Sunday, May 15, 2005

Credibility determination overturned when based on illogical reasoning, speculation, or conjecture

Cao v. Attorney General, No. 03-4256 (3d Cir. May 12, 2005): Overturned and remanded the IJ's denial of an asylum claim by someone from China who tried to leak information about infanticide in China to comply with its population control policy. The Chinese government intercepted the attempted leak and detained, interrogated, and abused Cao. The IJ based its decision on the lack of credibility. That is very difficult to overturn on appeal. The Third Circuit, however, noted that the rationale of the IJ was illogical. (The BIA affirmed without opinion, so it is a good thing we had the resource of the Third Circuit to correct the BIA's mistake!)

The Third Circuit noted that whistleblowing against government corruption or against a government practice can qualify for asylum protection.

The IJ mistakenly equated late-term abortions with infanticide and was incredulous that the asylum-seeker could be so offended by infanticide but not equally mortified by forced late-term abortions. The Third Circuit called that a mistake. The IJ also made a mistake by assuming that someone could not become indignant about infanticide in a conversation if he already knew it was happening. In other words, the IJ erroneously thought someone can only be indignant when one first hears about something. However, some practices are so undignified that you can be indignant the second or third time you hear about it.

Among other things, the IJ found it incredible that the asylum-seeker's escape relied at one point on bribing an airport official. The Third Circuit, though, points out that bribes are common in China, so there's no reason to find the story incredible just because it says someone was bribed.

The Third Circuit explained that an adverse credibility determination based on speculation or conjecture can be overturned because minor inconsistencies and minor admissions are not enough to reject an asylum application unless they involve the heart of the asylum claim.


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