Niang v. Mukasey, (2d Cir. Dec. 19, 2007)

We hold that where, as here, an applicant's testimony is otherwise credible, consistent and compelling, the agency cannot base an adverse credibility determination solely on a speculative finding that the applicant has submitted inauthentic documents in support of his application. Where an applicant establishes past persecution, but the agency finds a fundamental change in country conditions, the agency must provide a reasoned basis for its determination unless historical facts support its conclusion.

Petitioner, a citizen of Mauritania, sought asylum, withholding of removal and Convention Against Torture (CAT) relief based on his claim that he and his family were violently expelled from Mauritania on account of their race. Petitioner testified that "white militaries" came to his family home, beat and tied up his father, killed his brother, and jailed his family for 10 days. The Mauritanian authorities told his family that they did not belong in Mauritania and made them sign papers promising never to return or they would be killed or imprisoned. Petitioner and his family then crossed the river into Senegal and resided in a refugee camp. Petitioner's father died two months later from the beating he had received in Mauritania and his mother died a year after. In 1994, when Petitioner was 16 years old, he left the refugee camp and traveled to Dakar , Senegal where he did menial jobs for a wealthy family who paid him in food. Petitioner eventually made his way to the United States using a passport that belong to a member of the wealthy family and entered the United States with an F-1 visa. He then mailed the passport back to Senegal .

In support of his application, Petitioner submitted a copy of his Mauritanian identity document and his Senegalese refugee card. The Mauritanian card lists Petitioner's name, his place of birth and his date of birth (July 30, 1977) and is printed in Arabic and French. It was issued in 1989 and lists Petitioner's profession as "comercant." It contains a photograph of Petitioner, a fingerprint, and a signature. Petitioner stated that the card was obtained by his father from the government of Mauritania . When asked why the card listed Petitioner's profession as "comercant" or businessman when he was only 11 years old, Petitioner stated that his father was a merchant. He stated that he carried the document in the refugee camp until it became torn and faded. When he took it to the head of the camp, the document was taken from him, a new picture was put on it and Petitioner was given a photocopy, not the original. Petitioner stated that he was about 16 years old when the new picture was taken. The Senegalese document Petitioner submitted contained his name, date and place of birth, a photograph of Petitioner, and a stamp dated January 31, 2002. Petitioner stated that he was first issued the card when he arrived in the refugee camp and generally left it with the head of the camp so that he would not lose it. Petitioner stated that he was about 12 years old in the picture, but the government attorney alleged that he had a mustache in the photograph, which Petitioner denied. When Petitioner applied for asylum in the United States , he remembered the card and asked a friend to retrieve it for him from the camp.

The immigration judge rejected Petitioner's claims for relief and ordered him deported. The IJ pretermitted Petitioner's asylum claim because it was filed more than one year after his entry into the United States and Petitioner was unable to show any exceptions. With regard to his withholding and CAT claims, the IJ found that Petitioner failed to meet his burden of proof because of an adverse credibility finding made by the IJ. The IJ noted that this assessment was not based on demeanor, but was based on the identity documents Petitioner submitted in support of his claim. The IJ doubted that the documents were genuine for four reasons: 1) the IJ doubted Petitioner's story about how he retrieved the document, 2) the IJ doubted that Petitioner was 12 years old in his Mauritanian identity document, 3) the Mauritanian document had clearly been altered, though the IJ found it was conceivable that the changes were made in the refugee camp, and 4) the Mauritania document indicated that Petitioner was a businessman. The IJ found that based on these doubts, Petitioner had not testified truthfully about the documents. Lastly, the IJ held that assuming Petitioner had suffered past persecution, conditions in Mauritanian had not fundamentally changed such that Petitioner life or freedom would no longer be threatened. The BIA adopted and affirmed the IJ's decision to pretermit the asylum applicant. The Board also upheld the IJ's finding that Petitioner did not meet his burden of proof as to his claims for withholding and CAT. The BIA also noted that conditions in Mauritania have "improved dramatically, lessening the likelihood of persecution" in the future.

On review, the Second Circuit held that the IJ and BIA could not base an adverse credibility determination solely on a speculative finding that the applicant had submitted inauthentic documents in support of his asylum application. The court found several errors in the IJ's reasoning. The court found that the IJ mischaracterized Petitioner's testimony as to how he had come to possess the Senegalese refugee document. Petitioner had not testified that he had never seen the document. The IJ also misunderstood or misrepresented Petitioner's age in the photographs on the documents. The IJ's finding that the Mauritanian identity document had been altered was consistent with Petitioner's testimony that it had been altered by the head of the refugee camp. Lastly, the IJ failed to considered Petitioner's explanation for why his profession was listed as businessman on his Mauritanian identity document. The court held that the tenuous suspicions raised by the IJ could not be grounds for an adverse credibility finding.

The court rejected the government's argument that a remand would be futile because Petitioner failed to provide adequate corroborating evidence in support of his claim.

With regard to the BIA's finding of a fundamental change in country conditions in Mauritania , the court held that the BIA provided insufficient reasoning to support its finding. The court stated that the agency's rejection of Petitioner's withholding and CAT claims could not be upheld on this alternate ground. The court distinguished this case from its previous precedent allowing for a finding of changed conditions without the IJ making specific findings, citing Hoxhallari v. Gonzales, 468 F.3d 179, 187 (2d Cir. 2006). The court held that in Petitioner's case there was clearly no "indisputable historical event" which supported the IJ's finding. The court held that the BIA failed to provide a reasoned basis for its decision and that the BIA's decision was not supported by substantial evidence.

The petition for review was granted.