United States v. 2006-02-14 | 03-70200 | NARENDRA KUMAR VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 NARENDRA KUMAR; RINA WATI
SHARMA KUMAR; SHEKHAR KAUSHIK No. 03-70200
KUMAR, Agency Nos.
Petitioners, A73-419-830
v. A73-419-831
A73-419-833ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
July 15, 2005—San Francisco, California
Filed February 15, 2006
Before: Barry G. Silverman, Kim McLane Wardlaw, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Silverman;
Dissent by Judge Wardlaw
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COUNSEL
Robert L. Lewis and Courtney McDermid, Law Office of
Robert L. Lewis, Oakland, California, for Petitioners Naren-
dra, Rina, and Shekhar Kumar.
Donald A. Couvillon, Department of Justice Office of Immi-
gration Litigation, Washington, D.C., for Respondent Alberto
R. Gonzales, Attorney General.
OPINION
SILVERMAN, Circuit Judge:
8 C.F.R. § 1003.1(e)(4)(ii) prescribes the exact language
that the BIA must use when it issues a “streamlined affir-
mance”, i.e., affirms an immigration judge’s decision without
opinion. In this case, the BIA employed the prescribed lan-
guage but also added a footnote disavowing the IJ’s adverse
credibility finding. We hold today that although the footnote
violated the BIA’s regulations, its inclusion was nothing more
than harmless surplusage and caused no prejudice. We there-
fore assume the Kumars are credible and review the IJ’s deci-
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sion directly. Doing so, we hold that substantial evidence sup-
ports the IJ’s decision that the petitioners did not establish
past persecution or a likelihood of future persecution.
FACTS AND PROCEEDINGS BELOW
Narendra Kumar is an ethnic Indian and a native and citi-
zen of Fiji. His wife, Rina Kumar, and their son, Shekhar
Kumar, are also natives and citizens of Fiji. On November 10,
1994, the Kumars entered the United States on visitor-for-
pleasure visas that permitted them to stay in the United States
until May 1995. The Kumars failed to leave the United States
by the specified date. The INS issued a Notice to Appear
charging the Kumars with removability pursuant to
§ 237(a)(1)(B) of the Immigration and Nationality Act by rea-
son of having overstayed their visas without authorization. At
a hearing before an IJ, the Kumars admitted the factual allega-
tions set forth in the Notice to Appear and conceded remov-
ability. The Kumars elected to seek asylum and filed Mr.
Kumar’s lead application; Rina and Shekhar Kumar’s claims
are derivative of Mr. Kumar’s application.
The Kumars testified about three incidents in support of
their claim for asylum.
(1) 1987 Incident at the Kumars’ Home
Mr. Kumar testified that he is an ethnic Indian who had
been active in the fledgling Labor Party in Fiji around the
time of a military coup to take over the government in 1987.
Approximately two weeks following the coup, three soldiers
in uniform came to the Kumars’ house purportedly looking
for guns. During the incident, Mr. Kumar was punched in the
stomach and around the face and verbally abused. He testified
that he still has bruises from the incident. One of the soldiers
grabbed and squeezed Mrs. Kumar. The soldier additionally
made a loud comment in Fijian, which neither Mr. nor Mrs.
Kumar understood, but which caused the other soldiers to
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laugh. After the soldiers left, the Kumars discovered that
some of Mrs. Kumar’s jewelry was missing.
Mr. Kumar initially described this incident as occurring
sometime between 10:00 a.m. and noon. When pressed during
cross-examination, Mr. Kumar changed his testimony to be
consistent with his asylum application — that the incident
occurred in the evening. He explained that he was mistaken
in his earlier testimony.
Mr. Kumar testified that the next day he filed a complaint
with the police. As a result of reporting the incident, the
police took Mr. Kumar into custody and locked him in a cell
overnight. While in custody, a policeman verbally threatened
Mr. Kumar and hit his head against the wall.
Shortly after this incident, Mr. Kumar moved to New Zea-
land where he remained for about two years. He obtained a
work visa allowing him to work legally in New Zealand, and
found employment at a warehouse. Mrs. Kumar and the chil-
dren stayed behind in Fiji with Mrs. Kumar’s family. Mr.
Kumar testified that he was concerned about his family’s
safety, but felt they would be safe living with his in-laws. In
1989, Mr. Kumar voluntarily returned to Fiji because he felt
that the situation had improved and he “was feeling lonely”
in New Zealand. When he returned from New Zealand, he no
longer had any involvement with the Labor Party.
(2) 1991 Incident at Mr. Kumar’s Temple
Mr. Kumar testified that he is Hindu. Sometime in 1991,
two soldiers arrived at the temple where he was praying. They
took him outside and told him that Hindus are not allowed to
practice their religion in Fiji and that he should convert to
Christianity or go back to India. The soldiers did not arrest or
physically abuse Mr. Kumar. After this incident, Mr. Kumar
stopped going to the temple.
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(3) 1994 Car Collision
In August of 1994, Mr. Kumar was involved in a car colli-
sion. He testified that he was driving through an intersection
with a four-way stop and an army truck failed to stop at the
intersection and hit the back of his car. When he confronted
the soldiers and told them that they could have killed him, one
of the soldiers responded that Mr. Kumar’s life was not worth
living in Fiji and that he should return to India. Then the sol-
dier kicked Mr. Kumar and his car. Mr. Kumar testified that
the soldiers intentionally ran into his car because he was a
member of the Labor Party. On cross-examination, Mr.
Kumar was asked how the soldiers would have known that he
was the driver of the car that they hit. He responded that they
could have recognized his car from the rallies he attended in
1987.
Mr. Kumar did not report the incident because an Indo-
Fijian police officer advised him that it would only cause him
more trouble. Following this incident, the Kumars decided to
come to the United States to escape the harassment and to
“make money” and have a “better life here.”
Mr. Kumar testified that he has three brothers and two sis-
ters residing in Fiji. They are all Indo-Fijians. He stated that
his brothers and sisters lease the land they live on from Fijian
landowners and have been told that the leases will not be
renewed. In addition, he testified that his elder brother was the
victim of multiple burglaries. Mrs. Kumar testified that her
parents and one brother live in the United States. One sister
lives in Australia and one sister lives in Canada.
At the conclusion of the asylum hearing, the IJ rendered her
decision. She found that Mr. Kumar was not credible because
of numerous inconsistencies and contradictions between his
written declaration and the oral testimony presented at the
hearing. The IJ further ruled that even assuming Mr. Kumar
were credible, he failed to submit sufficient evidence of past
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persecution or a well-founded fear of future persecution if he
and his family returned to Fiji. Finally, the IJ found that Mr.
Kumar failed to present any evidence that he is likely to be
tortured if he returned to Fiji. The IJ granted the Kumars’
application for voluntary departure.
The Kumars appealed to the BIA, which issued the follow-
ing decision:
The Board affirms, without opinion, the result of the
decision below.[fn/1] The decision below is, therefore,
the final agency determination. See 8 C.F.R.
§ 3.1(e)(4).
[fn/1] The Board does not summarily affirm
the Immigration Judge’s adverse credibility
determination. However, this does not
affect our decision to affirm the Immigra-
tion Judge’s ultimate decision denying
relief.
The Kumars timely petition for review.
ANALYSIS
A. BIA’s Summary Affirmance
The Kumars challenge the BIA’s summary affirmance pro-
cedure as applied in this case. Specifically, they contend that
the BIA violated its own regulations when it added a footnote
carving the IJ’s credibility decision out of its review.
The BIA’s authority to affirm cases without opinion is cod-
ified at 8 C.F.R. § 1003.1(e)(4).1 In particular,
§ 1003.1(e)(4)(ii) states:
1The regulations now at 8 C.F.R. Part 1003 (2003) formerly were at 8
C.F.R. Part 3 (2002).
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If the Board member determines that the decision
should be affirmed without opinion, the Board shall
issue an order that reads as follows: “The Board
affirms, without opinion, the result of the decision
below. The decision below is, therefore, the final
agency determination. See 8 CFR 1003.1(e)(4).” An
order affirming without opinion, issued under
authority of this provision, shall not include further
explanation or reasoning. Such an order approves the
result reached in the decision below; it does not nec-
essarily imply approval of all of the reasoning of that
decision, but does signify the Board’s conclusion
that any errors in the decision of the immigration
judge or the Service were harmless or nonmaterial.
[1] Here the BIA failed to strictly follow the procedure out-
lined above. The order recites the prescribed text set forth in
§ 1003.1(e)(4)(ii), but also includes a footnote disavowing the
IJ’s adverse credibility finding. The inclusion of that footnote
is contrary to the regulation.
[2] The violation of an agency regulation does not neces-
sarily render a deportation unlawful. See United States v.
Calderon-Medina, 591 F.2d 529, 531-32 (9th Cir. 1979).
Rather, a petitioner must demonstrate that the violation preju-
diced those interests protected by the regulation. Id. While we
are dubious as to whether the particular regulation at issue
creates any protectible right, we need not resolve that issue
here. As conceded by the Kumars’ counsel at oral argument,
the Kumars did not and cannot show that they were preju-
diced by the footnote or that the violation of the regulation
affected the outcome of the proceedings. See Hernandez-Luis
v. INS, 869 F.2d 496, 498 (9th Cir. 1989).
[3] At worst, the inclusion of the footnote was harmless
surplusage. At best, the Kumars benefitted from the BIA’s
error. We assume, as the IJ did in her alternative ruling, that
the Kumars are credible. We conclude that the Kumars did
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not suffer prejudice as a result of the BIA’s failure to strictly
adhere to its regulations.2
The Kumars’ remaining contentions regarding streamlining
are foreclosed by our decision in Falcon Carriche v. Ashcroft,
350 F.3d 845, 848, 851 (9th Cir. 2003), where we held that
“streamlining does not violate an alien’s due process rights
. . . . Nor is it a due process violation for the BIA to affirm
the IJ’s decision without issuing an opinion.”
B. Persecution in Fiji
[4] To establish eligibility for asylum, an applicant must
demonstrate that he is a “refugee,” i.e., an alien who is unable
or unwilling to return to his country of origin “because of per-
secution 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); see
also Melkonian v. Ashcroft, 320 F.3d 1061, 1064 (9th Cir.
2003). To give rise to refugee status, the persecution must be
“on account of” one of the five statutorily-specified grounds.
Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001). The IJ
found that Mr. Kumar’s experiences in Fiji did not rise to the
level of persecution. We agree; substantial evidence supports
the IJ’s conclusion that the Kumars failed to establish past
persecution on account of any of the five statutorily-specified
grounds. See Elias-Zacarias v. INS, 502 U.S. 478, 481 (1992).
Following the incident at the Kumars’ home in 1987, Mr.
Kumar left Fiji and lived in New Zealand for approximately
two years. He then voluntarily returned to Fiji because he was
lonely and depressed in New Zealand. The IJ stated that Mr.
Kumar’s voluntary return to Fiji was indicative of Kumar’s
own belief that it would be safe and appropriate for him to
2Furthermore, there is nothing to be gained by remanding the case to the
BIA so that it can excise the footnote and send the case back to us without
it.
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live in Fiji. In addition, following his return to Fiji in 1989,
Mr. Kumar no longer had any association with the Labor
Party. To the extent that the Fijian military targeted Mr.
Kumar in 1987 because of his activities with the Labor Party,
as Mr. Kumar testified, his two-year absence from the country
and distance from the party upon his return weaken his claim
of persecution.
The IJ found that the 1994 incident was a traffic accident
and was not related to any of the five statutory grounds for
asylum. Moreover, the IJ concluded that the accident was
brief and did not result in any serious problems with the mili-
tary. The Kumars presented no evidence to the contrary.
Finally, the IJ noted that the Kumars both testified that prac-
ticing their religion at home is “comfortable, acceptable, and
routine to them.” The single incident in 1991 at Mr. Kumar’s
temple is not sufficient to establish that the Kumars suffered
religious persecution in Fiji. Even considering the cumulative
effect of the Kumars’ experiences, this case is not one in
which the evidence presented compels a finding contrary to
that of the IJ.3
3Compare with Prasad v. INS, 47 F.3d 336, 339-340 (9th Cir. 1995)
(concluding that an attack committed by a group of ethnic Fijians and the
military, detention by the police, physical abuse while in police custody,
and coercive questioning by the police regarding political affiliations were
insufficient to establish past persecution); Singh v. INS, 134 F.3d 962,
968-69 (9th Cir. 1998) (holding that an Indo-Fijian’s claims of ethnic ten-
sion, including the stoning of her house by ethnic Fijians, burglary of her
home and property, governmental outlawing of Hindu, and refusal of
police assistance, did not compel a finding of persecution). We have
defined persecution as “an extreme concept that does not include every
sort of treatment our society regards as offensive.” Ghaly v. INS, 58 F.3d
1425, 1431 (9th Cir. 1995) (citation omitted) (internal quotation marks
omitted). “Discrimination on the basis of race or religion, as morally
rephrensive as it may be, does not ordinarily amount to persecution within
the meaning of the Act.” Id. To obtain reversal of an IJ’s decision, a peti-
tioner must show that the evidence not only supports reversal, but compels
it. Elias-Zacarias, 502 U.S. at 481 n.1. While the ethnic slurs and physical
confrontations the Kumars endured are regrettable, the evidence presented
here does not compel reversal.
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[5] Mr. Kumar’s testimony also fails to establish a well-
founded fear of future persecution. See Meza-Manay v. INS,
139 F.3d 759, 763 (9th Cir. 1998) (stating that to establish a
well-founded fear of future persecution, the alien must dem-
onstrate both an objectively reasonable and subjectively genu-
ine fear of persecution).
[6] Because the Kumars have not established eligibility for
asylum, they have not met the higher burden of proving that
they are entitled to withholding of removal. See Fisher v. INS,
79 F.3d 955, 961 (9th Cir. 1996) (en banc) (holding that an
applicant who has not satisfied the lesser standard of proof
required to establish eligibility for asylum necessarily fails to
satisfy the more stringent standard required to establish eligi-
bility for withholding of removal).
CONCLUSION
The Kumars’ petition for review is denied. The stay of
removal pending review will expire upon issuance of the
mandate in this case. See Desta v. Ashcroft, 365 F.3d 741, 750
(9th Cir. 2004).
PETITION DENIED.
WARDLAW, Circuit Judge, Dissenting:
I respectfully dissent. Our precedent precludes the majority
from treating this petition as we would have had the BIA
affirmed without opinion. The BIA’s error in failing to com-
ply with its own regulations is not harmless and did cause
prejudice. The most egregious prejudice is that when the BIA
disregarded its regulations, choosing instead to dispose of this
petition through its summary affirmance procedures, Kumar
was denied the full review at the agency level to which he is
entitled. This error should be remedied by a remand to the
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BIA for a determination whether, taking Kumar’s testimony
as true, the Kumars established past persecution. Instead, the
majority continues down the BIA’s misguided path by again
denying Kumar the full review to which he is entitled.
The majority disregards governing case law that dictates
the procedure we must follow when reviewing a BIA decision
affirming the IJ without opinion. Where the BIA affirms the
IJ without opinion, the panel is to review the IJ decision as the
final agency decision. Singh v. Gonzales, 412 F.3d 1117, 1121
n.6 (9th Cir. 2005); see also Falcon Carriche v. Ashcroft, 350
F.3d 845, 849 (9th Cir. 2003). The majority purports to under-
take this review. What it actually does, however, is review the
IJ’s ultimate rejection of the Kumars’ asylum claim while
rejecting the IJ’s adverse credibility finding—an unprece-
dented process that flouts the rules governing BIA streamlin-
ing. The majority’s solution to the regulatory anomaly that the
BIA created is to review both the IJ and BIA opinions, accept-
ing the BIA’s credibility determination (presumably as sup-
ported by substantial evidence) and then reviewing the IJ’s
opinion through that lens.
The majority further muddles the process required when an
adverse credibility finding is rejected. Under INS v. Ventura,
537 U.S. 12 (2002), if the panel rejects the IJ’s adverse credi-
bility finding, which the majority does here, the proper course
is to remand to the BIA for further proceedings, accepting the
petitioner’s testimony as true. See, e.g., Ding v. Ashcroft, 387
F.3d 1131, 1140 (9th Cir. 2004); Singh v. Ashcroft, 362 F.3d
1164, 1172 (9th Cir. 2004). Instead, the majority usurps the
role of factfinder by “reviewing” the IJ decision, taking
Kumar’s testimony as true, thus affirming the BIA’s decision
instead of remanding.
Even setting aside the majority’s failure to follow the pro-
cedure for appellate review of streamlined cases, the BIA’s
decision to streamline Kumar’s petition in the first place was
prejudicial error. Affirmance without opinion—the process
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under which a single Board member, rather than a three-
member panel, reviews an IJ decision, and issues a standard
three-sentence opinion (the language of which is mandated by
statute), rather than one tailored to the petition—is appropri-
ate if three requirements are met. The BIA member to whom
the case is assigned must (1) affirm the result of the IJ’s deci-
sion; (2) determine that any errors in the IJ’s decision were
“harmless or nonmaterial”; and (3) determine that (a) the
issues on appeal are controlled by precedent and do not
require application of precedent to a novel fact situation, or
(b) the factual and legal issues on appeal are “not so substan-
tial that the case warrants the issuance of a written opinion.”
8 C.F.R. § 1003.1(e)(4)(i). Although the BIA indeed affirmed
the result of the IJ’s decision, its footnote refusing to affirm
the IJ’s credibility determination makes clear that the Board
member reviewing the case determined that the IJ’s erroneous
adverse credibility finding was not in fact “harmless or non-
material,” as is required. If the adverse credibility finding was
truly harmless or nonmaterial error, it would have been
unnecessary to note disagreement with it.
Nor did this petition raise the kind of “not so substantial”
factual and legal questions appropriate for review and disposi-
tion by a single member of the BIA. Rather, this petition pre-
sents “a decision by an immigration judge . . . that is not in
conformity with the law or with applicable precedents,”
which makes it appropriate for review by a three-member
panel of the Board. Id. § 1003.1(e)(6)(iii). Had it been given
the greater consideration of a three-member panel, the BIA
might have actually read the record and caught the mischarac-
terization of Kumar’s testimony by the IJ contained within the
so-called alternative ruling. Relegating this case to review by
a single Board member, without the opportunity to explain the
decision in an opinion, denied Kumar the right to the full and
fair hearing required by the Fifth Amendment Due Process
Clause.
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The prejudice caused by the BIA is exacerbated in a peti-
tion such as Kumar’s, where the law and the facts are not
clear. This is a very close case, both legally and factually. We
have articulated varying legal standards on the degree of indi-
vidualized persecution a petitioner must show to merit relief.
Compare Avetova-Elisseva v. INS, 213 F.3d 1192, 1196 (9th
Cir. 2000) (finding that “[f]or a sustainable showing of past
persecution, a ‘[p]etitioner must establish that the mistreat-
ment she suffered . . . was substantially more grievous in kind
or degree than the general manifestation of hostility between
. . . competing ethnic and religious groups’ ” (second alter-
ation in original) (quoting Singh v. INS, 134 F.3d 962, 967
(9th Cir. 1998)), with Knezevic v. Ashcroft, 367 F.3d 1206,
1211 (9th Cir. 2004) (holding that, in contrast to the proof
required to show a well-founded fear of future persecution,
“proof of particularized persecution is not required to estab-
lish past persecution”).1
The cumulative effect of several incidents may constitute
persecution, even if no single incident would itself rise to the
level of persecution. In Chand v. INS, we stated, “When con-
sidering an asylum claim, we consider cumulatively the harm
an applicant has suffered. An applicant may suffer persecu-
tion because of the cumulative effect of several incidents, no
one of which rises to the level of persecution.” 222 F.3d 1066,
1074 (9th Cir. 2000) (finding persecution where Indo-Fijian
was physically abused by Fijian soldiers, robbed multiple
times, received no police assistance, and endured other crimes
such as burglary); see also Narayan v. Ashcroft, 384 F.3d
1065, 1068 (9th Cir. 2004) (holding violence due to the 1987
military coup, the denial of medical treatment, repeated bur-
glaries of the petitioner’s home, denial of police assistance,
1Mgoian v. INS also notes that “if the applicant is a member of a ‘disfa-
vored’ group, but the group is not subject to systematic persecution, [we]
will look to (1) the risk level of membership in the group (i.e., the extent
and severity of persecution suffered by the group) and (2) the alien’s indi-
vidual risk level.” 184 F.3d 1029, 1035 n.4 (9th Cir. 1999).
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and other physical violence compelled a finding of persecu-
tion against an Indo-Fijian petitioner); Prasad v. INS, 101
F.3d 614, 617 (9th Cir. 1996) (finding persecution where
Indo-Fijian member of the Labour Party was jailed twice for
multiple days, beaten, and subjected to sadistic and degrading
treatment); Surita v. INS, 95 F.3d 814, 819-21 (9th Cir. 1996)
(finding persecution where Indo-Fijian’s claims of being
robbed ten to fifteen times by ethnic Fijians, who targeted her
because she was Indo-Fijian, were supported by evidence that
the government was unable or unwilling to control such
crime).
On the other hand, given the deference afforded the IJ’s
decision, we have at times strictly interpreted what “necessar-
ily constitute[s] persecution,” as the question is defined in INS
v. Elias-Zacarias, 502 U.S. 478, 479 (1992). See, e.g., Prasad
v. INS, 47 F.3d 336, 339-40 (9th Cir. 1995) (holding that, in
the case of an Indo-Fijian member of the Labor party who
was forced from a vehicle at gunpoint, jailed, hit, kicked, and
coercively questioned and threatened about political affilia-
tions, a factfinder could have found persecution but was not
compelled to do so); see also Lata v. INS, 204 F.3d 1241,
1245 (9th Cir. 2000) (finding assaults, burglarizing of the
petitioner’s home, and other vandalism by ethnic Fijians con-
stituted “isolated criminal incident[s]” and did not compel a
finding of persecution); Singh, 134 F.3d at 968-69 (holding
that an Indo-Fijian’s generalized claims of ethnic tension, bur-
glarizing of petitioner’s home, governmental outlawing of
Hindu religious gatherings, and refusal of police assistance
did not compel a finding of persecution).
Because the precise standards for judging persecution have
varied, the IJ’s credibility determination was all the more
critical—and the record demonstrates that it must have tainted
the IJ’s view of the facts as set forth in the “alternative” hold-
ing, understandable human behavior, for there is no explana-
tion other than outright dissembling for the IJ’s deliberate
mischaracterization of Kumar’s testimony. For example, the
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IJ extrapolates from Kumar’s return to Fiji the factual finding
that Kumar believed it would be “safe and appropriate” for
him to return. In fact, Kumar’s testimony, which now must be
deemed truthful, was that he returned because “[his] wife cal-
led[:] she said the situation was improving so—and decided
that [he] didn’t have any relatives there so [he] was feeling
lonely and depressed and [he] had to come back.” The IJ
accepts as a fact that while Kumar was worshiping at temple,
he was dragged out by two soldiers who told him (1) that he
could not practice his religion in Fiji and (2) to get out of Fiji.
This is plainly persecution, but the IJ concludes that because
Kumar has worshiped at home since the time of that incident
and now goes to temple only a few times a year, the religious
persecution he suffered has somehow vanished. The IJ incor-
rectly finds that the Kumars believe worshiping at home is
“comfortable, acceptable, and routine to them.” In fact,
Kumar merely testified that it was acceptable in the Hindu
religion to practice at home. He never testified that worship-
ing at home was an acceptable alternative to him; rather, he
said his wife stopped him from going to temple. The obvious
inference from this testimony is that Kumar wanted to go to
temple, but his wife felt it was dangerous to practice his reli-
gion openly in Fiji. That the Kumars continue to practice at
home, moreover, cannot be taken to mitigate the impact of the
religious persecution they did suffer in Fiji. Indeed, Rina
Kumar testified that the reason that they had attended temple
more often in Fiji, prior to the incident, was that there was
more activity as a result of the large Indian community there.
Thus, as support for the “alternative” holding, the IJ miscon-
strued the Kumars’ less frequent attendance in the United
States, explainable perhaps because the Indian or Hindu com-
munity is less active here, as evidence that the Kumars were
not affected by the incident at the temple.
These and other errors the IJ made in allowing its disbelief
of Kumar to infect her characterization of the Kumars’ testi-
mony demonstrate the grave consequences flowing from the
majority’s decision to pretend that the IJ’s holding on the
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merits was unaffected by its erroneous adverse credibility
finding. When the IJ made her ruling on persecution, she
could not help but do so from a perspective of skepticism and
disbelief. The majority accepts the IJ’s misstatement of the
facts and her unsupported inferences even though the record
shows they are wrong. Given the complexities of our law on
persecution, and the importance of particular facts to a deci-
sion on persecution, the majority’s decision to accept the IJ’s
version of the facts is especially damaging.
We are, of course, not in the best position to now weigh the
testimony presented, as it is not our responsibility to make
factual determinations about petitioner’s allegations in the
first instance. Where the IJ makes an erroneous adverse credi-
bility determination, the IJ should be charged with reviewing
Kumar’s claim, taking his testimony as true, and free of the
taint of the adverse credibility finding that the record demon-
strates influenced the IJ’s alternative ruling. Because we can-
not treat this case as we would had the BIA simply affirmed
without opinion, and because we should not place ourselves
in the role of factfinder and inquire into the merits of the
Kumars’ petition, rather than remand to the agency, the
majority’s resolution is contrary to the holding of INS v. Ven-
tura.
I am not quite as certain as the majority is that if this case
were remanded, all that the BIA would do is delete the foot-
note refusing to affirm the adverse credibility finding and
issue another summary affirmance. It might just decide to fol-
low its own regulation and give Kumar’s petition the full
review it deserves, given the IJ’s errors. Especially consider-
ing the Attorney General’s recent statement that the conduct
of some immigration judges “can aptly be described as intem-
perate or even abusive,” and his admonition to members of
the BIA that each case must “be reviewed proficiently and
that each alien be treated with courtesy and respect,” Memo-
randum from Attorney General Alberto Gonzales to Members
of the Board of Immigration Appeals (Jan. 9, 2006), I am
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inclined to believe that a remand would produce more mean-
ingful review than the majority expects. And even if it did
not, failure of the BIA to discharge its duty to review each
case proficiently does not relieve us of our duty to follow cor-
rect procedure and our own precedent.
Because neither the BIA nor the majority followed the cor-
rect procedure and both thereby effectively deprived Kumar
of the process to which he was entitled, I dissent.
1722 KUMAR v. GONZALES

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