Kote Jishiashvili v. Attorney General of the United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________
NO. 03-4583
________
KOTE JISHIASHVILI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Immigration and Naturalization Service
Board of Immigration Appeals
(BIA No. A79-314-091)
Argued November 29, 2004
Before: RENDELL, ALDISERT, and
MAGILL*, Circuit Judges.
_______________________
* Honorable Frank Magill, Senior Judge of the United
States Court of Appeals for the Eighth Circuit, sitting by
designation.
(Filed: April 1, 2005)

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2
Tatiana S. Aristova
Christina L. Harding [ARGUED]
Law Offices of John J. Gallagher
1760 Market Street, Suite 1100
Philadelphia, PA 19103
Counsel for Petitioner
Douglas E. Ginsburg
John M. McAdams, Jr. [ARGUED]
William C. Minick
U.S. Department of Justice
Office of Immigration Litigation
P. O. Box 878, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
__________
OPINION OF THE COURT
__________
RENDELL, Circuit Judge.
Kote Jishiashvili, a native and citizen of Georgia, was
charged with removability for being present in the United States
without admission or parole. Jishiashvili has conceded
removability and applied for relief in the form of asylum,
withholding of removal, and relief under the Convention
Against Torture, claiming that he has been persecuted and has
a reasonable fear of future persecution based on his ethnicity.

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At his asylum hearing, Jishiashvili presented a significant
amount of evidence supporting internally consistent testimony
that was also generally consistent with his asylum application.
The Immigration Judge (“IJ”) found that his testimony was
detailed and his demeanor gave no indication of any fabrication.
However, the IJ found the testimony to be implausible in certain
respects and denied all relief based on an adverse credibility
determination. Jishiashvili appealed to the Board of
Immigration Appeals, which summarily affirmed the IJ’s
decision under its streamlining regulations. This petition for
review followed.
I. Factual Background
Jishiashvili claims he has been persecuted and he has a
reasonable fear of future persecution for his mixed ethnicity, his
mother being Abkhazian and his father being Georgian. He was
the only witness at his April 25, 2001 asylum hearing, and he
testified to the following facts. Jishiashvili’s history of
persecution began in November 1993, when he was conscripted
into two years of service in the Georgian military. In August
1992, the people of Abkhazia, a region in northwest Georgia,
attempted to declare their independence from Georgia. Fueled
by a difference in ethnic background and language, the hostility
in the Abkhazia region developed into war. Although the war
had largely subsided by September 1993, there were still
uprisings in the region when Jishiashvili was called, on two
occasions, to serve in the Georgian army. Because of his
Abkhazian heritage, Jishiashvili was opposed to fighting in the

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region, and when he refused to serve when he was called, he
was punished. His punishment consisted of being put in solitary
confinement in a small, cold, underground cell for four to five
days, with no room to sit or lie down and very little to drink or
eat. During this time he was also kicked and beaten with batons
by officers who would yell at him, insult his intelligence, and
degrade him for his Abkhazian ethnicity. When he was not
detained, Jishiashvili worked in a kitchen and patrolled the
Georgian-Abkhazian border once or twice. Jishiashvili’s asylum
application, filed February 2001, did not mention these
detentions or beatings. Jishiashvili also testified that he
discussed his views on the war with other Georgian soldiers of
Abkhazian ethnicity, but was not aware of any more than one
other soldier who was detained during the same time that he
was.
After he was discharged from the military in November
1995, Jishiashvili returned to his home city of Rust’avi and
started a bodybuilding business, where he was an instructor and
had forty to forty-five trainees. He operated a fitness club that
was located on the second floor of a building that also housed a
library on the first floor and businesses on the third and fourth
floors.
In February 1996, Georgian federal service agents came
to Jishiashvili’s club during their investigation of an August 29,
1995 assassination attempt on then Georgian President Eduard
Shevardnadze. The agents showed Jishiashvili pictures of two
men who they believed were involved in the assassination
attempt, and Jishiashvili recognized the men as patrons of his
club. In his testimony, Jishiashvili gave the names of these men

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The IJ found that Jishiashvili was not contacted between the1
two visits by the federal agents (from February 1996 to February
1998); however, Jishiashvili testified that he received
threatening phone calls and was followed by a government
vehicle during this time.
5
as Gia Abas Jishiashvili and David Luca Jishiashvili, but
claimed to know nothing more about them. The federal agents
searched the club and told Jishiashvili that they would like to
speak to the men pictured in the photographs. When Jishiashvili
told them he had nothing to do with the men, the agents believed
he was lying to them and brought up his disobedience during his
military career as evidence of his own anti-government views
and political unreliability.
Jishiashvili testified that after this encounter he began
receiving two to three threatening telephone calls per week, each
degrading him and insulting his ethnicity. On February 9, 1998,
a second assassination attempt was made on the president, and
on April 15, 1998, the same federal agents paid an early
morning visit to Jishiashvili at his home. He testified that the1
agents took him in their car to a federal facility in Tbilisi, the
Georgian capital. During the thirty-minute drive, Jishiashvili
was seated in the backseat, with an agent on either side of him,
enduring insults and degradation regarding his ethnicity. When
they arrived at the facility, Jishiashvili was taken to a small
room and interrogated by a Major Giakaji, who showed him the
same photographs the agents had shown him previously and
asked Jishiashvili to identify the same two men. After
Jishiashvili identified the men and again stated that he knew

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6
them only as patrons of his club, he testified that he was taken
from the room, pushed down a flight of stairs, beaten and
insulted by agents, and then returned to the room where he was
again asked about the two men. He was led to a one-way
mirror, shown the two men in a lineup, and was again asked to
identify them. The agents asked Jishiashvili to sign a statement
implicating the men in the assassination attempts. When he
refused, the agents took him from the room, beat him again, and
then released him.
Thereafter, Jishiashvili continued to receive threatening
phone calls, in which the callers insisted that he sign a statement
implicating the men. Around this time he also noticed that
people were lurking around his home and club, apparently
monitoring his movements. On March 7, 1999, he was beaten
and insulted by three men as he was returning from his club in
the evening. He was hospitalized for two weeks for the injuries
he sustained; on this point, his testimony was corroborated by a
hospital record. He testified that when he reported the incident
to the police, they took no action, explaining that they did not
have the ability to guard every Abkhazian in Georgia.
Three months later, on June 6, 1999, the building where
Jishiashvili’s club was located was burned. The damage was
largely concentrated in his club, with the other floors sustaining
less damage. He testified that the firefighters found traces of
gasoline and a large canister and concluded that the fire was the
result of arson, but when Jishiashvili reported it to the police,
they did not take any action.

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Six months later, on the evening of December 15, 1999,
Jishiashvili was beaten again by a group of men as he was
returning home from the grocery store. He testified that the
beating lasted approximately five minutes and most likely ended
because his assailants feared being identified by witnesses.
Before they left, the assailants threatened to kill Jishiashvili the
next time they saw him.
On December 31, 1999, fearing for his life, Jishiashvili
went to live with a cousin in Moscow, and on January 27, 2000,
he flew from Russia to Mexico, on a Mexican visa. From
Mexico, he walked to Nogales, Arizona and subsequently
arrived in Philadelphia on February 25, 2000.
II. Procedural History: The IJ’s Opinion and the BIA’s
Affirmance
Jishiashvili submitted a significant amount of evidence
in support of his testimony, including a military record, a report
of the fire in his gym, a birth certificate, a passport, medical
records, written statements by his sister, father, and mother, a
letter from his mother, and background evidence on the
conditions in Georgia. The evidence and his testimony were
consistent in all material aspects.
In an oral decision dated February 22, 2002, the IJ denied
Jishiashvili’s applications for asylum, withholding of removal,
and relief under the CAT based on an adverse credibility
determination. In making factual findings based on

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Jishiashvili’s testimony and the submitted evidence, the IJ
remarked on the “considerable” evidence regarding the
condition of Georgia and the situation of Abkhazis, noting that
the evidence provided a “plausible basis to consider that
Abkhazis and Georgians are subject to ill treatment.” (Oral Dec.
of IJ at 7.) The IJ also noted that the evidence indicated that
torture persisted in conjunction with an inability to control the
lowest level of government, weaknesses in carrying out
impartial investigations, and impunity for those involved in
improper conduct. In short, the IJ acknowledged the ethnic
tension that existed in Georgia and expressed a general credence
in the assertion that Abkhazis were subject to persecution. The
“real issue,” however, was whether Jishiashvili’s testimony
about the events that led him to leave Georgia really occurred,
i.e., “whether his testimony [wa]s credible.” (Oral Dec. of IJ at
8.)
In making his credibility determination, the IJ began by
stating that “[w]ith respect to [Jishiashvili’s] demeanor, the
Court raises [n]o concern. In other words, the Court has not
been able to detect any special clues from the respondent’s
manner and tone of voice here in Court to find clues about either
veracity or fabrication. He g[a]ve testimony that was quite
detailed with respect to all events.” (Id.) The IJ remarked that
Jishiashvili’s attention to detail, evident by his correcting
himself and his attorney on certain relatively trivial matters,
could have been an indication of either authentic recall of actual
events or a deliberate consistency with a well learned affidavit
or statement, but it was impossible to tell.

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The IJ then went on to discuss at least four main concerns
with the “plausibility” of certain aspects of Jishiashvili’s
testimony. First, the IJ found it hard to believe that the
government’s investigation of the two patrons of Jishiashvili’s
gym for involvement in the assassination attempts on the
president would have focused so closely on Jishiashvili.
Although it was plausible that the police would question
Jishiashvili’s loyalty because of his ethnicity, it struck the IJ as
unrealistic that the government’s case against the two suspects
would depend so heavily on the statement of the owner of the
sports club they attended. Without anything in Jishiashvili’s
testimony suggesting that he was believed to be a co-conspirator
in the assassination attempts, the IJ did not understand why the
government would take the clandestine and unlawful steps of
beating him and burning down his business only to have him
sign a piece of paper implicating suspects that were apparently
already in custody.
Second, Jishiashvili’s allegation that the government
burned down his gym was a source of suspicion for the IJ. The
IJ commented that committing arson, especially at the risk of
endangering other businesses and a library in the same building,
seemed to be a highly unlikely way for the government to
proceed, even if it was interested in persecuting Jishiashvili.
Third, the IJ was suspicious of Jishiashvili’s account of
his military service. On this subject, the IJ noted, Jishiashvili’s
testimony was markedly more “vague, in general, in comparison
with the detail that he gave in responding to questions where the
answers already existed in his written statement.” (Oral Dec. of
IJ at 13.) For example, when asked to name with particularity

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the orders to which he conscientiously objected, Jishiashvili
gave vague replies such as “bear arms” or “participate in
war.” The IJ was troubled by the fact that Jishiashvili, whose
Abkhazian lineage was somewhat obscured by his use of his
father’s Georgian surname, would have revealed his ethnicity
and his willingness to take a stand against government action
while in the military. It was even more unbelievable that
Jishiashvili did not know what happened to colleagues in the
same circumstances, both as a matter of conscience and as a
matter of self-interest. Also, the IJ found Jishiashvili’s story to
be inconsistent with a document in evidence, authored by
Amnesty International, that reported that conscientious objectors
in the military were typically imprisoned for a period of several
months, whereas Jishiashvili testified that he had been
imprisoned for a week.
Fourth, in commenting on the “substantial” evidence
Jishiashvili submitted to corroborate his claim, the IJ found that
the documentary evidence appeared genuine and plausible, but
it did not independently establish persecution on account of his
ethnicity or political opinion. The statements by Jishiashvili’s
family members corroborated his testimony, but were all just
“skeletal outlines” of the basic events. The IJ also did not
understand why Jishiashvili’s parents, who had been receiving
calls inquiring about their son’s whereabouts, would not just tell
the callers that their son had fled the country, or why Jishiashvili
had not thought about instructing his parents to do so. With
respect to the other documents, the medical reports appeared
“genuine” and were “plausible” and “not overstated.” The
military record, passport, visa, and birth certificate also appeared
“genuine.” Although the evidence showed that Jishiashvili had

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been beaten up and that it was plausible that it was because of
his ethnicity, none of the evidence bore on Jishiashvili’s claim
of unlawful government action in investigating the assassination
suspects.
The IJ noted that it was a “close sort of case,” but
concluded that the set of circumstances alleged by Jishiashvili
was not plausible on the record as established. Although
Jishiashvili’s “credibility [wa]s not suspect in a very material
way,” he did not present “sufficiently plausible and detailed
evidence about the most material points of his application for
political asylum to war[rant a] finding that the events to which
he testified[] did indeed occur as he said they did.” (Oral Dec.
of IJ at 19.)
The BIA affirmed the IJ’s decision without opinion
pursuant to its streamlining regulations, rendering it the final
agency determination under 8 C.F.R. § 1003.1(e)(4).
III. Jurisdiction and Standard of Review
The BIA’s jurisdiction arose under 8 C.F.R. §§
1003.1(b), 1003.38, and 1240.15. We have jurisdiction to
review the BIA’s decision pursuant to 8 U.S.C. § 1252. Where
the BIA issues a summary affirmance under its streamlining
regulations, we essentially review the IJ’s decision as if it were
the decision of the BIA. See Dia v. Ashcroft, 353 F.3d 228, 247
(3d Cir. 2003) (en banc). Because credibility determinations are
factual matters, they are reviewed for substantial evidence,

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Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998),
reversible only if “any reasonable adjudicator would be
compelled to conclude to the contrary,” 8 U.S.C. §
1252(b)(4)(B). Given this standard, “[w]e will not disturb the
IJ’s credibility determination and findings of fact if they are
‘supported by reasonable, substantial and probative evidence on
the record considered as a whole.’” Tarrawally v. Ashcroft, 338
F.3d 180, 184 (3d Cir. 2003) (quoting Balasubramanrim, 143
F.3d at 161).
IV. Discussion
We begin our discussion by agreeing with the IJ that this
is “a very close sort of case.” (Asylum Hr’g Tr. at 121). There
is no smoking gun in Jishiashvili’s testimony, no single item
upon which one could seize and objectively say, without
drawing any inferences, this is where his claim fails. Hence, we
agree with the IJ that Jishiashvili’s entire case stands or falls on
credibility.
Asylum applicants have the burden of supporting their
claims with credible testimony. Gao v. Ashcroft, 299 F.3d 266,
272 (3d Cir. 2002) (citing Abdille v. Ashcroft, 242 F.3d 477,
482 (3d Cir. 2001)). Because an applicant’s testimony may
alone be sufficient to meet his burden if it is found credible, 8
C.F.R. § 208.13(a), where the applicant is the only testifying
witness, much depends on what the applicant says and how he
says it. Consequently, the IJ’s evaluation of the applicant and
his testimony, generally referred to as a “credibility

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determination,” is of paramount importance, and, given that the
IJ has the opportunity to observe the applicant as he gives his
testimony and is experienced in the work entrusted to the
agency, the IJ’s evaluation is typically given great deference by
an appellate court reviewing a cold record on any subsequent
appeal. See, e.g., Dia, 353 F.3d at 249; Gao, 299 F.3d at 276.
Because we review credibility determinations for
substantial evidence, our analysis focuses on the IJ’s factual
findings, and we test them, with appropriate deference, against
the evidence of record and the logical inferences drawn by the
IJ in reasoning to his conclusions. Within the precedent
controlling our review of credibility determinations, we have
developed a number of constructs and principles to guide us in
this analysis. In Dia, we collected and reiterated many of these
principles. See generally 353 F.3d at 247-50.
Specifically, in Dia, we stated that “where we review an
IJ’s credibility determination, we must ask whether the
determination is supported by evidence that a reasonable mind
would find adequate. We look at an adverse credibility
determination to ensure that it was ‘appropriately based on
inconsistent statements, contradictory evidences, and inherently
improbable testimony . . . in view of the background evidence
on country conditions.’” Id. at 249 (quoting In re
S-M-J-(Interim Decision), 21 I. & N. Dec. 722 (BIA 1997)).
We also noted a limitation on the deference we afford the IJ in
reviewing a credibility determination, explaining that “‘while we
defer to the IJ on credibility questions, that deference is
expressly conditioned on support in the record,’ . . . and
‘deference is not due where findings and conclusions are based

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See also Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d2
Cir. 2003) (stating that “substantial deference” to a finding is to
be “afforded . . . where it is grounded in evidence in the
record”); Balasubramanrim, 143 F.3d at 162 (“[D]eference is
not due where findings and conclusions are based on inferences
or presumptions that are not reasonably grounded in the record,
viewed as a whole.”).
14
on inferences or presumptions that are not reasonably grounded
in the record.’” Id. (quoting El Moraghy v. Ashcroft, 331 F.3d
195, 205, 202 (1st Cir. 2003) (citation and internal quotation
marks omitted)). Where the IJ rejects an applicant’s testimony,2
the IJ must provide a “specific, cogent reason” for doing so,
rather than relying on “speculation, conjecture, or an otherwise
unsupported personal opinion.” Id. at 250 (quoting Secaida-
Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003), Abdulrahman
v. Ashcroft, 330 F.3d 587, 597 (3d Cir. 2003), and He v.
Ashcroft, 328 F.3d 593, 595 (9th Cir. 2003)). Finally, we stated
that “[w]here an IJ bases an adverse credibility determination in
part on ‘implausibility’ as the IJ did here, such a conclusion will
be properly grounded in the record only if it is made against the
background of the general country conditions.” Id. (citing Gao,
299 F.3d at 278-79, and He, 328 F.3d at 603).
In the instant case, the IJ expressly accepted Jishiashvili’s
credibility, in the sense of observable believability. In his
opinion, the IJ specifically stated that he had no concern with
Jishiashvili’s demeanor and that he was not “able to detect any
special clues from the respondent’s manner and tone of voice
here in Court to find clues about either veracity or fabrication.”

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(Oral Dec. of IJ at 8.) With this statement, the IJ effectively
relegated his adverse credibility determination solely to the
plausibility of certain aspects of Jishiashvili’s testimony.
Indeed, the “several concerns” the IJ had with Jishiashvili’s
testimony fell “under the [rubric] of ‘plausibility.’” (Oral Dec.
of IJ at 9.)
Because the IJ’s adverse credibility determination was
based on plausibility, we review that determination to confirm
that it was “properly grounded in the record” and, to that extent,
informed by the conditions in the petitioner’s country. Dia, 353
F.3d at 250. By requiring the IJ to tether a plausibility
determination to evidence in the record, including evidence of
country conditions or other contextual features, and rejecting
speculative or conjectural reasoning, we ensure that there is a
reasoned foundation to support the conclusion that the witness’s
testimony was objectively implausible. We find a lack of such
foundation in this case.
To begin, we note that the IJ cited only one document
relating to country conditions, the Amnesty International report
about conscientious objectors in the Georgian military. We
believe this document is at best tenuous evidence of general
country conditions supporting the IJ’s conclusion. First, the
section of the document that the IJ cited discussed the treatment
of conscientious objectors of “military service . . . in Abkhazia.”
(Ex. 9-11 at 21.) Although susceptible of alternative
interpretations, we interpret this section to discuss the treatment
of those conscientiously objecting to serving in the military of
Abkhazia, not the Georgian military. This interpretation finds
support in the Introduction, which states that the document

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discusses “alleged human rights violations in two areas of
Georgia currently outside the de facto control of the Georgian
authorities–Abkhazia and South Ossetia.” (Ex. 9-11 at 1
(emphasis added).) Consistent with this prefatory distinction
between Georgia and Abkhazia, the document frequently refers
to the “Abkhazian authorities” and “Abkhazian side” as
distinguished from the “Georgian authorities” and “Georgian
side.” (Ex. 9-11 at 18-21.) As we understand Jishiashvili’s
testimony, he was conscripted into and subsequently punished
for not fighting against Abkhazians by the Georgian military,
not the Abkhazian military. Second, even if we were to interpret
this section as referring to the service to which Jishiashvili was
conscientiously objecting, we believe the statements are too
vague to support the IJ’s conclusion that Jishiashvili’s testimony
was implausible on this point. As the IJ specifically pointed out,
the document states that “[a]t least six young men were
imprisoned [for being conscientious objectors] earlier this year,
and at least one remains imprisoned at the time of writing.” (Ex.
9-11 at 21.) The IJ apparently seized upon this statement as
proof that conscientious objectors were more likely imprisoned
for a period of months, not weeks, as Jishiashvili testified was
his experience. But the imprecise and anecdotal nature of this
statement renders it unconvincing. The time period, from
“earlier this year” until “the time of writing” is vague as to both
references; the IJ took the latter to correspond with the August
dating of the document, but this inference is far from compelled.
Additionally, the reference is anecdotally about the experience
of only one man out of only six known prisoners. Without any
further facts to substantiate this statement, it cannot be
reasonably regarded as a dispositive statistic rendering
Jishiashvili’s significantly more detailed account implausible.

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Last, as the IJ himself noted, the report is dated August 1998,
“several years after [Jishiashvili] refused military service.”
(Oral Dec. of IJ at 14.) In short, it seems unreasonable and
contrary to Dia’s requirement of a solid reference to background
country conditions to put so much faith in such a vague,
potentially inapplicable statement to discredit Jishiashvili’s
detailed testimony.
Beyond the Amnesty International report, the IJ cited no
other deficiencies in Jishiashvili’s testimony based on objective
record evidence, but instead found four factual items, as laid out
in supra Part II, that did not seem plausible to him. As we stated
above, we must examine this type of reasoning by the IJ for a
“specific, cogent reason” for rejecting Jishiashvili’s testimony,
and we must reverse the IJ’s decision if we find it to be based on
conjecture or “unsupported personal opinion.” Dia, 353 F.3d at
249-50.
The IJ first expressed suspicion regarding the extent of
the government’s interest in Jishiashvili as compared to others
considering he was connected to the assassination suspects only
as the owner of the gym they attended and, further, that the
government would take so many unlawful actions against
Jishiashvili, i.e., beatings and arson, in its investigation.
Although this suspicion is not totally frivolous, nor is it
supported by substantial evidence. First of all, there is nothing
in the record suggesting that Jishiashvili was the only person the
authorities were investigating; the same agents that Jishiashvili
encountered could have been conducting similar or more intense
“investigations” with respect to others perhaps more closely
connected to the suspects. In our reading of the record, we note

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that when asked who these men were at the hearing, Jishiashvili
twice provided their names: “Gia Abas Jishiashvili and David
Luca Jishiashvili.” (Asylum Hr’g Tr. at 34, 44.) The fact that
these men shared the petitioner’s last name seems to us to have
gone by totally unnoticed by both parties’ counsel and the IJ, not
to mention the BIA. This fact, though, could be important to
judging the plausibility of Jishiashvili’s testimony regarding the
government’s treatment of him. If the surname was not
common, it would be more reasonable for the government to be
so interested in Jishiashvili as a possible relative of the suspects.
Furthermore, it is not entirely unreasonable that in the course of
the investigation Jishiashvili would be the victim of harsh
treatment by the authorities. The same Amnesty International
document cited by the IJ speaks at length about concerns of
torture of those detained and in custody by police, as well as
those conscripted into military service. (Ex. 9-11 at 2-9 (stating
that “the Georgian government itself . . . admitted that it was
seriously concerned about torture in custody” and providing
specific accounts of “periods of short-term detention by police”
accompanied with “physical and psychological duress in order
to force confessions or obtain other information”).) The IJ
himself noted that torture persisted, citing an inability to control
the lowest level of government, weaknesses in carrying out
impartial investigations, and impunity for those involved in
improper conduct. The IJ’s second ground for suspicion, the
arson, stands on the same loose footing; it does not seem
unreasonable, in light of this objective evidence of the alleged
lawlessness of Georgian police, to believe that Jishiashvili’s
gym–targeted as it was–was set on fire by those investigating
him.

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Regarding the IJ’s concern with the vagueness of
Jishiashvili’s account of his military service, we do not believe
this is a proper ground for questioning the testimony’s overall
plausibility. First, the context of Jishiashvili’s military service
did not bear heavily on, as the IJ put it, “the key” to
Jishiashvili’s case, i.e., “that the government . . . seeks him out
because he, supposedly, has information the government wants
or the power to give the signature on a document the
government needs to continue its investigation into the plot or
plots to assassinate the president of the country.” (Oral Dec. of
IJ at 19.) Second, we are not convinced that Jishiashvili’s
testimony that he objected to “bear[ing] arms” or
“participat[ing] in war” is all that suspiciously vague, given the
context. Jishiashvili indicated that he objected to any and all
military activity in Abkhazia; clearly in his mind, his objection
was of a very general nature, and it is not unreasonable that he
would not now be able to identify specific orders to which he
objected during his service. Furthermore, while the IJ’s
expectation that Jishiashvili should have known more about the
fate of similarly situated colleagues is understandable, it is not
implausible that Jishiashvili might lack specific knowledge
about the fate of others.
Last, regarding the IJ’s concern with the fact that
Jishiashvili’s parents had not told callers asking for their son
that he had left the country, we do not accept this circumstance
as inherently implausible. The IJ apparently believed that by
telling the callers that their son had fled the country, the callers
would realize the futility of their efforts and cease harassing
Jishiashvili’s family. It is not unreasonable, however, to believe
that giving the callers this information would yield an opposite

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result, causing them to believe that the parents knew where he
was and to focus their investigation and abuse on the parents,
either for retribution, more information about their son, or to get
them to persuade Jishiashvili to return to Georgia.
As a final consideration in reviewing the IJ’s decision,
we find it important that the IJ credited significant portions of
Jishiashvili’s testimony and evidence. Specifically, (1) the IJ
found plausible Jishiashvili’s claims that the police questioned
his loyalty in light of his ethnicity and experience in the military;
(2) without evidence regarding discipline in the Georgian
military, the IJ did not find it “incredible per se” that Jishiashvili
refused military orders and was punished only by a few days of
solitary confinement before being allowed to “have his way”;
(3) the IJ found the medical documents submitted by Jishiashvili
to be plausible and consistent with Jishiashvili’s testimony; (4)
the IJ found that the other documents submitted by Jishiashvili,
e.g., the birth certificate, passport, visa, and military record,
appeared genuine, although they did not establish grounds for
asylum in and of themselves; and (5) the IJ found it plausible
that Jishiashvili could have been beaten up because of ethnic
and/or political reasons, even though “the key” to his case was
not that he was beaten up because he is Abkhazian or half
Abkhazian, but that the government sought him out to sign a
document needed to continue the investigation into the
assassination attempts.
The IJ’s overall credibility determination does not
necessarily rise or fall on each element of the witness’s
testimony, but rather is more properly decided on the cumulative
effect of the entirety of all such elements. Where, as here, the

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21
asylum applicant has presented testimony that was for the most
part quite detailed, internally consistent, materially in accord
with his asylum application, and accepted by the IJ, and there is
supportive evidence of general country conditions and some
corroborative documentation of the applicant’s testimony, the IJ
is not justified, under a substantial evidence standard and our
precedent in Dia, in concluding that the applicant is not credible
based on a few equivocal aspects not logically compelled by the
record or by reason or common sense. Furthermore, where the
record as a whole appears to support a grant of relief, we will
remand for further consideration where the IJ’s ultimate ruling
seems to be inconsistent with his own finding as to the
petitioner’s credibility. See Wu v. Ashcroft, 393 F.3d 418, 425
(3d Cir. 2005) (“[W]here, as here, the Immigration Judge finds
a witness to be credible, but then renders a decision that is
contrary to that testimony without explaining why, we cannot
say at this point that such a decision is supported by substantial
evidence.”). Such an inconsistency evidences a decision based
on “unsupported personal opinion” rather than a “specific,
cogent reason” for rejecting the petitioner’s testimony. Dia, 353
F.3d at 249-50.
In short, we cannot agree with the IJ’s conclusion that
Jishiashvili had “not presented sufficiently plausible and
detailed evidence about the most material points of his
application for political asylum to [warrant the] finding that the
events to which he testified did indeed occur as he said they
did.” (Oral Dec. of IJ at 19.) Indeed, we conclude that the
opposite is true, and that the IJ’s adverse credibility
determination was not based on substantial evidence.

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Over thirty years ago we defined clearly erroneous as3
follows: We accept the factual determination of the judge as a
fact-finder unless that determination “either (1) is completely
devoid of minimum evidentiary support displaying some hue of
22
V. Conclusion
For the foregoing reasons, we will remand to the BIA to
remand to the IJ with instructions to develop the record further
or provide further support for his conclusion.
ALDISERT, Circuit Judge, Concurring.
Although I am pleased to join the opinion of the Court in
all respects, I wish to set forth my own view that there is a
distinction between review of narrative or historical facts and
review of plausibility determinations.
The IJ here decided that the Petitioner’s testimony was
credible in the sense that nothing he observed cast doubt on the
believability of the testimony. Specifically, the IJ stated that he
did not “detect any special clues from the respondent’s manner
and tone of voice” which could form the basis for his credibility
determination. (Op. of the IJ at 8.) In the context of immigration
cases, we will not disturb credibility determinations so long as
they are supported by substantial evidence. Similarly, we accept
narrative or historical facts found by a district judge unless upon
review we decide that they are clearly erroneous. See Anderson3

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credibility, or (2) bears no rational relationship to the supportive
evidentiary data.” Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d
Cir. 1972).
Ruggero J. Aldisert, Logic for Lawyers: A Guide to Clear4
Legal Thinking 26-27 (3d ed. 1997).
23
v. City of Bessemer City, N.C., 470 U.S. 564, 574-576 (1985)
(“When findings are based on determinations regarding the
credibility of witnesses, Rule 52(a) [Federal Rules of Civil
Procedure] demands even greater deference to the trial court’s
findings; for only the trial judge can be aware of the variations
in demeanor and tone of voice that bear so heavily on the
listener’s understanding of and belief in what is said. See
Wainwright v. Witt, 469 U.S. 412 (1985).”)
But the issue before us is not the findings of narrative or
historical facts.
Judge Rendell explains clearly how the IJ makes four
findings of implausibility. Each finding starts with the narrative
or historical facts but then moves from these narrative or
historical facts to inferences which are “not logically compelled
by the record or by reason or common sense.” (Court Op. at 22.)
And here I believe that Judge Rendell was right on the nose.
Elsewhere, I have explained that an inference is a process
in which one proposition (a conclusion) is arrived at and
affirmed on the basis of one or more other propositions, which
were accepted as the starting point of the process. This may be4

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24
defined as a mental process in which a thinker passes from the
apprehension of something given, the datum, to a conclusion
related in a certain way to the datum and accepted only because
the datum has been accepted.
It is a process where the thinker passes from one
proposition to another that is connected with the former in some
way. But, for the passage to be valid, it must be made according
to the laws of logic that permit a reasonable movement from one
proposition to another. Inference, then, is any passing from
knowledge to new knowledge. The passage cannot be mere
speculation, intuition or guessing.
The key to a logical inference is the reasonable
probability that the conclusion flows from the evidentiary datum
because of past experiences in human affairs.
Where an administrative judge draws an inference of
plausibility or implausibility, he or she steps outside the realm
of finding narrative or historical facts. Here I go a little further
than Judge Becker, concurring in Abdulrahman v. Ashcroft, 330
F.3d 587, 600 (3d Cir. 2003) (concluding that certain findings
of implausibility are just “barely” in “the realm of fact finding”).
This is because the concept of plausibility, by definition, is
something that is added to naked facts. It takes place in the mind
and is modified by individual bias. Thus, characterizing a
statement as plausible is to conclude that it is “reasonable or
probable (though speculative), apparently acceptable or
trustworthy (sometimes with the implication of mere
appearance).” Shorter Oxford English Dictionary 2238 (5th ed.
2002).

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I am reminded of the story of the three baseball umpires5
describing how they call balls and strikes.
The first said, “I call ‘em as I see ‘em.”
The second said, “I call ‘em as they are.”
The third said, “They ain’t nothing ‘til I call ‘em!”
So it is with testimony at a hearing. They ain’t facts until
the fact finder calls them that.
There may be exceptions that are not present here. Where6
the IJ relies on his or her expert knowledge of general country
conditions to draw inferences of plausibility, it may be that these
inferences are worthy of deference.
25
The process at a hearing or court trial must be parsed.
Testimony is presented. The fact-finder decides to credit or
reject it. If credited, it becomes a part of the findings of fact.
When the testimony is credited and becomes a fact, as here, a5
reviewing court is as competent as an immigration judge to draw
logical inferences from those facts. In evaluating plausibility,
these are inferences of reasonableness, probability, acceptability
and trustworthiness to be drawn from naked facts. Or, as the
logicians would put it, to the same extent as a fact-finder, a
reviewing court may exercise the mental process, in which a
thinker passes from the apprehension of something given, the
datum (facts found by the fact finder), to a conclusion
(plausibility vel non) related in a certain way to the datum and
accepted only because the datum has been accepted.6
Thus, determining plausibility vel non is a different breed
of cat than evaluating credibility.

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I have paraphrased his language. The author wrote in an era7
when it was proper to use the pronoun “he” in a universal sense.
26
When the Court in Anderson and Wainwright speak of an
appellate court’s deference to a fact-finder’s evaluation of
credibility, I like to think that it’s for the same reasons that a
reviewing court allocates the competence of exercising
discretion to trial tribunals. In my view, no one has explained
why we do this as well as Professor Maurice Rosenberg, late of
Columbia Law School, in Judicial Discretion of the Trial Court,
Viewed from Above, 22 Syracuse L. Rev. 635, 660-661 (1971).
A trial judge has “the superiority of their nether position.”
Rosenberg said:
It is not that they know more than their loftier
brothers and sisters; rather the trial judge sees
more and senses more. In the dialogue between
the appellate judges and trial judges, the former
often seem to be saying: “You
were there. We do not think we would have done
what you did, but we were not present and we
may be unaware of significant matters, for the
record does not adequately convey to us all that
went on at the trial. Therefore, we defer to you.”7
But determining plausibility or implausibility is neither
finding facts nor exercising discretion. Instead, it’s a process

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27
that adds a patina to bare facts. And from our loftier perch we
are in as good a position as the trial judge to decide if it was
O.K. to do just that.

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