Gilberto Sebastian-Sebastian v. Immigration and Naturalization Service

PREGERSON, Circuit Judge,

dissenting:

I dissent. Today this panel produces three different views in resolving Sebastian’s case. Judge Brunetti would affirm the Board because he believes that “all of the evidence demonstrates that the guerillas were motivated exclusively by a desire to coerce Sebastian into their ranks.” Supra at 514. Judge Wiggins would affirm the Board based on what he believes is an adverse credibility finding implicit in the Board’s decision. I would reverse because I believe that Sebastian has established that he was persecuted and that he has a well-founded fear of future persecution on account of imputed political opinion.

I disagree with Judge Brunetti’s position that all the evidence demonstrates that the guerillas’ actions were motivated solely by a desire to recruit Sebastian. I believe, and Judge Wiggins agrees, that if we accept Sebastian’s unrefuted testimony as true, it is reasonable to believe that the harm Sebastian suffered was, at least in part, on account of an imputed political opinion.

I disagree with Judge Wiggins’s position that the Board made an implicit adverse credibility finding. Under Ninth Circuit jurisprudence, an adverse credibility finding must be explicit, otherwise credibility will be presumed. See discussion infra. The Immigration Judge, the Board of Immigration Appeals (“Board”), and the Immigration and Naturalization Service (“INS”) have never said that they questioned Sebastian’s credibility. Moreover, because Sebastian’s credibility was not questioned in the hearings below, or raised as an issue in the briefs in this appeal, Sebastian never had notice that his case would turn on his credibility. Consequently, I believe that the denial of Sebastian’s asylum petition based upon a sua sponte identification of an “implicit” adverse credibility finding violates due process. See discussion infra. Accordingly, I dissent.

I.

Sebastian is a native of Guatemala. In Guatemala, a violent guerilla group exists that opposes the Guatemalan government and seeks its overthrow. Sebastian testified that this guerilla group committed a series of acts of persecution against him and his family. In 1990, the guerillas forced Sebastian and his family to leave the coffee plantation where they lived and worked. The guerillas burned down their home and forced the plantation owner to close the plantation. As a result, Sebastian and his family moved back to their hometown of Huehuetenango.

Sebastian and his family did not escape guerilla violence in Huehuetenango. The guerillas entered Huehuetenango weekly to take food and money away from the villagers. They molested women. They forced young boys to join their ranks. In *516 1993, Sebastian witnessed the guerillas take his grandfather to the village center and beat him to death in front of all of the villagers. Sebastian testified that he continues to have nightmares about this traumatic incident. In addition, the guerillas abducted, molested, and eventually murdered Sebastian’s younger sister.

In 1990, Sebastian’s brother joined the Guatemalan Army, which opposes the guerillas. Sebastian testified that when he was sixteen the guerillas unsuccessfully attempted to recruit him. After the guerillas’ first attempt to recruit him, Sebastian tried to hide whenever they came to his village. His efforts were not always successful. On six different occasions, the guerillas nearly beat Sebastian to death-twice at his workplace and four times at his home. While beating Sebastian, the guerillas told him that he was of the “same mind” or “same attitude” as his brother who was serving in the Guatemalan Army. Sebastian requested political asylum in the United States in part to avoid the persecution he faced in Guatemala from the gueril-la forces.

II.

To be eligible for asylum under the Immigration and Naturalization Act, an applicant must show that he or she is “unwilling or unable” to return to his or her home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101 (a)(42)(A) (emphasis added). This court has held that if an applicant can establish “imputed political opinion” he or she can qualify for asylum under the Act. Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir.1997). The applicant bears the burden of establishing eligibility for asylum, which may be established “through his own testimony alone.” Id. at 1487 ; see also Lopez-Reyes v. INS, 79 F.3d 908, 912 (9th Cir.1996) (“the case law emphasizes that the applicant’s testimony, if unrefuted and credible, is sufficient .... ”); Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir.1984) (stating that to require an applicant to present corroborating evidence would make it close to impossible for an applicant to make out a case).

Sebastian testified that “because of my brother who went with the military, [the guerillas] would ... threaten me and they would hit me and they would ... curse me.” Sebastian further testified that he was “almost killed” by the guerillas and that while they were beating him, they told him that he was of the “same mind” or “same attitude” as his brother.

In light of this undisputed testimony, Judge Wiggins states in his opinion, and I agree, that if taken as true, Sebastian’s testimony compels reversal:

Sebastian would have, therefore, established that the guerrillas’ persecution of him was on account of a protected ground if he had established that the guerrillas persecuted him because they believed that he was aligned with the Guatemalan military due to his brother’s forced service in the military. If this portion of his testimony was believed, his testimony would have shown that the guerrillas’ persecution was on account of an imputed political opinion, even if the persecution was also motivated by efforts to increase the guerrillas’ ranks.

Supra at 508-09.

This conclusion is mandated by our recent en banc opinion in Borja v. INS, 175 F.3d 732 (9th Cir.1999). Boija is an asylum case that is factually similar to Sebastian’s case. In Borja , the en banc panel reversed the Board and held that an applicant can establish eligibility for asylum by producing “evidence from which it is reasonable to believe that the harm was motivated, at least in part, by an actual or implied protected ground.” 175 F.3d at 736 (quoting In re T-M-B- Interim Dec. No. 3307 (BIA Feb. 20, 1997)) (emphasis added). See also Tarubac v. INS, 182 F.3d 1114, 1118-20 (9th Cir.1999) (applying *517 Borja in another mixed-motive political asylum case). 1 In the present case, Sebastian’s testimony provides evidence “from which it is reasonable to believe that the harm was motivated, at least in part, by an actual or implied protected ground.” Borja, 175 F.3d at 736 .

III.

Thus, I agree with Judge Wiggins that Sebastian’s testimony, if believed, compels reversal. But Judge Wiggins’s position is that the Board and the Immigration Judge implicitly rejected the “crucial aspects” of Sebastian’s testimony pertaining to his persecution. 2 Supra at 510. This is where Judge Wiggins and I part company.

I respectfully submit that Judge Wiggins’s affirmance of the Board based on an implicit adverse credibility finding is inconsistent with this court’s precedent. We have consistently held that (1) we presume a petitioner credible when the Board is silent on credibility; and (2) the Immigration Judge and the Board must expressly articulate and support their credibility findings, especially where credibility is the deciding factor. See discussion infra. Additionally, no evidence in the record supports Judge Wiggins’s position that the Board and the Immigration Judge parsed Sebastian’s testimony, disbelieving certain portions while believing others. In fact, the Immigration Judge and the Board relied exclusively on Sebastian’s testimony in recounting the facts and applying the law.

A.

Neither the Board nor the Immigration Judge made any mention whatsoever of Sebastian’s credibility. They did not express any doubt as to his sincerity, nor did they find him evasive, unresponsive, or inconsistent. ‘When the Board’s decision is silent on the question of credibility ... we will presume that the Board found the petitioner credible, and ... proceed to review the Board’s decision.” Damaize-Job v. INS 787 F.2d 1332, 1338 (9th Cir.1986). The presumption of credibility clearly is applicable in the instant case. 3 See, e.g., *518 Maldonado-Cruz v. INS, 883 F.2d 788, 792 (9th Cir.1989) (“[although the IJ expressed some concern about Maldonado’s credibility” the presumption was appropriate because “there [was] no clear indication that the IJ disbelieved the basic facts upon which we make our legal determination now.”); Artiga Turcios v. INS, 829 F.2d 720, 723 (9th Cir.1987) (because neither the Immigration Judge nor the Board found that Petitioner’s testimony was not credible, we noted “without such a finding, we accept his testimony as credible.... ”); Canjum-Flores v. INS, 784 F.2d 885, 888-89 (9th Cir.1985) (although the Immigration Judge found petitioner’s testimony speculative, because the Board made no express credibility finding, this court held that “[wjithout such a finding, we accept Canjura-Flores’s testimony as credible”). As we stated in Canjurar-Flores, absent an express adverse credibility finding, we must presume that a petitioner’s testimony is credible because “[a]ny other rule would put us in the position of second-guessing the credibility of the petitioner on appeal when no doubts have been raised by the Immigration Judge or the Board.” Canjura-Flores, 784 F.2d at 888-89 (emphasis added).

In denying Sebastian’s petition, the Board made no explicit credibility findings, nor did it express any doubt as to Sebastian’s credibility. Because the Board was silent on the issue of Sebastian’s credibility, as a matter of law we must presume Sebastian’s testimony to be credible.

B.

Judge Wiggins states that we must afford deference to “all of the administrative authorities’ credibility findings, whether implicit or explicit.” Supra at 511. I believe this to be an incorrect statement of the law regarding deference to implicit credibility findings in an immigration case.

We review adverse credibility findings under the substantial evidence standard. See Lopez-Reyes v. INS, 79 F.3d at 911 . In doing so, we look for “specific cogent” reasons that support the adverse credibility finding. Id. The Immigration Judge and the Board must set forth substantial evidence in support of the adverse credibility finding: “Although this standard is deferential, the Immigration Judge must offer a specific cogent reason for his adverse credibility finding, and the reason set forth must be substantial and must bear a legitimate nexus to the finding.” Id. (internal quotation marks and citations omitted). See also Stoyanov v. INS, 172 F.3d 731, 736 (9th Cir.1999) (the Board must offer a “legitimate articulable basis” for an adverse credibility finding and “must offer a specific cogent reason for any stated disbelief’); Vilorio-Lopez v. INS, 852 F.2d 1137, 1141 (9th Cir.1988) (“an IJ who rejects testimony for lack of credibility must offer a ‘specific, cogent reason’ for the rejection”) (citations omitted). An “implicit” credibility finding, by definition, fails to meet these requirements.

Moreover, where a case turns on an applicant’s credibility, the Immigration Judge must make an even “more explicit and direct finding.” Aguilera-Cota v. INS, 914 F.2d 1375, 1383 (9th Cir.1990). “[O]n a matter as important as this, if an asylum applicant’s plea is to be rejected and he is to be returned home — possibly to face renewed threats to his life — simply because an IJ doubts his credibility, the IJ must make a more explicit and direct finding that [the petitioner] is untruthful than was made here. The mere statement that a petitioner is ‘not entirely credible’ is not enough.” Id. at 1383 (emphasis added). Here, we have no statement whatsoever *519 from the Immigration Judge or the Board that cast doubt on Sebastian’s credibility. 4

C.

The record is devoid of any suggestion that the Immigration Judge parsed Sebastian’s testimony, believing some portions and disbelieving others. Consequently, Judge Wiggins’s conclusion that “[t]he Immigration Judge did not believe those portions of Sebastian’s testimony concerning the guerillas’ threats related to his brother’s military service” is without support in the record. Rather, the evidence suggests that the Immigration Judge “generally believed the petitioner’s story, but simply ruled that the facts do not warrant the relief requested.” Maldonado-Cruz, 883 F.2d at 792 n. 7.

IV.

As a final matter, during Sebastian’s hearings, the Immigration Judge did not express any disbelief about Sebastian’s testimony. To the contrary, in the Immigration Judge’s oral decision he adopted Sebastian’s testimony in recounting the facts and applying the law. The INS did not challenge Sebastian’s credibility in its briefs to the Board or to this court. In short, before today’s decision, Sebastian had no notice that his credibility was at issue. Because Sebastian received no notice that his ease would turn on his credibility and because he was not accorded an opportunity to defend his credibility, today’s decision denies him due process. See Stoyanov, 172 F.3d at 735 (because the Board made an adverse' credibility finding without affording petitioner any opportunity to explain the supposed inconsistencies in his testimony due process required that we “vacate the denial and remand to allow [petitioner] a reasonable opportunity to explain those inconsistencies”); Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999) (because petitioner had “not been advised below that his credibility was questionable” the Board’s denial of his asylum petition without the opportunity to explain any alleged inconsistencies was a denial of due process).

V.

Sebastian established that he was persecuted at least in part because of his brother’s participation in the Guatemalan Army. He therefore qualified for asylum because of an “imputed political opinion.” I believe that because the Immigration Judge found that the guerrillas were motivated by a desire to recruit Sebastian, the Immigration Judge ruled that Sebastian was not persecuted on a protected ground. Perhaps the Immigration Judge, lacking the guidance of this court’s later decisions in Borja and Tarubac , disregarded the evidence that Sebastian’s persecution was at least in part on account of the political opinion the guerillas imputed to him. 5

Judge Wiggins agrees that Sebastian’s testimony that the guerillas beat him for having the “same mind” as his brother, if believed, compels reversal of the Board’s decision. The Immigration Judge did not, expressly or impliedly, cast doubt on Sebastian’s sincerity or credibility. The law requires us to accept Sebastian’s testimony as true. Consequently, we should reverse the Board’s denial of Sebastian’s asylum petition.

For all the above reasons, I dissent.

. Judge Wiggins states that Tarubac and Borja only control the "rare” cases "in which the Immigration Judge makes a blanket credibility finding favorable to the asylum applicant.” Supra at 512. I respectfully disagree because (1) this disregards our circuit's rule that absent an express credibility finding from the Board, we presume an asylum applicant's testimony is true, see discussion infra, and (2) there is nothing in the language of Tarubac or Borja indicating that those decisions are so limited.

. Judge Wiggins states that the Board made "explicit” what the Immigration Judge "implicitly relied upon in rejecting the crucial aspects of Sebastian's testimony....” Supra at 510. To support this assertion, Judge Wiggins quotes the Board’s statement that:

Although the guerillas taunted the respondent about his brother’s participation in the Guatemalan army, the respondent testified that the guerrillas still sought to recruit him. [ ] Therefore, we agree that the respondent failed to establish that the guerillas threatened or beat him on account of one of the enumerated grounds, rather than to coerce him to join their ranks.

Id. Because this statement does not include any mention of "credibility,” "doubt," "truth,” "inconsistency,” or use any other of a number of words that can be used to express doubt in the sincerity of the witness, I cannot agree with Judge Wiggins that the Board in fact made an "explicit” credibility finding. Indeed, the introductory clause to the statement quoted above clearly indicates that the Board in fact believed Sebastian’s testimony that the "guerillas taunted [him] about his brother’s participation in the Guatemalan army.”

Similarly, Judge Wiggins’s assertion that the Immigration Judge "explicitly” rejected the critical aspects of Sebastian's testimony is based on a statement by the Immigration Judge wherein he expressly states that his decision relies on Sebastian’s own testimony.

.Judge Wiggins states that an implicit credibility finding "is entitled to the same deference I must afford all of the administrative authorities’ credibility findings, whether implicit or explicit” supra at 511 and relies on Saballo-Cortez v. INS, 761 F.2d 1259, 1266 (9th Cir.1985) for this proposition. But in Saballo-Cortez , "the immigration judge found that Saballo-Cortez was not a credible witness” and "the BIA also discredited Saballo-Cortez's testimony." Id. at 1266 . The Immigration Judge and the Board supported their *518 explicit credibility findings by pointing to substantial inconsistencies in Saballo-Cortez's application and testimony and “to other portions of the testimony which cast doubt on Saballo-Cortez's veracity.” Id. at 1263-64 . In contrast, here, neither the Immigration Judge nor the Board expressed any doubt as to the veracity of the facts as Sebastian recounted them. Accordingly, Saballo-Cortez is inapposite.

. Additionally, in the instant case, as stated in Aguilera-Cota , "there is ... ‘a total absence of contradictory evidence in the record as a whole that [would] potentially underminef ] [the petitioner’s] credibility. Under these circumstances, we accept the testimony as true.’’ Id. at 1383 (internal quotations marks and citation omitted, emphasis added).

. Note that recently, this court in Tarubac , found that "the presence of a nonpolitical motive, does not, without more, prove the absence of political motive." Tarubac v. INS, 182 F.3d at 1119 . Indeed, under the rule in Tarubac , the Immigration Judge's finding that the guerillas wanted to recruit Sebastian "is largely irrelevant to [Sebastian's] eligibility for asylum.” Id.