BIA on Credibility, CAT: Matter of H-C-R-C-

Matter of H-C-R-C-

(1) Applicants bear the burden of establishing their own credibility, and no statute or legal precedent compels an Immigration Judge to conclude that an applicant’s testimony is credible. (2) Rape is sufficiently severe to constitute torture and can never be a lawful sanction under the Convention Against Torture.

"Because we conclude that the Immigration Judge’s credibility determination was based on an error of law and the Immigration Judge made insufficient factual findings, the record will be remanded. ... The respondent has requested that, based on an appearance of bias, his case be remanded to a different Immigration Judge. As noted above, the statements by the Immigration Judge could reasonably be read to suggest bias against the respondent’s claim for protection under the CAT. ... To avoid any appearance of unfairness, and in an abundance of caution under the facts and circumstances in this case, we will direct these proceedings be transferred to a different Immigration Judge on remand. ... On remand, the Immigration Judge should issue a new decision that addresses the deficiencies discussed above. Specifically, the Immigration Judge should make factual findings regarding the respondent’s credibility without according the respondent a presumption of credibility or erroneously suggesting that finding the respondent credible is compelled by law. The Immigration Judge should then render any necessary conclusions of law regarding the merits of the respondent’s applications, including whether the respondent committed a serious nonpolitical crime and whether he established eligibility for CAT protection. On remand, the parties may supplement the record with additional evidence and arguments, including those related to any intervening case law. In remanding, we express no opinion as to the outcome of these proceedings. See Matter of L-O-G-, 21 I&N Dec. 413, 422 (BIA 1996). ORDER: The appeal is sustained, and the Immigration Judge’s decision is vacated. FURTHER ORDER: The record is remanded to the Immigration Court for assignment to a new Immigration Judge and for further proceedings consistent with the foregoing opinion and entry of a new decision."

[Hats off to Prof. Emerita Nancy Oretskin!]