Sunday, August 28, 2005

Asylum claim revived where testimony discrepancies are minor

Filed 08/25/05, No. 04-3420
Ling v. Atty Gen USA
Ling v. Gonzales

It is difficult to overturn an immigration judge's decision that an asylum-seeker was not credible. In this case, though, the Third Circuit ruled that the immigration judge and the BIA were wrong to rule that the asylum-seeker was not credible.
Generally, minor inconsistencies and minor admissions that reveal nothing about an asylum applicant's fear for his safety are not an adequate basis for an adverse credibility finding. The discrepancies must involve the heart of the asylum claim.
In this case, the judge focused on two inconsistencies. First, the asylum-seeker sought a marriage certificate in 1997 but the Chinese authorities refused to issue it because his fiancee was not yet 20 years old, which led to a forced-abortion. An inconsistency is that, oddly, his wife was 20 years old at the time the authorities refused to issue the marriage certificate. The Third Circuit ruled, though, that the marriage certificate issue does not go to the heart of the asylum claim so that minor inconsistency could not be the absis for an adverse credibility finding. The heart of the asylum claim was how his wife was barred from having any more children (through an intrauterine device) for ten years after they ultimately had their first kid.

Second, the asylum-seeker was inconsistent about what month they stopped hiding after his wife got pregnant in May 2000 (which ended in a miscarriage). His written application stated they returned from hiding in October 2000, but in live testimony, he said it was in December 2000 when asked about events near the end of the calendar year. He repeated the December 2000 estimate several times until he was confronted with the discrepancy. He said it truly was October 2000 but he just got confused with the December 1997 forced-abortion after the marriage certificate was denied. The Third Circuit said it was excusable because his explanation for the slip was reasonable and, in any case, the inconsistency was not enough to rule that he was not credible.


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