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Fourth Circuit Reverses Arlington, VA Immigration Judge

by David L. Cleveland

An unusual event occurred on November 17, 2006: the Fourth Circuit Court of Appeals reversed the decision of an Immigration Judge in Arlington, VA in an asylum case.

The Fourth Circuit further ruled that respondent, a Christian from Indonesia, was entitled to a presumption of future persecution, in the case Jemmy Rampengan v. Alberto R. Gonzales, No. 05-1764.

Rampengan testified that a group of Muslims broke his finger, and held him captive for twelve hours in 1998. The next year, he received threatening phone calls, and one written threat. He further testified that Muslims attacked and destroyed his church in 2001.

More than one year after arriving in the United States, he applied for asylum. For corroboration, he submitted a letter from his pastor, which stated only that Rampengan was an obedient Christian of good moral character. The Immigration Judge [IJ] denied asylum, for the failure to apply within one year.

The IJ also denied withholding of removal, because Rampengan was not credible. He was deemed not credible because: (1) he had not applied for asylum within one year of arrival; and (2) the letter from the pastor did not mention the destruction of the church. The BIA affirmed.

The Fourth Circuit, however, reversed and remanded, stating:

- Rampengan's "claims of past persecution are supported almost entirely by his own testimony, but that testimony, if credible, may suffice to meet his burden of proof." Slip Opinion at 5.

- an IJ may reject testimony as incredible for "a specific and cogent reason." Ruling that the failure to apply for asylum within one year mandates a finding of incredibility is a specific reason, but it is "not particularly cogent." In the case Tewabe v. Gonzales, 446 F.3d 533, 538 (4th Cir. 2006), the court gave examples of cogent reasons: inconsistent statements, contradictory evidence, and inherently improbable testimony…." Slip Opinion at 6.

- The IJ "did not point to Rampengan's performance on the witness stand as a reason to doubt his testimony." Rather, the IJ concluded that the failure of the pastor to mention the destruction of the church in his letter was grounds to doubt Rampengan. However, the IJ never considered "the possibility that the pastor misunderstood or responded improperly to Rampengan's request." Slip Opinion at 8.

- "With no cogent reason to doubt Rampengan's credibility offered, there is no barrier to finding past persecution on account of religion. Rampengan's description of the church attack and the beating he received in 1998 remain uncontradicted in the record." Slip Opinion at 8-9.

- "When asked why he was attacked, Rampengan answered: 'I'm not sure why they attack me, but I think because I'm a Christian." The IJ objected to this testimony; however, "Rampengan need not know to a moral certainly the reason for his persecution; he is required only to establish that he experienced persecution on account of his religion." Slip Opinion at 9.
Comments of the author:

The standard for withholding of removal is higher than the standard for asylum. Here, the Fourth Circuit granted withholding to an applicant with sparse corroboration, who testified he "was not sure" why he was attacked.

The Fourth Circuit noted that the key testimony remained "uncontradicted in the record," and that testimony may be rejected only for a "cogent" reason.

Counsel for an asylum applicant should therefore argue as follows:

"Your Honor, as you know, the Fourth Circuit recently granted withholding to an applicant who was unsure, and who had sparse corroboration. In the instant case, respondent is seeking something less: he seeks only asylum. Respondent's key testimony is uncontradicted. There is nothing in the record to contradict what he says. There is no cogent reason to doubt it."

About The Author

David L. Cleveland is a staff attorney at Catholic Community Services of Washington DC. He is a past Chair of the AILA Asylum Committee.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.