TODOROVIC
v. U.S. ATT'Y GEN., 09-11652 (11th Cir. 9-27-2010)
JOHN
LEY CLERK MLADEN ZELJKO TODOROVIC, Petitioner, v.
U.S. ATTORNEY
GENERAL,
Respondent.
No.
09-11652.
United
States Court of Appeals, Eleventh Circuit.
September
27, 2010.
Page
1
Petition for Review of a Decision of the Board of
Immigration Appeals; Agency No. A096-279-269.
Before BARKETT and MARCUS, Circuit Judges, and HOOD,[fn*]
District Judge.
[fn*]
Honorable Joseph M. Hood, United States District Judge
for the Eastern District of Kentucky, sitting by designation.
MARCUS, Circuit Judge: Page 2
Mladen Zeljko Todorovic petitions for review of the
decision of the Board of Immigration Appeals ("BIA"
or "Board") denying his applications for
asylum and withholding of removal. Todorovic claimed
that he was persecuted, for years and often violently,
in his native Serbia on account of his sexual orientation.
In removal proceedings before an Immigration Judge
("IJ"), Todorovic primarily offered his
own testimony in support of his claims. In an oral
opinion, the IJ held that the asylum petition was
untimely, and that Todorovic was not a credible witness,
so that his testimony could not support his claim
for withholding. The BIA agreed with the IJ that the
applicant was not a credible witness.
Todorovic claims that the agency's adverse credibility
determinations are not supported by substantial evidence,
and in actuality are based in large part on impermissible
stereotypes about homosexuals wholly divorced from
any evidential foundation. We agree with Todorovic
that the IJ relied impermissibly on stereotypes about
homosexuals, stereotypes which tainted the proceedings
and prevent us from conducting a meaningful review
of the agency decision. Accordingly, we grant Todorovic's
petition for review, vacate the agency's decision,
and remand the cause to the agency for further proceedings.
I.
Todorovic is a Serbian citizen who entered the United
States as a member of the crew of a cruise ship on
November 23, 2000. After living in South Florida for
Page 3 around two years,
he filed an application on January 30, 2003, for asylum
and withholding of removal under the Immigration and
Nationality Act ("INA") and the Convention
Against Torture ("CAT"). In a hearing before
an immigration judge, he testified about numerous
acts of persecution he said he endured in Serbia,
many of them at the hands of the government, on account
of being homosexual. We briefly summarize that testimony.
Todorovic's difficulties began in high school, where
he was continually harassed on account of his sexual
orientation. On one occasion, he said, a group of
students followed him into an elevator and tried to
sexually assault him, later warning him not to report
the attack. Todorovic stopped attending school after
this incident. When he disclosed his sexual orientation
to his parents in January of 1999, his father beat
him, threw him out of the house, and declared he would
rather Todorovic be dead.
Todorovic testified that his father used personal
connections to have his son called into the Serbian
army to "make a man out of [him]." AR 91.
Todorovic received a conscription letter and reported
for duty. As a result of the conflict in Kosovo and
the subsequent NATO bombing campaign against Serbia,
Todorovic received minimal training; he served as
a sentry at a makeshift base located at a former resort
outside of Belgrade. Although he did not disclose
his sexual orientation to anyone but a physician who
initially examined him, Todorovic was Page
4 harassed from the start, likely, he
believed, because one of his high school classmates
serving in the same unit had outed him. Todorovic
was verbally and sexually abused by other soldiers
and at least one commanding officer. While on a night
shift, for example, an officer put a gun to his head
and ordered him to perform oral sex. Later, he claimed,
while most of his unit was off celebrating the end
of the NATO bombing campaign, the same officer and
another soldier, both intoxicated, found Todorovic
alone in his lodgings and took turns forcibly sodomizing
him. The men threatened Todorovic and warned him not
to report the incident, but Todorovic did so anyway.
He was given a discharge letter several weeks later,
but was instructed to report periodically to the military
for several years. Todorovic was told that the rapists
would be imprisoned for a few days for disorderly
conduct.
In mid-October 1999, after leaving the army, Todorovic
and his then-boyfriend were stopped by the police
while walking in a street in Belgrade; the police
appeared to know they were gay because Todorovic's
boyfriend was a gay rights activist, and the police,
Todorovic testified, are known to keep track of gay
men. The two were taken to a police station, where
one of the officers placed Todorovic in a group cell
and told the other prisoners that he had "brought
a hooker up here so you can have some fun." AR
120. The inmates chose the "filthiest" prisoner
and forced Todorovic to perform oral sex on him. A
few hours Page 5 later,
Todorovic was questioned at length about the gay rights
organization to which his boyfriend belonged. Todorovic
testified that the police officer began interrogating
him by hitting him in the knee with a rubber stick,
while stating that "he hates fucking faggots
and that . . . he hopes that there are no faggots
in Serbia, that we should all die. That we should
get all like exterminated." AR 122. The officer
then beat Todorovic at intervals before eventually
releasing him. When Todorovic returned home, he discovered
that his boyfriend's ribs had been broken.
Not long after, Todorovic was in a gay-friendly bar
in Belgrade, where at one o'clock in the morning,
around twenty men entered the premises, armed with
baseball bats, chains, wooden sticks, and knives.
Todorovic claimed that they began to destroy the bar
and to shout slurs at the gay patrons. Todorovic and
others attempted to flee, but another group of armed
men was waiting outside the bar. Todorovic was struck
in the head with a chain and fell to the ground, where
the men outside the bar beat him unconscious with
baseball bats. He was eventually taken to a hospital
by an ambulance, where he remained for ten days.
When he was able to walk again, Todorovic contacted
an agent for a cruise line and applied for a job.
He was hired as a snack steward for the MS Regal Empress,
and left Serbia to meet the ship in Miami, Florida,
on April 20, 2000. A few months later, his boyfriend
informed him that a gay pride parade, the first of
its kind in Serbia, had been attacked by "hooligans,
skinhead[s]," and others, who Page
6 threw rocks and beat the parade marchers.
Upon learning of the incident, Todorovic decided he
could not return to Serbia; he later said that he
continued to have nightmares about his life there.
Todorovic eventually applied for asylum, and the Department
of Homeland Security referred his application to an
IJ for asylum-only removal proceedings. Aside from
his testimony, Todorovic offered medical records indicating
that he had sustained injuries during a "brawl"
in January of 2000 — corresponding to the incident
in the bar — including a fractured jaw, a hematoma
on both sides of the thoracic cavity, a left knee
sprain, a broken nose, and a fracture of the right
collarbone. AR 263-66. He also submitted an "Order
to Report for Military Service" instructing him
to report to the military on October 17, 2002, apparently
one of many letters he continued to receive from the
Serbian army following his conditional discharge.
Todorovic also submitted a number of background articles
regarding the treatment of homosexuals in Serbia.
Some of them referenced the attack on the gay pride
parade, and one noted that in the aftermath of the
attack, the Serbian Prime Minister and Belgrade's
Chief of Police said that Serbia was not ready to
tolerate homosexuality. AR 323. Other materials documented
threats and violent attacks against gays, including
beatings by the police, and harassment by "youth
gangs" known as "dizelasi." AR 346-49.
A copy of the State Department's Serbia Page
7 Country Report on Human Rights Practices
for 2006 noted that violence and discrimination against
homosexuals was a continuing problem in Serbia, and
that gays and lesbians were reported to experience
"widespread threats, hate speech, verbal assault,
and physical violence." AR 286.
In an oral decision, the IJ denied Todorovic's asylum
petition as untimely, and found that Todorovic was
not a credible witness. As for credibility, the IJ
began this way:
The Court would first note that the respondent says
that he is singled out for persecution because he
is gay in his home country. The Court studied the
demeanor of this individual very carefully throughout
his testimony in Court today, and this gentleman
does not appear to be overtly gay. The Court does
not know whether he is or not, his testimony is
that he is overtly gay and has been since he was
17 years old. Be that as it may, it is not readily
apparent to a person who would see this gentleman
for the first time that, that is the case, since
he bears no effeminate traits or any other trait
that would mark him as a homosexual.
AR
28-29. The IJ then explained that the "most serious
problem" he had with Todorovic's testimony concerned
his experience in the military. AR 29. For one, the
IJ said Todorovic's account lacked a sufficiently
detailed explanation of how his father was able to
have him called into the military. Even more problematic,
the IJ found, was Todorovic's claim that the makeshift
military base where he was stationed contained anti-aircraft
guns, despite his earlier comment that the base was
Page 8 meant to be "secluded
and secret," so that it could not be identified
by satellites. The IJ found several lesser inconsistencies
as well.
Since he did not find Todorovic credible, the IJ concluded
that Todorovic had "failed to prove to a preponderance
of the evidence that his life or freedom would be
threatened if he were returned to his native country."
AR 36. The IJ reiterated that "it is clear that
this gentleman is not overtly homosexual and there
is no reason he would be immediately recognized as
such." Id. Thus, the IJ said, "even if the
respondent's testimony were taken at face value, .
. . the respondent would not qualify in the Court's
opinion for withholding because he has failed to meet
his burden of proof." Id.
On appeal, the BIA affirmed the IJ's determination
that Todorovic's asylum application was untimely.
AR 3-4. The Board also "agree[d] with the Immigration
Judge that the applicant was not a credible witness."
AR 4. In support of that conclusion, it offered one
rationale of its own and then highlighted two aspects
of the IJ's findings that it considered persuasive.
First, the Board explained that while Todorovic claimed
to fear returning to Serbia, he had admitted that
when he left to work on the cruise ship, he intended
eventually to return to Serbia. The Board said that
"[s]uch plainly incompatible contentions undermine
the subjective sincerity of the applicant's claimed
fear of persecution and, by logical extension, the
factual bases on which the claim is founded."
AR 5. Next, the Board "agree[d] with the Page
9 Immigration Judge that the applicant's
testimony regarding his alleged period of service
in Serbia is `highly suspect.'" Id. (quoting
Oral Decision of IJ). The Board highlighted two examples
cited by the IJ, namely, that "[t]he applicant
could not satisfactorily detail how he even came to
be enlisted in the Serbian military," and that
he "provided undetailed and contradictory testimony
to the nature of his training and duties while in
the Serbian military." Id. Like the IJ, the Board
concluded that the lack of credible testimony precluded
relief under the INA or the CAT. Id.
Todorovic timely petitioned this Court for review.
II.
We review administrative fact findings, including
credibility determinations, under the "highly
deferential" substantial evidence test. Adefemi
v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004)
(en banc). Substantial evidence is "such relevant
evidence as a reasonable person would accept as adequate
to support a conclusion." Moore v. Barnhart,
405 F.3d 1208, 1211 (11th Cir. 2005). We "view
the record evidence in the light most favorable to
the agency's decision and draw all reasonable inferences
in favor of that decision," Adefemi, 386 F.3d
at 1027, and we will reverse the agency's findings
"only if the evidence `compels' a reasonable
fact finder to find otherwise," Sepulveda v.
U.S. Att'y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005)
(citations omitted). Where the BIA issues its own
opinion, we Page 10 review only that opinion, except
to the extent that it expressly adopts the immigration
judge's reasoning. Chen, 463 F.3d at 1230. If the
BIA does so, we review the relevant portions of the
IJ's opinion as well. Id.
An applicant may establish eligibility for withholding
of removal under the INA by showing that his "life
or freedom would be threatened in the proposed country
of removal on account of . . . membership in a particular
social group." 8
C.F.R. § 208.16(b). The applicant must demonstrate
"that it is `more likely than not' [he] will
be persecuted or tortured upon being returned to [his]
country." Sepulveda, 401 F.3d at 1232. To establish
eligibility for CAT relief, an applicant must show
that it is more likely than not that he will be tortured
by, or with the acquiescence of, government officials
if returned to the designated country of removal.
8
C.F.R. § 208.16(c)(2).
"If
an alien's testimony is credible, it may be sufficient,
without corroboration, to satisfy [his] burden of
proof in establishing [his] eligibility for relief
from removal." Tang v. U.S. Att'y Gen., 578 F.3d
1270, 1276 (11th Cir. 2009); see also 8
C.F.R. § 208.16(b). Conversely, a denial
of relief can be based entirely on an adverse credibility
determination if the applicant fails to provide sufficient
corroborating evidence. Tang, 578 F.3d at 1276-77.
Credibility determinations made by an IJ must rest
on substantial evidence. Id. at 1276, 1278.
III.
Page 11
Todorovic does not contest the agency's determination
that his asylum application is time-barred, but argues
that its adverse credibility determination is not
supported by substantial evidence. He says, first,
that the IJ's decision was infected with impermissible
stereotypes about homosexuals; second, that there
is nothing inconsistent or insincere about his lack
of an intent to leave Serbia permanently and his fear
of being persecuted if he returns; and third, that
there is no inconsistency in his account of his military
service.
After thorough review, we conclude that the IJ's decision
was so colored by impermissible stereotyping of homosexuals,
under the guise of a determination on "demeanor,"
that we cannot conduct meaningful appellate review
of that decision, or of the BIA's opinion essentially
adopting it.
In determining an applicant's credibility, an Immigration
Judge must consider the totality of the circumstances,
including the applicant's demeanor, the inherent plausibility
of the applicant's story, and the consistency among
the applicant's written and oral statements and other
evidence of record. In other words, like any fact-finder,
the Immigration Judge will make a determination "on
the basis of evidence, which is on the record, interpreted
in light of demeanor, which is not." United States
v. Shonubi, 895 F. Supp. 460, 480 (E.D.N.Y. 1995),
rev'd on other grounds, 103 F.3d 1085 (2d Cir. 1997).
The IJ alone is positioned to make determinations
about demeanor — by observing the alien and
assessing his Page 12 or
her tone and appearance — and in that sense
is "uniquely qualified to decide whether an alien's
testimony has about it the ring of truth." Abdulrahman
v. Ashcroft, 330 F.3d 587, 597 (3d Cir. 2003) (citation
omitted).
As a consequence, we afford great deference to an
IJ's assessment of "demeanor," see Hu v.
Holder, 579 F.3d 155, 159 (2d Cir. 2009), which refers
to the "carriage, behavior, bearing, manner and
appearance of a witness," Dyer v. MacDougall,
201 F.2d 265, 268-69 (2d Cir. 1953). Indeed, evaluating
demeanor has long been recognized as a core function
of the trier of fact. See, e.g., United States v.
Reeves, 730 F.2d 1189, 1195 (8th Cir. 1984) (noting
that assessing the "demeanor of the witnesses
. . . is peculiarly the province of the fact finder");
Henriod v. Henriod, 89 P.2d 222, 225 (Wash. 1938)
("To watch the attitude and demeanor of a witness
testifying at a trial is not only the right but also
the duty of the trier of facts."). Credibility
determinations, so far as they involve demeanor, have
thus been characterized as largely "unreviewable."
Hambsch v. Dep't of the Treasury, 796 F.2d 430, 436
(Fed. Cir. 1986); see also N.L.R.B. v. Dinion Coil
Co., 201 F.2d 484, 487 (2d Cir. 1952).
At the same time, because of the "immense discretion"
conferred on those, such as an IJ, who find facts
on the basis of oral testimony and demeanor, Dinion
Coil Co., 201 F.2d at 488, we require that credibility
determinations made by an IJ rest on substantial evidence,
rather than on conjecture or speculation, Tang, 578
F.3d at 1276, Page 13 1278. One clearly impermissible
form of conjecture and speculation, sometimes disguised
as a "demeanor" determination, is the use
of stereotypes as a substitute for evidence. Indeed,
a number of our sister circuits have rejected credibility
determinations that rest on stereotypes about how
persons belonging to a particular group would act,
sound, or appear.
In Razkane v. Holder, 562 F.3d 1283 (10th Cir. 2009),
for example, just as in this case, the IJ's credibility
determination and findings on the merits were impermissibly
influenced by stereotypes about homosexuals. The IJ
had explained that the applicant's "appearance
does not have anything about it that would designate
[him] as being gay. [He] does not dress in an effeminate
manner or affect any effeminate mannerisms."
Id. at 1286 (alterations in original). As the Tenth
Circuit explained,
[t]he IJ's reliance on his own views of the appearance,
dress, and affect of a homosexual led to his conclusion
that [the applicant] would not be identified as
a homosexual. From that conclusion, the IJ determined
[the applicant] had not made a showing it was more
likely than not that he would face persecution in
[his home country].
Id.
at 1288. The appellate court refused to "condone
this style of judging, unhinged from the prerequisite
of substantial evidence," which, it said, "would
inevitably lead to unpredictable, inconsistent, and
unreviewable results." Id. The court explained
that "[t]he fair adjudication of a claim for
restriction on removal is dependent on a system grounded
in the requirement of substantial evidence and Page
14 free from vagaries flowing from notions
of the assigned IJ." Id. The IJ's "homosexual
stereotyping . . . preclude[d] meaningful review"
of the agency decision. Id.
Similarly, in Ali v. Mukasey, 529 F.3d 478 (2d Cir.
2008), the Second Circuit vacated the agency's decision
where it too rested, in part, on improper remarks
about homosexuals, such as "that no one would
perceive [the applicant] as a homosexual unless he
had a `partner or cooperating person.'" Id. at
491. These remarks, untethered to the record, impermissibly
"derive[d] from stereotypes about homosexuality
and how it is made identifiable to others." Id.
at 491-92. And in Shahinaj v. Gonzales, 481 F.3d 1027
(8th Cir. 2007), the Eighth Circuit overturned the
agency's credibility determination where it rested
in part on "the IJ's personal and improper opinion
[that] [the applicant] did not dress or speak like
or exhibit the mannerisms of a homosexual." Id.
at 1029. The court could not be certain, it said,
that the IJ's findings as a whole were not tainted
by this obvious bias.
This case presents similar problems, inasmuch as the
IJ relied on impermissible stereotypes about gay people
as a substitute for substantial evidence. Notably,
Todorovic never testified that he was "overtly
gay" or that this was the reason for his persecution;
rather, the abuses to which he testified were the
result of hostility by people who appeared to know
he was gay for reasons other than his appearance or
behavior. See AR 103, 109-11, 118-19, 123, 127-28.
Yet, the very Page 15 first
reason offered by the IJ for his decision was that,
although the applicant "says that he is singled
out for persecution because he is gay in his home
country[,] . . . [t]he Court studied the demeanor
of this individual very carefully throughout his testimony
in Court today, and this gentleman does not appear
to be overtly gay." AR 28-29. Specifically, the
IJ observed that "it is not readily apparent
to a person who would see this gentleman for the first
time that, that is the case, since he bears no effeminate
traits or any other trait that would mark him as a
homosexual." AR 29. And indeed, toward the end
of his oral opinion, the IJ again referenced that
the petitioner "is not overly homosexual,"
and, therefore, that there was no reason to believe
he would be "immediately recognized" as
gay. AR 36.
As we see it, this so-called "demeanor"
determination rests on wholly speculative assumptions
made by the IJ; it is untethered from any evidential
foundation; and it is thoroughly vague in its reference
to "other trait[s]" that would mark the
petitioner as a homosexual. Whatever else these offensive
observations made by the fact-finder were, they were
not credibility findings based on demeanor, but instead
were driven by stereotypes about how a homosexual
is supposed to look. Cf. Cosa v. Mukasey, 543 F.3d
1066, 1069 (9th Cir. 2008). The IJ's comments elevated
these ungrounded assumptions to demeanor evidence,
and the IJ drew adverse inferences about the petitioner's
credibility and legal conclusions from them. See Razkane,
562 F.3d at 1288. These stereotypes most Page
16 assuredly are not substantial evidence.
They "would not be tolerated in other contexts,
such as race or religion." Razkane, 562 F.3d
at 1288-89. See also Cosa, 543 F.3d at 1069 (reversing
adverse credibility finding because it "stemmed
from pure speculation about how a [member of the applicant's
religion] might look and act"); Huang v. Gonzales,
403 F.3d 945, 949 (7th Cir. 2005) ("[The IJ's]
personal beliefs or some perceived common knowledge
about the religion . . . [are] . . . not a proper
basis for an adverse credibility finding.").
We see no reason to tolerate them here.
The IJ's reliance on impermissible stereotypes taints
his credibility determination as a whole, and thus
prevents us from conducting any fair assessment of
this record. We recognize that the IJ also determined
that there were inconsistencies in Todorovic's testimony.
But we have no occasion to address, and do not address,
whether any of the purportedly inconsistent testimony
would amount to "substantial evidence" supporting
an adverse credibility determination — in other
words, whether the subject testimony is inconsistent
enough or material enough that rejecting the applicant's
entire account would be a "reasonable" decision
for an IJ to make, after considering the totality
of the circumstances and the record as a whole. See
Kadia, 501 F.3d at 820-23; see also Moore, 405 F.3d
at 1211. On this record, we simply cannot be sure
that the IJ's impermissible stereotyping of gay men
did not animate his adverse credibility determination,
Page 17 especially where
the very first reason he offered for disbelieving
Todorovic's detailed testimony was that Todorovic
did not appear to be overtly gay or effeminate, and
where he reiterated that same "finding"
in his conclusion. Given the "immense discretion"
lodged in an administrative fact-finder like the IJ
in making credibility determinations, Dinion Coil
Co., 201 F.2d at 488, it is not too much to require
that these critical determinations be made without
the taint of improper and offensive stereotypes like
the one invoked in this case.
The Board's opinion is similarly unreviewable because
we cannot tell whether it, too, was tainted by the
IJ's improper stereotyping of homosexuals. Almost
at the outset of its opinion, the Board tells us unequivocally
that it "agree[d] with the Immigration Judge
that the applicant was not a credible witness."
AR 4. Rather than distancing itself in some obvious
and pronounced way from the IJ's so-called "demeanor"
determination, the Board appears to have broadly embraced
the IJ's credibility determination. The Board highlights,
in a single sentence, two examples of supposedly inconsistent
testimony cited by the IJ in support of his determination,
see AR 5 ("The applicant could not satisfactorily
detail how he even came to be enlisted in the Serbian
military, and the applicant provided undetailed and
contradictory testimony to the nature of his training
and duties while in the Serbian military." (record
citations omitted)). In fact, the Board has offered
precious little analysis that is different from the
IJ's reasoning or Page 18
conclusion. The only other rationale offered by the
Board is that Todorovic's intention to return to Serbia
at the time he went to work on the cruise ship undermines
the sincerity of his claimed fear that he would be
persecuted if he returned.
While the Board may well have made its credibility
determination for reasons wholly divorced from the
impermissible stereotyping that appears to have driven
the IJ's determination, again, it is not too much
to ask the fact-finder to make its credibility determinations
without the stain of this stereotyping, utterly unconnected
to any evidence. Quite simply, we cannot tell with
any degree of confidence what the basis for the Board's
opinion was. As a result, we are precluded from engaging
in meaningful appellate review. Accordingly, we vacate
the agency's decision and remand for a new factual
hearing, free of any impermissible stereotyping or
ungrounded assumptions about how gay men are supposed
to look or act.
PETITION GRANTED; VACATED AND REMANDED.
