party

rally on March 21, the police – who, Cuko claims, are all Socialist

Party supporters – arrested him, held him for several hours, and

insulted and beat him. When the Democrats lost the election to the

Socialists, Cuko sold his house, then left for the United States

via Italy.

The IJ denied Cuko's application for asylum and

withholding of removal and his claim for relief under the CAT. In

an oral decision, the IJ began by noting that Cuko's testimony was

inconsistent, both internally and with some exhibits, and that his

demeanor suggested mendacity.

The IJ then described the present country conditions in

Albania and noted that there were no longer any indications of

systemic political persecution against Communist Party opponents.

The IJ found that even if he credited Cuko's account that he and

his family were interned in a labor camp in the 1970s, virtually

all Albanians suffered similarly from the years 1945 to 1990.

Therefore, even if Cuko could credibly show past persecution, the

presumption of a well-founded fear of future persecution would be

overcome by the changed country conditions.

The IJ further noted that he did "not . . . find the

applicant to be a credible witness in any regard in this case.

[The IJ] has carefully observed the applicant's demeanor throughout

this hearing and finds the applicant to be a furtive, evasive, and

wholly incredible witness."

The IJ then specifically detailed the bases for his

adverse credibility determination. First, the IJ noted that Cuko

testified that, after he had arrived in the United States, he asked

his father-in-law in Albania to obtain Cuko's party membership card

from the Democratic Party archives and mail it to him. Moments

later, Cuko "completely changed his testimony" to say that he had

left the card at his home when he departed Albania. Immediately

thereafter, he changed his testimony again and said that he had

given the card to his father-in-law before departing for the United

States. The IJ noted, in particular, that based on Cuko's

demeanor, Cuko seemed to modify his second answer as soon as he

realized that it was inconsistent with his earlier testimony that

he had sold his home before leaving Albania. "[I]t actually

appeared that [Cuko] was giving answers then realizing that his

prior testimony conflicted with these answers, and he would then

change his answer and give another one that he thought would be

more plausible and so on until he ended up with the final version

of his testimony." The IJ noted that Cuko had also not

appropriately authenticated the membership card even though it was

clear that Cuko was well aware of the procedures for

authentication.

Second, the IJ observed that a certificate dated December

28, 2001, from the local Democratic Party branch office, which

certified that Cuko "has been a member of this party from 1992 till

[sic] November of the year 2000 and has regularly paid the monthly

membership fees to the party," contradicted Cuko's testimony that

he was an active and vibrant Democratic Party member and organizer

through his arrest in March 2001.

The IJ also rejected, as "wholly unsatisfactory," Cuko's

explanation for the November 2000 membership termination: that he

had intended to move to another town and reregister with its local

Democratic Party branch, but that he ultimately failed in his

efforts to buy a new house in the other locality, and decided to

stay in Fier. If this were true, the IJ noted, it would be likely

that the letter would have mentioned that he had remained active,

especially in light of his purported efforts as an organizer up

until his arrest in March 2001.

In addition, the IJ determined it "inconceivable" that

the December 2001 certificate, written by the chairman of the local

Democratic Party and purportedly issued after the alleged

harassments, assaults, arrest, and beatings of Cuko in the spring

of 2001, never mentioned this persecution.

The IJ found that these two discrepancies and

inconsistencies were material and went to the heart of the

applicant's asylum claim and that in light of them, Cuko could not

be found to be a credible witness.

Finally, the IJ noted other discrepancies. Cuko's

testimony about how much and when Cuko paid to have his wife and

child smuggled out of Albania changed from one moment to the next

and directly contradicted the testimony of his wife. His demeanor

was "completely evasive and nonresponsive" when he was testifying

as to the source of the money used to pay the smugglers. Cuko

appeared to say that he sold one of the two houses he owned to

raise the money, but his wife clearly testified that they owned

only one home in Albania. The IJ also noted that the timing of the

sale of the house was "completely unclear" to the IJ. The IJ found

Cuko's testimony "simply . . . not . . . to be credible" on this

point, and that "the truth is something other than the applicant's

testimony, that is, that the applicant and his family had plans to

come to the United States, and they have concocted this story in an

effort to obtain lawful permanent residence . . . ."

The IJ concluded that these discrepancies became material

in combination with Cuko's other perjurious testimony regarding his

party membership card and the December 2001 certificate.

The IJ, having rejected the application for asylum,

rejected Cuko's claim for withholding of removal, noting that the

latter requires a higher burden of proof. The IJ also rejected

Cuko's claim for relief under the CAT, based both on his finding

that Cuko was not credible and that there was no record support

that it was more likely than not Cuko would be tortured were he to

return to Albania, especially given the country's changed political

circumstances.

After Cuko appealed the IJ's decision, the BIA affirmed

and adopted the IJ's decision "finding the applicant not credible,"

in a brief, but not summary, opinion. Based on an examination of

the record, the BIA disposed of Cuko's contention on appeal that

the IJ's conduct in questioning Cuko went beyond his authority.

The BIA also found sufficient record support to uphold the IJ's

adverse credibility finding. The BIA affirmed the finding that

based on State Department country reports, Cuko did not have a

well-founded fear of future persecution. Cuko then petitioned for

review of the BIA's final decision.

II

DISCUSSION

Cuko's petition argues that the BIA erred in sustaining

the decision of the IJ denying Cuko asylum, withholding of removal,

or relief under the CAT. He claims again that the IJ improperly

assumed the role of a government attorney. He argues the IJ's

adverse credibility determinations, which the IJ based on his

perceptions of testimonial inconsistencies and witnesses'

demeanors, and upon which he founded his denial of Cuko's asylum

application, are not supported by the record.

"Where, as here, 'the BIA adopted and affirmed the IJ's

ruling, but also discussed some of the bases for the IJ's opinion,

we review both the IJ's and BIA's opinions.'" Lin v. Gonzales , 503

F.3d 4, 6-7 (1st Cir. 2007) (quoting Zheng v. Gonzales , 475 F.3d

30, 33 (1st Cir. 2007)). When the BIA adopts the IJ's decision, we

cannot disregard the particular findings of the IJ just because the

BIA does not expressly address them. See, e.g. , Chanthou Hem v.

Mukasey , 514 F.3d 67, 69 (1st Cir. 2008) (reviewing both the IJ's

and the BIA's opinion when the BIA adopts and affirms the IJ's

ruling and discusses "some of the IJ's bases for decision"); Lin ,

503 F.3d at 6-7 (same); Yu v. Gonzales , 502 F.3d 17, 19 (1st Cir.

2007) (same); Zheng , 475 F.3d at 33 (same).

A. Adverse Credibility Determination

"Where the BIA has adopted the IJ's credibility

determination, as here, we review the determination of the IJ."

Mewengkang v. Gonzales , 486 F.3d 737, 739 (1st Cir. 2007); see

also, e.g. , Chanthou Hem , 514 F.3d at 69 .

Since the IJ has the best vantage point from which to

assess the witnesses' testimonies and demeanors, we accord

significant respect to these witness credibility determinations.

Afful v. Ashcroft , 380 F.3d 1, 4 (1st Cir. 2004). Accordingly, we

review the IJ's adverse credibility determination under the

deferential "substantial evidence" standard, and must sustain it

"unless the record evidence would compel a reasonable factfinder to

make a contrary determination." Stroni v. Gonzales , 454 F.3d 82,

87 (1st Cir. 2006) (emphasis added). Specifically, we narrowly

inquire whether: (i) the discrepancies articulated by the IJ and/or

the BIA are actually present in the administrative record; (ii) the

discrepancies generate specific and cogent reasons from which to

infer that petitioner or his witnesses provided non-creditworthy

testimony; and (iii) petitioner failed to provide a persuasive

explanation for these discrepancies. Hoxha v. Gonzales , 446 F.3d

210, 214 (1st Cir. 2006); In re A-S , 21 I. & N. Dec. 1106, 1109

(BIA 1998).

1. The Custody Chain of the Democratic Party

Membership Card

As the first ground for his adverse credibility

determination, the IJ noted that Cuko gave three different accounts

as to how he obtained his Democratic Party membership card as a

supporting exhibit. The IJ also found that Cuko's demeanor led the

IJ to believe that Cuko gave the multiple accounts because he

recognized the inconsistency between his prior account and his

other testimony.

These discrepancies in Cuko's testimony about how he

obtained the Democratic Party membership card are clearly present

in the administrative record. They are based not only on

inconsistency of statements but also on observation of demeanor.

They also go the heart of Cuko's claim of persecution based on

political beliefs.

See Bojorques-Villanueva v. INS , 194 F.3d 14,

16 (1st Cir. 1999). Further, the IJ considered Cuko's explanation

for his inconsistencies in testimony, and found it was not credible

because his answer appeared to change only after he realized it

conflicted with his prior testimony. See Simo v. Gonzales , 445

F.3d 7, 12 (1st Cir. 2006) ("Our cases make frequent reference to

the failure of a petitioner to sufficiently explain

inconsistencies." (citing Chen v. Gonzales , 418 F.3d 110, 113 (1st

Cir. 2005); Dhima v. Gonzales , 416 F.3d 92, 96 (1st Cir. 2005))).

Under our deferential standard of review, we cannot say

that the record compels us to make a determination contrary to that

of the IJ. The IJ's determination was also based on Cuko's

demeanor, and the IJ's findings as to demeanor are subject to great

weight. See, e.g. , Rodriguez Del Carmen v. Gonzales , 441 F.3d 41,

43 (1st Cir. 2006) ("Matters of witness credibility and demeanor

are peculiarly for the factfinder.").

2. The December 2001 Certificate from Party Chairman

As the second ground for his adverse credibility

determination, the IJ observed that the December 28, 2001

certificate, in which the local party chairman certified that Cuko

had paid party dues from 1992 through November 2000, contradicted

Cuko's testimony that he remained an active Democratic Party member

into early 2001, and that Cuko's explanation for terminating his

membership ( viz. , his aborted attempt to purchase a house in

Tirana) was "wholly unsatisfactory."

In addition, the IJ found that the December 2001

certificate reasonably should have included (but did not) some

account of the political persecution that Cuko purportedly suffered

in early 2001. Cuko's explanation that the December 2001

certificate was just a ministerial verification of Cuko's official

enrollment dates in the party was undercut by the evidence that the

December 2001 certificate did make reference to Cuko's forced labor

under the prior Albanian regime. Again, under our deferential

standard of review, it was reasonable for the IJ to note the

inconsistencies and find Cuko's explanation inadequate.

Cuko argues that the even if he was no longer an active

Democratic Party member, he may still be at risk of political

persecution because he was perceived to be a Democratic Party

member. It is correct, but not material here, that an asylum claim

can be predicated not only on an applicant's actual political

affiliation, but on his perceived affiliation with a particular

political opinion. See Mekhoukh v. Ashcroft , 358 F.3d 118, 125

(1st Cir. 2004); Alvarez-Flores v. INS , 909 F.2d 1, 4 (1st Cir.

1990) ("[A]n imputed political opinion, whether correctly or

incorrectly attributed, can constitute a ground of political

persecution within the meaning of the [Immigration and Nationality]

Act."); see also Koudriachova v. Gonzales , 490 F.3d 255, 264 (2d

Cir. 2007) ("[T]he relevant question is not whether an asylum

applicant subjectively holds a particular political view, but

instead whether the authorities in the applicant's home country

perceive him to hold a political opinion and would persecute him on

that basis."); Gao v. Gonzales , 424 F.3d 122, 129 (2d Cir. 2005);

8 C.F.R. § 208.13 (b)(2)(iii).

This point is irrelevant to the IJ's determination,

however. The IJ used the discrepancy over Cuko's party membership

dates as one of many factors, including its finding that "his

demeanor suggested mendacity," to find Cuko was personally not

credible. The IJ's basis of decision was not that because Cuko was

no longer a Democratic Party member, he would not have been subject

to persecution; it was that because of Cuko's testimonial

inconsistencies and demeanor, Cuko did not meet his burden of

showing a well-founded fear of persecution.

Further, this was not a case in which Cuko was not

afforded an opportunity to explain the inconsistency. See Hoxha ,

446 F.3d at 214 (noting that the asylum applicant must provide a

persuasive explanation for the purported discrepancies); Zi Lin

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

asylum applicant should be afforded "a reasonable opportunity to

explain what the IJ perceived as an inconsistency in her

testimony"). Cuko attempted to explain the inconsistency by his

aborted move to Tirana. The IJ found that explanation also to be

not credible, and the record does not compel a contrary finding.

3. The Testimony Concerning the Cukos' Smuggling

Transaction

As another ground for his adverse credibility

determination, the IJ cited discrepancies between the testimony of

Cuko and his wife concerning details of the transaction by which

Mrs. Cuko was smuggled to the United States. Because Cuko's

petition pre-dates the effective date of the Real ID Act, our

deferential standard of review is subject to an important caveat:

"[A]n adverse credibility determination cannot rest on trivia but

must be based on discrepancies that involved the heart of the

asylum claim." Lin , 503 F.3d at 7 (quoting Bojorques-Villanueva ,

194 F.3d at 16 ) (internal quotation marks omitted). The IJ found

that these discrepancies as to the smuggling, when combined with

Cuko's other testimony, became "material" and went to the heart of

his claim. The BIA considered the inconsistencies in the testimony

regarding the Cukos' smuggling transaction; while "collateral" to

Cuko's claim if viewed alone, they still provided additional

support for the IJ's adverse credibility finding. "While these

additional discrepancies do not necessarily go to the heart of

Lin's persecution claim, and thus might not be enough standing

alone to support an adverse credibility finding, . . . in this

case they provide further support for the IJ's conclusion that

[petitioner] was not candid in her recitation of events." Id. at

8 (citations omitted). The inconsistencies about the funding and

selling of the home, which provided the source of money to pay the

smugglers, raised issues of credibility regarding Cuko's reasons

for fleeing to the United States, which go to the heart of his

application. The record does not compel a different conclusion.

4. Other Concerns

Cuko argues that the IJ purported to base his adverse

credibility decision, in part, on "material inconsistencies and

discrepancies between the applicant's written asylum application

and his testimony," but then did not, in the remainder of his

decision, cite any specific examples of such discrepancies.

(Emphasis added.) As described above, the IJ does explain the

inconsistencies between Cuko's testimony and the exhibits that Cuko

submitted . Regardless, the IJ had sufficient other grounds, based

on the testimony alone, upon which to rest his adverse credibility

determination, and no prejudice would have resulted to Cuko.

Further, the IJ noted that even if Cuko had met his

burden of showing he had been persecuted as an active Democratic

Party member (and he had not), "the background information does not

corroborate his claim that persecution awaits him upon his return

to Albania," and therefore, he "cannot establish that he has a

well-founded fear of suffering future persecution." This

background information, namely the State Department country reports

– which note only minimal political violence and retaliation in

present-day, post-Communist Albania - refute the contention that

his family would be harmed in the future if they returned to

Albania. This finding is relevant to Cuko's failure to prove a

well-founded fear of future persecution. Even if Cuko had shown he

suffered past persecution, which he did not, the IJ's reliance on

the State Department reports was sufficient to "rebut[] the

presumption of a well-founded fear of future persecution arising

from allegations of past persecution based on support for the

Democratic Party." Gjiknuri v. Mukasey , No. 07-1328, 2008 WL

132130 , at *3 (1st Cir. Jan. 15, 2008); Alibeaj v. Gonzales , 469

F.3d 188, 192-93 (1st Cir. 2006); Tota v. Gonzales , 457 F.3d 161,

167 (1st Cir. 2006). The record does not compel a contrary

conclusion.

In any event, the adverse credibility determination

defeats the petitioner's asylum claim. See Dine v. Gonzales , 464

F.3d 89, 93 (1st Cir. 2006) ("[W]hen a petitioner's case depends on

the veracity of . . . testimony, a fully supported adverse

credibility determination, without more, can sustain a denial of

asylum." (quoting Olujoke v. Gonzales , 411 F.3d 16, 22 (1st Cir.

2005)) (internal quotation marks omitted)). The denial of Cuko's

asylum claim also effectively disposes of his withholding of

removal claim. See Makhoul v. Ashcroft , 387 F.3d 75, 82 (1st Cir.

2004) ("A claim for withholding of deportation demands that the

alien carry a more stringent burden of proof than does an asylum

claim. Thus, if an alien cannot establish asylum eligibility, his

claim for withholding of deportation fails a fortiori.").

In this case, the petitioner's brief does not advance any

arguments specific to his CAT claim. To the extent that the claim

is not waived, see Dine , 464 F.3d at 93 , Cuko's CAT claim was

predicated on the veracity of his testimony and the current

Albanian political climate, and so this claim, too, fails.

B. The Conduct of the Immigration Judge

Cuko makes a perfunctory argument that the IJ overstepped

his authority by assuming the role of a government attorney and

engaged in "prosecutorial questioning." The BIA rejected this

position, as we do. The petitioner's brief points to no specific

instance in the record to support this claim. It is well settled

that "issues adverted to in a perfunctory manner, unaccompanied by

some effort at developed argumentation, are deemed waived." United

States v. Zannino , 895 F.2d 1, 17 (1st Cir. 1990).

Regardless, it is clear from the hearing transcripts that

the IJ was acting within his broad discretion. See 8 U.S.C.

§ 1229a(b)(1) (authorizing the IJ to "receive evidence,

interrogate, examine, and cross-examine the alien or witnesses");

Jorgji v. Mukasey , 514 F.3d 53, 59 (1st Cir. 2008). We agree with

the BIA that "the questions and warnings directed to the applicant

by the IJ [do not] indicate any pre-disposed bias against the

applicant, or [go] beyond the [IJ's] broad discretionary authority

to control the pace and scope of the hearing." Cuko's opportunity

to present his case was not restricted.

III

CONCLUSION

The petition for review is denied.

-Dissenting Opinion Follows-

CYR, Senior Circuit Judge (dissenting). Because the

majority seriously misreads the appellate record, and particularly

the agency’s two written decisions, I respectfully dissent. In

deferring wholesale to the agency’s credibility determinations in

these circumstances, the majority turns our review function into a

hollow exercise in rubber-stamping.

I.

In assessing pivotal credibility determinations, we must

– at the very least – hold the agency to its word. If the BIA had

merely affirmed and adopted the IJ’s decision without further

elaboration, we would review the IJ’s rationales directly and

exclusively. Importantly, however, that is not what the BIA’s

decision purported to do; it added its own gloss. The BIA

expressly did not “affirm” – but instead rejected – the IJ’s

decision that the discrepancies concerning how Cuko smuggled his

wife and child into the United States could be weighed in assessing

his credibility: “[W]e agree with the applicant that the

inconsistencies in the record concerning how much he paid to have

his wife and son smuggled into the United States are collateral to

his asylum claim.” (Emphasis added.) The majority’s insistence

to the contrary is directly at odds with this plain language.

Further, although the BIA is not required to catalog

every basis for affirming an IJ’s credibility decision, and indeed

could have simply affirmed the IJ’s remaining rationales without

comment, the BIA in this case expressly stated that it had found

“sufficient other evidence in the record to support the [IJ’s]

credibility finding.” See Sou v. Gonzales , 450 F.3d 1, 7 (1st Cir.

2006) (“In our review, we consider only the reasons stated by the

Board for denying relief and do not independently consider whether

other grounds would be supported by the record.”). If the BIA had

proceeded merely to give an example of this “other evidence,” one

reasonably might argue that it implicitly was affirming all of the

IJ’s remaining rationales. Rather than begin the next sentence

with the phrase “For example,” however, the BIA begins with

“Specifically,” which connotes that it intends to identify the

“other evidence” that independently supports its affirmance. See

Tobon-Marin v. Mukasey , 512 F.3d 28, 30 (1st Cir. 2008) (“As the

BIA adopted and supplemented the IJ's opinion with its own

substantive gloss, we evaluate both the IJ's decision and the BIA

decisions.”); Xue Hong Yang v. United States Dep't of Justice , 426

F.3d 520, 522 (2d Cir. 2005) (noting that when the BIA affirms the

IJ’s decision in all respects but one, the appellate court must

review the IJ's decision as modified by the BIA decision, “minus

the single argument for denying relief that was rejected by the

BIA”). Given this choice of language, we must ask whether the

specific evidence cited as a ground for affirmance – that the party

certificate per se contradicts Cuko’s testimony that he remained an

“active” and “recognized” party member in February and March 2001

– meets the three-part appellate review standard ( viz. , the

presence of an actual discrepancy which generates specific reasons

to suspect the applicant’s veracity, and for which he has provided

no persuasive explanation). See Hoxha v. Gonzales , 446 F.3d 210,

214 (1st Cir. 2006); In re A-S , 21 I. & N. 1106, 1109 (BIA 1998).

The majority mistakenly suggests that even this narrower

BIA determination is itself a sufficient ground to deny Cuko’s

petition for review. The putative discrepancy – the Party

certificate’s necessary implication that Cuko thereafter became

“inactive” in his party activities – is simply not a self-evident

inconsistency. An asylum applicant might testify, for example,

that he entered the country from Canada, then testify later that he

entered the country from Mexico. In that case of facial

inconsistency ( viz. , both versions of the historical facts cannot

be simultaneously true), we would be hard-pressed to find that the

IJ could not rely on that unexplained inconsistency in finding the

applicant not worthy of credence.

By contrast, the Party certificate suggests only that

Cuko, a long-time party member, stopped paying his dues in November

2000. When specifically asked to explain why he had stopped paying

his dues, he testified that he had planned unsuccessfully to

relocate to Tirana to escape increased political persecution. He

later testified, however, that he remained “active” in the Party

after November 2000, and continued to be “recognized” as an active

party member and organizer. Unlike the black-and-white Canada-Mexico discrepancy hypothesized above, however, the perceived

discrepancy between the concepts “non-dues-paying” and “active” is

hardly inexorable. See San Kai Kwok v. Gonzales , 455 F.3d 766, 769

(7th Cir. 2006) (“‘[A]dverse credibility determinations should not

be grounded in . . . easily explained discrepancies’ because such

bases lack the necessary ‘legitimate nexus to the finding.’”)

(citation omitted); Ming Shi Xue v. BIA , 439 F.3d 111, 114-115 (2d

Cir. 2006) (“[W]hen an inconsistency is not self-evident, an IJ may

not rely on it to support a credibility determination without first

bringing the perceived discrepancy to the alien's attention,

thereby giving the alien an opportunity to address and perhaps

reconcile the seeming inconsistency, to the IJ's satisfaction, at

the least.”); accord He Chun Chen v. Ashcroft , 376 F.3d 215, 224

(3d Cir. 2004) (“[A]mbiguous answers at airport interviews should

not be relied upon to question the credibility of the alien . . .

.”). The adjective “active” obviously requires some further

definition and explanation, and in this instance, the IJ did not

point out the perceived inconsistency to Cuko at the hearing, nor

did he allow Cuko a reasonable opportunity to explain why or how

the two items of evidence were not discrepant. Under the first

criterion of the Hoxha standard of review, there simply is no

actual discrepancy. See , e.g. , Bandari v. INS , 227 F.3d 1160, 1167

(9th Cir. 2000) (finding no actual inconsistency between two

statement that IJ perceived as discrepant).

The certificate proves, at most, that Cuko’s official

membership in the party terminated when he ceased paying dues in

November 2001, as Cuko freely admitted. The IJ neither sought out

nor received any evidence, however, that Democratic Party rules

forbade persons, whose official party membership had lapsed, from

continuing to participate in or to organize party election rallies,

and/or that the party actively monitored such participants to

ensure that their formal party membership had not expired. Nor was

Cuko ever asked to explain the perceived inconsistency. Hoxha ,

446 F.3d at 214 (noting that petitioner must have failed to provide

a persuasive explanation for the purported discrepancies). During

the period from November 2000 to March 2001, Cuko purportedly was

planning a move to Tirana, but reasonably may have decided to

participate in local party election activities pending that

relocation.

More importantly, even if evidence had been presented to

the effect that the Party forbade its expired members from taking

part in any further party activities and events, Cuko testified

that, due to his longstanding and high-profile affiliation with the

Democratic Party, most people in town still would “recognize” him

as a party member, whether or not his official membership had

terminated. Indeed, it is unlikely that the Democratic Party’s

political opponents – for example, according to Cuko, the police –

would be privy to internal party documentation attesting to the

termination of Cuko’s official membership. An asylum claim can be

predicated not only on an applicant’s actual political opinion or

affiliation, but on his perceived affiliation with a particular

political opinion. See Mekhoukh v. Ashcroft , 358 F.3d 118, 124

(1st Cir. 2004); see also Koudriachova v. Gonzales , 490 F.3d 255,

264 (2d Cir. 2007) (“We explained that the relevant question is not

whether an asylum applicant subjectively holds a particular

political view, but instead whether the authorities in the

applicant's home country perceive him to hold a political opinion

and would persecute him on that basis.”); Chun Gao v. Gonzales , 424

F.3d 122, 129 (2d Cir. 2005) (“‘[A]n imputed political opinion,

whether correctly or incorrectly attributed, can constitute a

ground of political persecution within the meaning of the

Immigration and Nationality Act.’”)(quoting Alvarez-Flores v. INS ,

909 F.2d 1, 4 (1st Cir. 1990)).

By denying Cuko’s petition for review on this basis, the

majority essentially condones and rubber-stamps an undesirable

policy and practice: an IJ silently may collect what he perceives

as testimonial discrepancies of a latent kind which would not be

readily apparent to the asylum applicant or his counsel, offer the

applicant no contemporaneous opportunity to explain why his

perception is faulty, and then blindside the applicant after the

fact with an asylum decision premised entirely on his untested

adverse credibility findings. This practice is not only at odds

with our clear precedent, but would subvert the essential truth-seeking function of asylum proceedings.

II.

Even if my interpretation of the BIA decision were

arguable, and we were permitted to review the IJ’s other rationales

for the adverse credibility determination, the other discrepancies

identified by the IJ are not objectively supportable grounds for

his adverse credibility finding.

A. Cuko’s Chain of Custody Testimony

With respect to the alleged discrepancy in Cuko’s

accounts as to how he obtained his Democratic Party membership card

as a hearing exhibit, the inconsistency in his accounts is self-evident, and the IJ afforded Cuko adequate opportunity to explain

them.

That said, the BIA’s refusal to mention the IJ’s chain-of-custody rationale as a ground for its affirmance is not

surprising. When an IJ bases an adverse credibility determination

on alleged testimonial discrepancies, he or she must be especially

“‘sensitive to the complexities of receiving testimony through a

translator,’” and the possibility “that the alleged discrepancy

resulted from confusion, and not an attempt at fabrication.” Heng

v. Gonzales , 493 F.3d 46, 49 (1st Cir. 2007) (citing Giday v.

Gonzales , 434 F.3d 543 , 549 n.2 (7th Cir. 2006)). When the IJ

asked Cuko to explain why he first testified that his father-in-law

had obtained the membership card from the party archives after Cuko

arrived in the United States, Cuko stated that he had been

“confused,” since other documents comprising Exhibit 5 were so

obtained, but then he had recalled that it was not necessary for

his father-in-law to get the card from the archives because Cuko

already had the card in his possession before he left Albania.

A close review of the record amply supports the

plausibility of Cuko’s explanation. The crux of this inquiry was

whether Cuko was a Democratic Party supporter, and the fact that

the Party issued this card would tend to prove that fact. The

particulars of whether Cuko’s father-in-law retrieved the card

directly from the Party archives, from Cuko’s home, or from Cuko

himself, are not particularly important to that core inquiry.

Moreover, even the attorneys experienced considerable confusion

over this line of questioning, and expressed doubts whether Cuko

had even been shown the correct hearing exhibits during his

previous testimony. Rather than take steps to insure that Cuko’s

explanation was not bona fide, however, the IJ simply forged ahead.

If even attorneys proficient in English were so befuddled, we can

hardly have great confidence that Cuko was not. Id.

B. Party Certificate

Tellingly, the BIA affirmed solely on the IJ’s rationale

that the Party certificate’s declaration that Cuko stopped paying

party dues in November 2000 was inconsistent with his testimony

that he remained “active” in party activities thereafter. Its

silence as to the IJ’s two other sub-rationales based on the Party

certificate speaks volumes. The Cuko explanation for stopping his

payment of dues – that he unsuccessfully contemplated a relocation

to Tirana to avoid increased political persecution during the

upcoming election season – is not inherently implausible. The

record also contains no affirmative evidence tending to show Cuko’s

explanation was a mere fabrication.

By the same token, the IJ’s assertion that one reasonably

should expect that this type of Party certificate would contain a

detailed narrative of Cuko’s history with the Party, and especially

of the specific acts of political persecution allegedly inflicted

on him in early 2001, is rank speculation. The terse certificate

purported only to be a ministerial verification of Cuko’s official

enrollment dates in the party. It indicated that it was issued at

Cuko’s request ( viz. , to verify that he was affiliated with the

Party), which means that it likely would confine its subject matter

to the specific and narrow question that Cuko’s application posed.

Again, the record contains no evidence that these certificates

typically would contain an exhaustive or individualized history of

the applicant’s activities with the party. Accordingly, the BIA

made nary a mention of these dubious IJ findings.

C. Other Concerns

Cuko aptly notes that the IJ also purported to base his

adverse credibility decision, in part, on “material inconsistencies

and discrepancies between the applicant’s written asylum

application and his testimony,” but then failed in the remainder of

his decision to cite any specific examples of such variances.

Instead, the IJ based his entire credibility decision on the three

core discrepancies discussed above, and the BIA relied on only one

inconsistency. To the extent that the Cuko asylum application

suggests that he remained active in Democratic Party causes and

activities after the formal termination of his party membership in

November 2000, however, that allegation is coterminous with the

substance of his hearing testimony in this regard, and is not at

“variance” with his asylum application.

If that were all the IJ meant by his reference to

“discrepancies between the applicant’s written asylum application

and his testimony,” it would seem that no prejudice would result to

Cuko. Yet we are left with no reliable guidance as to whether the

IJ relied on other purported “variances” which are neither

disclosed nor described in his decision. This unilluminated

reference inevitably undercuts overall confidence in the

reliability of the IJ’s credibility determination.

D. Fear of Future Persecution

Although the majority correctly concludes that the

country reports might have supported the IJ’s independent decision

anent Cuko’s lack of a well-founded fear of future persecution, the

IJ did not rely solely on these reports. Rather, he explicitly

states: “Even if this court were to take other sections of the

State Department report and responses in this record of proceedings

to contradict that Profile, this Court must note that the applicant

has been found to be not a credible witness, and therefore, this

Court cannot find that his testimony or the documents that he has

submitted are credible.” Because the IJ’s defective credibility

determination fatally infected his decision concerning the issue of

future persecution, we cannot affirm on that independent ground.

III.

Finally, from a broader policy perspective, I would

suggest that this case is a prime example of what is so defective

with many immigration proceedings. While the IJ reasonably might

have accepted Cuko’s credibility arguendo , and then denied his

asylum application either on the ground that his ill treatment did

not rise to the level of “persecution,” or that the country reports

refuted his fear of any future persecution (indeed, we have

affirmed many IJ opinions to the effect that country conditions in

Albania have changed significantly), the IJ deliberately chose

silently to collect a catalog of perceived testimonial

discrepancies during the hearing, and then base his final decision

solely on Cuko’s lack of credibility. This may seem a relatively

insignificant and academic distinction, but to an asylum applicant,

it likely affects his sense that he has been given a fair

opportunity to state his case for asylum. He is removed to his

home country simply because he is a liar, and not because he has

not proven past persecution or a well-founded fear of future

persecution. Whether or not we agree about the specific facts of

the present case, I think it is incumbent on us to demand from the

agency a minimum threshold of fairness in the process . Expecting

that the IJ will afford an applicant a fair chance

contemporaneously to explain perceived discrepancies upon which the

IJ intends to base his adverse credibility determination is just

such a de minimis requirement. Zi Lin Chen v. Ashcroft , 362 F.3d

611, 618 (9 th Cir. 2004). Short of that, our review function

becomes essentially meaningless.