The Eighth Circuit Court of Appeals recently handed down a decision which outlines the test for adverse credibility determinations in the asylum context. In that case, R.K.N. was a native citizen of Kenya who came to the U.S. for the first time in 1998 on a student visa. He was later denied entry to the U.S. due to an expired visa, after a trip home to Kenya in October of 2001. In trying to remain in the U.S., R.K.N sought asylum for fear of returning to Kenya because of his HIV-positive status and involvement with a group known as the Mungiki, “which opposes the Kenyan government, fights corruption, and advocates a return to traditional values.”
In removal, R.K.N. sought asylum, withholding of removal and CAT protection, but was initially denied by an Immigration Judge based on an adverse credibility finding. R.K.N. decided to appeal to the Board of Immigration Appeals (BIA). The Board dismissed his appeal in 2006, but a member of the BIA reopened the case and remanded it to a different Immigration Judge for a re-hearing. The new Immigration Judge told R.K.N. to submit supporting documentation at a future hearing. At the final hearing, another Immigration Judge excluded some of R.K.N.’s medical records. Again, R.K.N.’s applications were denied, due to an adverse credibility finding. R.K.N. appealed to the BIA which dismissed his appeal yet again. R.K.N. appealed to the Eighth Circuit Court of Appeals in St. Louis, Missouri, arguing that the BIA failed to address the HIV-status claim and that the judge improperly excluded his medical records.
The Appeals court reviewed the Immigration Judge’s final decision and came to the following conclusions: (1) although R.K.N. argued that the Judge failed to mention his HIV-status, his credibility was clearly discussed as he was beaten because of his HIV status upon his return to Kenya. (2) R.K.N. claimed the Judge was mistaken in his adverse credibility determination. The Judge found specific inconsistencies with his trip to Kenya including R.K.N. being unable to identify the date of the trip, whether his father was alive or dead when he traveled to Kenya for his funeral etc. These inconsistencies were specific enough to support the Judge’s adverse credibility finding. (3) Finally, the BIA did not ignore any part of R.K.N’s argument. The BIA stated that “other claims existed but did not alter the outcome.” Past violations in Kenya and HIV treatment records would not affect the BIA’s decision and were therefore not included.
The Eighth Circuit Court of Appeals held that the BIA did not err in failing to remand R.K.N’s case.
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