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Cosa v. Mukasey, 04-75643 (2008)

Court: Court of Appeals for the Ninth Circuit Number: 04-75643 Visitors: 5
Filed: Sep. 15, 2008
Latest Update: Mar. 02, 2020
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ADRIANA COSA, Petitioner, No. 04-75643 v. Agency No. A95-591-594 MICHAEL B. MUKASEY, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 11, 2008—San Francisco, California Filed September 15, 2008 Before: M. Margaret McKeown and Ronald M. Gould, Circuit Judges, and George P. Schiavelli,* District Judge. Opinion by Judge McKeown *The Honorab
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                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

ADRIANA COSA,                              
                             Petitioner,           No. 04-75643
                   v.
                                                   Agency No.
                                                   A95-591-594
MICHAEL B. MUKASEY, Attorney
General,                                             OPINION
                    Respondent.
                                           
          On Petition for Review of an Order of the
               Board of Immigration Appeals

                    Argued and Submitted
           June 11, 2008—San Francisco, California

                    Filed September 15, 2008

   Before: M. Margaret McKeown and Ronald M. Gould,
  Circuit Judges, and George P. Schiavelli,* District Judge.

                  Opinion by Judge McKeown




   *The Honorable George P. Schiavelli, United States District Judge for
the Central District of California, sitting by designation.

                                12861
                      COSA v. MUKASEY                   12863


                         COUNSEL

Jagdip Singh Sekhon, Oakland, California, for the petitioner.

Thomas H. Dupree, Jr., and Judith Reed, United States
Department of Justice, Civil Division, for the respondent.


                         OPINION

McKEOWN, Circuit Judge:

   This case highlights the importance of evidence rather than
speculation and conjecture as the basis for an adverse credi-
bility finding in immigration proceedings. Adriana Cosa’s
asylum petition was predicated on her claim of religious per-
secution in Romania as a consequence of practicing the Mil-
12864                     COSA v. MUKASEY
lenist faith. Millenism is neither a household word nor a
major world religion. And therein lies the rub. The record is
filled with the Immigration Judge’s (“IJ”) speculation about
the faith — on everything from how Cosa should dress and
wear her hair to comport with her beliefs to what books of the
Bible are most important — and the IJ’s disdain for Cosa’s
religious beliefs. Absent from the record is any evidence sup-
porting the IJ’s perceived view of Millenism. That Millenism
may be an obscure, non-mainstream religion is no basis to
discount a believer’s faith. Whether Cosa suffered religious
persecution has yet to be established. But one thing is for sure
— she is entitled to have her immigration proceedings free of
religious taint and bias. Because substantial evidence does not
support the adverse credibility finding, we grant the petition,
vacate the finding, and remand for further proceedings.

I.       FACTUAL AND PROCEDURAL BACKGROUND1

   Adriana Cosa fled Romania for the United States in
August 2001. Cosa later sought asylum and withholding of
removal on the grounds of religious persecution. In her appli-
cation, Cosa alleged that she was harassed, beaten, and raped
by Romanian police for practicing her Millenist faith. Mille-
nism is, according to Cosa, a Christian religion focused on the
second coming of Christ and the end of human history. Cosa,
whose family is Orthodox Christian, converted to Millenism
in May of 2000 and was baptized soon after.

   Millenism is not an officially recognized religion in Roma-
nia. As a consequence, the Romanian government does not
allow Millenists to receive state funds or build places of wor-
ship. Nevertheless, Cosa and other followers practiced their
faith by hosting and attending weekly religious meetings, and
through evangelical activities, such as going door-to-door to
raise awareness of the religion. Aside from the Bible, Millen-
     1
    This factual background is based on Cosa’s testimony and the declara-
tions from her fellow Millenist worshipers.
                       COSA v. MUKASEY                   12865
ists in Romania do not use printed literature when they evan-
gelize.

   Villagers did not always respond favorably to the Millen-
ists’ evangelical efforts. Indeed, Cosa reports that villagers
threw bottles and rocks at them and asked them to leave their
villages forever. Romanian police witnessed these events and
laughed, but offered no protection. In July 2001, Cosa was
holding a religious meeting in her apartment when the police
arrived and broke it up. The police called Cosa and her guests
heretics, accused them of conducting an unauthorized reli-
gious gathering, and ordered Cosa to stop holding meetings.
The police returned later that night, threatened Cosa again,
and forced her to pay a fine. A week later, the police inter-
rupted another Millenist meeting at Cosa’s apartment, again
called her a heretic, then beat her guests, and forced them to
leave the apartment. When Cosa refused to pay a second fine,
the police threw her to the ground, kicked, beat, and raped her
until she passed out. As they beat and raped her, the officers
used religious slurs against Cosa, calling her a “heretic
whore.” The police returned the next day and threatened her
with further harm if she told anyone about what happened.
Cosa left for the United States soon after these events.

   Before her first hearing in January 2003, Cosa submitted
declarations from fellow Millenists corroborating her claim of
religious persecution. She also submitted a medical certificate
verifying that she had been raped. Cosa was the only witness
at the hearing. In response to the IJ’s questioning about her
religion, Cosa followed up with a declaration from the leader
of the Millenists in her village. The statement corroborated
the existence of Millenism, verified that Cosa was an active
practitioner of Millenism, and stated that Cosa left Romania
because of trouble with the police. Cosa also submitted infor-
mation about country conditions in Romania.

  A second hearing was held in April 2003. The IJ expressed
skepticism about Cosa’s religious beliefs and the attacks that
12866                      COSA v. MUKASEY
Cosa reported. The IJ made an adverse credibility determina-
tion and found that she could not accept Cosa’s testimony as
credible without additional corroborating evidence, deeming
insufficient the declaration from the Millenist leader. The IJ
also found Cosa’s other evidence, including the declarations
from the other Millenists, insufficient to overcome the IJ’s
doubts about Cosa’s testimony.

   On the basis of the adverse credibility determination, the IJ
denied Cosa’s request for asylum and her request for with-
holding of removal. The BIA affirmed the IJ’s decision, con-
cluding the credibility determination was not clearly
erroneous.

II.   ANALYSIS

   [1] It is no surprise that the IJ was not familiar with the
Millenist faith. Millenism is hardly a textbook religion. To her
credit, the IJ undertook independent research and included her
findings as an exhibit in the record. Nonetheless, the IJ put
Cosa in an impossible box. The IJ discounted Cosa’s credibil-
ity based on the IJ’s conjectural view of how a Millenist
should act and think, and then faulted Cosa for not providing
corroborating evidence about the religion.2 Though very little
is written about the Millenist faith — indeed, Cosa never
received any published pamphlets or brochures —
“[s]peculation and conjecture cannot form the basis of an
adverse credibility finding, which must instead be based on
substantial evidence.” Yan Xia Zhu v. Mukasey, No. 06-
72967, 
2008 WL 2925124
, at *3 (9th Cir. July, 31, 2008)
(internal citations and quotations omitted) (holding IJ’s specu-
lation about how a rape victim would act did not support
adverse credibility finding).
   2
     Where, as here, the BIA reviews an IJ’s determination under a deferen-
tial standard, we review the IJ’s decision. de Leon-Barrios v. INS, 
116 F.3d 391
, 393 (9th Cir. 1997). We review the IJ’s findings of fact for sub-
stantial evidence, and must uphold them unless the evidence compels a
contrary result. 
Id. COSA v.
MUKASEY                           12867
  The IJ’s conjecture is best illustrated by examining the
decision itself. At the outset, the IJ criticized Cosa’s dress and
demeanor:

      Respondent’s physical appearance in Court has con-
      sistently been severe in terms of her tailored dress,
      her hair style, and her manner.

Continuing, the decision notes that:

      [t]he thing [Cosa] was most impressed with was the
      essential softness, love and acceptance and friendli-
      ness of the people in the faith. This respondent does
      not emote that type of lifestyle or approach that most
      attracted herself into this religion.

   [2] The record is bare of any evidence of how a Millenist
might dress, how much one might laugh or smile as a Millen-
ist, or what haircut is appropriate. Indeed, it is not uncommon
for litigants, on advice of counsel, to wear conservative cloth-
ing to court. Does the fact that a religion promotes love and
friendliness mean the adherents cannot wear tailored cloth-
ing? What dress would be appropriate — a flowing gown, a
tie-dyed shirt, or a suit with soft lines? The IJ’s commentary
was not a credibility finding based on demeanor but instead
stemmed from pure speculation about how a Millenist might
look and act.3 Cf. Ali v. Mukasey, 
529 F.3d 478
, 491-92 (2d
Cir. 2008) (concluding IJ impermissibly relied on precon-
ceived assumptions about homosexuality and homosexuals).
  3
   The lack of evidence about Millenists’ dress and clothing stands in
contrast to the well known identification of some adherents to other reli-
gions, such as the Amish, with particular dress. See ENCYCLOPEDIA OF
WORLD CULTURES, VOL. 1, 20 (1994) (“Family and community may there-
fore overlook . . . young people . . . wearing non-Amish clothes.”); THE
OXFORD DICTIONARY OF WORLD RELIGIONS 59 (1997) (“The ‘Old Order’
Amish . . . retain[ ] the dress and customs of that early period: beards and
broad-brimmed hats for men, bonnets and aprons for women.”).
12868                  COSA v. MUKASEY
  The IJ’s same vision was reflected later in the decision.
Commenting first on Cosa’s testimony, the IJ noted:

       The Respondent described the Millenist organiza-
    tion as believing in the Father, Son, and Holy Spirit
    and the second coming of Jesus and that there will
    be eternal life for believers and internal [sic] punish-
    ment for everyone else when the judgment day
    comes. Respondent testified for a thousand years
    Satan will rule and have no one to test him and that
    eventually God will send fire to earth and destroy
    everything related to sin and a new earth will be cre-
    ated with a new space for Jesus’ followers.

   [3] Belittling this testimony, the IJ then concluded that
“[t]his vision of the future does not reflect love and accep-
tance and a warm tolerance that this respondent seems to
believe attracted her to this group.” Again, the IJ supplants the
actual testimony with her vision of the Millenist faith, a reli-
gion about which her knowledge comes from her own Internet
research. See Jiang v. Gonzales, 
485 F.3d 992
, 995 (7th Cir.
2007) (“[A]n IJ’s personal beliefs or some perceived common
knowledge about the religion are not a proper basis for an
adverse credibility finding.”) (internal quotations and citations
omitted). Her view amounts to nothing more than skepticism
about the tenets of the Millenist faith. We rejected similar rea-
soning in Gui v. I.N.S., overturning an adverse credibility
finding based on the IJ’s “own opinions as to how best to
silence a dissident.” 
280 F.3d 1217
, 1226 (9th Cir. 2002).

   This same extrapolation of religious beliefs without foun-
dation is found in yet another example later in the transcript.
Cosa testified “that Millenism is an evangelical faith and what
that means is you go out door to door to spread the word.”
Ignoring that Cosa used the term “evangelical” to mean essen-
tially proselyting door to door, the IJ looked up the term in the
dictionary and found it referenced “the preaching of the gos-
pel, that is Matthew, Mark, Luke, John,” and then faulted
                        COSA v. MUKASEY                     12869
Cosa for not knowing “what evangelism is.” Although Cosa
described Revelation as the most important book in the bible
for Millenists and she identified four passages with particular
reference to the apocalypse, the IJ belittled her credibility
because when the IJ asked her to name the first four books of
the New Testament, Cosa left Luke off of the list. This entire
exchange evidenced the IJ’s misapprehension of Cosa’s testi-
mony about evangelism.

   The IJ also faulted Cosa for her inability to explain the rela-
tionship among Millenism and Russellism, Millenialism and
Pre- and Post-Millenialism — references the IJ found on the
Internet — but it is unclear why this academic comparison is
relevant to verifying Cosa’s beliefs. One can certainly adhere
to a religion without understanding or being educated in its
relation to all other religions, even those that are similar to it.
See Rizal v. Gonzales, 
442 F.3d 84
, 90 (2d Cir. 2006) (“Both
history and common sense make amply clear that people can
identify with a certain religion, notwithstanding their lack of
detailed knowledge about that religion’s doctrinal tenets, and
that those same people can be persecuted for their religious
affiliation.”); 
Jiang, 485 F.3d at 995
(“We have cautioned IJs
against using an applicant’s ignorance of religious doctrine as
evidence that an individual is not a true believer.”) (internal
quotations and citations omitted).

   Remarkably, the IJ set up a Bible quiz and an academic
trivia contest as the foundation for the adverse credibility
finding. Cosa claimed no expertise in Bible study or passages
nor did she claim to have an intellectual’s understanding of
Millenism. See 
Rizal, 442 F.3d at 90
(explaining the distinc-
tion between an adherent and an expert, and that expecting
academic knowledge of the religion from the former is unrea-
sonable). Of course, it is not unfair to test the scope of a peti-
tioner’s understanding of her religion or even to challenge a
preposterous claim, but to do so, as here, without a bench-
mark other than the IJ’s views is unacceptable. See 
id. at 90-
91.
12870                  COSA v. MUKASEY
   Similarly, based on the IJ’s own views of baptismal prac-
tice, the IJ deemed it “preposterous” that Cosa was baptized
after only a short period of association with the religion. This
conclusion, too, appears to be based on the IJ’s personal and
overly narrow conception of baptism, rather than on the
record.

   [4] The IJ’s discussion of Millenism is riddled with skepti-
cism and conjecture about the religion. True, with only 7,000
adherents in Romania, it is not a sizeable religion, nor is it a
faith with which most people have passing familiarity. But the
obscurity of the religion is not a license to speculate. Our pre-
cedent is unwavering that “non-evidence-based” assumptions
cannot support an adverse credibility determination. Ge v.
Ashcroft, 
367 F.3d 1121
, 1126 (9th Cir. 2004). “Without some
evidence in the record, other than the IJ’s bare personal view,
we have no way of knowing whether the IJ’s suspicions are
simply conjecture or legitimate concerns bearing on” an appli-
cant’s credibility. Lin v. Gonzales, 
434 F.3d 1158
, 1163 (9th
Cir. 2006).

   [5] Ultimately, in example after example, the IJ doubted
Cosa’s credibility, not because of a true demeanor finding and
not because her testimony was incredible or at odds with the
evidence or widely-held facts about Millenism, but simply
because Cosa’s description did not comport with the IJ’s
newly-acquired notion of Millenism. See Chukwu v. Attorney
General, 
484 F.3d 185
, 189 (3d Cir. 2007) (“The IJ’s conclu-
sions about what facts are or are not plausible must be based
on the record, not on conjecture or unsupported supposi-
tions.”); 
Jiang, 485 F.3d at 995
(faulting IJ for basing credi-
bility determination on IJ’s personal beliefs about a religion
and its teachings). This adverse credibility assessment
infected the IJ’s entire decision and led the BIA to affirm the
IJ’s demand for independent corroborative evidence. Simi-
larly, the BIA’s determination of the lack of persecution
rested on the faulty credibility foundation.
                       COSA v. MUKASEY                    12871
   [6] The requirement of corroborating evidence imposed by
both the IJ and the BIA does not comport with our precedent.
Corroborating evidence is appropriate when the IJ either
“does not believe the applicant or does not know what to
believe.” Sidhu v. INS, 
220 F.3d 1085
, 1090 (9th Cir. 2000).
Nonetheless, where the basis for an adverse credibility finding
falls out, the lack of corroborating evidence cannot backstop
the decision. We also note that Cosa provided multiple indi-
vidualized declarations from fellow Millenists describing their
worship routines and police harassment. Whether additional
information would be readily available was not an issue
addressed by either the IJ or the BIA.

   [7] Because substantial evidence does not support the credi-
bility finding, “we accept [Cosa’s] testimony as true.” Singh
v. Gonzales, 
439 F.3d 1100
, 1111 (9th Cir. 2006). We grant
the petition, vacate the adverse credibility finding, and
remand to the BIA “for a consideration of factual [and other]
questions that may be dispositive of the petition.” 
Id. at 1112.
  GRANTED AND REMANDED.

Source:  CourtListener

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