Sareth Yosd v. MICHAEL B. MUKASEY, Attorney General

Pursuant to Fed. R. App. P. 43(c)(2), Attorney General *
Michael B. Mukasey has been substituted for former Attorney General
Alberto R. Gonzáles as the respondent herein.
United States Court of Appeals
For the First Circuit
No. 07-1390
SARETH YOSD,
Petitioner,
v.
MICHAEL B. MUKASEY,*
Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lipez, and Howard,
Circuit Judges.
Joseph A. MacDonald on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, David V. Bernal,
Assistant Director, Office of Immigration Litigation, and Lauren E.
Fascett, Trial Attorney, Office of Immigration Litigation, on brief
for respondent.
January 29, 2008

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LIPEZ, Circuit Judge. Sareth Yosd, a Cambodian national,
seeks review of a final order of the Board of Immigration Appeals
("BIA") denying his claims for asylum relief, withholding of
removal, under sections 208 and 241(b)(3) of the Immigration and
Nationality Act, 8 U.S.C. §§ 1158, 1231(b)(3), and protection
pursuant to the U.N. Convention Against Torture ("CAT"). Following
the BIA's determination that his first hearing had been marred by
inadequate translation services, the BIA remanded the case for a
second hearing before the same immigration judge ("IJ") who had
previously ruled that Yosd was not credible. Yosd contends that
this remand violated his due process rights because the IJ was
predictably predisposed to rule against him during the second
hearing in order to defend her earlier decision. We find no due
process violation and conclude that the IJ's adverse credibility
determination is supported by substantial evidence. Accordingly,
we affirm.
I.
Yosd entered the United States on May 25, 2001, using a
non-immigrant visa that permitted him to remain here until August
24, 2001. In January 2002, Yosd filed an application requesting
asylum relief, withholding of removal, and protection pursuant to
the CAT. Yosd's asylum application was premised on his active
membership in political parties opposed to the ruling Cambodian
People's Party (CPP). He asserted that because of his political

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The IJ granted Yosd a continuance at the end of the September 1
2002 hearing to permit him to submit additional documentary
evidence in support of his claims, and resumed hearing testimony in
March 2003. The same interpreter translated both hearings. For
convenience, we refer to the September 2002 and March 2003 hearings
collectively as the "first hearing."
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activism in opposition to Hun Sen, the CPP leader, he had been
forced to go into hiding in 1997 and again in 2000. He also
recounted being arrested, jailed for two days, and beaten by police
in September 1998 for bringing bread and water to protesters
outside the National Assembly building.
After an initial interview concerning his asylum
application, Yosd was referred to the Boston Immigration Court and
charged with removability pursuant to 8 U.S.C. § 1227(a)(1)(B) for
having overstayed his visa. An IJ heard testimony from Yosd on
September 13, 2002 and March 12, 2003, and subsequently denied his 1
requests for relief and ordered him removed from the United States.
The IJ's ruling was based on a finding that Yosd's
testimony was not credible. In particular, the IJ noted that Yosd
had been inconsistent regarding where he was living between
November 2000 and his departure for the United States in May 2001.
In the affidavit attached to his asylum application, Yosd claimed
that he had gone into hiding in "the countryside and jungle" in
November 2000 and had remained in hiding until his departure from
Cambodia. However, he later testified that he returned home in
January 2001 to celebrate the New Year with his family and remained

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The Sam Rainsy Party is one of two opposition parties in 2
which Yosd asserted he had been an active member. He testified
that he had joined the FUNCINPEC Party in 1992, but that he became
disillusioned with Prince Ranariddth's leadership of that party in
1998, prompting him to join the Sam Rainsy Party.
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"in hiding" at his home until May 2001. But Yosd also testified
that during the period just prior to his departure from Cambodia
while he purported to be in hiding, he requested a passport in
person from Cambodian government officials, traveled to the U.S.
Embassy to obtain a visa, and was permitted to leave the country
without incident. The IJ also noted that Yosd had testified in
September 2002 that he had destroyed his Sam Rainsy Party2
membership card prior to leaving Cambodia, but in March 2003 he
introduced just such a membership card into evidence at his
hearing.
The IJ also found his testimony inconsistent concerning
where his wife and children had lived and the status of his sewing
machine business following his departure from Cambodia. He
testified in September 2002 that he had closed his business two
days before he left the country and that his family had moved to a
village some 30 kilometers from Phnom Penh. He then testified in
March 2003 that his wife and children had lived in the family home
in Phnom Penh following Yosd's departure and that his spouse had
continued to run Yosd's sewing machine shop until some time in
2002. Given these inconsistencies, the IJ concluded that Yosd's

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We refer to this March 2005 hearing as the "second hearing." 3
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testimony as to his "true motivations in leaving Cambodia cannot be
given any weight."
Yosd appealed the IJ's decision to the BIA, challenging
the quality of the translation services he had received during the
first hearing. The BIA found that there was a "significant
probability" that "the interpretation of [Yosd's] testimony was
inadequate." The BIA found "a likelihood that the respondent was
unable to meaningfully participate in the removal proceedings"
because of poor translation services, and remanded the case to the
same IJ for "further proceedings consistent with this opinion and
for the entry of a new decision."
Following the remand, the IJ held another hearing on
March 9, 2005. The IJ had requested that the Language Services 3
Unit evaluate the interpreter who had translated the first hearing,
and she began the second hearing by submitting that report into
evidence. The report gave the translator a score of 70% and ranked
his services as "good" or "minimally acceptable" in all categories.
Using a different interpreter, the IJ proceeded to hear additional
testimony from Yosd. She then issued an oral decision, once again
finding Yosd not credible and denying his requests for relief.
In this decision, the IJ noted many of the same
inconsistencies in Yosd's testimony that she had noted in her first
decision. In particular, she questioned the credibility of Yosd's

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testimony regarding when he was in hiding. At the second hearing,
he testified that he went into hiding for several months following
the arrest of two of his friends, but testified at various points
during the hearing that this arrest occurred in May, June, and
November 2001. Yosd also testified, as he had at the first
hearing, that he was in hiding at his home from January 2001 to May
2001. Yosd's testimony made clear that Hun Sen supporters knew
where he lived. Therefore, the IJ concluded that his statement
that he was in hiding at home made "very little sense,"
particularly when paired with his testimony that he had obtained
a passport and visa by traveling in person to the Cambodian
passport office and the U.S. Embassy. The IJ also noted that,
although Yosd had testified that two of his politically active
friends had been arrested, he had "not established with any level
of specificity that anybody ever really came looking for him or
threatened to harm him in any way other than the one arrest" in
September 1997, many years before he left Cambodia. Thus, the IJ
concluded that Yosd's testimony, even with the benefit of a new
interpreter at the second hearing, was "so inconsistent and lacking
in detail as to be incredible."
On February 5, 2007, the BIA affirmed the IJ's decision,
rejecting Yosd's claim that the IJ was biased against him and
finding no clear error in her determination that Yosd's testimony
lacked credibility. This petition for review followed, alleging

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that the IJ's lack of impartiality in the second hearing violated
Yosd's due process right to a hearing before a neutral finder of
fact. See Kheireddine v. Gonzales, 427 F.3d 80, 84 (1st Cir. 2005)
(quoting Marincas v. Lewis, 92 F.3d 195, 203-04 (3d Cir. 1996)
(holding that one of the "most basic of due process protections" is
"a hearing before a neutral immigration judge")).
II.
We review Yosd's due process claim de novo. See
Kheireddine, 427 F.3d at 83; Aguilar-Solís v. INS, 168 F.3d 565,
568 (1st Cir. 1999). That claim takes two forms. As an
institutional matter, he argues that the BIA should never remand a
case to the same IJ who had made a previous adverse credibility
determination. He also argues that the conduct of the IJ at the
second hearing demonstrated a bias that deprived him of a fair
hearing. We find no merit in either argument.
A. The Remand
In addressing the recusal of federal judges, the Supreme
Court has noted that "[i]t has long been regarded as normal and
proper for a judge to sit in the same case upon its remand."
Liteky v. United States, 510 U.S. 540, 551 (1994); cf. Mass. Dist.
Ct. local rule 40.1(K) (permitting further proceedings following a
remand to be conducted before the same judge if that judge
determines that "there will result a substantial saving in the time
of the whole court and there is no reason why, in the interest of

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Although the Liteky Court was analyzing a recusal statute, 28 4
U.S.C. § 455, that does not apply to immigration judges, Liteky
nonetheless informs our analysis of allegations of judicial bias in
the immigration context. See Aguilar-Solís, 168 F.3d at 569
(citing Liteky in analyzing a due process claim against an IJ); Shu
Ling Ni v. BIA, 439 F.3d 177, 180-181 (2d Cir. 2006) (applying
Liteky in the context of an alien's allegation of bias against an
IJ in an asylum hearing).
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justice, further proceedings should be conducted before another
judge"). As the Liteky Court further explained:
[O]pinions formed by the judge on the basis of
facts introduced or events occurring in the
course of the current proceedings, or of prior
proceedings, do not constitute a basis for a
bias or partiality motion unless they display
a deep-seated favoritism or antagonism that
would make fair judgment impossible.
Liteky, 510 U.S. at 555. In a case where an IJ's decision is 4
vacated due to some misconduct on the judge's part, we agree that
it would be wise for the BIA to order the case remanded to a new IJ
for a second hearing. See, e.g., Ti Wu Gao v. Gonzales, 200 Fed.
Appx. 31, 34-35 (2d Cir. 2006) (unpublished) (directing the BIA to
assign a case to a different judge on remand where the particular
IJ's conduct had been found to suggest bias and hostility toward
Chinese petitioners in three separate cases). Cf. Sosnovskaia v.
Gonzalez, 421 F.3d 589, 594 (7th Cir. 2005) (strongly encouraging
the BIA to assign the case to a different judge on remand because
the same IJ had twice found petitioner deportable, only to have one
of her rulings reversed and the other vacated). However, in Yosd's
case, there was no allegation or finding of misconduct by the IJ

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during the first hearing. Instead, the BIA simply found that the
translation of Yosd's testimony by the interpreter had likely been
inadequate. Under these circumstances, we find no fault with the
BIA for remanding the case to the same IJ for further proceedings
despite the adverse credibility finding in the first proceeding.
B. The Conduct of the IJ
To the extent that Yosd's due process claim is based on
the IJ's conduct at the second hearing, it also fails. Yosd's bias
allegations arise directly from the IJ's participation in Yosd's
prior proceedings. To prevail under these circumstances, Yosd must
"meet the substantial burden of proving that the IJ displayed a
'deep-seated favoritism or antagonism that would make fair judgment
impossible.'" See Shu Ling Ni, 439 F.3d at 181 (quoting Liteky,
510 U.S. at 555). Yosd has not met this burden.
Yosd alleges that the IJ's conduct at the second hearing
was improper because she chose to use that hearing to justify her
prior ruling. In support of this claim, he cites her introduction
into evidence at the second hearing of an evaluation of the quality
of the translation during the first hearing. We fail to see how
the IJ's request for an evaluation of the interpreter and her
introduction of that evaluation into evidence provides proof of the
IJ's bias. As she thoroughly explained during the hearing, the IJ
believed that the errors noted by the BIA stemmed as much from
inadequate transcription of the first hearing as from inadequate

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translation services by the interpreter. She expressed concern
that this was a chronic problem because the BIA reviews transcripts
rather than audio tapes of the hearings. She explained that she
was introducing the evaluation of the translation services into the
record to illustrate to the BIA that errors in transcription may be
to blame for what the BIA perceives to be an inadequacy in
translation services. She noted that the evaluation of the
translation in the prior hearing was "not something [she was]
considering" during the second hearing. Instead, she felt it was
"something for the Board to consider."
Yosd characterizes the IJ's introduction of the
translation evaluation as an expression of "disdain or
disagreement" with the remand itself. Even if that were the case,
such disdain alone does not amount to a due process violation. See
Aguilar-Solís, 168 F.3d at 569 (noting that "charges of judicial
bias and partiality cannot be established solely by 'expressions of
impatience, dissatisfaction, annoyance, and even anger'" (quoting
Liteky, 510 U.S. at 555)). However, we disagree with Yosd's
characterization and instead conclude, as the BIA did, that the
IJ's request for an evaluation of the first interpreter and her
submission of that evaluation to the BIA was "in support of an
institutional concern for the integrity of interpretations before
EOIR [the Executive Office of the Immigration Review], not to
justify her prior ruling."

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Yosd also contends that the IJ's bias was revealed in her
comment at the outset of the second hearing that she was "going to
send the case back to the Board unless [she saw] something
different in the testimony here today to make [her] believe that
[her] decision was incorrect." In context, this comment is merely
a restatement of the IJ's understanding of the purpose of the
remand. Earlier in the hearing, the IJ explained that the purpose
of the second hearing was to use a new translator and to hear new
testimony to "clarify anything that [Yosd's counsel] felt was not
properly translated [and]. . . to clarify anything that maybe I
misunderstood or was otherwise not properly translated." This
statement of the purpose for the second hearing is consistent with
the BIA's order that the IJ conduct further proceedings to allow
the respondent to "meaningfully participate in the removal
proceedings." Thus, we find nothing improper, much less any
evidence of the deep-seated antagonism necessary to establish a due
process violation, in the IJ's explanation that she would need to
see "something different" during the second hearing in order to
find Yosd credible.
Yosd next alleges that the IJ's "use of some of the
testimony from the prior hearings to support her lack of
credibility determination while ignoring other testimony further

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Yosd apparently does not argue that all of the testimony at 5
the first hearing was tainted by the poor quality of the
translation and thus that any reference to the testimony from the
first hearing was inherently improper. In fact, in his brief
before this Court, Yosd cites exclusively to the transcript from
the first hearing to establish his version of the facts of the
case.
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illustrates her predisposition." We do not agree. The IJ has 5
broad discretion to consider unexplained inconsistencies as
evidence of a lack of credibility. See Mewengkang v. Gonzales, 486
F.3d 737, 739-40 (1st Cir. 2007) (holding that an alien may be
found incredible based on unexplained discrepancies in testimony
when the IJ provides specific and cogent reasons to conclude that
the respondent's testimony was not credible). The second hearing
with a new interpreter afforded Yosd the opportunity to explain any
inconsistencies he wished to explain. Indeed, Yosd had the
advantage of a prior decision pointing out the specific
discrepancies with which the IJ was particularly concerned. The
fact that he failed to clarify these points in the second hearing
is a proper ground for an adverse credibility finding and does not
suggest that the IJ prejudged Yosd's credibility on remand. Thus,
we conclude that Yosd's due process claim fails.
III.
We now turn to the merits of Yosd's asylum claim. Under
the highly deferential "substantial evidence" standard, we must
uphold the IJ's finding that Yosd lacked credibility "unless any
reasonable adjudicator would be compelled to conclude to the

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The REAL ID Act of 2005, Pub.L. 109-13, 119 Stat. 302, 6
altered, among other things, the standards governing credibility
determinations in asylum cases. See 8 U.S.C. § 1158(b)(1)(B)(iii).
However, the new provisions of the Act are not applicable to this
case because Yosd's application for asylum was filed prior to the
effective date of the amendments.
An adverse credibility finding is similarly determinative of 7
an alien's petition for withholding of removal and CAT protection.
See Abdullah v. Gonzales, 461 F.3d 92, 97 (1st Cir. 2006) ("An
alien who fails to satisfy the standard for asylum automatically
fails to satisfy the more stringent standard for withholding of
removal."); Hana v. Gonzales, --- F.3d ---,2007 WL 2696491, *4 (1st
Cir. 2007) (noting that alien bears the burden of establishing a
likelihood of torture to prevail on a CAT claim).
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contrary." 8 U.S.C. § 1252(b)(4)(B); see also Kheireddine, 427
F.3d at 87. "Where the record supports plausible but conflicting 6
inferences . . . , the IJ's choice between those inferences is, a
fortiori, supported by substantial evidence." López de Hincapie v.
Gonzales, 494 F.3d 213, 219 (1st Cir. 2007).
The burden of proof is on the asylum applicant to
demonstrate, through credible testimony or corroborating evidence,
that he is a refugee either because he has suffered past
persecution or because he has a well-founded fear of future
persecution. 8 C.F.R. § 1208.13; Hoxha v. Gonzales, 446 F.3d 210,
216 (1st Cir. 2006). As a result, an adverse credibility
determination, if supported by a "specific, cogent, and supportable
explanation," Heng v. Gonzales, 493 F.3d 46, 48 (1st Cir. 2007), is
generally fatal to an asylum applicant's claim for relief, Chen v.
Gonzales, 418 F.3d 110, 113 (1st Cir. 2005).7

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As described above, the IJ's decision detailed numerous
inconsistencies that led to her conclusion that Yosd lacked
credibility. Yosd attacks these inconsistency findings. First, he
questions the IJ's determination that he failed to set forth any
ongoing threats after he had left the country, noting that he had
testified at his first hearing to incidents in which his wife had
been questioned by Hun Sen followers about his whereabouts
following his departure from Cambodia. However, the prior
testimony about these incidents was vague; its lack of specificity
could reasonably lead the IJ to infer that it lacked credibility.
Yosd suggests that his vagueness could be attributed to his wife's
hesitancy to give him details about the incidents for fear that he
may return to Cambodia out of concern for her. Although this is
one possible explanation for his vagueness, it is not the only
reasonable one. We defer to the IJ's determination that the proper
inference to be drawn from Yosd's lack of specificity is a lack of
truthfulness.
Next, Yosd questions the adverse inference the IJ drew
from Yosd's original testimony that he had destroyed his Sam Rainsy
Party membership card, followed by Yosd's introduction of just such
a membership card in a subsequent hearing. Yosd argues that "a
fair reading of the transcript of the prior hearing seems to
suggest" that the card produced was a duplicate sent to him by his
wife. Again, that is one possible reading of the testimony

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regarding the card, but it is not the only reading. As Yosd
himself admits, his testimony on this point was confusing. The
IJ's finding that his production of the card demonstrated a lack of
credibility is one reasonable inference to be drawn from the
juxtaposition of his testimony and his subsequent production of a
membership card.
Finally, Yosd contends that the IJ erred in finding his
testimony lacking in credibility based on his assertion that he
went into hiding away from his home for five or six months, from
May or June 2000 until January 2001, followed by his detailed
description of being at home in November 2000 when two of his
friends were arrested for their political activities. Although the
IJ noted that Yosd had difficulty with dates, this particular
inconsistency transcends a mere difficulty with dates and goes to
the heart of his claim of past persecution. Our review of the
transcripts leads us to conclude, as the IJ did, that it is unclear
when and where Yosd was hiding. Although Yosd argues that the
"confusion may easily have stemmed from the fact that [he] did go
into hiding for five months following the coup of 1997," it is also
reasonable to find, as the IJ did, that the confusion stems from a
fabricated story.
IV.
In sum, we conclude that Yosd was afforded full due
process on remand. We find that the IJ's adverse credibility

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finding following the second hearing was supported by a "specific,
cogent, and supportable explanation." Thus, we deny the petition
for review.
So ordered.

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