The Ninth Circuit publishes decision refining Board precedent regarding adverse credibility findings, and reiterating the standard for internal relocation

Immigration Updates

In Matter of R-K-K, 26 I&N Dec. 658 (BIA 2015), the Board of Immigration Appeals established that Immigration Judges (IJs) may consider similar affidavits from other asylum applicants in making credibility determinations, provided three procedural requirements are met: (1) meaningful notice of the similarities is given to the applicant, (2) the applicant has a reasonable opportunity to explain these similarities, and (3) the IJ evaluates the totality of circumstances, treating the similarities as just one factor in the adverse credibility determination.

On October 4, 2024, the Ninth Circuit issued a decision in Singh v. Garland further refining the application of Matter of R-K-K. The court clarified that IJs cannot rely solely on similarly-described experiences between affidavits; they must also assess linguistic, grammatical, and syntactical similarities. This requirement is crucial to upholding the fundamental principle that persecution can stem from widespread or systematic actions by the government, or its acquiescence in third-party harm.

In the proceedings below, the Department presented twenty affidavits with purported similarities to the petitioner’s, but crucial identifying details—such as names, dates, and locations where harm occurred—were redacted. The Ninth Circuit found that the IJ based their adverse credibility finding on “broad factual similarities” between the affidavits, without adequately analyzing differences in language or syntax. Importantly, the court also highlighted significant due process concerns with this method, concluding that the second prong of Matter of R-K-K was not met, as the petitioner could not identify the affiants and therefore lacked the opportunity to explain how their circumstances might relate to his own.

Separately, because the petitioner suffered past persecution, the court determined that the Department failed to prove a fundamental change in circumstances that would allow for petitioner’s reasonable and safe relocation in his home country of India. The court found that the IJ failed to consider the petitioner’s specific circumstances, particularly his testimony that he intended to continue his political activities if returned to India, and the Department did not specifically demonstrate that he could safely engage in these activities outside of his home state. In sum, the IJ must conduct an “individualized analysis” of whether an asylum applicant can safely and reasonably relocate.