Saturday, June 13, 2009

Issiaka: Asylum-Seeker Testimony Sufficient, Translation Problems, and Criticism of IJ Miriam Mills

Issiaka v. Holder
No. 07-2691
June 11, 2009

Judges McKee and Nygaard with Judge Paul R. Michel from the Federal Circuit.
Opinion by Judge McKee.

The Third Circuit overturned the BIA and IJ Miriam Mills for their improper conclusion that the person seeking asylum was not credible (an adverse credibility determination). That determination was the only ground for denying the request for withholding of removal. The Third Circuit concluded, however, that the reason for finding the asylum-seeker not credible were not supported by substantial evidence.

The BIA and IJ Mills faulted the asylum-seeker for not answering questions about his head wounds that the Third Circuit noted it had difficulty understanding. Although IJ Mills wanted more detail, it was not very clear what kind of detail was desired about the number of founds, that they were deep, and that they were serious. The Third Circuit criticized how the BIA complained about not receiving enough details about the injury when the injured person explained he had bleeding head wounds that were bleeding, were on his head, and happened after others hit him in the head with sticks.

It is admirable that OIL counsel even conceded to the Third Circuit that this ground for disbelieving the testimony was troubling. Other issues the Third Circuit touched on were how the IJ should not have criticized the asylum-seeker for not explaining that he got stitches when it is not clear he ever got stitches. Also, IJ Mills should not have found the asylum-seeker not credible for not mentioning in his asylum petition that he received some medical treatment briefly.

The Third Circuit also reached a legal conclusion that garbled translations and a poor transcript can undermine the evidence on which the IJ or BIA reaches its conclusion to such a degree that the court must overturn the BIA's holding. The problems with the translations can be so harmful that it does not matter whether the asylum-seeker has raised a due process violation. Here, the interpreter spoke a different dialect and a different accent of the French language and the Third Circuit strongly encouraged that EOIR provide a better interpreter.

In another strong criticism of IJ Mills, the Third Circuit strongly encouraged the BIA to remand the case to a different IJ if a remand to an IJ is necessary due to what the Third Circuit viewed as the prosecutorial manner of IJ Mills during the hearing.

Congratulations to Laetitia B. Creech of Philadelphia, PA, who represented Mr. Issiaka and conducted oral argument. For the government were Nancy E. Friedman (argued) and Joan E. Smiley of OIL, the Office of Immigration Litigation in the Justice Department.


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