In the
    United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 06-1299
HENRY A. KADIA,
                                                         Petitioner,
                                v.

ALBERTO R. GONZALES, Attorney General
   of the United States,
                                                        Respondent.
                         ____________
               Petition for Review of an Order of the
                  Board of Immigration Appeals.
                          No. A 95-583-344
                         ____________
     ARGUED DECEMBER 6, 2006—DECIDED SEPTEMBER 7, 2007
                         ____________


    Before POSNER and WOOD, Circuit Judges.Œ
  POSNER, Circuit Judge. The petitioner sought asylum
in the United States on the ground that if he is returned to
Cameroon, his native country, he is likely to be persecuted
because of his political opinions. The Board of Immigra-
tion Appeals affirmed the immigration judge’s denial of


Œ
  The third member of the panel, Judge Ripple, recused himself
after the oral argument, and has not participated in the con-
sideration or decision of the case.
2                                                No. 06-1299

asylum, agreeing that the judge was entitled to disbelieve
the petitioner. The petitioner testified that when living
in Cameroon he was politically active in parties that
advocate (but do not attempt to achieve by violence or
other unlawful means) secession of the southern part of the
country, see, e.g., Piet Konings, “Opposition and Social-
Democratic Change in Africa: The Social Democratic
Front in Cameroon,” 42 Commonwealth & Comparative
Politics 289, 292 (2004); U.S. Dep’t of State, Country Reports
on Human Rights Practices—2003 16 (Feb. 25, 2004); “Cam-
eroon: Secessionist Minority Anglophone Group Silenced,”
IRIN Humanitarian News and Analysis (Feb. 19, 2007),
www.irinnews.org/report.aspx?ReportID= 70258 (visited
Aug. 7, 2007), and that as a result of his activity he was
arrested many times, repeatedly detained, and often beaten
and otherwise tortured. Had the immigration judge
believed his narrative, the petitioner would have been
found to be a victim of persecution on the ground of his
political beliefs and would therefore have been entitled
to a presumption that his fear of persecution if he is
returned to Cameroon is well founded. 8 C.F.R. § 208.13(b)
(1); Gomes v. Gonzales, 

, 753 (7th Cir. 2007).
  Judicial review of a credibility determination is limited,
especially when it is based on the witness’s demeanor,
which the reviewing court cannot review, or is made by a
jury, which does not give reasons for its judgment. “Credi-
bility assessments can embody a struggle between norms
of subjective and objective decision-making. Subjective
assessments are highly personal to the decision-maker,
dependent on personal judgment, perceptions, and disposi-
tion, and often lacking in articulated logic. They are very
difficult to review and are likely to be inconsistent from
one decision-maker to another.” Michael Kagan, “Is Truth
No. 06-1299                                                  3

in the Eye of the Beholder: Objective Credibility Assess-
ment in Refugee Status Determination,” 17 Geo. Immigration
L.J. 367, 374 (2003). Yet we noted in Iao v. Gonzales, 

, 534 (7th Cir. 2005), that immigration judges’ “insensi-
tivity to the difficulty of basing a determination of credibil-
ity on the demeanor of a person from a culture remote
from the American” is a “disturbing feature” of many
immigration cases, and in Djouma v. Gonzales, 

, 687-88 (7th Cir. 2005), that immigration judges often
lack the “cultural competence” to base credibility deter-
minations on an immigrant’s demeanor.
   In a case such as this, in which the basis for the evalua-
tion of the witness’s credibility is set forth in detail by
the trier of fact and has nothing to do with demeanor
but consists instead of inconsistencies or falsehoods in
the witness’s testimony that the trier of fact enumerates
in his opinion, the reviewing court has more than sus-
picion to work with in deciding whether the determina-
tion of credibility was reasonable. Gao v. Board of Immigra-
tion Appeals, 

, 127 (2d Cir. 2007) (“credibility
determinations that are based on the IJ’s analysis of
testimony, as opposed to demeanor, are granted less
deference”); Chen v. U.S. Dep’t of Justice, 

,
113 (2d Cir. 2005); Arulampalam v. Ashcroft, 

,
685-86 (9th Cir. 2003); Cordejo-Trejo v. INS, 

, 487
(1st Cir. 1994). As the Supreme Court has explained,
“When findings are based on determinations regarding the
credibility of witnesses, Rule 52(a) [of the civil rules]
demands even greater deference to the trial court’s find-
ings; for only the trial judge can be aware of the varia-
tions in demeanor and tone of voice that bear so heavily
on the listener’s understanding of and belief in what is
said. This is not to suggest that the trial judge may insulate
4                                              No. 06-1299

his findings from review by denominating them credibil-
ity determinations, for factors other than demeanor and
inflection go into the decision whether or not to believe a
witness. Documents or objective evidence may contradict
the witness’ story; or the story itself may be so internally
inconsistent or implausible on its face that a reasonable
factfinder would not credit it. Where such factors are
present, the court of appeals may well find clear error
even in a finding purportedly based on a credibility
determination.” Anderson v. City of Bessemer, 

,
575 (1985).
  Review still is deferential in such a case, as we implied
in posing the question as whether the determination of
credibility was reasonable, not whether it was correct.
Indeed, the standard of review remains the same (“reason-
able” or, the more conventional but equivalent formula,
“supported by substantial evidence”) even if the determi-
nation is based entirely on documents rather than live
testimony. E.g., Onsongo v. Gonzales, 

, 854
(8th Cir. 2006); Sterkaj v. Gonzales, 

, 278 (6th
Cir. 2006). It is merely that, as suggested by the Supreme
Court in Anderson, the reviewing court is in a better
position to decide whether the credibility determination
was reasonable if the determination was based entirely
on documentary evidence. See also Hanaj v. Gonzales, 

, 698-99 (7th Cir. 2006); Kourski v. Ashcroft, 

, 1040 (7th Cir. 2004); Yeimane-Berhe v. Ashcroft,

, 911 (9th Cir. 2004).
  In recent years an avalanche of asylum claims has placed
unbearable pressures on the grossly understaffed Immigra-
tion Court, and we and other courts have frequently
reversed the credibility determinations made by immigra-
tion judges and affirmed by the also sorely overworked
No. 06-1299                                                  5

Board of Immigration Appeals. E.g., Tarraf v. Gonzales,
No. 06-2835, 

, at *6 (7th Cir. Jul. 30, 2007);
Benslimane v. Gonzales, 

, 829-30 (7th Cir. 2005);
Solomon v. Gonzales, 

, 1162 (10th Cir. 2006);
Fiadjoe v. Attorney General of United States, 

, 160
(3d Cir. 2005); Secaida-Rosales v. INS, 

, 313 (2d
Cir. 2003). An article by Edward R. Grant, “Laws of
Intended Consequences: IIRIRA and Other Unsung
Contributors to the Current States of Immigration Litiga-
tion,” 55 Cath. U. L. Rev. 923, 959 (2006), reports that two-
thirds of the judicial reversals of asylum decisions in the
first two months of 2006 involved problems with credibility
determinations. Grant criticizes these reversals, yet he
himself—a member of the Board of Immigration Ap-
peals—was discovered to have decided more than 50
immigration cases in one day, requiring a decision “nearly
every 10 minutes if he worked a nine-hour day without
a break.” Lisa Getter & Jonathon Peterson, “Speedier Rate
of Deportation Rulings Assailed,” Los Angeles Times (Jan. 5,
2003), www.usdoj.gov/eoir/press/03/speedierrate.
pdf2003 (visited Aug. 17, 2007). (If he worked eight hours
and took a lunch break, he had no more than 7 minutes
per case.)
  Deference is earned; it is not a birthright. Repeated
egregious failures of the Immigration Court and the
Board to exercise care commensurate with the stakes in an
asylum case can be understood, but not excused, as
consequences of a crushing workload that the executive
and legislative branches of the federal government have
refused to alleviate.
  In this case there were a number of inconsistencies
between the petitioner’s testimony at the immigration
hearing and the written statement that he had submitted
6                                                No. 06-1299

earlier in support of his application for asylum, and in
addition the documentary evidence that he submitted
contained anomalies. A reasonable trier of fact could
have concluded that the petitioner had lied about his
political activities in Cameroon and their consequences.
But the immigration judge made a number of mistakes,
uncorrected by the Board, in his assessment of the evi-
dence, and we cannot be confident that had he not made
those mistakes he still would have disbelieved the peti-
tioner. So although the doctrine of harmless error is
applicable to judicial review of immigration decisions, e.g.,
Ahmed v. Ashcroft, 

, 249 (7th Cir. 2004);
Nagarurih v. Ashcroft, 

, 191 n. 8 (4th Cir. 2004),
as to other administrative review, e.g., Keys v. Barnhart,

, 994-95 (7th Cir. 2003), it cannot save the
day for the government in this case.
  The immigration judge failed to distinguish between
material lies, on the one hand, and innocent mistakes,
trivial inconsistencies, and harmless exaggerations, on the
other hand. In effect, he applied the discredited doctrine
of falsus in uno, falsus in omnibus (false in one thing, false
in all things), which Wigmore called “primitive psychol-
ogy,” John H. Wigmore, A Students’ Textbook of the Law of
Evidence 181 (1935), and—in a characterization that we
endorsed in United States v. Schimmel, 

, 808 (7th
Cir. 1991)—an “absolutely false maxim of life.” 3A
Wigmore, Evidence in Trials at Common Law, § 1008, p. 982
(James H. Chadbourn ed., rev. ed. 1970); see also Yongo v.
INS, 

, 33 (1st Cir. 2004); United States v.
Weinstein, 

, 713 (2d Cir. 1971) (Friendly, J.);
Virginian Ry. v. Armentrout, 

, 405 (4th Cir.
1948). Anyone who has ever tried a case or presided as a
judge at a trial knows that witnesses are prone to fudge, to
No. 06-1299                                                    7

fumble, to misspeak, to misstate, to exaggerate. If any
such pratfall warranted disbelieving a witness’s entire
testimony, few trials would get all the way to judgment.
  It is true that the Real ID Act allows an immigration
judge in asylum cases to consider, in determining credibil-
ity, falsehoods or inaccuracies “without regard to wheth-
er an inconsistency, inaccuracy, or falsehood goes to the
heart of the applicant’s claim.” Castaneda-Castillo v. Gonza-
les, 

, 23 n. 6 (1st Cir. 2007), treats this as a
revival of the doctrine of falso in uno, falso in omnibus. We
are dubious. The passage quoted from the Act must be
placed in context:
    Considering the totality of the circumstances, and all
    relevant factors, a trier of fact may base a credibility
    determination on the demeanor, candor, or responsive-
    ness of the applicant or witness, the inherent plausibil-
    ity of the applicant’s or witness’s account, the consis-
    tency between the applicant’s or witness’s written and
    oral statements (whenever made and whether or not
    under oath, and considering the circumstances under
    which the statements were made), the internal consis-
    tency of each such statement, the consistency of such
    statements with other evidence of record (including
    the reports of the Department of State on country
    conditions), and any inaccuracies or falsehoods in such
    statements, without regard to whether an inconsistency,
    inaccuracy, or falsehood goes to the heart of the applicant’s
    claim, or any other relevant factor. There is no pre-
    sumption of credibility, however, if no adverse credi-
    bility determination is explicitly made, the applicant or
    witness shall have a rebuttable presumption of credi-
    bility on appeal.
8                                                No. 06-1299

8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added). The immi-
gration judge may consider inaccuracies or falsehoods that
do not go to the heart of the asylum applicant’s claim, but
he can do so only as part of his consideration of “the
totality of the circumstances, and all relevant factors.” He
cannot discredit otherwise persuasive testimony because
of a misspelling in the asylum application. In any event,
the provision is not applicable to this case, because the
application preceded the effective date of the Real ID Act.
  The immigration judge summarized his evaluation of
credibility by saying that the petitioner’s testimony “was
either exaggerated for the purpose of enhancing his
eligibility for asylum or completely untrue.” The judge
thought the difference immaterial, but it is vital. If the
petitioner wasn’t arrested six times, but only half as many,
and if he was merely beaten rather than having burning
rubber poured on his back as he stated in his written
statement but (initially) not in his testimony, these fabrica-
tions would not necessarily demolish his claim to have a
well-founded fear of persecution should he be returned to
Cameroon, as the immigration judge seems to have as-
sumed. If the judge thought the petitioner was not a
political opponent of the government who had been
persecuted for his political opinions and would be if he
went back, he should have said so.
  Some of the inconsistencies that he noted are trivial—the
sort of innocent mistake that a person testifying about
events that had occurred years earlier would be likely to
make, such as the petitioner’s testimony that he had
been arrested on January 8, 2000 (more than four years
before the hearing), for participating in a demonstration
that he had not participated in, and his written state-
ment that he had been arrested on January 28 of that year
No. 06-1299                                               9

for having participated in a demonstration three days
earlier. Human memory is selective as well as fallible, and
the mistakes that witnesses make in all innocence must be
distinguished from slips that, whether or not they go to
the core of the witness’s testimony, show that the witness
is a liar or his memory completely unreliable.
   Some of the “inconsistencies” cited by the immigration
judge in this case were not inconsistencies at all. He noted
that Kadia had testified that he’d been released from his
first detention only “after signing a statement indicating
that he would not [sic] longer participate in demonstra-
tions,” but, the judge added, “by contrast” in his written
statement Kadia “indicate[d] that he was ‘released on
condition.’ ” There is no inconsistency; Kadia’s agreeing
not to participate in future demonstrations was the condi-
tion of his being released.
  The immigration judge attached particular weight to
what he thought questionable features in the documents
submitted to corroborate the petitioner’s testimony. He
noted for example that a letter from the Human Rights
Defense Group on behalf of the petitioner was signed by
a person who identified himself as “Coordinator” but
that the accompanying affidavit identified him as “Depo-
nent Coordinator,” which the judge considered a suspi-
cious variance in the person’s title. It is far more likely
that “deponent” was used merely to signify that the person
was an affiant; “affiant” and “deponent” are common
synonyms in affidavits. The affiant indicated on the first
document only his title and on the second his title and the
capacity in which he was signing it, that is, as an affiant.
  The immigration judge speculated that the affidavit had
been forged by the petitioner because it misspelled
“diehard” (in the phrase “diehard supporter”) as “die
10                                              No. 06-1299

heart” and the same misspelling had occurred in the
petitioner’s written statement in support of his applica-
tion. This is the point at which our earlier remark that
deference is earned rather than being a birthright bites
with particular force. Deference is accorded to the
factfindings of government agencies because they know
more about the activities they regulate than the courts do.
In the case of the Immigration Court, any edge in knowl-
edge would derive from a familiarity, denied generalist
judges, with foreign customs and practices. Yet the peti-
tioner is a member of the English-speaking minority in
Cameroon and the immigration judge seems not to have
realized—what is obvious even to a generalist judge—that
conventions regarding spelling and vocabulary differ
among the world’s English-speaking populations. The
words “defense” and “labor” in American English are
spelled “defence” and “labour” in English English, and
for our (car) “hood” the English have “bonnet.” So the
American “diehard” may have a variant in Cameroon
English. In fact, in Cameroon as in a number of other
countries in which English is the or a principal language,
including Jamaica and Pakistan, a common variant of
“diehard” is—“die heart” or “die-heart.” The Eggcorn
Database—v.0.5, http://eggcorns.lascribe.net/english/401/
die-hearted/ (visited Aug. 5, 2007); Ubstudents.com,
www.ubstudents.com/index.php/hotvibes/showStory/
21/more-on-ubsu-wahala.aspx (visited Aug. 5, 2007). Thus
in a September 2004 issue of a Cameroon newspaper, The
Post Online (Cameroon), www.postnewsline.com/2004/09/
strongelections.html (visited Aug. 5, 2007), we read of “die-
hearted followers” of one of the Anglophone parties that
the petitioner belonged to.
 We do not say that the petitioner has proved that he
was persecuted, because there were inconsistencies and
No. 06-1299                                                 11

anomalies in his evidence that we have not mentioned that
might have justified an inference that his claim was
fabricated. But the immigration judge’s mistakes in assess-
ing the evidence require a remand because we cannot
know whether, had he not committed those mistakes, he
would nevertheless have rejected the petitioner’s claim.
Ordinarily this would require merely a remand for the
judge to review the transcript of the hearing and the
documentary evidence. But the judge committed a fur-
ther error in his mode of questioning the petitioner at the
immigration hearing that precludes so limited a form of
relief. He would ask him a series of questions that omitted
a key issue, and then infer from the petitioner’s failure to
address that issue that he was contradicting his written
statement. Remember the burning rubber? In asking
the petitioner about the arrest and detention in which
according to his statement he had been subjected to that
form of torture, the judge asked “did they just punch
your [sic] or kick you or what happened?” and the peti-
tioner replied “They used to take you like this and put
your foot on door,” and the judge then said, “They hit
your feet?” and the petitioner replied “Hit your feet, yes.”
The judge continued: “And then, they put you back in the
regular warehouse,” and the petitioner replied “In the
warehouse, yes.” At this point the judge changed the
subject. He didn’t ask the petitioner “and was anything else
done to you besides hitting your feet”? A witness would
be unlikely to interrupt the presiding judicial officer by
answering a question not asked. A lawyer could have
repaired the damage by asking the missing questions of
his witness, but the petitioner had no lawyer.
  Later, it is true, the judge recalled that the petitioner had
mentioned the burning rubber in his written application
for asylum, and the following exchange ensued:
12                                                No. 06-1299

     Q. You didn’t mention that [the melted rubber]. Was
        that some other incident or is that this incident?
     A. Well, that’s the incident, Your Honor.
     Q. But you didn’t tell me that when you said that.
        I asked you what harm you suffered. You didn’t
        tell me anything.
     A. Okay.
The judge was playing “gotcha!” by drawing a negative
inference from the petitioner’s failure to interrupt him
earlier by answering a question not (yet) asked.
  So the hearing itself was defective, not just the findings
based on it, and there will have to be a new one. The point
is not that the hearing was so defective that it deprived
the petitioner of his liberty without due process of law,
Boci v. Gonzales, 

, 768 (7th Cir. 2007); compare
Rodriguez Galicia v. Gonzales, 

, 540 (7th Cir.
2005); Ahmed v. Gonzales, 

, 727-28 (6th Cir.
2005); Al Khouri v. Ashcroft, 

, 467 (8th Cir. 2004),
but simply that it was too unreliable to enable us to
conclude that a determination of credibility based on it
could be said to be supported by substantial evidence.
Lopez-Umanzor v. Gonzales, 

, 1059 (9th Cir.
2005); cf. Lin v. Ashcroft, 

, 749, 757-58 (7th Cir.
2004); Uwase v. Ashcroft, 

, 1045 (7th Cir. 2003);
Fiadjoe v. Attorney General of the United 

, 411
F.3d at 163; Secaida-Rosales v. 

, 331 F.3d at 312-13.
  There is no need to invoke the Constitution when the
immigration statute itself guarantees a fair hearing.
8 U.S.C. § 1229a(b)(4)(B) (“the alien shall have a reason-
able opportunity to examine the evidence against the alien,
to present evidence on the alien’s own behalf, and to cross-
No. 06-1299                                               13

examine witnesses presented by the Government”); Rehman
v. Gonzales, 

, 508 (7th Cir. 2006) (“aliens have
both statutory, and regulatory, entitlements to present all
material evidence at impartial hearings. Any proceeding
that meets these requirements satisfies the Constitution
as well” (citations omitted)). The specific statutory right
with which the immigration judge interfered in this case
was the alien’s right to ”a reasonable opportunity . . . to
present evidence.”
  Since we are ordering a new evidentiary hearing, there
is no need to address the petitioner’s additional grounds
for relief—the denial of a motion for a continuance to
enable him to obtain a lawyer and of a motion to reopen
the administrative proceeding to enable him to present
evidence that he was suffering from post-traumatic
stress disorder that explained some of the inconsistencies
in his testimony. These errors, if they were errors, are
unlikely to recur in the further proceedings that we are
ordering.
  The petition for review is granted, the order of the Board
of Immigration Appeals vacated, and the case returned to
the Board for further proceedings consistent with this
opinion.

A true Copy:
       Teste:

                          _____________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit


                    USCA-02-C-0072—9-7-07