Zhi v. Holder

A judge’s adverse credibility determination must be grounded in substantial evidence in light of the totality of the circumstances, and a judge must provide notice or an opportunity for explanation to asylum applicants of the corroborative evidence needed to meet his or her burden of proof.

Ai Jun Zhi appealed the immigration judge’s (“IJ”) denial of his application for asylum and withholding of removal. The IJ based her denial on Zhi’s adverse credibility and failure to submit reasonably available corroborating evidence according to the REAL ID Act, 8 U.S.C. § 1158(b)(1)(B)(ii). Due to the IJ’s inadequate consideration of all the facts and potential explanations for inconsistencies, the Ninth Circuit granted Zhi’s petition for review and remanded for proceedings consistent with the opinion. First, as to the adverse credibility determination, the panel held that a judge may base such a conclusion on “any relevant factor,” but the conclusion must be made “in the light of the totality of the circumstances.” The conclusion cannot be based “solely on an utterly trivial inconsistency” or speculation and conjecture. Instead, an adverse credibility determination must be based on substantial evidence. Also, a judge “must consider and address all plausible and reasonable explanations for any inconsistencies.” Second, as to Zhi’s failure to submit corroborative evidence, the panel reiterated the holding in Yeogang Ren v. Holder. Ren held that the REAL ID Act unambiguously states that the judge “must provide notice and an opportunity to the applicant of the corroborative evidence necessary to carry the applicant’s burden of proof” or allow an opportunity for the applicant to explain why such evidence is unavailable. PETITION GRANTED and REMANDED.