12-2163
Lin v. Lynch
                                                                                      BIA
                                                                                Brennan, IJ
                                                                             A 088 517 180
                          UNITED STATES COURT OF APPEALS

                                FOR THE SECOND CIRCUIT

                                     August Term 2015

   Heard: August 25, 2015                                   Decided: February 11, 2016

                                     Docket No. 12-2163

   - - - - - - - - - - - - - - - - - - - - - -
   WU LIN,
        Petitioner,

                          v.
   LORETTA E. LYNCH, United States Attorney General,
        Respondent.
   - - - - - - - - - - - - - - - - - - - - - -

   Before: NEWMAN, WALKER, and JACOBS, Circuit Judges.

               Petition for review of the April 30, 2012, decision of

   the Board of Immigration Appeals, reversing a decision of an

   Immigration Judge that had approved an application for

   asylum.

               Petition    granted    and    case       remanded.    Judge     Jacobs

   concurs in the grant of the petition for review and remand

   to     the     BIA     for   further     consideration       with    a   separate

   opinion.




                                             1
                               Gerald Karikari, Law Offices of
                                 Gerald   Karikari,  P.C., New
                                 York, NY, for Petitioner.

                               Ashley Y. Martin, United States
                                 Department of Justice, (Stuart
                                 F. Delery, Principal Deputy
                                 Assistant   Attorney   General,
                                 Mary Jane Candaux, Assistant
                                 Director,   on    the   brief),
                                 Washington, DC, for Respondent.




JON O. NEWMAN, Circuit Judge.

          This petition to review a decision of the Board of

Immigration Appeals (“BIA”) requires consideration of the

standard of review for a court of appeals considering the

BIA’s   determination   that    an   Immigration   Judge’s   (“IJ”)

findings of fact are clearly erroneous.        This issue arises

on a petition by Wu Lin for review of the BIA’s decision of

April 30, 2012, denying his application for asylum.              We

conclude that, although the BIA recognized its obligation to

apply the “clear error” standard of review to the IJ’s

findings of fact, it erred in its application of that

standard and provided an insufficient basis for rejecting

the IJ’s findings.      We therefore grant the petition for

review and remand to the BIA for further consideration.



                                 2
                              Background

    Wu Lin is a native and citizen of the People’s Republic

of China.        In August 2007 he entered the United States

without authorization.        Lin was apprehended in Texas a few

days after his entry.     In September 2007, an official of the

Department of Homeland Security (“DHS”) conducted a so-

called   “border      interview”       to   determine         whether   Lin

“indicate[d] either an intention to apply for asylum . . .

or a fear of persecution,” Immigration and Nationality Act

§ 235(b)(1)(A)(I), 8 U.S.C. § 1225(b)(1)(A)(i). Under oath,

Lin stated that he would be imprisoned if returned to China.

Asked why, he answered, “I was working for the birth control

department in China and I let two women go . . . without

having the procedure.”

    As a result of the border interview, Lin was referred

for a so-called “credible fear” interview conducted in

September 2007 by an asylum officer to determine whether Lin

“ha[d]       a     credible     fear        of      persecution,”         8

U.S.C.   §   1225(b)(1)(B)(ii),        which     means   “a    significant

possibility . . . that the alien could establish eligibility

for asylum,” 8 U.S.C. § 1225(b)(1)(B)(v).                 Lin testified

that his reason for believing that he would be persecuted if

returned to China was that he was arrested and fined when he

                                   3
“went to reason with the people in the family planning”

after they forced his girlfriend to have an abortion.        The

asylum officer asked Lin why he had told the Border Patrol

that he feared imprisonment because he had helped two women

escape from the birth control department.           He answered,

“[W]hen I was there with them, they told me I did not have

to say me [sic] the whole story there, but to tell it to the

immigration officer.” Lin added, “I released two women that

were nine months pregnant.

    Lin filed a written application for asylum in July

2008. Abandoning his claims made at the border and credible

fear interviews, Lin wrote that he had been persecuted by

the Chinese government by beatings and detention because of

his practice of Falun Gong. He explained the recantation of

his previous claims by stating that he had been instructed

by the snakeheads (smugglers) on the way to the United

States to say certain things and that if he did not say what

he was told he would be sent back to China and have to pay

the smuggling fees.     Lin’s testimony before the IJ repeated

what he had written in his asylum application.

    In an oral decision, the IJ credited Lin’s testimony.

She found that Lin had “reasonably explained” his previous

versions   and   was   “satisfied”   with   Lin’s   explanation.“

                                4
[T]his is an example,” the IJ stated, “of the power of the

snakeheads to whom he owed money and to whom he owed his

presence and entry into the United States.” Then, evidently

contemplating an appeal by DHS, the IJ added, “This is an

example    for    any   reviewing   Court     of   the    power   of    the

snakeheads over [asylum seekers] who are coming to America.”

The IJ said she “g[a]ve great weight to the fact that [Lin]

came forward voluntarily to withdraw those statements and to

explain why he said those statements.”               With respect to

Lin’s current claim, the IJ said she credited Lin’s practice

of Falun Gong and the detention and beatings he had suffered

while detained in China.          The IJ also found that Lin had

“produced     reasonably      available   evidence       to   support   his

claim,” referring to a letter from Lin’s father, a letter

from his co-practitioner in China, a copy of the dismissal

notice from his employer, a sworn affidavit from his uncle,

and several identity documents.               The IJ exercised her

discretion to grant Lin asylum.

    DHS appealed the IJ’s decision to the BIA.                    The BIA

began   its   opinion    by    recognizing    that   its      regulations

required it to review an IJ’s findings of fact under the

“clearly         erroneous”       standard.        See        8    C.F.R.



                                    5
§ 1003.1(d)(3)(i). The BIA stated, “There is clear error in

a factual finding when we are left with the definite and

firm conviction that a mistake has been made.” In re Wu Lin,

No. A088 517 180, at 1 (B.I.A. Apr. 30, 2012).                  The BIA

ruled that the IJ had “committed clear error in crediting

[Lin’s] explanation for his repeated lies to immigration

officials.” In re Wu Lin, No. A088 517 180, at 2.                The BIA

also       stated,   “[W]e   find   clear    error   in   the     [IJ’s]

determination that [Lin’s] third asylum claim based on his

practice of Falun Gong was credible.” 

                Based on

these rulings, the BIA reversed the IJ’s grant of asylum.

We consider the BIA’s reasons for these rulings below.

                              Discussion

       In nearly all the petitions for review of asylum claims

that reach this Court, the BIA has affirmed an IJ’s denial

of asylum. In the pending petition for review, however, the

BIA, applying the “clear error” standard of review, has

reversed an IJ’s grant of asylum.1          The initial issue for us

is what standard of review should we apply to the BIA’s

ruling that an IJ’s findings of fact are clearly erroneous.


       1
      If the BIA grants asylum, either by affirming an IJ’s
grant of asylum or by reversing an IJ’s denial of asylum,
DHS is not authorized to seek review in this Court.

                                    6
     This is an issue that rarely arises in judicial review

of agency decisions because an agency’s use of a “clear

error” standard to review findings of fact is itself rare.

Under the Administrative Procedures Act, “[o]n appeal from

or review of the initial decision, the agency has all the

powers which it would have in making the initial decision

except as it may limit the issues on notice or by rule.” 5

U.S.C. § 557(b).       Thus, most agencies reviewing findings of

fact are entitled to find facts, i.e., “use the powers

[they] would have in making the initial decision.”

     However, the BIA is subject to a different regime. The

Department      of   Justice    (“DOJ”),    acting   pursuant       to    the

“except” clause of section 557(b), has required the BIA,

which is a constituent entity within DOJ,2 to review an IJ’s

findings of fact under the “clear error” standard: “Facts

determined by the immigration judge, including findings as to

credibility of testimony, shall be reviewed only to determine

whether   the   findings   of    the   immigration   judge   are    clearly

erroneous.” 8 C.F.R. § 1003.1(d)(3)(i).          DOJ also prohibited

the BIA from making findings of fact: “Except for taking

administrative       notice     of   commonly   known   facts      such    as


     2
      “There shall be in the Department of Justice a Board
of Immigration Appeals . . . .” 8 C.F.R. § 1003.1(a)(i).

                                       7
current events or the contents of official documents, the

Board will not engage in factfinding in the course of

deciding appeals.” 

    DOJ has explained that “[t]he [Justice] Department’s

adoption of the ‘clearly erroneous’ standard encompasses

the standards now commonly used by the federal courts with

respect to appellate court review of findings of fact made

by a trial court.” Board of Immigration Appeals: Procedural

Reforms to Improve Case Management, 67 Fed. Reg. 54878-01,

54890 (Aug. 26, 2002).   Those standards are set forth in

Rule 52(a)(6) of the Federal Rules of Civil Procedure:

    “Findings of fact, whether based on oral or other
    evidence, must not be set aside unless clearly
    erroneous, and the reviewing court must give due
    regard to the trial court's opportunity to judge
    the witnesses' credibility.”

So when the BIA reviews an IJ’s findings of fact, it must

accept them unless they are clearly erroneous, and the BIA

must give “due regard” to the IJ’s opportunity to judge a

witness’s credibility.

    Before determining how we should review a BIA ruling

that an IJ’s findings of fact are clearly erroneous, we

endeavor to consider what “clear error” review means.    We

are not encouraged in this task by Judge Learned Hand’s



                             8
observation that “[i]t is idle to try to define the meaning

of   the   phrase,      ‘clearly     erroneous,’”      United     States     v.

Aluminum Co. of America, 

, 433 (2d Cir. 1945),

or   the   Supreme      Court’s    later     acknowledgment       that     “the

meaning     of    the     phrase     ‘clearly        erroneous’       is    not

immediately apparent,” Anderson v. City of Bessemer, 

, 573 (1985).

     The most frequently expressed statement of the meaning

of “clear error” review was first provided by the Supreme

Court in United States v. U.S. Gypsum Co., 

,

395 (1948): “A finding is ‘clearly erroneous’ when although

there is evidence to support it, the reviewing court on the

entire     evidence     is    left    with    the    definite     and      firm

conviction that a mistake has been committed.”                    The Court

has repeatedly used this formulation. See, e.g., 

; McAllister v. United States, 

,

20 (1954).       The BIA itself repeated a portion of this

formulation      when    it   rejected,      under    the    “clear    error”

standard, the IJ’s findings in this case.                   “There is clear

error in a factual finding when we are left with the

definite and firm conviction that a mistake has been made.”

In re Wu Lin, No. A088 517 180, at 1 (B.I.A. Apr. 30,

2012).

                                      9
    The “definite-and-firm-conviction” formulation provides

little, if any, guidance as to the circumstances that would

permit a reviewing court to conclude that a factfinder has

committed “clear error.”       Indeed, the formulation can be

misleading if it is misunderstood to mean that a reviewing

court can reject a finding of fact simply because the court

subjectively believes that the factfinder was mistaken.

The formulation purports to be an explanation of when a

factfinder   has   committed   “clear   error,”   but   the   key

question is what constitutes “clear error.”

    The Supreme Court’s most quoted attempt to explain

“clear error” identifies what the phrase does not mean:

    “[C]ertain general principles governing the
    exercise of the appellate court’s power to
    overturn findings of a district court may be
    derived from our cases. . . .       This standard
    [“clear error” review] plainly does not entitle a
    reviewing court to reverse the finding of the
    trier of fact simply because it is convinced that
    it would have decided the case differently. The
    reviewing court oversteps the bounds of its duty
    under Rule 52(a) if it undertakes to duplicate the
    role of the lower court. In applying the clearly
    erroneous standard to the findings of a district
    court sitting without a jury, appellate courts
    must constantly have in mind that their function
    is not to decide factual issues de novo. If the
    district court’s account of the evidence is
    plausible in light of the record viewed in its
    entirety, the court of appeals may not reverse it
    even though convinced that had it been sitting as
    the trier of fact, it would have weighed the
    evidence differently.”

                                10


-74    (citation    and   internal

quotation marks omitted).

      Some examples of clear error can be readily imagined.

There might be no evidence at all to support a finding of

fact.      Or the finding might be controverted by indisputable

evidence, as when indisputable evidence establishes that an

asylum witness claiming to have been beaten was at a

location far from where he claimed the beating occurred.

Of course, such extreme examples of clear error are not

likely to arise.             A more likely example might arise where

an   IJ    has    obviously      misunderstood     the     testimony     of    a

witness       and      based      a    finding     of      fact    on    that

misunderstanding.             Situations might also arise where the

evidence opposed to the claimant’s version, though not

indisputable,          has    overwhelming     persuasive     force.      How

overwhelming the opposing evidence must be will often be a

close question for the entity applying clear error review

and for the court reviewing a clear error conclusion.                    What

is not in doubt, however, is that the phrase “clear error”

is to be taken literally: the error must be clear.

     One    aspect      of    “clear   error”    review     that   has   been

generally recognized is that it is less deferential to a

factfinder        than       “substantial      evidence”     review.          In

                                        11
Dickinson v. Zurko, 

, 152-53 (1999), Justice

Breyer explained a significant difference between appellate

court application of the “clear error” standard to a bench

trial judge’s finding of fact (what he called “court/court

review”) and its application of the “substantial evidence”

standard to an agency’s finding of fact (what he called

“court/agency” review).   “Traditionally, this court/court

standard of review has been considered somewhat stricter

(i.e., allowing somewhat closer judicial review) than the

APA's court/agency standards.” 

(citing 2 Kenneth

Culp Davis & Richard J. Pierce, Jr., Administrative Law

Treatise § 11.2 (3d ed. 1994)).   In other words, even if

there is substantial evidence to support a finding of fact,

a reviewing court or an agency like the BIA can conclude,

with sufficient justification, that a “clear error” has

been committed.3   A leading treatise agrees:      “If the


    3
      In Easley v. Cromartie, 

, 246-57 (2001),
the Supreme Court, reviewing for clear error the findings
of   fact   of   a  three-judge   district   court   in   a
reapportionment case, made a meticulous analysis of the
testimony of several witnesses before concluding that clear
error had occurred. The Court’s approach might have been
influenced by the Court’s reluctance to interfere with a
state legislature’s reapportionment decisions. “The Court
also has made clear that the underlying districting
decision   is   one   that  ordinarily   falls   within   a
legislature’s sphere of competence.” 

                            12
findings of fact are against the clear weight of the

evidence   or   the   appellate        court   otherwise   reaches   a

definite and firm conviction that a mistake has been made

by the trial court, the appellate court will set the

findings aside even though there is evidence supporting

them that, by itself, would be considered substantial.” 9C

Charles Alan Wright & Arthur R. Miller, Federal Practice

and   Procedure   §    2585   (3d       ed.    2007).      With   this

understanding of “clear error” review, we now turn to how

a court reviews a court or an agency decision rejecting a

finding of fact upon “clear error” review.

      The most familiar context in which an appellate court

reviews another tribunal’s application of a “clear error”

standard to a finding of fact is the Supreme Court’s review

of a court of appeals decision that a district court’s

finding of fact is clearly erroneous.               In this three-

layered context, the Supreme Court puts itself in the shoes

of the court of appeals and makes a de novo decision as to

whether it has a definite and firm conviction that a

mistake has been made. See 

;




                                  13


.4               However, in the three-

layered context of court review of an agency’s application

of the “clear error” standard to an IJ’s finding of fact,

we have no authority to displace the BIA and apply the

“clear error” standard to an IJ’s finding of fact.

    Courts of appeals conduct three-tiered court/agency

review in other contexts that are somewhat analogous to our

review   of   the   BIA’s   application        of    the   “clear     error”

standard, but these contexts are sufficiently different to

be unhelpful to our inquiry.               The first concerns the Tax

Court.    The    Tax   Court     by    rule    has   adopted     a    highly

deferential standard for reviewing a Special Trial Judge’s

recommended     findings    of   fact.      “[T]he    findings       of   fact

recommended by the Special Trial Judge shall be presumed to

be correct.” Tax Ct. R. 183(d).                 Whether or not this

standard is as deferential as “clear error” review, Courts

of Appeals are statutorily instructed to review a Tax


    4
      Where the Supreme Court reviews a decision of a court
of appeals that has upheld a finding of a trial court, the
Court generally applies what it calls “the two-court rule,”
declining to reexamine the finding. See, e.g., Graver Tank
& Mfg. Co. v. Linde Air Products Co., 

, 275
(1949) (“A court of law, such as this Court is, . . .
cannot undertake to review concurrent findings of fact by
two courts below in the absence of a very obvious and
exceptional showing of error.”).

                                      14
Court’s findings “to the same extent as decisions of the

district courts in civil actions tried without a jury,” 26

U.S.C.    §   7482(a)(1),     i.e.,      under       the     “clear       error”

standard.     We have no similar authority with respect to BIA

application of the “clear error” standard.

     The second context concerns the Court of Appeals for

Veterans’ Claims.      That Court applies “clear error” review

to   a   factual    determination       of    the    Board    of       Veterans’

Appeals. See 38 U.S.C. § 7261(a)(4).                However, the Court of

Appeals for the Federal Circuit, which reviews rulings of

the Court of Appeals for Veterans’ Claims, is explicitly

precluded     from    reviewing     a        challenge     to      a     factual

determination. See 38 U.S.C. § 7292(d)(2).

     With     no   special   guidance        from    these    two       possible

analogies, we are left with our traditional approach to

reviewing a ruling of law – de novo review.                         The BIA’s

application of “clear error” review is the application of

a legal standard to findings of fact and as such is a

ruling of law.       See Kabba v. Mukasey, 

, 1245

(10th Cir. 2008). However, de novo review does not mean

that we can redetermine de novo whether we think the IJ has

committed clear error.         It means that we must determine


                                  15
whether the BIA has provided sufficient justification for

its conclusion that the IJ has committed clear error.          It

also means that we must make sure that the BIA has not

violated the prohibition against making its own findings of

fact.

    Sometimes the distinction between a BIA’s permissible

ruling that an IJ has committed clear error and the BIA’s

prohibited finding of fact might appear to turn on how the

BIA explains its decision.    If the BIA says it “finds” that

the evidence establishes the opposite of what an IJ has

found, the BIA would appear to be finding a fact, which it

is not permitted to do.    On the other hand, if the BIA says

that, after considering the entire record, it concludes

that the IJ has committed clear error in making a finding

of fact and provides a legally sufficient explanation for

its conclusion, its ruling will ordinarily be upheld.

    We do not mean to imply that a BIA ruling “finding” a

fact to be the opposite of what an IJ had found must always

be rejected merely because the BIA used the terminology of

factfinding.   Reviewing   courts   sometimes   say   that   they

“find” that something is so, e.g., that a party’s legal

contention is invalid, even though they are not finding a


                              16
fact    but,   instead,    stating          a   ruling    of    law.   If,   for

example, a reviewing court ascertains as a matter of law

that the evidentiary record cannot sustain an IJ’s factual

finding and therefore compels the conclusion reached by the

BIA, rejecting the BIA’s ruling merely because the BIA used

the wrong terminology in expressing a legally compelled

result would be senseless.                  At the same time, the BIA

should    be   mindful     that    careless         use        of   factfinding

terminology      when     its     intention         is     to       rule,    with

explanation, that an IJ’s factfinding was clearly erroneous

can cause confusion and unnecessary remands.

       Just as we require an IJ to give “specific, cogent

reasons” to support rulings, see Cao He Lin v. U.S. Dep’t

of Justice, 

, 400 (2d Cir. 2005) (internal

quotation marks omitted), we expect the BIA to supply

cogent reasons for its rulings. See Vitug v. Holder, 

, 1063 (9th Cir. 2013) (“Under clear error review,

if the BIA rejects a finding of the IJ, . . . the BIA [is]

obligated      to explain why the IJ clearly erred in so

finding.”).

       The three cases in this Circuit reversing the BIA for

an   invalid    application       of    the      “clear    error”      standard


                                       17
reflect this approach.            Our first encounter with a BIA

decision ruling that an IJ’s finding of credibility was

clearly      erroneous      was   Fen     Yong    Chen        v.   Bureau     of

Citizenship & Immigration Services, 

(2d Cir.

2006).     We rejected the BIA’s ruling. See 

We   noted    that,    although     the    IJ    had    explained      why    he

discounted inconsistencies between the applicant’s hearing

testimony and his prior credible fear interview, the BIA

“gave no explanation for why it rejected the IJ’s reasons

for discounting [that] interview.” 

                    The BIA, we

ruled,    “started        anew,   conducting      its    own       credibility

analysis.” 

Sherpa v. Holder, 374 F. App’x 104 (2d

Cir. 2010), where the BIA rejected an IJ’s finding that the

applicant     was     credible,    we     rejected      the    BIA’s   ruling

because      the    BIA     had   “reached       its     own       credibility

determination.” 

         In Padmore v. Holder, 

(2d Cir. 2010), we ruled that the BIA had engaged in

impermissible factfinding in determining, contrary to an

IJ’s     ruling,    that     cancellation        of     removal      was     not




                                     18
warranted. See 

      In the pending matter, the IJ found as a fact that Lin

was credible in testifying about his persecution because of

his Falun Gong activity.           The IJ also was “satisfied” with

Lin’s explanation for his false statements at the border

and credible fear interviews.             The IJ specifically credited

Lin’s testimony that he feared being returned to China and

forfeiting money unless he gave the two prior statements as

instructed by the snakeheads.              That threat, the IJ found,

“is an example . . . of the power of the snakeheads.”

      In rejecting the IJ’s findings, the BIA first stated

the   indisputable        fact    that     Lin       had   presented     three

different asylum claims, i.e., his release of two women at

the       family   planning      office,       his    opposition    to     his

girlfriend’s abortion, and his persecution for practicing

Falun Gong.

      The BIA ruled that Lin’s explanations for the first two

claims,      which   he   recanted        at   his     hearing,    “are    not

      5
      In Shao v. Mukasey, 

(2d Cir. 2008), we
found no error in the BIA’s finding of subsidiary facts
bearing on whether Ji Wen Shi, one of the three asylum
claimants,   had   an  objectively   reasonable   fear   of
persecution   because   the  parties   had   consented   to
factfinding by introducing new evidence before the BIA. See

                                     19
plausible or consistent.”        The BIA offered two reasons for

this ruling.        First, “[Lin] has not demonstrated that he

would not have had to pay the smuggling fees regardless of

whether he was successful on his asylum claim.” [Id.] The

BIA    gave    no   indication    as     to   how    Lin    might        have

demonstrated that the snakeheads would have delivered on

their threat.       We cannot imagine that the BIA expected Lin

to    call    the   snakeheads   as     witnesses.         There    is     no

indication     that   their   whereabouts       at   the   time     of    the

hearing was known.      More important, the issue, pertinent to

Lin’s credibility, was not whether the snakeheads would

have carried out their threat, but whether Lin believed

that they would, and gave his false versions because of

that belief.

      We can readily understand the BIA’s skepticism that Lin

was being truthful in stating his third reason for seeking

asylum after stating, at his border and credible fear

interviews,     two    reasons   that    were    false.     Prior    false

testimony is often a basis for disbelieving a witness’s

later testimony. But the issue for the BIA was not whether

Lin was telling the truth when he gave his third reason for

seeking asylum. That was an issue of fact for the IJ. The


                                  20
issue    for       the   BIA    was      whether        it     had   sufficient

justification for ruling that the IJ had clearly erred in

finding that Lin’s third reason was truthful.

       The    IJ   not   only   found      that    the       third   reason   was

truthful,      but   explained     why     she     so    found.      First,   she

counted in Lin’s favor the fact that Lin came forward and

acknowledged the falsity of his two prior reasons. Second,

she deemed entirely plausible Lin’s explanation that he

gave    false      reasons     because     he     was    threatened     by    the

snakeheads to do so. See 

(“[T]he IJ

found that [the claimant] offered a legitimate explanation.

This    was    a   factual      finding     entitled         to   deference    on

review.”). Third, she considered Lin’s demeanor supportive

of the truthfulness of his hearing testimony. See Fed. R.

Civ. P. 52(a) (“[T]he reviewing court must give due regard

to the trial court's opportunity to judge the witnesses'

credibility.”).

       In view of the IJ’s explanation for her finding, the

BIA did not provide us, as a reviewing court, with a

supportable basis for its conclusion that Lin’s explanation

for his initial false testimony was not “plausible” and its

consequent ruling that the IJ committed clear error.


                                      21
      The BIA also deemed Lin’s explanations “inconsistent.”

The first example of a claimed inconsistency was that when

asked to explain his false versions before the IJ, he first

testified that he “had no idea about American laws” when he

was apprehended at the border, but later testified that he

was informed about asylum law before the critical fear

interview.        These        statements,         however,      are        not

inconsistent.     Nothing       in    the      record   undermines     Lin’s

unsurprising testimony that he knew nothing about American

law when he was apprehended at the border.                  That lack of

knowledge is not inconsistent with his testimony that after

his release from custody, which preceded his credible fear

interview, he “consult[ed] with a lawyer” and “then I

realized     American     law     protects         people      from    being

persecuted.”     Thus, the record refutes the BIA’s first

claimed inconsistency.

      The BIA’s second example of a claimed inconsistency in

Lin’s testimony was his statement that he did not talk with

his   attorney   while    he    was       in   custody   and    his    later

statement that he was represented by an attorney while in

custody.      Again,    there    is       no   inconsistency.          It    is

regrettable, but not uncommon, that a person in custody has

not spoken to his lawyer until after his release from

                                     22
custody.    Lin also testified that, while in custody, the

lawyer’s “assistant telephone[d] me,” but the record does

not indicate that the assistant was a lawyer.                 The BIA’s

second    claimed   inconsistency      is    not      supported   by   the

record.

    On this record, the BIA’s “clear error” rejection of

the IJ’s findings is not adequately supported and must

itself be rejected.     On remand, the BIA will have to either

accept    the   IJ’s   findings    or,      if   it    can,   provide    a

supportable basis for rejecting them.

                           Conclusion

    The petition for review is granted, and the case is

remanded for further consideration consistent with this

opinion.




                                  23
DENNIS JACOBS, Circuit Judge, concurring in the grant of the petition for review
and remand to the BIA for further consideration:

           Petitioner has advanced three successive reasons for needing asylum. 

Each is an archetypal asylum narrative: (1) helping women escape an abortion

clinic, (2) opposing his girlfriend’s forced abortion, (3) practicing Falun Gong. 

The immigration judge (“IJ”) credited the third narrative after Petitioner

withdrew the first two, and granted asylum.  The Bureau of Immigration

Appeals (“BIA”) was “left with the definite and firm conviction that a mistake

[was] committed,” see United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948),

and therefore rejected the IJ’s credibility finding as clearly erroneous and denied

relief. 

           No one can doubt that, considering (as must be done) the totality of

circumstances, there is room for profound skepticism.  The reason for

persecution is the essence of an asylum claim; it is implausible that anyone forced

from his land by persecution would not know why; yet this Petitioner lied about

it (at least) twice.  The majority remands for the BIA to adduce further reasons for

its definite and firm conviction that Petitioner is lying now.    




                                             1
                                         I

      I agree with the majority opinion as to the legal standards that govern our

review of the BIA.  The BIA’s review of the IJ’s fact‐finding is for clear error. 

When the BIA has concluded that clear error has been committed, our review is

not de novo; rather, we decide whether the BIA has provided sufficient

justification for its conclusion.  Inherent in this distinction is the possibility that

the BIA might believe the IJ committed clear error, while we might believe the IJ

did not, and both conclusions might have “sufficient justification.”  

      I deviate from the majority opinion because, in my view, the BIA had

ample reason to conclude that clear error was committed, given that the BIA

reviews the totality of circumstances, and that the circumstances include two

prior false narratives.  But I concur rather than dissent because I see no harm in a

remand to the BIA (to explain the obvious), and because specificity of reasons is

good practice.




                                             2
                                          II

       The REAL ID Act directs the agency to make a credibility determination in

asylum proceedings based on the “totality of the circumstances” and “all

relevant factors.”  8 U.S.C. § 1158(b)(1)(B)(iii).  Among the factors bearing on

credibility listed in the statute are candor, the inherent plausibility of the

applicant or witness’s account, and consistency of account.  Id.  Thus an adverse

credibility determination may be premised even on inconsistencies that do not

“directly relate to the applicant’s claim of persecution,” so long as the totality of

the circumstances establish that an applicant is not credible.  Xiu Xia Lin v.

Mukasey, 534 F.3d 162, 164‐65 (2d Cir. 2008) (per curiam) (“Under the standard

established by the REAL ID Act, an IJ is required to evaluate inconsistencies in

light of the ‘totality of the circumstances.’”).   

        “A finding is ‘clearly erroneous’ when although there is evidence to

support it, the reviewing court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.”  U.S. Gypsum Co., 333 U.S.

at 395.  This formulation of clear error coincides nearly verbatim with the BIA’s

own regulations governing its standard of review.  See Board of Immigration

Appeals: Procedural Reforms To Improve Case Management, 67 Fed. Reg.



                                               3
54,878‐01, at 54,889 (Aug. 26, 2002) (citing Anderson v. City of Bessemer, 470 U.S.

564, 573 (1985)).  

       The BIA determined that Petitioner’s explanations for his lies “are not

plausible or consistent,” and that the IJ committed clear error in determining that

Petitioner “reasonably and credibly explained his repeated lies to immigration

officials.”  Certified Administrative Record (“CAR”), at pp.4‐5.  The BIA is the

agency charged with administering our nation’s immigration laws, and so it is

their definite and firm conviction that matters, not ours.  

       Among the totality of circumstances here are Lin’s shifting claims.  On

September 3, 2007, he issued a sworn statement that he feared returning to China

because he released two pregnant women while working for a birth control

facility.  During his credible fear interview with an asylum officer ten days later,

he testified that he feared returning to China because his mistress suffered a

forced abortion, which he opposed.  None of those things ever happened to Lin. 

At his hearing before the IJ, he recanted the stories about his heroism in the clinic

and the tragedy of his girlfriend’s forced abortion, and unveiled the entirely new

claim that he suffered persecution in China for practicing Falun Gong, the

account that was credited by the IJ.  



                                          4
      To support its conclusion that the BIA improperly applied clear error

review, the majority opinion principally relies on Chen v. Bureau of Citizenship

& Immigration Services, 470 F.3d 509 (2d Cir. 2006).  In that case, the BIA ruled

that discrepancies between the asylum applications and the asylum interview

were dispositive as to that petitioner’s credibility.  We remanded because the BIA

had substituted its (adverse) credibility finding for the IJ’s, without “point[ing] to

any misstatements of fact, errors in analysis, flawed reasoning, or improper

applications of law,” and thus performed (impermissible) de novo review.  Id. at

514.  Chen does not control the present case.  In Chen, the discrepancies were in

the details of the asylum claim, such as how Chen managed to escape from

family planning officials after he was arrested.  Id. at 512.  Here, the falsehoods

are not mere discrepancies concerning particulars; the two recanted falsehoods

(like the third account) concern why Petitioner needs asylum at all.  Cf. Ye v.

Depʹt of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (“Because the BIA has

identified a material inconsistency in an aspect of [Petitioner’s] story that served

as an example of the very persecution from which he sought asylum, we hold

that the inconsistency afforded substantial evidence to support the adverse

credibility finding.” (citations and quotation marks omitted)).



                                          5
                                        III

      Lin told the IJ that he advanced the two false (coercive population control)

claims because he was told to do so by the snakeheads, who threatened that

otherwise, if he were returned to China, his smuggling fees would not be

forgiven.  

      There are sufficient reasons, implicit in the facts, for rejecting this

explanation.  The plausibility of the explanation for outright fabrication is itself

sapped by the lie it is offered to explain.  Moreover, as the BIA pointed out, there

is no indication that Lin would ever be relieved of his obligation to pay the

snakeheads the smuggling fees, regardless of whether his asylum claim was

successful.  Snakeheads do not have the refund policy of American department

stores.

      Moreover, the three successive accounts are not incompatible; so the

snakeheads’ requirement that he proffer one false account or another does not

logically preclude his offering the truth, if only as belt and suspenders.  Neither

the IJ nor the majority has posited a plausible explanation for why the Falun

Gong fears were omitted.  See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166 n.3 (2d




                                           6
Cir. 2008) (“An inconsistency and an omission are, for [credibility] purposes,

functionally equivalent.”). 

      The majority argues that the proper question is not whether the

snakeheads would actually carry out their threat, but rather whether Lin believed

they would and committed perjury “because of that belief.”  Maj. Op. at ____. 

However, any such subjective belief must still be objectively reasonable.  Cf.

Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004) (“[A] well‐founded

fear of future persecution . . . requires that the alien present credible testimony

that he subjectively fears persecution and establish that his fear is objectively

reasonable.”).

      It is not objectively reasonable to believe that snakeheads conduct their

business on honorable principles, that they give refunds, that any undertakings

by them can be enforced in any forum, or even that they can be found for

enforcement of contract obligations.  

      Additionally or alternatively, Lin claims that he failed to advance his Falun

Gong claim because he “had no idea about American laws.”  CAR at p.4.  The

plausible inference is that, if Lin had known that practicing Falun Gong was a

valid basis for an asylum claim, he would have made it in his initial interviews. 



                                          7
But Lin was given an open‐ended opportunity to tell the immigration officials

about any fear he had about being sent to China.  He was advised: 

      U.S. law provides protection to certain persons who face persecution, harm
      or torture upon return to their home country.  If you fear or have a concern
      about being removed from the United States or about being sent home,
      you should tell me so during this interview because you may not have
      another chance.

CAR at pp.197, 295.  

      The BIA and the majority opinion consider whether Lin made any

inconsistent statements about speaking to a lawyer.  But those questions bear

only upon when Lin would have become aware that Falun Gong was his ticket to

stay in the United States.  So it does not matter whether Lin made any

inconsistent statements about speaking to or being represented by a lawyer. 

Nothing about his supposed ignorance of our law accounts for why he did not

express a supposedly truthful fear of persecution for practicing Falun Gong,

either on September 3 or September 13, 2007.  He was told to tell the truth, the

interviews were conducted in Mandarin (which Lin said was his best language),

and there is no evidence that Lin failed to understand the questions.  See Yun Zui

Guan v. Gonzales, 432 F.3d 391, 398‐99 (2d Cir. 2005) (noting factors to determine

reliability of asylum and credible fear interviews, including whether alien



                                         8
understood the questions posed and whether those questions elicited details of

an asylum claim).  

      Ignorance of American asylum law cannot assist Lin unless he was

ignorant of the obligation to tell the truth, notwithstanding that that obligation

was impressed upon him  by immigration officials.  In another context, we have

held that “even an alien who is unfamiliar with the technicalities of immigration

law can, under certain circumstances, be expected to comprehend that he has

received ineffective assistance without being explicitly told so by an attorney.” 

Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008).  It makes no sense to impose

on aliens stricter requirements to know that their lawyer is being ineffective than

for knowing their own reasons for being afraid to return to their home country. 

Cf. Cheek v. United States, 498 U.S. 192, 199 (1991) (“The general rule that

ignorance of the law or a mistake of law is no defense . . . is deeply rooted in the

American legal system.”).  

      In any event, truth is not a quirk of American procedure.

                                       *   *   *

      I understand entirely the reasons why the BIA formed a “definite and firm

conviction” that a mistake has been made.  For that reason, however, the remand



                                          9
will entail no heavy lifting on the part of the BIA, and when it comes to reasoned

dispositions, more cannot hurt. 




                                        10