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In re: M-H-M, (BIA 2011)

The respondent, a native and citizen of Sri Lanka, appeals from the Immigration Judge’s decision dated June 22, 2009. The Immigration Judge denied the respondent’s applications for asylum and withholding of removal under sections 208( a) and 241 (b )(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(a) and 1231(b)(3), respectively, and his request for protection under the Convention Against Torture. The appeal will be sustained in part and the record will be remanded.

[Factual details omitted to protect client’s identity and right to privacy].

While we do not find the Immigration Judge’ adverse credibility decision to be clearly erroneous, we hold that his decision is inadequate and that a remand is warranted as a result. See, e.g., 8 C.F.R. § 1003.1(d)(3)(i).

In particular, the Immigration Judge did not provide a sufficient basis to support his credibility findings and overlooked significant portions of the record (I.J. at 4-7). First, the Immigration Judge was primarily concerned with the respondent’s demeanor and outward appearance. Specifically, although the Immigration Judge found the respondent’s appearance, which he described as “very cool and composed,” to be contrived, he did not provide specific examples to support this finding
(I.J. at 5). The Immigration Judge also observed that the respondent’s “anxiety clearly increased” and that “his body visibly tightened[ ed]” when he was questioned about how his family learned of his incarceration (I.J. at 6). Although the Immigration Judge adversely viewed the respondent’s “demonstrative act of exhaling and relaxing” when this line of questioning ended, he did not articulate a rationale to explain his negative inference in this regard (I.J. at 6).

While the Immigration Judge also found some of the respondent’s testimony to be incomplete and unresponsive (e.g., when his answers went beyond the scope of the question he was asked), it appears that the Immigration Judge was most troubled by the respondent’s demeanor (1.1. at 6). However, we are unable to discern how the behavior identified by the Immigration Judge should be grounds for an adverse credibility finding. See Matter ofM-P-, 20 I&N Dec. 786, 787 (BIA 1994) (stating that an Immigration Judge must identify and fully explain the reasons for his decision). Most significantly, the Immigration Judge did not provide a cogent discussion in explaining how the respondent’s demeanor was artificial or otherwise lacking in plausibility, and without further analysis from the Immigration Judge, the record before us is not sufficiently developed for purposes of rendering a decision on appeal (Respondent’s Br. at 17-20). Although the REAL ID Act of2005, see Division B of Pub. L. No. 109-13, 119 Stat. 302, permits a trier of fact to consider the totality of the circumstances and all relevant factors-including the demeanor, candor,and responsiveness of an applicant-in making a credibility finding, the Immigration Judge did not discuss the applicability ofthe REAL ID Act to this case. See section 208(b )(1)(B)(iii) of the Act. Thus, while an Immigration Judge’s finding on the issue of demeanor is ordinarily given deference, such a finding is not an adequate basis for a negative credibility determination in the absence of a reasoned analysis. See Tun v. INS, 445 F.3d 554,563-64 (2d Cir. 2006); see also Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007) (giving deference to an Immigration Judge’s decision where he explained in detail the reasons for his incredulity). As to the remaining discrepancies noted by the Immigration Judge, we do not find them overly significant, particularly due to the fact that the Immigration Judge conceded that he relied on minor and subtle the respondent’s claim (LJ. at 5-6; Respondent’s Br. at 21-25).

In addition, although there is no formal requirement for the Immigration Judge to list each factual finding, an oral decision must accurately, clearly, and completely summarize the findings of fact supported by the record. See Matter of A-P-, 22 I&N Dec. 468, 477 (BIA 1999). In this regard, we note that the Immigration Judge did not address much of the evidentiary record, including the country condition reports and the respondent’s supporting evidence (i.e., letters from his relatives and the doctor who treated him) as to his alleged persecution (Group Exhs. 3-4; Respondent’s Br. at 25-26). As an appraisal of such evidence has yet to be made in the

In sum, we will remand the case to the Immigration Court for further analysis of the respondent’s applications for relief. Specifically, we find that the Immigration Judge should issue a new decision upon reevaluating the respondent’s claim of suffering torture and persecution in light of applicable standards, particularly with respect to credibility findings and the issue of nexus. The Immigration Judge should also allow the parties to present updated country condition information given that the Sri Lankan military ended its longstanding conflict with the LITE in May 2009. See 8 C.F.R. § 1003. 1 (d)(3)(iv) (allowing the Board to take administrative notice of commonly known facts and current events). Based on the foregoing, we will vacate the Immigration Judge’s decision and remand the case for further proceedings. Accordingly, the respondent’s appeal will be sustained in part and the record will be remanded.