Saidou Dia v. John Ashcroft, Attorney General of the United States

McKEE, Circuit Judge,

concurring in part and dissenting in part.

I join Part II of the majority opinion because I agree that we must grant the Petition for Review based upon the many problems with the Immigration Judge’s adverse credibility ruling that the majority explains. However, I must respectfully dissent from Part I of the majority opinion upholding the streamlining regulations. In my view, those regulations should be invalidated for all of the reasons so ably explained in Judge Stapleton’s thoughtful dissent.

I write separately because I am troubled by the majority’s suggestion that the IJ’s flawed and unsupportable credibility ruling could somehow have been saved if it were based upon Dia’s demeanor rather than the substance of his testimony. The majority notes that “the IJ did not rely on her personal observations of Dia’s demean- or or any other observations to which we must accord an even greater degree of deference.” Majority Opinion at 252 n.23.

It is of course true that the law has traditionally recognized a relationship between demeanor and credibility. The Supreme Court has even noted that the opportunity to observe a witness’s demeanor is embodied in the Confrontation Clause of the Sixth Amendment. See California v. Green, 399 U.S. 149, 158 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970) (stating that confrontation “permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility”). 1 However, this principle has *274 evolved in the context of proceedings where the fact finder and witnesses share a common culture. Fact finders who are unfamiliar with the mannerisms and subtleties of a witness’s cultural tradition have no advantage in assessing credibility based upon demeanor. Moreover, to the extent that the customs of a witness’s native land differ from the fact finder’s, the fact finder may be at a substantial disadvantage because he/she may misinterpret subliminal clues that mean one thing in the fact finder’s culture, but something entirely different in the witness’s.

Courts have addressed the extent to which ignorance about an alien’s native land can shape conclusions. See Senathirajah v. INS, 157 F.3d 210, 220-21 (3d Cir.1998) (finding that the IJ’s unsupported assumptions about the Tamil Tigers group and the Sri Lankan government were not an appropriate basis for her factual findings). However, courts have not been as willing to recognize that unfamiliarity with a witness’s cultural experience may similarly color the intangible aspects of credibility determinations. Moreover, case law demonstrates that even experienced IJs who are accustomed to evaluating the testimony of aliens are not immune from allowing their conclusions to be colored by such cultural bias.

In Chouchkov v. INS, the Court of Appeals for the Ninth Circuit cautioned: “It must be stressed that what sounds peculiar in one country may be the norm in another.” 220 F.3d 1077 , 1083 n. 15 (9th Cir.2000). In doing so, the court cited Perez-Alvarez v. INS, 857 F.2d 23, 24 (1st Cir.1988). There, the Court of Appeals for the First Circuit incorporated the comments of the dissenting member of the BIA into the court’s opinion. In his dissent from the decision of the BIA, Board Member Heilman had proclaimed:

[T]he evidence was cut off on the apparent assumption that [evidence of] a 10-year-old membership in a union was too old or too stale to constitute a ground for persecution. Perhaps this is so, but there is nothing in the record to sustain the immigration judge’s assumption in this regard, except perhaps his general perception of life or political conditions in El Salvador which may or may not be grounded in fact.

As a general rule, in considering claims of persecution I think it highly advisable to avoid assumptions regarding the way other societies operate. Time and again this Board has considered appeals in which assumptions of this nature have been proven to be totally wrong, once the applicant has been given a full hearing.

Id. (emphasis added).

In Cordero-Trejo v. INS, 40 F.3d 482, 490 (1st Cir.1994), the IJ based an adverse credibility determination in part upon the fact that petitioner’s wife had signed her full name on several letter’s to petitioner and she had addressed the letters using petitioner’s formal name rather than using a more familiar reference. The IJ believed that was suspicious based upon his assumption that “one would normally expect the spouse to use the more familiar form” when addressing letters to her husband. Id. (internal quotation marks omitted). On appeal, the court rejected the IJ’s skepticism because “there was [no] evidence in the record to suggest that signing a letter to a spouse residing in a foreign country by using one’s full name is contrary to the common practice of someone of [the petitioner’s wife’s] cultural background.” Id.

The cultural bias at the heart of the adverse ruling of the IJ in Barapind v. Rogers, No. 96-55541, 1997 WL 267881 (9th Cir. May 15, 1997) (reported at 114 *275 F.3d 1193 as an unpublished summary af-firmance), furnishes an even more dramatic example of the dangers of assessing credibility across a cultural divide and also illustrates the danger of placing too much emphasis on demeanor without elaboration or explanation. 2 There, the IJ rejected an alien’s testimony based in part upon the IJ’s belief that the alien’s “stoic” demeanor while testifying was inconsistent with having been subjected to the kind of gruesome torture he testified about in support of his asylum claim. The IJ thus concluded that the alien’s “‘stoic’ demeanor as he testified about torture by the Indian police was a sign that he was lying.” Id. at *2. On appeal, the court recognized that the alien petitioner’s demeanor reflected his cultural tradition. The court explained that “stoic acceptance of misfortune is expected from persons of constancy and courage,” and Sikhs had “long enjoyed the reputation of being ‘unsurpassed’ as soldiers.” Id. (quoting LEPEL HENRY GRIFFIN, RANJIT SINGH 36-37 (1892)).

The IJ also doubted that the alien was 29 years old as he testified. Based only upon her personal observation of the alien during his testimony, the IJ “thought he looked 40.” Id. The court quickly rejected the purported age discrepancy as a basis for concluding that the alien was not credible. The court stated: “We see no basis for the IJ to have thought her own sizing up of the physical appearance of an alien gave her a superior insight into the age of the Sikh before her; still less do we see how her hunch showed that Barapind was lying.” Id. The court dismissed the IJ’s conclusion that the alien lied about his age as nothing more than a “hunch” improperly based upon “personal conjecture.” Id. at *2, *3. The court concluded, “[ajgain, the inference by the IJ seems to reflect her own cultural bias.” Id. at *2. Indeed, given the alien’s testimony that he was subjected to torture that included applying electric shock to various “parts of his body,” id., it would have been surprising if he had not appeared to be older than he was.

These cases primarily exemplify tangible manifestations of bias. However, resting factual conclusions upon unexplained and unarticulated demeanor poses an even greater risk of biased fact finding that can deny a petitioner due process of law. 3

For example, eye contact plays a central role in evaluating the credibility of a witness in our own culture. The central issue in Morales v. Artuz, 281 F.3d 55 (2d Cir.2002), was whether the defendant’s constitutional right of confrontation had been violated by the trial judge allowing a key *276 defense witness to testify while wearing sunglasses that were so dark that the jury could not see her eyes. In writing for a unanimous panel, Judge Newman thoughtfully outlined the importance of the role that eye contact has traditionally been afforded in this society. 4 The analysis began by explaining that the sunglasses created no obstacle to the right of confrontation insofar as the Confrontation Clause seeks to guarantee cross-examination, but conceivably infringed on the right of confrontation to the extent the Confrontation Clause “assures an opportunity for the defendant, especially jurors to see the witness’s eyes in order to consider her demeanor as an aid to assessing her credibility....” Id. at 60 . The court cited several cases in noting that “ ‘eye contact’ [is] among [the] factors aiding the fact-finder in assessing a witness’s credibility.” Id. (quoting Churchill v. Waters, 977 F.2d 1114, 1124 (7th Cir.1992)). Similarly, in Coy v. Iowa, 487 U.S. 1012, 1019 , 108 S.Ct. 2798 , 101 L.Ed.2d 857 (1988), the Court stated that the trier of fact could “draw its own conclusions” from a witness who looked away from the defendant while testifying.

Even assuming arguendo the presumed relationship between such demeanor and credibility in the usual context, I submit that the relationship is often non-existent when the fact finder and witness are from different cultures. Thus, while the failure to look someone in the eye while speaking is usually interpreted as an indication of deception by people in Western cultures, avoiding eye contact has a very different meaning in some other cultures. See Joanna Ruppel, The Need for a Benefit of the Doubt Standard in Credibility Evaluation of Asylum Applicants, 23 COLUM. HUM. RTS. L. REV. 1, 12-13, 13 n.44 (1992) (quoting panelist Ira J. Kurzban, Esquire, as saying the assumptions made about the relationship between eye contact and credibility can be “the product of culture and not credibility” in Annual Judicial Conferences, Second Judicial Circuit of the United States, 115 F.R.D. 349 , 440 (Sept. 4, 1986)). For example, in certain Asian cultures, avoiding eye contact is a sign of respect, and direct eye contact is considered inappropriate in traditional Navajo society. See Paul R. Tremblay, Interviewing and Counseling Across Cultures: Heuristics and Biases, 9 CLINICAL L. REV. 373, 394 (2002). A witness from a culture where it is disrespectful to “look someone in the eye” would naturally be expected to testify in a manner that reflected the solemnity and respect inherent in all judicial proceedings, including proceedings before an immigration court. It would be very unlikely that such a witness would maintain eye contact while answering questions out of respect for the interrogator, the judge, and the proceedings. Yet, this very manifestation of respect may cause the fact finder to conclude that such a witness is not credible and therefore view all of his/her testimony with a jaundiced eye. 5 When this happens, “inconsis *277 tencies” that ought to convey nothing more than cultural differences or the fragile imperfections of memory can assume unwarranted importance.

Once a fact finder begins to doubt the veracity of a witness, it will be exceedingly difficult for even the most compelling witness to offer testimony sufficient to sustain his/her burden under the immigration laws. We have recognized that aliens often have to flee their native land with precious little documentation or corroboration. Senathimjah, 157 F.3d at 216 (“[0]ne who flees torture at home will rarely have the foresight or means to do so in a manner that will enhance the chance of prevailing in a subsequent court battle in a foreign land.”). The alien trying to qualify as a “refugee” or for relief under the Convention Against Torture will therefore usually have precious little other than his/her own testimony to take before an IJ. See Matter of Mogharrabi, 19 I. & N. Dec. 439, 445 , 1987 WL 108943 (B.I.A.1987) (“The alien’s own testimony may in some eases be the only evidence available [to support his or her claims], and it can suffice where the testimony is believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the basis for his fear.”).

Moreover, cross-cultural misunderstandings about the veracity of petitioners’ testimony can be exacerbated by difficulty understanding the procedure and structure of immigration proceedings. The proceedings are conducted in English, and petitioners are generally not provided with simultaneous translation. See Anker Study, supra note 3, at 505-06. In addition, the structure of the hearings is not transparent to petitioners. An empirical study of U.S. immigration court hearings and decisions found that “the simultaneously ambiguous and rigid structure of the hearing and the judges [sic] perceived need to control and limit the scope of the hearing, in many instances made it difficult for [petitioners] to communicate intelligibly the essential facts that formed the basis of their claims.” Id. at 515.

Furthermore, petitioners often fear government officials because of past persecution in their native country. Cf. Balasubramanrim v. INS, 143 F.3d 157, 163 (3d Cir.1998) (“[A]n arriving alien who has suffered abuse during interrogation sessions by government officials in his home country may be reluctant to reveal such information during the first meeting with government officials in this country.”); Senathirajah, 157 F.3d at 218 (stating that a petitioner may be reluctant to disclose the breadth of his suffering in his home country to a government official upon arriving in the United States). This may only exacerbate the difficulties of articulating the basis of a valid claim during immigration proceedings even if the petitioner does not exhibit the kind of demeanor that will suggest deception. 6

*278 It can not be overstated that “[cjaution is required because of the numerous factors that might make it difficult for an alien to articulate his/her circumstances with the degree of consistency one might expect from someone who is neither burdened with the language difficulties, nor haunted by the traumatic memories, that may hamper communication” between a government agent and a petitioner. Zubeda v. Ashcroft, 333 F.3d at 476 (3d Cir.2003).

The majority’s thoughtful rejection of the IJ’s adverse credibility determination here is yet another example of how even experienced IJs can place too much reliance on their own experiences in evaluating the testimony of petitioners from very different cultures. Although the IJ’s credibility determination here does not rest upon Dia’s demeanor, it is no less important to note that the IJ did not properly allow for differences between Dia’s circumstances and the IJ’s own in evaluating Dia’s credibility. Rather, she failed to demonstrate any awareness of the context in which Dia’s claim arose.

For example, the majority notes that the IJ rejected Dia’s testimony about giving a $150 bribe to a Guinean police officer because she believed that the amount of the bribe was too small given the level of risk the police officer allegedly undertook on Dia’s behalf. As my colleagues point out however, the amount of the bribe Dia said he gave is about a quarter of the average annual per capita income in Dia’s country. See Maj. Op. at 252-53. Accordingly, $150 was a very substantial sum indeed. 7 Moreover, the IJ’s rationale assumes that the police officer actually exposed himself to a substantial risk in accepting the bribe. A more neutral assessment of this testimony would readily have lead to the realization that bribery is a way of doing business in some countries and that in such countries it is highly doubtful that any risk attends a police officer taking a bribe. The IJ’s failure to realize this certainly ought to give us pause before assuming that IJs necessarily possess the kind of expertise in evaluating testimony of aliens that would insulate their conclusions from the bias I am concerned about. Such bias is only masked, not eliminated, if we uphold an adverse credibility ruling simply because we are told it rests upon the alien’s demeanor with no further explanation.

I am, of course, aware of our limited standard of review when we adjudicate appeals in immigration cases. See INS v. Elias-Zacarias, 502 U.S. 478, 483-84 , 112 S.Ct. 812 , 117 L.Ed.2d 38 (1992). We have wrestled with that narrow scope of review on more than one occasion when troubled by credibility rulings that appeared both unfair and unfounded. For example, we concluded that we were forced to affirm the IJ’s ruling in Abdulrahman v. Ashcroft, 330 F.3d 587 (3d Cir.2003), even though the panel was very troubled by the IJ’s findings. There, the IJ based her rejection of Abdulrahman’s testimony on such “inconsistencies” as his assertion that he relied upon traditional herbal medicine administered by family members rather than visiting a hospital following alleged torture at the hands of government officials. 330 F.3d at 594 . Given our stan *279 dard of review, we were constrained to affirm and we rejected the alien’s claim of bias. However, in doing so, we noted:

it must be added that there were places where the IJ did go beyond the bounds of propriety to make some additional and problematic generalized assertions of her own. While as discussed below we are understandably troubled by some of those comments, in the context of the record as a whole there is insufficient evidence to conclude that the overall proceedings were biased in violation of Abdulrahman’s right to due process.

330 F.3d at 595 . In his concurring opinion, Judge Becker commented on some of the more troubling aspects of the IJ’s analysis. He explained:

The opinion of the Immigration Judge (IJ) is laden with statements such as the following, which I find troubling in terms of their viability as credibility judgments:

(1) “The respondent testified that he was treated with herbs, by his grandmother and mother, and told the Court these are the way things are done in Sudan, people do not go to the hospital as they do here in the Western World. Again, that is not the case, all countries all [sic] have hospitals and doctors, however, he wish [sic] to provide this false information regarding the medical institution about his country, so be it.”

However, based upon available information about the Sudan, the Respondent’s contention seems reasonable. At all events, the basis for the IJ’s conclusion seems far from clear; rather, it seems quite tenuous.

Id. at 599-600 .

Judge Becker also cautioned:

The Immigration Judge’s statements barely cross the line into the realm of fact finding, although Judge Shadur [author of the opinion] is correct that, in view of our extremely narrow standard of review, we are constrained to view them as so doing. While I join in Judge Shadur’s opinion, I write separately to highlight these statements and to express my extreme discomfiture with them, as they border on the cavalier. Indeed, in my view, they come extremely close to constituting reversible error.

Id. at 600 . Judge Becker’s concurring opinion was joined by the entire panel.

However, even given our narrow scope of review, we still require that specific reasons be given for adverse credibility determinations so that we can review the BIA’s decision. In Balasubramanrim , where the BIA made its own credibility ruling based upon the record before the IJ, we stated: “[t]he Board should give specific reasons for its determination that a witness is not credible. We must evaluate those reasons to determine whether they are valid grounds upon which to base a finding that the applicant is not credible. The reasons must bear a legitimate nexus to the finding.” 143 F.3d at 162 (internal citations and quotation marks omitted). See also Mulanga v. Ashcroft, 349 F.3d 123, 131-32 (3d Cir.2003) (“Adverse credibility determinations are ... reviewed for substantial evidence.”).

We should require nothing less than “specific reasons” for rejecting an alien’s credibility when that assessment is based upon the alien’s demeanor while testifying. Unless we require the IJ to explain those aspects of a witness’s demeanor that undermine credibility, such as eye contact or similar factors that may be culturally determined, we simply can not afford the meaningful review the law requires.

In In re B—, 21 I & N Dec. 66 , 1995 WL 326740 (BIA 1995) (Interim Decision), the BIA rejected the IJ’s negative credibil *280 ity assessment where that conclusion rested largely upon the alien’s “tendency during his testimony to look down at the table or at the wall behind the interpreter instead of at the Immigration Judge” while testifying. 211 & N Dec. at 70. The BIA explained its reasons for rejecting the IJ’s negative assessment of that demeanor as follows:

Although, of course, we have not been able to observe this behavior by the applicant, we do not find that it necessarily indicates deception. Instead, it may indicate the applicant’s concentration on the questions being asked of him through the interpreter. We note that the applicant seems to have been listening carefully, as the transcript contains about half a dozen instances where the applicant requested clarification of a question before he answered. These requests for clarification appear to have beep conscientious attempts to provide the information sought by the questioner rather than attempts to evade answering.

Id. at 71.

Although the BIA’s concern with the IJ’s reliance on demeanor in In re B— does not implicate the cultural bias I am concerned about here, the BIA’s opinion clearly shows the danger of placing too much reliance upon one person’s interpretation of a witness’s demeanor. It also demonstrates why we must not be content with allowing credibility determinations to rest upon “demeanor” with no further explanation by the IJ.

Requiring the fact finder to specify, and thereby think about and identify, those aspects of an alien’s demeanor that are troubling will also enhance the quality of the entire process by affording IJs an opportunity to reflect upon perceptions that may simply reflect differing customs. Suggesting that adverse credibility rulings will be affirmed whenever they rest upon an alien’s demeanor, with no further explanation or elaboration, will substantially undermine the process and open the door to no small amount of mischief.

I obviously I do not intend to suggest that all claims for relief under the immigration laws are valid or that petitioners do not sometimes fabricate testimony in order to avoid removal. Similarly, I do not minimize the difficulty of distinguishing valid claims from invalid ones at times. However, those difficulties are not resolved by unjustifiable deference to an IJ’s unexplained interpretation of a witness’s demeanor. Rather, they are exacerbated. Accordingly, for all of the reasons I have noted, I take this opportunity to express my concern with the import of footnote 23 in the majority opinion even though I join that portion of my colleague’s analysis. 8

. See also Zilich v. Reid, 36 F.3d 317, 321 (3d Cir.1994) (citing Townsend v. Sain, 372 U.S. 293 , 83 S.Ct. 745 , 9 L.Ed.2d 770 (1963), as stating that "demeanor evidence is a significant factor in adjudging credibility"); Cf. Amadeo v. Zant, 486 U.S. 214, 223 , 108 S.Ct 1771 , 100 L.Ed.2d 249 (1988) (stating that an appellate court must give due regard to the trial judge's opportunity to judge the credibility of witnesses).

. Barapind is an unpublished opinion and is therefore of no precedential value. See 9TH Cir. R. 36-3(a). I cite it not as relevant precedent but as an example of the kind of cultural bias that may all too frequently burrow its way into the mind of even a well-intentioned and conscientious fact finder, thus undermining the fact finding process to such an extent that factual conclusions may rest upon nothing more substantial than the quicksand of cultural bias.

. See Deborah E. Anker, Determining Asylum Claims in the United States, 19 N.Y.U. Rev. of Law and Social Change 433, 451-52 (1992) [hereinafter Anker Study] (concluding, after conducting an empirical study of U.S. immigration court decisions, that "immigration judges generally evaluated asylum claims without consideration of political realities in the [petitioners’] home countries while also imposing their own cultural and political assumptions in assessing [petitioners'] credibility”); see also Walter Kaelin, Troubled Communication: Cross-Cultural Misunderstandings in the Asylum-Hearing, 20 Int’l Migration Rev 230, 234 (1986) (stating that cross-cultural miscommunication in asylum hearings occurred due to the cultural relativity of words, notions, and concepts together with the lack of consciousness of these differences in communication).

. Judge Newman noted that eye contact has played a role in evaluating “reasonable suspicion” for purposes of a Teriy stop, grounds for exercising a peremptory challenge during voir dire, reliability of criminal confessions, remorse during sentencing, and the reasonableness of a police officer's conduct for purposes of evaluating probable cause to arrest. Morales, 281 F.3d at 60 n. 2 (citing cases).

. I submit that this problem is not easily overcome even by skilled and knowledgeable counsel. An attorney familiar with this dynamic and his/her client’s cultural proclivity to avoid eye contact may try to correct for this cultural disconnect by advising his/her client to maintain eye contact while testifying. However, this may well only make the situation worse because the alien will attempt to answer questions in a manner that causes *277 discomfort and thereby exhibit a demeanor that will undermine the client’s credibility.

. Another barrier to understanding the demeanor of petitioners who have experienced trauma is the likely repression of traumatic memories. Such repression only adds to the difficulty of answering questions. Their “detachment when recounting tragic events, sometimes perceived as an indication of fabrication, may reflect psychological mechanisms employed to cope with past traumatic experiences, rather than duplicity.” Ruppel, supra, at 20; see also Zubeda v. Ashcroft, 333 F.3d 463, 477 (3d Cir.2003). One such mechanism is post-traumatic stress disorder, a disorder catalogued by the American Psychiatric Association in its Diagnostic and Statistical Manual of Mental Disorders ("DSM”) as having symptoms including "impaired memory, difficulty in concentrating and a numbing of responsiveness to the external world.” Ruppel, at 20 (citing to the third edition of the DSM published in 1980). Various psychological responses to torture have been noted and cata- *278 logued in the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment submitted to the United Nations Office of the High Commissioner for Human Rights. Id. at 477 n. 16.

. Given the significance of $150 in the Guinean context, I need not mention that a search of bribery convictions in this country would no doubt disclose instances where officials in the United States had risked career and liberty for $150 or less.

. I have elaborated upon my concerns while accepting arguendo the proposition that demeanor testimony is of substantial assistance in evaluating credibility. I am willing to accept that proposition for purposes of my discussion given the long legal tradition that I have noted above. That tradition is not, however, without its skeptics. Empirical studies have lead some to conclude that ''[a]lthough highly regarded by ... judges and attorneys, the value of demeanor evidence as a means of determining testimonial reliability has yet to be demonstrated factually.” Morales v. Artuz, 281 F.3d 55, 62 n. 3 (2d Cir.2002) (discussing the debate over the validity of this evidence, and citing empirical studies that raise substantial doubt about the validity of the age old presumption about the relationship between demeanor and veracity).

*281 Judge Duniway of the Court of Appeals for the Ninth Circuit aptly explained the problem as follows:

The notion that special deference is owed to the determination of a trier of fact, whether judge, trial examiner, hearing officer (administrative law judge), or jury, because the trier sees the witnesses and hears them testify, while the [reviewing agency or] court look[s] only at cold records is deeply imbedded in the law. There must be thousands of appellate decisions that state and restate it in an infinite variety of ways.

I am convinced, both from experience as a trial lawyer and from experience as an appellate judge, that much that is thought and said about the trier of fact as a lie detector is myth or folklore. Every trial lawyer knows, and most trial judges will admit, that it is not unusual for an accomplished liar to fool a [fact finder] because his demeanor is so convincing.

Conversely, many trial lawyers, and some trial judges, will admit that the demeanor of a perfectly honest but unsophisticated or timid witness may be or can be made by an astute cross-examiner to be such that he will be thought by the jury or the judge to be a liar. He may be unable to face the cross-examiner, the jury, or the judge; he may slouch and squirm in the chair; he may be obviously tense and nervous; his answers to questions may be indirect, rambling, and inaudible; he may hesitate before answering; he may alternately turn pale and blush. In short, he may, to the trier of fact, be a liar, but in fact be entirely truthful. Again, however, another fact finder, seeing and hearing the same witness, may attribute his demeanor to the natural timidity of the average not very well educated and non-public sort of person when dragged to court against his will and forced to testify and face a hostile cross-examiner, and conclude that the witness is telling the truth.

Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1084-85 (9th Cir.1977) (Duniway, J. concurring).