The REAL ID Act (8 U.S.C. 1158(b)(1)(B)(iii)) abrogates the old single factor rule for credibility determinations in asylum applications. Credibility determinations must be based on “the totality of the circumstances, and all relevant factors”




Courts Must Look at the Totality of the Circumstances and All Relevant Factors to Determine if a Credibility Determination in an Asylum Application was Supported by Substantial Evidence In Kumar v. Garland, 17-73412 (9th Cir. Nov. 30, 2021), the United States Court of Appeals for the Ninth Circuit considered a petition for review of a decision from the Board of Immigration Appeals (“BIA”) upholding the denial of the petitioner’s application for asylum and relief based on adverse credibility grounds. Totality of the Circumstances and All Relevant Factors The standard for reviewing adverse credibility determinations under the REAL ID Act (8 U.S.C. 1158(b)(1)(B)(iii)) requires courts to look at the totality of the circumstances and all relevant factors to determine if a credibility determination by the BIA was supported by substantial evidence. The totality of the circumstances standard has abrogated the old single factor rule under which a court would affirm an Immigration Judge’s (“IJ”) adverse credibility finding based on multiple grounds as long as one of those grounds was supported by substantial evidence and went to the heart of the claim. Most of the Factors Identified by the BIA as Significant Were Not Supported by the Record After considering the totality of the circumstances, the Court determined that the factors that the BIA identified as significant in the IJ’s determination of adverse credibility were not supported by the record. The Court found that two of the inconsistencies relied upon by the BIA were not, in fact, inconsistent and that a third-party letter did not materially conflict with the petitioner’s testimony, but instead actually corroborated three of the four violent incidents to which the petitioner testified. The BIA and IJ both relied on speculation and conjecture and disregarded critical evidence when concluding that it was implausible that the petitioner would not have suffered more injuries after an attack that he testified about. After review, the Court found that the only bases supporting the BIA’s adverse credibility determination were the petitioner’s flat affect and an ambiguous inconsistency related to a bribe. Disposition The Court found that the several rejected findings of the BIA brought the BIA’s adverse credibility determination into question and thus the Court remanded the case to the BIA to determine if the remaining two factors, considered on their own, sufficed to support an adverse credibility determination.

April 14, 2022
Kumar v. Garland, 17-73412 (9th Cir. Nov. 30, 2021)
Federal Courts (9th Circuit)