(1) Candidates bear the burden of creating their very own credibility, and no statute or authorized precedent compels an Immigration Choose to conclude that an applicant’s testimony is credible. (2) Rape is sufficiently extreme to represent torture and might by no means be a lawful sanction underneath the Conference In opposition to Torture.
“As a result of we conclude that the Immigration Choose’s credibility dedication was primarily based on an error of legislation and the Immigration Choose made inadequate factual findings, the file might be remanded. … The respondent has requested that, primarily based on an look of bias, his case be remanded to a unique Immigration Choose. As famous above, the statements by the Immigration Choose might fairly be learn to recommend bias in opposition to the respondent’s declare for cover underneath the CAT. … To keep away from any look of unfairness, and in an abundance of warning underneath the details and circumstances on this case, we are going to direct these proceedings be transferred to a unique Immigration Choose on remand. … On remand, the Immigration Choose ought to concern a brand new choice that addresses the deficiencies mentioned above. Particularly, the Immigration Choose ought to make factual findings relating to the respondent’s credibility with out in accordance the respondent a presumption of credibility or erroneously suggesting that discovering the respondent credible is compelled by legislation. The Immigration Choose ought to then render any mandatory conclusions of legislation relating to the deserves of the respondent’s functions, together with whether or not the respondent dedicated a critical nonpolitical crime and whether or not he established eligibility for CAT safety. On remand, the events could complement the file with extra proof and arguments, together with these associated to any intervening case legislation. In remanding, we specific no opinion as to the end result of those proceedings. See Matter of L-O-G-, 21 I&N Dec. 413, 422 (BIA 1996). ORDER: The attraction is sustained, and the Immigration Choose’s choice is vacated. FURTHER ORDER: The file is remanded to the Immigration Court docket for task to a brand new Immigration Choose and for additional proceedings in line with the foregoing opinion and entry of a brand new choice.”
[Hats off to Prof. Emerita Nancy Oretskin!]
