Thursday, July 23, 2009

Millien: IJ Asylum Credibility Finding Overturned -- No Credibility Problem Where In-Court Testimony Weakens Claim

Millien v. Holder
June 4, 2009
Not Precedential
Judges McKee, Hardiman, and Roth. Per Curiam decision.

The BIA and IJ Frederic Leeds relied on an adverse credibility determination to deny a man seeking asylum. The Third Circuit concluded that the adverse credibility finding was not supported by substantial evidence. The Third Circuit was particularly concerned that IJ Leeds did not try to reconcile the finding with the documentary evidence. Some examples include how the asylum-seeker testified he was a party leader but wrote on one application he was a party member. The Third Circuit pointed out it was consistent, not contradictory and that asylum-seekers should not be harshly punished for not having asylum applications as detailed as desirable if they can back up the additional details with evidence.

The Third Circuit held that discrepancies cannot bear on credibility where the in-person testimony weakens the claim of persecution. In that instance, the in-person testimony is not any attempt to enhance the claim of persecution. For example, testifying he was hit in the head in a non-serious way rather than beaten. Or testifying he got 6 threatening phone calls rather than the 50 written in the application (which he said was probably due to a translation mistake).


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