Thu v. Att'y Gen. of U.S., (3d Cir. Dec. 18, 2007)

Because we find that the IJ failed to consider all the evidence in the record, including particularly the Sate Department Report for Burma, we grant the petition for review. We recognize that an IJ's job in making credibility determinations often poses significant challenges that can most effectively be met by consideration of all the facts available in the record. On remand the IJ should consider Petitioner's explanations of any discrepancies in any of his statements in light of the country report and other evidence. Given the notorious nature of the regime, an IJ should perhaps be reticent to draw negative inferences from lack of supportive correspondence.

Petitioner, a citizen of Burma, sought asylum, withholding of removal and Convention Against Torture (CAT) relief based on his political activities in Burma and in Japan. Upon his arrival at JFK Airport, Petitioner was questioned in English by an immigration officer. He stated that he wanted to escape Burma because he had no military friends and the military controls all of the jobs. He stated that if he went back to Burma, they would hurt him. Petitioner also stated that he had never been arrested. Petitioner was then detained at the Elizabeth Detention Center and had a credible fear interview in which he was assisted by a Burmese interpreter. He stated that he had a cousin in Florida and that his father had been imprisoned for three and a half years in Burma for being an elected member of the National League for Democracy (NLD). Petitioner also claimed that he took part in pro-democracy demonstrations against the Burmese in 2003 in Japan and protested when the Burmese Prime Minister came to Japan. He stated that he illegally returned to Burma in 2005 and was afraid the Burmese government would be aware of his political activities in Japan. He testified that his friend who protested in Japan was later arrested upon his return to Burma. Petitioner then filed for asylum, indicating on the application that he was not fluent in English. He recounted his father's imprisonment, his pro-democracy work in Japan and stated that the relative he had identified as his cousin in Florida was really his brother, and that his brother had received asylum in the United States in 1991. He also described, for the first time, his own arrest in Burma in 1998 for passing out leaflets. He stated that two activists who had returned to Burma from Japan with him in 2005 had been arrested.

At his 2006 asylum hearing, Petitioner made corrections to his asylum application, adding two details and correcting the spelling of his daughter's name. He testified about his 1998 arrest in Burma and his activities in Japan. In support of his claim, he submitted two letters from Burmese groups in Japan attesting to his political activities in Japan. On cross examination, Petitioner stated that he did not return to Burma after his father's arrest as it was stated on his application and that he must not have understood the sentence clearly or perhaps it was due to a mistranslation. Petitioner was also confronted with his response during his airport interview that he had never been arrested. He stated that he was excited during the questioning and that his English was not very good. He also stated that if he mentioned being arrested the officer would not like his answer. He stated that he was afraid to mention the arrest during his credible fear interview and only disclosed it after he had the opportunity to meet with a lawyer. Lastly, he stated that he did not reveal he had a brother in the United States earlier because he was afraid his brother could get in trouble.

The immigration judge denied relief finding that Petitioner was not credible. The IJ stated that she was troubled by discrepancies between Petitioner's testimony and his written statement about whether he had returned to Burma in 1990. The IJ found his explanation that he did not understand the statement on his application to be "incredible." The IJ also relied on Petitioner's failure to disclose his 1998 arrest during his airport or credible fear interviews. She described the arrest as the center point of his past persecution claim. The IJ also viewed the lack of document about the arrest to be important and stated that some documents or statements from his family still in Burma should have been forthcoming. The IJ then stated that if she ignored the 1998 arrest and the credibility issues associated with it, and focused only on Petitioner's activities in Japan, those activities were not enough to establish a well-founded fear of persecution. She also noted that Petitioner had no corroboration that his fellow pro-democracy activists in Japan had been arrested upon their return to Burma. The IJ also denied Petitioner's applications for withholding and CAT relief finding that Petitioner had not met his burden of proof. The BIA found that the IJ's credibility finding was not clearly erroneous. The BIA noted that Petitioner's failure to mention his 1998 arrest was a significant omission and also noted his inability to corroborate his arrest by having family members in Burma send documentation.

On review, the Third Circuit first addressed the IJ's finding that Petitioner had not established a well-founded fear of persecution based on his political activities in Japan and in Burma. The court found that the IJ did not elaborate on why she believed that Petitioner's activities were not enough to meet the standard. The court held that the relative perfunctory dismissal of Petitioner's testimony about his fear was especially troubling in light of the State Department country condition report for Burma and other Burma reports which describes that Burmese citizens are subject to arbitrary arrests, detention, denial of fair judicial proceedings, among other things. The court noted that Petitioner presented two letters about his activities in Japan, one of which was not mentioned by the IJ in her decision. The unmentioned letter was from the Chief Editor of the New Era Journal who verified that Petitioner was politically active in Japan and that it would be dangerous for Petitioner to return to Burma because of that. The court told that IJ that she should consider the two letters presented by Petitioner, as well as the country condition reports for Burma, when she makes her well-founded fear determination on remand.

On the issue of credibility, the court noted that the IJ acknowledged that this was a "close case." The court recognized that the IJ's job in making credibility determinations often poses significant challenges that can most effectively be met by consideration of all the facts available in the record. The court stated that on remand the IJ should consider Petitioner's explanations of any discrepancies in his statements in light of the country reports and other evidence. The court held that given the notoriously repressive nature of the Burmese regime, the IJ should perhaps be reticent to draw negative inferences from the lack of supportive documentation from Petitioner's family in Burma. The court ordered that any reason for relying on the lack of documentation from Burma should be thoroughly explained.

The petition for review was granted and the case remanded to the BIA for further remand to the IJ for a new hearing.