Kaita: Vacating Adverse Credibility Determination and Criticizing IJ Interruptions and Chaotic Transcript

In Kaita v. Mukasey, No. 06-3288 (3d Cir. April 3, 2008), IJ Cabrera and the BIA erred in relying on the IJ's unfounded finding that Ms. Kaita's story was not believable and by relying on a transcript that had serious problems.

First, the Third Circuit ruled that it would not review the denial of asylum because it had no power to review Ms. Kaita's failure to prove that she filed her asylum claim within one year of arriving in the United States. (There are exceptions for changed circumstances or extraordinary circumstances, but Ms. Kaita did not argue that either of those applied.)

Second, the Third Circuit examined Ms. Kaita's effort to prove that she qualified for withholding of removal -- which requires proving there is a clear probability that her life or freedom would be threatened due to her race, religion, nationality, member in a particular social group, or political opinion. The IJ denied Ms. Kaita's claim because the IJ believed her testimony was inconsistent and vague. The Third Circuit examined whether the IJ and BIA had adequate evidence to defend that conclusion -- and found that the IJ and BIA had erred because there wasn't supporting evidence.

• The IJ and BIA complained about time gaps in her story. But the Third Circuit noted there are no significant time gaps in her story.
• The IJ and BIA complained that she could not remember significant dates. But the Third Circuit noted she did remember significant dates generally, such as clearly remembering a traumatic event happened in 1997 but could not remember the exact date due to trauma and there were was confusion about the questions and interpretation.
• The IJ and BIA erred by believing she first testified she did not know when she was hospitalized but then testified she was in the hospital on January 25th. The Third Circuit noted that the IJ and BIA misread the record -- she never said she could not recall any of the dates she was in the hospital. A fair interpretation of her testimony is she could not remember the exact date she checked in.

The Third Circuit criticized how the IJ handled the case because the transcript stands out due to the extent of the IJ's interruptions, frequently in what the Third Circuit believed was an antagonistic manner. It seriously impeded the Third Circuit's ability to understand the record. For example, Ms. Kaita testified she was "some time over 51," meaning older than 51 but nearly 52 years old. The IJ commented that it would be strange for anyone to say they are "sometimes" older than 51. When Ms. Kaita testified about how rebels killed another woman by torture until the woman bled to death, the IJ immediately interrupted to say "Okay, so she bled to death. Let's move on."

The IJ usurped her lawyer's role by cutting off questions at times and telling Ms. Kaita what she should testify about, rather than the topic raised by her lawyer's question.

The IJ also incorrectly believed that someone who could at times correct the interpreter's English language translation must by definition be able to testify in English and does not need an interpreter. The Third Circuit noted that a few corrections does not necessarily mean she understands English well or can communicate fully in English in a legal proceeding. It might simply mean she understands some English and in some instances as well as or better than the interpreter.

The Third Circuit remanded the case on the issues of withholding of removal and CAT.

Matthew Harris represented Ms. Kaita and Ada Bosque argued the case for OIL. The judges were Judge Sloviter, Judge Ambro, and visiting District Court Judge Louis Pollak.

The opinion is available at:
http://www.ca3.uscourts.gov/opinarch/063288p.pdf