Kadia v. Gonzales

• Decision Date: 07 September 2007
• Docket Number: No. 06-1299.,06-1299.
• Citation: 501 F.3d 817
• Parties: Henry A. KADIA, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

501 F.3d 817

Henry A. KADIA, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 06-1299.

United States Court of Appeals, Seventh Circuit.

Argued December 6, 2006.

Decided September 7, 2007.

John L. Sesini, Milwaukee, WI, for Petitioner.

Patricia M. Bowman, Department of Justice, Tax Division, Appellate Section, Karen Lundgren, Department of Homeland Security, Office of the Chief Counsel, Chicago, IL, John C. O'Quinn, argued, Department

of Justice, Office of the Associate Attorney General, Washington, DC, for Respondent.

Before POSNER and WOOD, Circuit Judges.^*

POSNER, Circuit Judge.

The petitioner sought asylum in the United States on the ground that if he is returned to Cameroon, his native country, he is likely to be persecuted because of his political opinions. The Board of Immigration Appeals affirmed the immigration judge's denial of asylum, agreeing that the judge was entitled to disbelieve the petitioner. The petitioner testified that when living in Cameroon he was politically active in parties that advocate (but do not attempt to achieve by violence or other unlawful means) secession of the southern part of the country, see, e.g., Piet Konings, "Opposition and Social-Democratic Change in Africa: The Social Democratic Front in Cameroon," 42 Commonwealth & Comparative Politics 289, 292 (2004); U.S. Dep't of State, Country Reports on Human Rights Practices — 2003 16 (Feb. 25, 2004); "Cameroon: Secessionist Minority Anglophone Group Silenced," IRIN Humanitarian News and Analysis (Feb. 19, 2007), www.irinnews.org/report.aspx? ReportID= 70258 (visited Aug. 7, 2007), and that as a result of his activity he was arrested many times, repeatedly detained, and often beaten and otherwise tortured. Had the immigration judge believed his narrative, the petitioner would have been found to be a victim of persecution on the ground of his political beliefs and would therefore have been entitled to a presumption that his fear of persecution if he is returned to Cameroon is well founded. 8 C.F.R. § 208.13(b)(1); Gomes v. Gonzales, 473 F.3d 746, 753 (7th Cir.2007).

Judicial review of a credibility determination is limited, especially when it is based on the witness's demeanor, which the reviewing court cannot review, or is made by a jury, which does not give reasons for its judgment. "Credibility assessments can embody a struggle between norms of subjective and objective decision-making. Subjective assessments are highly personal to the decision-maker, dependent on personal judgment, perceptions, and disposition, and often lacking in articulated logic. They are very difficult to review and are likely to be inconsistent from one decision-maker to another." Michael Kagan, "Is Truth in the Eye of the Beholder: Objective Credibility Assessment in Refugee Status Determination," 17 Geo. Immigration L.J. 367, 374 (2003). Yet we noted in Iao v. Gonzales, 400 F.3d 530, 534 (7th Cir.2005), that immigration judges' "insensitivity to the difficulty of basing a determination of credibility on the demeanor of a person from a culture remote from the American" is a "disturbing feature" of many immigration cases, and in Djouma v. Gonzales, 429 F.3d 685, 687-88 (7th Cir. 2005), that immigration judges often lack the "cultural competence" to base credibility determinations on an immigrant's demeanor.

In a case such as this, in which the basis for the evaluation of the witness's credibility is set forth in detail by the trier of fact and has nothing to do with demeanor but consists instead of inconsistencies or falsehoods in the witness's testimony that the trier of fact enumerates in his opinion, the reviewing court has more than suspicion to work with in deciding whether the determination of credibility was reasonable. Gao v. Board of Immigration Appeals, 482 F.3d 122, 127 (2d Cir.2007) ("credibility determinations that are based on the IJ's analysis of testimony, as opposed to demeanor, are granted less deference"); Chen v. U.S. Dep't of Justice, 426 F.3d 104, 113 (2d Cir.2005); Arulampalam v. Ashcroft, 353 F.3d 679, 685-86 (9th Cir. 2003); Cordero-Trejo v. INS, 40 F.3d 482, 487 (1st Cir.1994). As the Supreme Court has explained, "When findings are based on determinations regarding the credibility of witnesses, Rule 52(a) [of the civil rules] demands even greater deference to the trial court's findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said. This is not to suggest that the trial judge may insulate his findings from review by denominating them credibility determinations, for factors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness' story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly based on a credibility determination." Anderson v. City of Bessemer, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

Review still is deferential in such a case, as we implied in posing the question as whether the determination of credibility was reasonable, not whether it was correct. Indeed, the standard of review remains the same ("reasonable" or, the more conventional but equivalent formula, "supported by substantial evidence") even if the determination is based entirely on documents rather than live testimony. E.g., Onsongo v. Gonzales, 457 F.3d 849, 854 (8th Cir.2006); Sterkaj v. Gonzales, 439 F.3d 273, 278 (6th Cir.2006). It is merely that, as suggested by the Supreme Court in Anderson, the reviewing court is in a better position to decide whether the credibility determination was reasonable if the determination was based entirely on documentary evidence. See also Hanaj v. Gonzales, 446 F.3d 694, 698-99 (7th Cir. 2006); Kourski v. Ashcroft, 355 F.3d 1038, 1040 (7th Cir.2004); Yeimane-Berhe v. Ashcroft, 393 F.3d 907, 911 (9th Cir.2004).

In recent years an avalanche of asylum claims has placed unbearable pressures on the grossly understaffed Immigration Court, and we and other courts have frequently reversed the credibility determinations made by immigration judges and affirmed by the also sorely overworked Board of Immigration Appeals. E.g., Tarraf v. Gonzales, 495 F.3d 525, 532-33 (7th Cir.2007); Benslimane v. Gonzales, 430 F.3d 828, 829-30 (7th Cir.2005); Solomon v. Gonzales, 454 F.3d 1160, 1162 (10th Cir.2006); Fiadjoe v. Attorney General of United States, 411 F.3d 135, 160 (3d Cir.2005); Secaida-Rosales v. INS, 331 F.3d 297, 313 (2d Cir.2003). An article by Edward R. Grant, "Laws of Intended Consequences: IIRIRA and Other Unsung Contributors to the Current States of Immigration Litigation," 55 Cath. U.L.Rev. 923, 959 (2006), reports that two-thirds of the judicial reversals of asylum decisions in the first two months of 2006 involved problems with credibility determinations. Grant criticizes these reversals, yet he himself — a member of the Board of Immigration Appeals — was discovered to have decided more than 50 immigration cases in one day, requiring a decision "nearly every 10 minutes if he worked a nine-hour day without a break." Lisa Getter & Jonathon Peterson, "Speedier Rate of Deportation Rulings Assailed," Los Angeles Times (Jan. 5, 2003), www. usdoj.gov/eoir/press/03/speedierrate. pdf2003 (visited Aug. 17, 2007). (If he worked eight hours and took a lunch break, he had no more than 7 minutes per case.)

Deference is earned; it is not a birthright. Repeated egregious failures of the Immigration Court and the Board to exercise care commensurate with the stakes in an asylum case can be understood, but not excused, as consequences of a crushing workload that the executive and legislative branches of the federal government have refused to alleviate.

In this case there were a number of inconsistencies between the petitioner's testimony at the immigration hearing and the written statement that he had submitted earlier in support of his application for asylum, and in addition the documentary evidence that he submitted contained anomalies. A reasonable trier of fact could have concluded that the petitioner had lied about his political activities in Cameroon and their consequences. But the immigration judge made a number of mistakes, uncorrected by the Board, in his assessment of the evidence, and we cannot be confident that had he not made those mistakes he still would have disbelieved the petitioner. So although the doctrine of harmless error is applicable to judicial review of immigration decisions, e.g., Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004); Ngarurih v. Ashcroft, 371 F.3d 182, 191 n. 8 (4th Cir.2004), as to other administrative review, e.g., Keys v. Barnhart, 347 F.3d 990, 994-95 (7th Cir.2003), it cannot save the day for the government in this case.

The immigration judge failed to distinguish between material lies, on the one hand, and innocent mistakes, trivial inconsistencies, and harmless exaggerations, on the other hand. In effect, he applied the discredited doctrine of falsus in uno, falsus in omnibus (false in one thing, false in all things), which Wigmore called "primitive psychology," John H. Wigmore, A Students' Textbook of the Law of Evidence 181 (1935), and — in a characterization that we endorsed in United States v. Schimmel, 943 F.2d 802, 808 (7th Cir.1991) — an "absolutely false maxim of life." 3A Wigmore, Evidence in Trials at Common Law, § 1008, p. 982 (James H. Chadbourn ed., rev. ed.1970); see also Yongo v. INS, 355 F.3d 27, 33 (1st Cir.2004); United States v. Weinstein, 452 F.2d 704, 713 (2d Cir.1971) (Friendly, J.); Virginian Ry. v. Armentrout, 166 F.2d 400, 405 (4th Cir.1948). Anyone who has ever tried a case or presided as...