Background
Milly Kalulu, a native of Zambia who identifies as a lesbian, sought asylum in the United States after alleging persecution by her girlfriend’s brothers due to her sexual orientation. She entered the country on a tourist visa but was placed in removal proceedings after officials discovered she had worked and received public benefits, violating her visa terms. During her removal hearing, the Immigration Judge found her testimony not credible based on inconsistencies and demeanor, and the Board of Immigration Appeals upheld that denial.
The court’s reasoning
The panel explained that while the agency’s adverse credibility determination was supported by substantial evidence, including four inconsistencies and a demeanor finding, the agency made factual errors when reviewing documents Kalulu offered to support her claim of past persecution. The court held that the agency did not properly evaluate whether those documents, when correctly read, independently proved her claim. The court emphasized that an adverse credibility determination is not a balancing exercise where consistent testimony counterbalances inconsistent testimony.
Even though substantial evidence supports the agency’s adverse credibility determination, the agency did not properly evaluate documents Kalulu introduced into the record to support her claims of past persecution in her native Zambia on account of her sexual orientation.
Kalulu v. Garland, No. 21-895 (9th Cir. Mar. 11, 2024)
The dissent
Because the bulk of the agency’s credibility findings were based on significant errors, the REAL ID Act, principles of administrative law, and precedent require remand to the BIA to determine whether the few remaining factors supporting the credibility determination are sufficient in light of the totality of the circumstances.
Judge Gabriel Sanchez
What it means going forward
The decision requires the immigration agency to reexamine the documentary evidence submitted by the petitioner to determine if it independently proves past persecution, while leaving the adverse credibility finding intact based on the remaining substantial evidence.