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Butt v. Gonzales


November 23, 2005

KHALID MAHMOOD BUTT, A29 760 955; SIDRAD KHALID, A29 760 957; ALI KHALID, A29 760 959; AYISHA JABEEN, A29 760 956; WAQAR KHALID, A29 760 958; SADIA KHALID, A29 760 960, PETITIONERS

On Petition for Review of an Order of The Board of Immigration Appeals (BIA Nos. A29-760-955, A29-760-956, A29-760-957, A29-760-958 A29-760-959, A29-760-960).

The opinion of the court was delivered by: Ambro, Circuit Judge


Argued March 10, 2005

Before: ROTH and AMBRO, Circuit Judges SHAPIRO,*fn1 District Judge


Khalid Mahmood Butt petitions for review of the decision of the Board of Immigration Appeals ("BIA") denying his claims for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT").*fn2 The Immigration Judge ("IJ") presiding over Butt's case denied these claims based on his determination that Butt was not credible, and that decision was affirmed without opinion by the BIA. Because the IJ's credibility determination is not supported by substantial evidence in the record, we grant the petition.

I. Factual Background & Procedural History

Butt is a native and citizen of Pakistan. From 1969 to 1970, he worked full time in his father's dry cleaning business. Subsequently, he worked there only part-time so that he could also work for the Pakistan People's Party ("PPP"), a political party. His involvement in that organization increased over time, and in 1971 he began working for the PPP full time. Butt testified before the IJ that he did not receive compensation from the PPP, but his family was sufficiently well off to allow him to continue to work only for the party. Butt was the General Secretary of his local PPP ward from 1980 to 1990. From 1984 to 1996, he was also a "Counselor," which appears to be an elected position within the PPP.

Butt testified that, as General Secretary, he collected dues for the PPP and held party meetings at his home. He stated that the PPP existed to help local people solve their problems and that it wanted "everyone [to] . . . have a right to speak." Butt attempted to assist people within his ward with issues such as obtaining water facilities and health care. He also helped people who had problems with the police.

In the 1980s, Pakistan was under military rule, and Butt testified that he was arrested twice during this time-in 1987-and charged with being a troublemaker. According to Butt, the police told him on both occasions that they did not like the PPP and that he should stop his activities on behalf of the party. Each time Butt was released after a couple hours.

Elections were held in Pakistan in 1989, after the governing general died, and the PPP gained power in the country. However, its government dissolved on August 6, 1990. Butt testified that he was again arrested on August 31, 1990 and detained until September 7, 1990. He stated that he was not given food or water for two days and that he was beaten at least twice a day, sometimes with a leather strap. Butt related his treatment while detained as follows: "They hung me upside down and beat me. They stripped me and beat me . . . . And they beat me up so brutally that my leg and my back [were] so hurt and still my leg and my back do[] not function properly." Butt stated that he could not walk for some time after he was released.

Butt and his wife testified that Butt was treated by a doctor (Dr. Sasjad) from September 10, 1990 to October 15, 1990 for his injuries and that his treatment took place at home. At his hearing, Butt introduced a doctor's note regarding this time period that reads: "Certified that I have examined and treated Mr. Khalid Mahmood Butt . . . . He reported at my clinic with multiple bruises on both legs and back. He remained under my treatment . . . 10-9-90 to 15-10-90." When asked about this note, Butt testified that he did not remember going to the clinic, but because he was unconscious when he was brought home after his release from detention, he may have been taken to the clinic for treatment at that time without having been aware of it.

Butt testified that, after this incident, his friends, family, and the PPP advised him that his life was in danger and that he and his family should leave the country. He stated that he and his family went into hiding at a friend's house until they left Pakistan for the United States in November 1990. According to Butt, the PPP arranged for their visas and passports.

Butt also testified that he was being "framed" for "another [criminal] case" right before he left Pakistan. A criminal information naming Butt, among others, as a member of the PPP was introduced as documentary evidence at his hearing before the IJ. Butt stated that he had not seen the actual document before he left Pakistan but that he knew about it at that time. According to his testimony, some of the other people named in the document were arrested and eventually released.

Butt and his family arrived in the United States in November 1990 on non-immigrant visitor visas that authorized them to stay in this country until May 1, 1991. He applied for asylum on May 21, 1991, claiming that he feared persecution if returned to Pakistan on account of his work with the PPP. Butt's wife and children filed derivative asylum applications. The Immigration & Naturalization Service ("INS")*fn3 in 1999 issued the family Notices to Appear for staying in the United States beyond the period authorized by their visas,*fn4 and the Butt family conceded removability. At this time, Butt renewed his application for asylum and withholding of removal.

Butt appeared at a hearing before the IJ on his asylum, withholding of removal, and CAT claims in July 2001, and the IJ issued a written decision denying those claims in October 2001. The discrepancies between the testimony of Butt and his wife and the documentary evidence that had been submitted caused the IJ to "conclude that the respondents have deliberately lied to the court." Specifically, the IJ identified the "crucial part" of the Butts' testimony as their statements regarding the events leading to Mr. Butt's "incarceration and mistreatment and his examination and care by a physician afterwards." He found that the Butts' testimony on these issues could not be reconciled with the letter from Mr. Butt's doctor.

The BIA affirmed the IJ's decision without opinion in October 2003. Butt's petition for review of that decision is now before us.*fn5

II. Jurisdiction & Standard of Review

Under 8 U.S.C. § 1252(a), we have jurisdiction to hear a petition for review from a final order of the BIA. When the BIA affirms an IJ without opinion, "we review the IJ's opinion and scrutinize its reasoning." Smriko v. Ashcroft, 387 F.3d 279, 282 (3d Cir. 2004) (internal quotation marks and citation omitted). In asylum cases, we must uphold the agency's factual findings if they are supported by substantial evidence. Singh-Kaur v. Ashcroft, 385 F.3d 293, 296 (3d Cir. 2004). That is, the denial of asylum can be reversed "only if the evidence presented by [the Petitioner] was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed." INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); see also Abdille v. Ashcroft, 242 F.3d 477, 483--84 (3d Cir. 2001) ("[T]he [agency]'s finding must be upheld unless the evidence not only supports a contrary conclusion, but compels it."). Adverse credibility determinations, like other factual findings in immigration proceedings, are reviewed under the substantial evidence standard. Mulanga v. Ashcroft, 349 F.3d 123, 131 (3d Cir. 2003).

III. Discussion

The Attorney General and his delegates may grant asylum to any alien who qualifies as a refugee under the Immigration & Nationality Act ("INA"). 8 U.S.C. § 1158(b)(1). A refugee is an alien who is "unable or unwilling" to return to his or her country of origin "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). "Aliens have the burden of supporting their asylum claims through credible testimony." Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). "Testimony, by itself, is sufficient to meet this burden, if 'credible.'" Id. (quoting 8 C.F.R. § 208.13(a)). To establish eligibility for asylum, an applicant must demonstrate past persecution by substantial evidence or a well-founded fear of persecution that is both subjectively and objectively reasonable. Lukwago v. Ashcroft, 329 F.3d 157, 177 (3d Cir. 2003).

Butt's principal argument before us is that the IJ's adverse credibility finding was not supported by the record.*fn6 Specifically, he contends that the finding was based solely on the IJ's erroneous interpretation of the doctor's note regarding his treatment and that, if the note is interpreted correctly, the finding cannot be upheld.*fn7 Butt further argues that, if the IJ's credibility determination is overturned, the record compels the conclusion that he is eligible for asylum.

A. The IJ's Interpretation of the Doctor's Note

We must afford the IJ's adverse credibility finding "substantial deference so long as the findings are supported by sufficient cogent reasons." Reynoso-Lopez v. Ashcroft, 369 F.3d 275, 278 (3d Cir. 2004) (internal quotation marks and citation omitted); Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998) ("An immigration judge who rejects a witness's positive testimony because in his or her judgment it lacks credibility should offer a specific, cogent reason for his or her disbelief.") (internal quotation marks, brackets, and citation omitted). In this case, the determination that Butt was not credible was based on what the IJ perceived as a contradiction between Butt's testimony and the doctor's note that he submitted as corroborating evidence. The IJ stated:

If the oral testimony is accurate and [Butt,] after being mistreated seriously, received medical attention at home only, why, the court must ask itself, does the doctor's letter explain[] that treatment was given to [Butt] for a period of 35 days at the doctor's clinic. Not only does the doctor's record state the period, by specifically pointing out the days of his admission and discharge, but it also provides a feeling of seriousness with respect to both the condition [Butt] was [in] before admission and the type of diagnosis and treatment given . . . . Plain language interpretation . . . conveys a message that [Butt] was examined and treated by the writer, at the clinic for 35 days . . . . Assuming a reasonable explanation had been given, and assuming the court would believe the seriousness of these injuries, I could probably understand his forgetting that he was treated at the clinic rather than at home . . . . But how does one explain that his wife also forgot such an important fact and distinction?

The IJ's decision thus makes clear that he read the doctor's note to mean that Butt had been treated at the clinic itself for thirty-five days. However, we believe that the plain language of the note does not support that conclusion. As stated earlier, the note states that Butt "reported at my [the doctor's] clinic with multiple bruises on both legs and back. He remained under my treatment . . . 10-9-90 to 15-10-90."

A commonsense interpretation of this statement is that Butt (1) went to the doctor's clinic for treatment of his injuries and (2) then received further treatment from the same doctor for a period of thirty-five days. Just because Butt "remained under [his doctor's] treatment" after reporting at the clinic does not, in everyday usage, mean that he remained under his doctor's treatment at the clinic. People often say that they have remained under a particular doctor's care for a certain period of time. If these types of statements actually had the meaning the IJ attributed to the doctor's similar statement here, a pediatrician who commented that a newborn had been brought for treatment at his or her office and remained under his or her care until age eighteen would be stating that the child continuously received care at the pediatrician's office for eighteen years. This interpretation of the pediatrician's comment is nonsensical and is certainly not how the statement would be understood if made during the course of a normal conversation.

Our example is extreme, but it illustrates our critical concern with the IJ's interpretation of the note. Although the IJ characterized his reading of the note as based on its "plain language," he did not consider the everyday usage of the phrase "remained under his doctor's care." Instead, the IJ read into the note an additional statement that Butt remained under the doctor's care "at the clinic." The IJ stated that, if the doctor's note could not be reconciled with the "crucial part" of Butt's and his wife's testimony regarding his treatment, Butt's case would "collapse[] as a pyramid of cards." Not only does this simile stretch to excess, it risks a "turnaround is fair play" response. See Dia v. Ashcroft, 353 F.3d 228, 251 (3d Cir. 2003) (en banc) (stating that an IJ's "reasoning process appear[ed] to break down as the IJ, repeatedly, [drew] an unreasonable conclusion from a fact susceptible to differing interpretations" and that such an "aggregation of empty rationales . . . devolve[d] into an unsupported finding of adverse credibility").

The IJ saw the contradiction he perceived between the text of the note and Butt's testimony as evidence that Butt had made "a deliberate effort . . . to mislead th[e] Court." This conclusion cannot stand once we use the straightforward meaning of the note-that Butt was treated for bruises on his legs and back at the clinic and then generally remained under the care of the same doctor for over a month (not necessarily at the clinic). That reading is consistent with Butt's testimony that: (1) he was beaten so "that [his] leg and [his] back [were] . . . hurt and . . . [did] not function properly"; (2) he was under the care of Dr. Sajsad, the author of the note, from September 10, 1990 to October 15, 1990; and (3) his treatment took place at home, but that "there could be one possibility that I was almost unconscious when they brought be home. Probably they took me to his clinic and then he treated me." (Butt did not remember the details "because [his] situation was extremely worse at that time."*fn8 ) Accordingly, contrary to the IJ's conclusion, the note can be reconciled with Butt's testimony. And, as there is no contradiction between that testimony and the plain language of the note, there is correspondingly no support for the IJ's conclusion that Butt lied to the Immigration Court.

The IJ also determined that "[t]he doctor's letter or note [was] crucial to the reliability [he could] attribute to [Butt]'s other documents" and that, apparently because of the purported contradiction between the note and the testimony, "[t]he cloud that hangs over [Butt]'s evidence has not been dissipated." Again, when the commonsense reading of the doctor's note is used, it is consistent with Butt's testimony and therefore cannot be viewed as casting (or contributing to) a "cloud" over the other evidence submitted by him in support of his asylum application.*fn9 Thus, the alleged contradiction between the note and the testimony, based as it is on the strained inferences of the IJ rather than on commonly understood usage, does not provide a sound basis for his adverse credibility determination. See Dia, 353 F.3d at 251 (holding that adverse credibility determination was not supported by substantial evidence when, inter alia, "the conclusions of the IJ [were] more puzzling than plausible, more curious than commonsense").

B. Other Reasons for the Adverse Credibility Determination

Once the IJ's conclusions regarding the relationship between the doctor's note and Butt's testimony are unraveled, we are left with only two other reasons advanced by the IJ in support of the adverse credibility determination: (1) his generic critique of the proffered testimony, which he described as "thin" and "extremely vague"; and (2) his view of the other documents submitted by Butt as "equally flimsy in that neither is verified or authenticated." As stated earlier, we afford an IJ's adverse credibility determination substantial deference if it is supported by "specific, cogent reasons." Reynoso-Lopez, 369 F.3d at 278 (internal quotations marks and citation omitted). These statements, which were secondary to the IJ's determination that the note and testimony conflicted as a basis for the adverse credibility determination, are simply too general and conclusory to provide a basis for us to uphold his determination. They do not give any insight into why the IJ thought the testimony was vague or why there was reason to question the authenticity of the documents Butt submitted. Without such an explanation, we are unable to ascertain whether the IJ's adverse credibility determination was supported by substantial evidence.*fn10 See, e.g., Dia, 353 F.3d at 252 (stating that "[a]bsent a reason such as implausibility or inconsistency based in the record . . .[,] the IJ should not have summarily dismissed [the petitioner]'s testimony on [a particular] point"); Mulanga, 349 F.3d at 137--38 (holding that an IJ's disbelief of an alien's testimony was "unsound" when the only foundation the IJ articulated for that belief was that the testimony lacked "common sense").

In this context, we are compelled to conclude that the IJ's adverse credibility determination was erroneous. We also note that, once the doctor's note is given its plain language meaning, it is, as stated above, reconcilable with Butt's testimony, removing the only inconsistency the IJ pointed to in his decision. The IJ himself stated that, without the contradiction he perceived, "[t]he testimony presented was thin . . . but it would have survived a certain degree of consistency . . . ." If consistency is crucial to credibility, as we think it is, we do not see how the record in this case can support an adverse credibility determination. However, in keeping with Supreme Court and our precedent, we give the IJ an opportunity to revisit the credibility issue on remand (without regard to his prior adverse credibility determination).*fn11 See INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam) (appellate courts should, upon reversing a decision of the BIA, remand the case to the agency for further proceedings except in rare circumstances); Dia, 353 F.3d at 260 ("concluding . . . that because of the lack of substantial evidence to support the adverse credibility determination, we will remand in order for the agency to further explain or supplement the record"); Ezeagwuna v. Ashcroft, 325 F.3d 396, 411 (3d Cir. 2003) (reversing BIA's adverse credibility determination and stating that, in keeping with Ventura, "[w]e [would] not assess [the petitioner]'s entitlement to relief based on the record as we have required it to be modified by this opinion because the agency should have the opportunity to do so").

V. Conclusion

Although we must afford substantial deference to an adverse credibility finding, we are forced to conclude that even under that standard the IJ's credibility determination here does not pass muster. The contradiction the IJ saw between the doctor's note and Butt's testimony was created by the IJ's own strained interpretation of the note. In the law, as in all things, common sense must be our guide. Yet the IJ failed even to consider the everyday usage of the term "under a doctor's care" in concluding that Butt lied about where he received treatment for his injuries. This flaw colored the whole of the IJ's analysis, which was grounded in his incorrect interpretation of the note, and the only arguably independent reasons the IJ gave for finding Butt incredible were too general for us to ascertain whether they were supported by substantial evidence.

For these reasons, the BIA erred in affirming the IJ's decision. Although Butt asks us also to rule in his favor on the merits of his asylum claim, we decline his invitation in order to allow the agency the opportunity to review the substance of that claim. We therefore remand this case to the BIA with instructions to remand it to the IJ for reconsideration of his decision and a ruling on Butt's asylum and withholding of removal claims without reference to the prior adverse credibility finding.*fn12

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