KALULU V. GARLAND, No. 21-895 (9th Cir. 2024)
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In this case, the United States Court of Appeals for the Ninth Circuit addressed the asylum petition of a Zambian woman, Milly Kalulu. The Board of Immigration Appeals (BIA) had previously dismissed her appeal of a removal order. Kalulu, who identifies as a lesbian, claimed past persecution in Zambia on account of her sexual orientation.
The Ninth Circuit agreed with the BIA that substantial evidence supported the agency’s adverse credibility determination, meaning that the agency was justified in not believing Kalulu’s testimony. The court found that Kalulu had been inconsistent in her testimony regarding when she made plans to remain in the United States and her alleged fear of future persecution if she returned to Zambia. Her demeanor during the removal hearing also contributed to the adverse credibility determination.
However, the Ninth Circuit identified errors in the agency’s evaluation of the documents Kalulu provided as evidence to support her claims of past persecution. The court found that the agency had misread some of these documents and had improperly discounted their evidentiary value based on these misreadings.
The court therefore granted Kalulu's petition for a review of the BIA's decision and instructed the agency to reconsider whether the documents, when properly read, independently prove Kalulu’s claims of past persecution. The court made no determination as to whether these documents do provide such proof or whether Kalulu merits any of the relief for which she applied.
Court Description: Immigration Granting Milly Kalulu’s petition for review of the Board of Immigration Appeals’ decision upholding the denial of asylum and related relief, and remanding, the panel held that although substantial evidence supported the agency’s adverse credibility determination, the agency did not properly evaluate whether Kalulu’s supporting evidence independently supported her claims of past persecution in her native Zambia on account of her sexual orientation.
As a threshold matter, the panel explained that because the immigration judge’s adverse credibility determination and the underlying facts upon which it was based are part of the record, this court must consider all those facts in its substantial evidence review, regardless of whether the BIA expressly mentioned them. The panel held that while some of the reasons the agency relied upon did not support its credibility finding, the administrative record as a whole did not compel a conclusion different than the agency’s, even after the record was stripped of any of the agency’s erroneous findings. Specifically, at least five of the factual bases underlying the agency’s adverse credibility determination were supported by the record, including four identified inconsistencies, as well as the IJ’s demeanor finding.
The panel held that the IJ failed to properly consider and evaluate the evidentiary weight of multiple documents Kalulu offered into the record independent of her noncredible testimony, and the BIA made clear factual errors when it reviewed those documents. The panel therefore remanded for the IJ or BIA to consider whether those documents, when properly read, independently proved Kalulu’s past persecution claim.
Concurring in part and dissenting in part, Judge Sanchez agreed with the majority that remand was required because the agency failed to consider whether Kalulu’s supporting evidence independently proved her claims. However, Judge Sanchez wrote that because the bulk of the agency’s credibility findings were based on significant errors, the REAL ID Act, principles of administrative law, and precedent require remand to the BIA to determine whether the few remaining factors supporting the credibility determination are sufficient in light of the totality of the circumstances. Judge Sanchez also disagreed that this court’s substantial evidence review includes factual findings that the BIA did not expressly consider or adopt.
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