This Week At The Ninth: Credibility Determinations

• Published date: 07 December 2021
• Subject Matter: Litigation, Mediation & Arbitration, Immigration, Trials & Appeals & Compensation, General Immigration
• Law Firm: Morrison & Foerster LLP
• Author: Ms Lena H. Hughes

This week, the Ninth Circuit applied its "totality of circumstances" test for credibility determinations in immigration proceedings.

KUMAR v. GARLAND

The Court applied its recent en banc decision in Alam v. Garland, 11 F.4th 1133 (9th Cir. 2021) to hold that because the bulk of the Immigration Judge's credibility determinations were infirm, the case should be remanded for the Board of Immigration Appeals (BIA) to consider whether the remaining factors sufficed to support an adverse credibility determination.

The panel: Judges McKeown, Nguyen, and Vitaliano (E.D.N.Y.), with Judge McKeown writing the opinion.

Key highlight: "We acknowledge that in some circumstances, our 'totality of circumstances' review of the BIA's determination permits us to uphold an adverse credibility finding, even where we conclude that some of the grounds are not supported by substantial evidence. However, the several rejected findings here all but gut the BIA's adverse credibility determination."

Background: Petitioner Kumar was born in Punjab, India and joined the Bahujan Samaj Party (BSP) there because of BSP's opposition to the country's caste system. Kumar alleged that, as a result of his work for BSP, he was beaten by the police and members of opposing political parties. After arriving in the United States, Kumar sought asylum, withholding of removal, and protection under the Convention Against Torture. Following a hearing at which Kumar testified, the IJ found him not credible and denied all of his claims. Kumar appealed to the BIA, which dismissed his appeals, identifying four factors that supported the IJ's adverse credibility finding. Kumar then petitioned the Ninth Circuit for review.

Result: The Ninth Circuit granted the petition and remanded. The Court concluded that most of the factors relied on by the IJ, and identified as significant by...