Abduvakhob Alimbaev v. Attorney General United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 16-4313

_______________

ABDUVAKHOB ABDUKAKHAROVICH ALIMBAEV,

Petitioner

v.

ATTORNEY GENERAL OF THE

UNITED STATES OF AMERICA,

Respondent

_______________

On Petition for Review of an Order of the

Board of Immigration Appeals

(BIA No. A079-729-904)

Immigration Judge: Honorable Charles M. Honeyman

_______________

Argued: June 12, 2017

Before: JORDAN and KRAUSE, Circuit Judges,

and STEARNS, District Judge.*

*

The Honorable Richard G. Stearns, United States

District Judge for the District of Massachusetts, sitting by

designation.

(Opinion Filed: September 25, 2017)

Lawrence H. Rudnick (Argued)

Rudnick Immigration Group

1608 Walnut Street

Suite 1700

Philadelphia, PA 19103

Counsel for Petitioner

Chad A. Readler, Acting Assistant Attorney General Civil

Division

Ethan B. Kanter, Deputy Chief, National Security Unit

Melissa K. Lott

Jefferson B. Sessions, III.

Daniel I. Smulow (Argued)

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

Ryan Houldin

Council on American-Islamic Relations

1501 Cherry Street

Suite 330

Philadelphia, PA 19102

Counsel for Amicus Petitioner

2

_______________

OPINION OF THE COURT

_______________

KRAUSE, Circuit Judge.

This disconcerting case, before our Court for the second

time, has a lengthy procedural history marked by conflict

between the Board of Immigrations Appeals (BIA) and the

Immigration Judge (IJ) and fueled by troubling allegations that

Petitioner, an Uzbek national, relished watching violent

terroristic videos, while apparently harboring anti-American

sympathies. The issue on appeal, however, is whether the BIA

correctly applied the clear error standard of review, as required,

when reviewing the IJ’s factfinding in this case—an inquiry

that highlights the role of faithful adherence to applicable

standards of review in preserving the rule of law, safeguarding

the impartiality of our adjudicatory processes, and ensuring

that fairness and objectivity are not usurped by emotion,

regardless of the nature of the allegations. Because we

conclude that the BIA misapplied the clear error standard when

reversing the IJ’s finding that Petitioner’s testimony was

credible, we will grant the petition for review of the BIA’s

removal order, vacate the denial of Petitioner’s applications for

adjustment of status, withholding of removal, and protection

under the Convention Against Torture (CAT), and remand

once more to the BIA.

I. Factual and Procedural Background

Petitioner Abduvakhob A. Alimbaev is a native and

citizen of Uzbekistan. According to his testimony before the

3

IJ,1 when he was a young teenager in the early-to-mid 1990’s,

Alimbaev attended a handful of services led by Obidkhon Qori

Nazarov, an imam who was accused by the Uzbek

government—reputed for religious intolerance—of preaching

violence and plotting a government takeover. During that time

period, Uzbek authorities rescinded Nazarov’s license to lead

religious services, making it illegal for citizens to attend

religious gatherings he hosted. According to Alimbaev, on a

day Uzbek authorities came to Nazarov’s apartment, Alimbaev

was among a crowd of two- to three-hundred followers and

reporters, all gathered to seek religious guidance and to prevent

the government from surreptitiously arresting Nazarov.

Alimbaev believes that when he was standing in the midst of

the crowd, he was caught on video taken by authorities. It is

because of his connections to Nazarov in Uzbekistan in the

1990’s and to others who were followers of Nazarov in the

United States after he came to this country in 2001, as

described below, that Alimbaev claims to fear persecution and

torture if he is removed to Uzbekistan.

Alimbaev testified that in February 2001, when he was

nineteen, he traveled to the United States as a nonimmigrant

visitor, planning to perform with an Uzbek band at a music

festival in Los Angeles. Although Alimbaev was with some of

his fellow band members in the Tashkent airport, he did not see

them on his flight to New York City or upon arriving at the

airport. Instead, according to Alimbaev, a girl from another

1

This factual summary is derived principally from

Alimbaev’s testimony. See, e.g., Serrano-Alberto v. Att’y

Gen., 859 F.3d 208, 211 n.1 (3d Cir. 2017); Jishiashvili v. Att’y

Gen., 402 F.3d 386, 388 (3d Cir. 2005).

4

Uzbek band informed him that his band members would not

arrive until the following week. Afraid he would not have

enough money to survive on his own for that week, Alimbaev

decided to travel to Orlando, Florida to visit a friend from

Uzbekistan whose name and phone number his father had

given him to use in case of emergency, rather than continuing

as planned to Los Angeles.

After a few months in Orlando and a brief stay in

Dayton, Ohio, Alimbaev settled in Philadelphia, Pennsylvania.

There, Alimbaev testified, he shared an apartment with six or

seven Uzbek Muslim men, all of whom were supporters and

former students of Nazarov. He also testified that not long after

he moved into the apartment, Uzbek authorities came to

Alimbaev’s parents’ house in Uzbekistan to inquire after

Alimbaev’s whereabouts and to pressure his parents to

facilitate his return, displaying pictures of him with his new

roommates in Philadelphia and accusing him of being

“involved with these bad guys.” AR 1297.

During this time, according to Alimbaev, he heeded

warnings from his parents to stay in the United States by

submitting applications to the then-called Immigration and

Naturalization Service (INS)2 to extend and change the status

of his visa—applications that, it turned out, contained

numerous misrepresentations. Initially, with the help of a

friend, Alimbaev filed for and received an extension on his

tourist visa through January 2002. That application falsely

represented that Alimbaev was a computer scientist, that he

2

In 2003, INS ceased to exist and its responsibilities were

transferred to the Department of Homeland Security (DHS).

See Homeland Security Act of 2002, 6 U.S.C. § 291.

5

had been invited to the United States by other computer

scientists, and that his parents were wealthy and could support

him for the duration of his stay. Alimbaev testified that he was

unaware of the false statements in the application when it was

submitted, though he acknowledged that it did contain his

signature.

Later, when his visa was soon to expire in December

2001, Alimbaev applied to have his nonimmigrant status

changed from tourist to student, representing in that application

that he had been admitted to the Concord English Language

Center in California and attaching a false tuition invoice as

proof. Alimbaev testified that he was, once again, assisted by

a friend in assembling this second application, but that he had

no recollection of its contents or of actually submitting it to the

INS. Although the application was denied as untimely, he

remained in the country without authorization, continuing to

live in the same apartment in Philadelphia.

In this communal residence, Alimbaev and his

roommates occupied close quarters and shared just one

computer, which, according to Alimbaev, he used only

occasionally, typically to read international news. In June

2002, federal immigration agents executed a warrant at

Alimbaev’s apartment, arresting, detaining, and placing into

immigration proceedings Alimbaev and five of his roommates,

four of whom were the subject of extradition requests and

Interpol warrants issued based on outstanding charges of

religious extremism in Uzbekistan.3 The agents searched the

3

Our Court, in granting the petitions for relief later filed

by Alimbaev’s roommates, held that these charges were

baseless and “a pretext to single out and punish those in

6

roommates’ shared computer and discovered terroristic videos

displaying Al Jazeera broadcasts—one of Osama bin Laden

and one of Afghan fighters—images of Chechen rebel fighters,

and scenes of destruction caused by explosives. The computer

also contained a map of Pennsylvania State Police barracks and

an email to one of Alimbaev’s roommates praising an Islamic

terrorist organization. After two months, Alimbaev was

released from detainment, and charged with removability,

which he conceded. Although removable, he soon became

eligible to apply for adjustment of status based on two

successive marital relationships.

In 2003, Alimbaev married Shaketa Chapman, a United

States citizen whom he divorced in 2005. That December, he

married his current wife, Kia Crawford, also a United States

citizen, with whom, by the time of the hearing, he had had two

children. Alimbaev supports his family financially through

the construction business he owns and operates, and Crawford

takes care of their children full time. Alimbaev also owns a

house, and provides financial support to his mother-in-law.

In 2008, based on his marriage to Crawford, Alimbaev

applied to adjust his status to lawful permanent resident, a

request the Attorney General may grant or deny in his or her

discretion by balancing the positive and negative factors

relevant to a petitioner’s application. 8 U.S.C. § 1255(a);

Matter of Edwards, 20 I. & N. Dec. 191, 195 (BIA 1990); see

Zheng v. Gonzales, 422 F.3d 98, 111 (3d Cir. 2005). At the

subsequent hearing on Alimbaev’s application, held before an

IJ in 2010, Alimbaev testified that he did not watch violent

peaceful opposition to the authoritarian regime.” Yusupov v.

Att’y Gen., 650 F.3d 968, 982 (3d Cir. 2011).

7

terroristic videos on his former roommates’ shared computer,

although he did view broadcasts downloaded from Al Jazeera,

NBC News, and a Russian news channel that included

coverage of Saddam Hussein and Osama bin Laden.

Additionally, a government agent testified that none of the

terroristic materials found on that computer were directly

linked to Alimbaev’s email account or tied in any traceable

way to his usage of the computer. However, Alimbaev’s ex-

wife—who had by then changed her name to Shaketa

Gonzalez—was called to testify as a rebuttal witness following

Alimbaev’s testimony, and she asserted that during their

marriage, while they lived together in an apartment with no

roommates, she witnessed Alimbaev view and express

enthusiasm for violent videos depicting terrorist acts on

multiple occasions.

Following the hearing, the IJ granted Alimbaev’s

application to adjust status. The Department of Homeland

Security (DHS) appealed to the BIA, which vacated the IJ’s

decision, concluding the adverse factors present in Alimbaev’s

case outweighed the favorable equities. The BIA remanded,

however, to afford Alimbaev the opportunity to apply for

asylum—a form of discretionary relief, see Guo v. Ashcroft,

386 F.3d 556, 561 (3d Cir. 2004)—and withholding of removal

and CAT protection—both of which are mandatory if

eligibility is established, see Kaita v. Att’y Gen., 522 F.3d 288,

296, 300-01 (3d Cir. 2008).

On remand, in addition to seeking these forms of relief,

Alimbaev submitted a new application for adjustment of status.

The IJ held a second hearing in 2014, at which Alimbaev

repudiated Gonzalez’s earlier testimony that he had watched

violent videos of terrorist activity while they were married,

8

testifying that her statements were untrue and speculating that

she was motivated by jealousy over his second marriage. After

the hearing, the IJ granted Alimbaev’s second application for

adjustment of status, and, in the alternative, granted each

additional form of relief he sought. The IJ credited Alimbaev’s

testimony both generally and specifically as to the violent

videos, and found that in balancing the equities to adjudicate

adjustment of status, Alimbaev, as well as his wife, children

and mother-in-law (each of whom would remain in the United

States),4 would face hardship if he were deported.

At the outset of his second opinion, the IJ recounted in

great detail Alimbaev’s testimony at the second hearing, which

he found credible overall “based on the totality of the

circumstances,” determining it to be “internally consistent,

generally believable, and sufficiently detailed.” AR 232.

Specifically, the IJ highlighted as “candid” Alimbaev’s

“testimony that Shakeyta Gonzalez said things about him that

were not true” and his testimony that “he never watched Al

Qaeda videos or videos advocating violence against the United

States.” AR 229. On that basis, the IJ concluded that Gonzalez

was “bias[ed],” that her testimony deserved little weight

because it was uncorroborated by the DHS,5 and that overall,

4

Crawford noted that she and the children would not

accompany Alimbaev to Uzbekistan because of his anticipated

imprisonment and her inability to speak the language or to

obtain employment there.

5

Although Gonzalez testified that she had made

contemporaneous reports about Alimbaev’s interest in

terroristic videos to her uncle who worked at the FBI and to

others at the FBI, no written reports or other corroboration of

9

“the veracity and reliability of her testimony remain[ed]

subject to doubt.” AR 229. The DHS appealed again, and the

BIA, reviewing the IJ’s second decision, vacated that decision

in its entirety, ordering Alimbaev’s removal from the United

States to Uzbekistan.

After Alimbaev petitioned our Court for review of that

BIA decision and removal order, the Government promptly

filed an unopposed motion to remand, seeking to allow the BIA

to reconsider its decision in multiple respects, including the

effect of the IJ’s credibility findings on Alimbaev’s

applications for relief. We granted the motion, returning

Alimbaev’s case to the BIA for the third time.

In 2016, the BIA vacated its prior decision and re-

adjudicated Alimbaev’s claims. First, it reversed the IJ’s

positive credibility determination regarding Alimbaev’s

testimony as clearly erroneous and credited Gonzalez’s

testimony regarding the violent videos. In addition, the BIA

held that Alimbaev’s application for asylum was time-barred,6

and his applications for withholding of removal and CAT

protection were meritless in light of Alimbaev’s incredible

such conversations were offered by the Government at any

point in these immigration proceedings.

6

Alimbaev conceded at oral argument that, under 8

U.S.C. § 1158(a)(2)(B), his application for asylum was

untimely, and that we lack jurisdiction to review the BIA’s

discretionary determination that he is ineligible for the

“changed circumstances” exception to that statutory bar, id. §

1158(a)(2)(D); see 8 C.F.R. § 1208.4(a)(4); Sukwanputra v.

Gonzales, 434 F.3d 627, 635 (3d Cir. 2006). Thus, we will not

further address Alimbaev’s application for asylum.

10

testimony. The BIA also held that the IJ lacked jurisdiction to

review Alimbaev’s second application for adjustment of status.

In the alternative, it addressed the application’s merits,

reversing the IJ’s finding that Alimbaev himself would suffer

hardship upon being removed to Uzbekistan and declining, in

its discretion, to adjust Alimbaev’s status to legal permanent

resident. Having denied all of Alimbaev’s claims, the BIA

once again ordered his removal.

Alimbaev now petitions this Court for review of the

November 18, 2016 removal order of the BIA, asserting that

the BIA erred in rejecting the IJ’s credibility determination.

For the reasons that follow, we conclude the BIA failed to

properly apply the clear error standard of review when it

overruled the IJ’s credibility finding, necessitating yet another

remand for reconsideration of Alimbaev’s applications for

adjustment of status, withholding of removal, and CAT

protection.

II. Jurisdiction and Standard of Review

Although we have jurisdiction over removal orders of

the BIA under 8 U.S.C. § 1252(a), see Cruz v. Att’y Gen., 452

F.3d 240, 246 (3d Cir. 2006), we lack jurisdiction to review the

BIA’s discretionary weighing of evidence, see Pieschacon-

Villegas v. Att’y Gen., 671 F.3d 303, 310 (3d Cir. 2011), or the

BIA’s denial of discretionary relief, including applications for

adjustment of status, see 8 U.S.C. §§ 1252(a)(2)(B)(i), 1255;

Pareja v. Att’y Gen., 615 F.3d 180, 186 (3d Cir. 2010).

However, even when presented with these discretionary

decisions, we may review “colorable claims or questions of

law,” Pareja, 615 F.3d at 186 (quotation marks and citation

omitted); see 8 U.S.C. § 1252(a)(2)(D), such as whether the

11

BIA “misapplied the legal standard,” Pieschacon-Villegas, 671

F.3d at 310. And, of course, when our jurisdiction is unclear,

“[w]e have jurisdiction to determine whether we have

jurisdiction.” Jarbough v. Att’y Gen., 483 F.3d 184, 188 n.3

(3d Cir. 2007).

As for what standard we apply, we review the BIA’s

legal determinations de novo, including whether the BIA

properly applied clear error review to the IJ’s findings of fact.

Mendoza-Ordonez v. Att’y Gen., No. 16-3333, 2017 WL

3611991, at *4 (3d Cir. Aug 23, 2017); Pieschacon-Villegas,

671 F.3d at 310, 314; see Lin v. Lynch, 813 F.3d 122, 129 (2d

Cir. 2016); Kabba v. Mukasey, 530 F.3d 1239, 1245 (10th Cir.

2008). Where, as here, the BIA issues its own opinion on the

merits, we review that decision, not the IJ’s.7 Cadapan v. Att’y

Gen., 749 F.3d 157, 159 (3d Cir. 2014).

7

The Government takes no position regarding the

BIA’s holding that the IJ lacked jurisdiction to adjudicate

Alimbaev’s second application for adjustment of status,

positing that we need not address this question because the

BIA, in the alternative, considered and denied Petitioner’s

second application on the merits. However, because we must

ensure that we review the correct BIA opinion, which turns on

which adjustment application the IJ had jurisdiction to

adjudicate, see Cadapan v. Att’y Gen., 749 F.3d 157, 159 (3d

Cir. 2014), we pause to clarify the IJ’s jurisdiction.

We have held that when the BIA does not expressly

retain jurisdiction over a petitioner’s case and issues a remand

order unlimited in scope and purpose, an IJ has jurisdiction to

consider any matters pertinent to that case under the

12

III. Discussion

The central question in this case is whether the BIA

misapplied the clearly erroneous standard in rejecting the IJ’s

finding that Alimbaev’s testimony was credible. We conclude

that it did err and that this error necessitates remand to the BIA

Immigration and Nationality Act (INA) and its implementing

regulations. Johnson v. Ashcroft, 286 F.3d 696, 702-03 (3d

Cir. 2002) (holding that unless remand from the BIA is

“qualified or limited to a specific purpose,” an IJ may consider

“any and all matters [he] . . . deem[s] appropriate in the

exercise of his administrative discretion or which are brought

to his attention in compliance with the appropriate

regulations”) (quoting Matter of Patel, 16 I. & N. Dec. 600,

601 (BIA 1978)). Here, the BIA employed the following

language in its first decision: “Because the respondent . . .

indicated a desire to apply for asylum, withholding of removal,

and [CAT] protection . . . we [] remand the record to provide

him the opportunity to apply for that relief or any other relief

for which he may be eligible.” AR 967. Clearly, the BIA

neither retained its own jurisdiction nor placed limits on the

scope or purpose of its remand order, see Johnson, 286 F.3d at

702-03, going so far as to spell out that Alimbaev was at liberty

to apply for additional forms of relief beyond asylum,

withholding of removal, and CAT protection. Additionally,

the INA does not confine the number of applications a

petitioner may file. See 8 U.S.C. § 1255. Thus, we have no

difficulty concluding the IJ had jurisdiction over Alimbaev’s

second adjustment application, and therefore we review the

BIA’s analysis of that application as set forth in the BIA’s third

and most recent opinion and order, which is the subject of this

appeal. See Cadapan, 749 F.3d at 159.

13

of Alimbaev’s applications for adjustment of status,

withholding of removal, and CAT protection because the

BIA’s analysis of the merits of each form of relief was affected

by its reversal of the IJ’s credibility determination. To explain

how we arrive at this conclusion, we begin by situating the

clearly erroneous standard in the context of credibility

determinations; we then address how the BIA misapplied this

standard by reversing the IJ’s credibility finding; and we close

by explaining the implications of our holding in order to define

with clarity the BIA’s task on remand. We start with the

clearly erroneous standard.

A. The Clearly Erroneous Standard of Review of

Credibility Determinations

The Supreme Court explicated the concept of clear error

review in United States v. U.S. Gypsum Co., 333 U.S. 364, 395

(1948), the seminal case for defining this standard, including

in the immigration context. See, e.g., Lin, 813 F.3d at 126;

Kabba, 530 F.3d at 1245. In Gypsum, the Court held that “[a]

finding is ‘clearly erroneous’ when although there is evidence

to support it, the reviewing court on the entire evidence is left

with the definite and firm conviction that a mistake has been

committed.” Gypsum, 333 U.S. at 395. Since Gypsum, the

Court has acknowledged that “the meaning of the phrase

‘clearly erroneous’ is not immediately apparent.” Anderson v.

City of Bessemer, 470 U.S. 564, 573 (1985). Nevertheless, the

Court has set forth certain defining principles, including that

“[w]here there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous,”

id. at 574, and that, where the disputed finding of fact is a

credibility finding, “even greater deference” is owed, “for only

the [factfinder] can be aware of the variations in demeanor and

14

tone of voice that bear so heavily on the listener’s

understanding of and belief in what is said,” id. at 575. In

short, “[t]his standard plainly does not entitle a reviewing court

to reverse the finding of the trier of fact simply because it is

convinced that it would have decided the case differently.” Id.

at 573.

These teachings apply with particular force when the

BIA reviews an IJ’s credibility finding in immigration

proceedings because a petitioner’s testimony, in many cases, is

the singular evidence that establishes, or, conversely, disproves

that petitioner’s case. See Chukwu v. Att’y Gen., 484 F.3d 185,

191 (3d Cir. 2007) (“[T]he BIA may grant . . . [relief] solely on

the basis of the applicant’s credible testimony.”). The INA, by

its terms, grants IJs broad discretion in making credibility

determinations, providing that: “Considering the totality of the

circumstances, and all relevant factors,” an IJ “may base a

credibility determination on the demeanor, candor, or

responsiveness of the applicant or witness, the inherent

plausibility of the applicant’s or witness’s account, the

consistency between . . . written and oral statements . . . , the

internal consistency of each such statement, the consistency of

such statements with other evidence of record . . . , and any

inaccuracies or falsehoods in such statements,” whether or not

“an inconsistency, inaccuracy, or falsehood goes to the heart of

the applicant’s claim, or any other relevant factor.” 8 U.S.C.

§ 1158(b)(1)(B)(iii). Although that subsection applies

specifically to asylum applications, we have recognized

previously that the wide latitude that it affords an IJ—in

considering all pertinent factors and weighing those factors as

the IJ deems appropriate in each individual case—carries over

to other applications for relief. See, e.g., Sukwanputra v.

Gonzales, 434 F.3d 627, 636 (3d Cir. 2006).

15

In view of that broad latitude and factfinding authority,

the BIA’s review of an IJ’s factfinding is highly deferential.

See In Re S-H-, 23 I. & N. Dec. 462, 464-65 (BIA 2002). The

BIA is prohibited from “engag[ing] in de novo review of

findings of fact determined by an immigration judge,” and

instead, “[f]acts determined by the immigration judge,

including findings as to the credibility of testimony, shall be

reviewed [by the BIA] only to determine whether the findings

of the immigration judge are clearly erroneous.” 8 C.F.R.

§ 1003.1(d)(3)(i). The Board must “start from the premise that

it will accept the findings of fact made by the immigration

judge,” and it may only reject them if it “identifies specific

reasons . . . for forming a definite and firm conviction that a

mistake has been made.” Board of Immigration Appeals:

Procedural Reforms To Improve Case Management, 67 Fed.

Reg. 54878-01, 54889 (Aug. 26, 2002). Merely pointing to

another permissible view of the evidence is insufficient. In Re

J-Y-C-, 24 I. & N. Dec. 260, 263 (BIA 2007). If further

factfinding is needed, the Board must remand the proceeding

to an immigration judge. 8 C.F.R. § 1003.1(d)(3)(iv).

Moreover, the BIA’s review of the record “must reflect a

meaningful consideration of the record as a whole. It is not

enough for the BIA to select a few facts and state that, based

on them, it disagrees with the IJ’s conclusion.” Huang v. Att’y

Gen., 620 F.3d 372, 387 (3d Cir. 2010).

When we, in turn, are called upon to review the BIA’s

acceptance of an IJ’s factfinding, we carefully consider

whether the BIA has adhered to its obligation to apply the clear

error standard and whether it has applied that standard

consistently. When the BIA has adopted the IJ’s findings as

being supported by substantial evidence, we will likewise

16

uphold those findings “to the extent that they are ‘supported by

reasonable, substantial, and probative evidence on the record

considered as a whole.’” Abdulrahman v. Ashcroft, 330 F.3d

587, 597 (3d Cir. 2003); see also Mendoza-Ordonez, 2017 WL

3611991, at *5. And when our Court is called to evaluate an

IJ’s credibility determination that has been adopted by the BIA,

we do so with exceptional deference, recognizing that the IJ

“alone is in a position to observe an alien’s tone and demeanor,

to explore inconsistencies in testimony, and to apply workable

and consistent standards in the evaluation of testimonial

evidence.” Abdulrahman, 330 F.3d at 597. Stated differently,

we view the IJ as being “uniquely qualified to decide whether

an alien’s testimony has about it the ring of truth,” and our

deferential review is built to reflect this principle. Id.

Where the BIA rejects an IJ’s findings, however, we

carefully scrutinize its reasoning to determine whether the BIA

has overstepped these bounds and misapplied the clear error

standard by “ignoring evidence relevant to determining” the

merits of a petitioner’s claim, Pieschacon-Villegas, 671 F.3d

at 310, failing “to supply cogent reasons for its rulings,” Lin,

813 F.3d at 129, “substitut[ing] its own judgment for that of

the IJ,” Kabba, 530 F.3d at 1247, or failing to “defer to the IJ’s

findings,” id. In those circumstances, we will grant a petition

for review and remand for appropriate proceedings.

Such is the case here. Below, we identify each of the

BIA’s missteps, explaining why its reversal of the IJ’s

credibility finding reflects legal error.

B. BIA Review of Alimbaev’s Testimony

17

In this case, the IJ found that Alimbaev’s testimony was

“candid[],” AR 232, “internally consistent, generally

believable and sufficiently detailed to provide [the IJ] with a

‘plausible and coherent account.’” AR 232 (quoting Matter of

Dass, 20 I. & N. Dec. 120, 124 (BIA 1989)). On the basis of

that credible testimony, much of which was otherwise

uncorroborated, the IJ concluded that Alimbaev was entitled to

an adjustment of status, or in the alternative, withholding of

removal or CAT protection. The BIA, however, reversed that

credibility finding, purporting to apply the clearly erroneous

standard and finding clear error based on three aspects of

Alimbaev’s testimony: (1) two inconsistencies; (2) the

circumstances of his entry to the United States; and (3)

Alimbaev’s alleged failure to rebut his ex-wife’s testimony that

he watched terroristic videos. We consider these three issues

below.

1. Inconsistencies

We have observed that it would be improper for an IJ,

much less the BIA, to discount entirely otherwise-credible

testimony based solely on an “excessive focus on insignificant

testimonial inconsistencies to support a finding of lack of

credibility,” Chen v. Gonzales, 434 F.3d 212, 220 (3d Cir.

2005), and that the credibility of a witness must be considered

in toto because the IJ’s “overall credibility determination does

not necessarily rise or fall on each element of the witness’s

testimony, but rather is more properly decided on the

cumulative effect of the entirety of all such elements,”

Jishiashvili v. Att’y Gen., 402 F.3d 386, 396 (3d Cir. 2005).

“Where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous,”

Anderson, 470 U.S. at 574, and the BIA’s review of any

18

inconsistencies must be based on “meaningful consideration of

the record as a whole,” Huang, 620 F.3d at 387.

Here, however, the BIA homed in on two small

inconsistencies in Alimbaev’s testimony. First, the BIA

deemed Alimbaev’s testimony to be “internally inconsistent”

because, although he testified that his parents informed him in

August 2001 that Uzbek authorities had come to their house

and questioned them about his relationship with his roommates

in Philadelphia, he testified at another point that he did not

move to Philadelphia until October 2001. AR 5. When asked

about the discrepancy in dates, Alimbaev testified that it was

merely a mistake, reiterating that the conversation between

Uzbek authorities and his parents did take place and that it took

place after he moved to Philadelphia. The IJ, in his second

opinion, noted Alimbaev’s acknowledgment that he confused

these dates but offered no additional analysis on this point.

Second, the BIA took issue with the fact that, in the first

hearing, Alimbaev testified that he attended Nazarov’s mosque

two to three times, whereas in the second hearing, he testified

that he attended the mosque six to eight times. The IJ did not

address this minor change in testimony, merely noting in his

opinion that Alimbaev had previously attended the mosque, but

was not a member.

Although identified by the BIA as central reasons for its

rejection of the IJ’s credibility finding, the two statements at

issue appear to be no more than “insignificant testimonial

inconsistencies,” Chen, 434 F.3d at 220, that would probably

not, standing alone, justify an IJ in making a general adverse

credibility finding, much less justify the BIA in rejecting a

positive credibility finding under a clear error standard. Thus,

the BIA substituted its view for the IJ’s “permissible” view that

19

Alimbaev’s overall credibility was not thereby undermined.

Anderson, 470 U.S. at 574. While Alimbaev’s ability to recall

specific numbers and dates may have been imperfect—and the

number of times he attended Nazarov’s mosque does bear on

his affiliation with Nazarov, with potential implications for

Alimbaev’s likelihood of persecution and torture relevant to

his claims for withholding of removal and CAT protection, see

Kaita, 522 F.3d at 296, 300—the IJ could reasonably credit

Alimbaev’s explanations and allow some leeway in his

estimates of how many times he attended the mosque as a

teenager nearly a decade earlier. In holding otherwise, the BIA

jettisoned “consideration of the record as a whole,” Huang, 620

F.3d at 387, demonstrated “excessive focus on insignificant

testimonial inconsistencies to support a finding of lack of

credibility,” Chen, 434 F.3d at 220, and substituted its own

view of the facts in place of the IJ’s “permissible” view,

Anderson, 470 U.S. at 574.

2. Circumstances of Alimbaev’s Entry to

United States

The BIA’s second ground for rejecting the IJ’s

credibility finding was its determination that Alimbaev’s

“testimony concerning the basis and circumstances of his entry

into the United States” was “implausible” and his explanations

“inherently improbable.” AR 6. The IJ did not expound on

this issue, merely stating as a part of his review of Alimbaev’s

application for adjustment of status: “As previously noted, the

Court considers the circumstances surrounding Respondent’s

admission and I-539 applications and the testimony of his ex-

wife disturbing and negative, but not sufficient to cumulatively

outweigh the positive equities in his case.” AR 228-29.

20

As noted by both the IJ and the BIA, Alimbaev’s

explanation for his entry into the United States—that he lost

his bandmates somewhere between the Tashkent airport and

New York City and then abandoned his travel plans to Los

Angeles in favor of visiting a friend in Orlando—appears

implausible. Likewise, Alimbaev’s false statements on his

applications to extend and change his status are disturbing,

notwithstanding his explanations that he relied on others to

complete those applications. But the question is not whether

these circumstances were problematic negative factors; the IJ

acknowledged that they were and counted them as “disturbing

and negative” in reaching his conclusion. AR 229.

The question, instead, is whether the BIA, reviewing

only for clear error, was entitled to set aside the IJ’s credibility

findings and, hence, to disregard the testimony on which the IJ

relied to conclude that Alimbaev feared persecution and torture

if deported and that Alimbaev’s removal would result in

hardship for his family. See Jishiashvili, 402 F.3d at 396. It

was not. As the IJ “alone is in a position to observe an alien’s

tone and demeanor, to explore inconsistencies in testimony,

and to apply workable and consistent standards in the

evaluation of testimonial evidence,” Abdulrahman, 330 F.3d at

597, and here the IJ did so after hearing extensive testimony

over the course of two hearings, the IJ’s credibility finding was

not “[im]plausible in light of the record viewed in its entirety,”

and therefore was not clearly erroneous, Anderson, 470 U.S. at

574.8

8

We are not suggesting that the spoken word will

always trump other aspects of a record that may indicate a lack

of credibility. It is certainly possible that a record could

appropriately leave the BIA with a definite and firm conviction

21

3. Rebuttal Testimony

The third basis that the BIA identified for rejecting the

IJ’s credibility determination was that because “the respondent

did not specifically rebut [Gonzalez’s] testimony in either

2010, or on remand in 2014, the [IJ] clearly erred in

questioning the reliability of [Gonzalez’s] account of the

events and assigning her testimony limited weight.” AR 11.

In addition, the BIA asserted that the IJ “did not make an

adverse credibility finding with respect to [Gonzalez],” AR 10,

and because the IJ did not make that finding—instead stating

only that Gonzalez’s testimony “deserved limited weight”

because it was “biased” and uncorroborated, AR 229, and that

“the veracity and reliability of her testimony remains subject

to doubt,” AR 229—the BIA could simply consider the

contradictory testimony as one factor in its discretionary

determination of adjustment of status—a determination this

Court lacks jurisdiction to review. 8 U.S.C. § 1252(a)(2)(B).

The BIA’s reasoning, however, rests entirely on a false

premise. Alimbaev did, in fact, rebut Gonzalez’s testimony

that he watched “homemade” videos depicting violence against

U.S. military members several times a week, AR 1469–70, by

testifying in 2014 that he accessed websites to watch news

videos but “never saw” videos depicting violence against U.S.

forces, AR 335. Moreover, the IJ, after carefully considering

that an IJ has made a mistake about credibility, even in the face

of the IJ’s finding that a petitioner’s testimony was truthful.

Our point here is simple: on this record, the BIA overreached

to sustain this particular result, and that was in derogation of

its responsibility to apply the clearly erroneous standard in its

review of the IJ’s findings.

22

the divergent accounts of the two witnesses, explicitly found

that Alimbaev’s testimony refuting Gonzalez’s account was

“candid,” AR 229, and his testimony was overall “credible,”

AR 232. By necessary implication, the IJ made an adverse

credibility finding as to Gonzalez’s testimony, and the

Government points to no authority suggesting either that an IJ

must pronounce particular “magic words” in making its

credibility findings or that an implicit credibility finding is

entitled to any less deference than an explicit one.

Also troubling, the BIA described the IJ as discounting

“evidence from the respondent’s ex-wife establishing that the

respondent regularly used a computer to watch videos of

terrorist activity . . . as well as evidence that a computer was

recovered at the residence containing such material.” AR 10.

Notwithstanding the BIA’s insinuation, however, the videos in

question were not found on any computer in the marital

residence and thus did not provide any corroboration for

Gonzalez’s testimony. Rather, the videos were found on the

communal apartment computer that Alimbaev shared with his

roommates prior to his marriage to Gonzalez—a computer that,

as Alimbaev explained, he used only on occasion, and then

only to watch the news.9

9

This Court also had occasion to consider the nature of

those videos in Yusupov v. Att’y Gen., 650 F.3d 968 (3d Cir.

2011), where we pointed out that “none of the videos were

‘training materials,’ . . . several of the videos, including that of

bin Laden, originated from Al Jazeera, a recognized news

source,” and that on the whole, the computer “did not produce

any direct or causal link suggesting that [they] espoused

violence, such as email messages of a questionable nature.” Id.

at 985, 987.

23

In sum, the BIA’s characterization of the record appears

inaccurate and reflects a decision to “ignor[e]” evidence

crucial to Alimbaev’s case and contrary to the BIA’s preferred

outcome, Kabba, 530 F.3d at 1247, effectively reweighing the

testimony and engaging in the very “de novo review of

findings of fact determined by an immigration judge” that is

prohibited by regulation, 8 C.F.R. § 1003.1(d)(3)(i). Neither

singly nor in combination are the three grounds identified by

the BIA “sufficient justification for its conclusion that the IJ

has committed clear error.” Lin, 813 F.3d at 129. For that

reason, remand is appropriate for the BIA to reconsider

Alimbaev’s applications for relief.

C. Implications on Remand

We turn, next, to the scope of remand and, specifically,

to how reinstatement of the IJ’s credibility findings may affect

Alimbaev’s claims for adjustment of status, withholding of

removal, and CAT protection.

1. Adjustment of Status

As we lack jurisdiction to review the BIA’s

discretionary decision whether to grant Alimbaev’s adjustment

application and the balancing of the positive and negative

factors that underlie it, we only review the BIA’s application

of the clear error standard to the IJ’s factual findings. Based

on that review, we will remand as to Alimbaev’s application

for adjustment of status only for the BIA to accept the IJ’s

credibility determination to which it should have deferred

24

when performing that balancing. See Jarbough, 483 F.3d at

188; Matter of Edwards, 20 I. & N. Dec. at 195.10

10

Alimbaev also raises multiple arguments on appeal

pertaining to the BIA’s adjustment of status analysis that we

lack jurisdiction to review. First, Alimbaev asserts that the

BIA engaged in independent factfinding when it counted

inaccuracies in his immigration applications against him in its

balancing of the equities. However, the IJ credited Alimbaev’s

testimony that he was unaware of the misrepresentations in the

submitted documents, describing the circumstances

surrounding the applications as “disturbing and negative, but

not sufficient to cumulatively outweigh the positive equities in

this case,” AR 228-29, and the BIA “accept[ed] the [IJ’s]

finding that the respondent lacked actual knowledge of the

inaccuracies” in the applications, merely considering these

inaccurate applications as a discretionary adverse factor. AR

12. The BIA thus adopted and relied on the IJ’s factual

findings and assigned greater significance to the inaccurate

immigration applications when adjudicating Alimbaev’s

application for adjustment of status than did the IJ. The BIA

was well within its rights to do so, and we do not review that

discretionary decision. See Pareja, 615 F.3d at 186. In

addition, Alimbaev suggests the agency was required to forego

its exercise of discretion, disregard all negative equities, and

grant Alimbaev’s application for adjustment because of his

status as the immediate relative of a United States citizen.

Petitioner’s Br. 33-34 (citing Matter of Battista, 19 I. & N. Dec.

484 (BIA 1987); Matter of Cavazos, 17 I. & N. Dec. 215, 217

(BIA 1980)). Again, the BIA is entitled to assign the weight it

sees fit to adjustment factors like a petitioner’s familial status,

and its subsequent balancing of those factors is beyond the

25

Alimbaev’s credibility informs two factors that the BIA

considered in its discretionary balancing. First, it affected the

BIA’s assessment of whether Alimbaev and his family would

face hardship if Alimbaev returned to Uzbekistan. The IJ had

identified hardship as a positive factor because he found—

based solely on Alimbaev’s testimony—that Alimbaev’s

removal would present hardship to his family because “it is

likely that the Uzbek government will arrest and detain”

Alimbaev, making him unable to work, and it would present

hardship to Alimbaev himself “in light of the risk of arbitrary

arrest, detention, and torture that he would face in his home

country based upon his ardent practice of Islam, his association

with Imam Nazarov, and his association with his former

roommates.” AR 230-31. Because the BIA deemed

Alimbaev’s testimony incredible, it perceived no factual

support for the IJ’s determination of hardship and omitted

hardship as a positive factor in its own adjustment of status

balancing.

Second, as discussed at length above, while the IJ did

not consider Alimbaev’s alleged viewing of terroristic videos

to be a negative factor because he credited Alimbaev’s

testimony over that of Gonzalez, the BIA, as a result of its

rejection of the IJ’s explicit credibility finding as to Alimbaev

and implicit credibility finding as to Gonzalez, did consider it

a negative factor.

On remand, the BIA must reconsider those factors with

due deference to the IJ’s factfinding before weighing the

purview of our jurisdiction to consider. See Pareja, 615 F.3d

at 186.

26

various positive and negative factors to make its ultimate

discretionary decision on adjustment of status.

2. Withholding of Removal and CAT Protection

The BIA’s error in its standard of review also affected

Alimbaev’s applications for withholding of removal and CAT

protection. The IJ determined that Alimbaev made the

required showing for withholding of removal—i.e., that it was

“‘more likely than not’ that [Alimbaev’s] life or freedom

would be threatened if returned to” Uzbekistan because of his

religion or membership in a particular social group, Kaita, 522

F.3d at 296—and for CAT protection—i.e., that it was more

likely than not that he would be tortured in Uzbekistan “with

the consent or acquiescence of a public official or other person

acting in an official capacity,” id. at 300—through his

testimony that he feared “being arrested, detained, and tortured

in Uzbekistan based upon his appearance, his ties to . . .

Nazarov, and his association with his former roommates,” AR

232-33. Additionally, the IJ determined that Alimbaev’s

explanation for his failure to offer any corroboration from

friends and family, while credible only in part and resulting in

an “evidentiary gap”—was not so troubling as to overcome the

strength of Alimbaev’s other testimony, AR 235, ruling that his

testimony that he feared “being arrested, detained, and tortured

in Uzbekistan based upon his appearance, his ties to . . .

Nazarov, and his association with his former roommates,” was

credible. AR 232-33.

But having discredited the only evidence supporting

those rulings—Alimbaev’s testimony—the BIA necessarily

reached a different outcome. Accordingly, remand is required

to allow the BIA, adopting the IJ’s credibility finding and

27

considering both Alimbaev’s testimony and the “evidentiary

gap” the IJ acknowledged in the lack of corroboration, 11 to

reassess Alimbaev’s applications for withholding of removal

and CAT protection.

IV. Conclusion

For the foregoing reasons, we will grant Alimbaev’s

petition for review of the BIA’s order of removal, vacate that

order to the extent that it denied Alimbaev’s applications for

adjustment of status, withholding of removal, and protection

under CAT, and remand to the BIA for proceedings consistent

with this opinion.

11

Although a petitioner’s testimony alone may be

sufficient to sustain his burden of proof, we recognize that

“failure to produce corroborating evidence may undermine a

petitioner’s case where (1) the IJ identifies facts for which it is

reasonable to expect the applicant to produce corroboration, (2)

the applicant fails to corroborate, and (3) the applicant fails to

adequately explain that failure.” Chukwu, 484 F.3d at 192

(citing Toure v. Att’y Gen., 443 F.3d 310, 323 (3d Cir. 2006)).

28