stating that “[ijnconsistencies of less than substantial importance for which a plausible explanation is offered cannot form the sole basis for an adverse credibility finding .... especially [ ] when the inconsistencies do not concern the basis for the claim of asylum or withholding, but rather matters collateral or ancillary to the claim” (internal citations and quotation marks omitted)
How later courts described this case
- stating that “[ijnconsistencies of less than substantial importance for which a plausible explanation is offered cannot form the sole basis for an adverse credibility finding .... especially [ ] when the inconsistencies do not concern the basis for the claim of asylum or withholding, but rather matters collateral or ancillary to the claim” (internal citations and quotation marks omitted)
- stating that “[i]nconsistencies of less than substantial importance for which a plausible explanation is offered cannot form the sole basis for an adverse credibility finding ... especially [] when the inconsistencies do not concern the basis for the claim of asylum or withholding, but rather matters collateral or ancillary to the claim” (internal citations and quotation marks omitted)
- holding that the IJ held petitioner to an “inappropriately exacting standard” in discounting his explanation that “he had been scared and flustered by his recent arrest and impending *353 deportation proceedings, and had probably simply forgotten to tell his non-attorney representative all the details of his experiences in Guatemala.”
- holding that because IJ had failed to consider certain evidence, and because a significant amount of time had passed since IJ’s initial ruling, a remand was necessary to allow the IJ to consider, inter alia, current country conditions
Written by the judges who cited it.
Later courts went against this
Abrogated by Xiu Xia Lin v. Mukasey, 534 F.3d 162 (2008)
331 F.3d 297, 308 (2d Cir.2003), abrogated in part by Xiu Xia Lin v. Mukasey, 534 F.3d 162 (2d Cir.2008);
Superseded by statute, as recognized in Xiu Xia Lin v. Mukasey
331 F.3d 297, 308 (2d Cir. 2003) (noting that an applicantʹs ʺfailure to list in his or her initial application facts that emerge later in testimony will not automatically provide a sufficient basis for an adverse credibility findingʺ), superseded by statute on other grounds as recognized in Xiu Xia Lin, 534 F.3d at 167
The opinion
JOSÉ A. CABRANES, Circuit Judge,
dissenting.
I respectfully dissent. Based on the record as a whole, I believe that a reasonable fact-finder could have declined to credit Secaida’s testimony and, therefore, substantial evidence supports the denial of Secaida’s application for asylum and for withholding of removal.
When considering a petition for review of a deportation order, the scope of our inquiry is “exceedingly narrow.” Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.1999). We accept the immigration court’s factual determinations as long as they are supported by substantial evidence in the record, giving particular deference to credibility determinations, see Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997), and “[w]e reverse only if no reasonable fact-finder could have failed to find the past persecution or fear of future persecution necessary to sustain the petitioner’s burden,” Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000). In other words, “[w]e review the IJ’s and BIA’s credibility findings for substantial evidence and, thus, must uphold the findings unless the evidence presented compels a reasonable factfinder to reach a contrary result.” De Leon-Barrios v. INS, 116 F.3d 391 , 393 (9th Cir.1997).
In view of this legal standard, I believe the majority errs in reversing the IJ’s credibility determination. Specifically, I believe that a reasonable fact-finder could conclude that Secaida was not credible on the ground that his asylum application failed to mention a central aspect of his trial testimony — namely, that Pineda shot at him. The majority admits that this omission from Secaida’s asylum application was “arguably material to the basis for Secaida’s claim of asylum and with *314 holding.” Maj. Op., ante, at 312. In my view, this testimony is clearly material because it is the only direct evidence that any members of the death squad ever tried to kill Secaida. Although Secaida claims that the death squad attempted to assassinate him by hitting him with a car, he was not able to identify the driver of the automobile and provided no other basis for concluding that Pineda’s death squad was responsible for this accident. And while Secaida allegedly received numerous death threats from Pineda, Secai-da’s testimony that Pineda shot at him is the only evidence indicating that Pineda had any intention of carrying out these asserted threats.
Because Secaida’s testimony that Pineda shot at him greatly strengthens his claim for asylum, the IJ reasonably determined that the omission of this material evidence from Secaida’s asylum application supported an inference that Secaida had fabricated his testimony at the hearing. The majority opinion reasons that this omission “cannot suffice to render [Secaida’s] testimony as a whole incredible” because “Se-caida offered an explanation for the omission”:
Secaida stated that he had been scared and flustered by his recent arrest and impending deportation proceedings, and had probably simply forgotten to tell his non-attorney representative all the details of his experiences in Guatemala. The IJ rejected this explanation, saying she simply failed to see how he could have forgotten to include this part of the story .... In so doing, the IJ has held Secaida to an inappropriately exacting standard.
Maj. Op., ante, at 309. It is not clear to me why the majority believes that the IJ “held Secaida to an inappropriately exacting standard” by declining to accept Secaida’s explanation that he had “simply forgotten” to mention the fact that Pineda shot at him in preparing his asylum application. It was well within the IJ’s discretion to reject this ex post explanation and, instead, conclude from the omission that Secaida’s testimony was not credible. By overruling the IJ’s credibility determination on this issue, the majority failed to give any deference, let alone “particular deference,” to the credibility determination of the IJ. Montero, 124 F.3d at 386 (emphasis added).
The majority holds that several of the other justifications given by the IJ for his adverse credibility determination were either invalid or lacked a substantial basis in the record. I agree with much of the majority’s analysis and, had I been the fact-finder in this case, I might well have chosen to credit Secaida’s testimony. Nevertheless, the standard of review is not de novo: “To reverse under the substantial evidence standard, ‘we must find that the evidence not only supports that conclusion, but compels it.’ ” Ahmed v. Ashcroft, 286 F.3d 611, 612 (2d Cir.2002) (quoting INS v. Elias-Zacarias, 502 U.S. 478 , 481 n. 1, 112 S.Ct. 812 , 117 L.Ed.2d 38 (1992)). In other words, as long as there exists a reasonable basis in the record for the adverse credibility determination, we are obligated to deny the petition for review. Because I believe that Secaida’s omission from his asylum application of the fact that Pineda shot at him constitutes a reasonable basis for the IJ’s adverse credibility determination, I would deny Secaida’s petition for review.