Joseph Tshibang Kalubi v. John Ashcroft, Attorney General

This is a rare appeal from the discretionary denial of asylum. The Board of Immigration Appeals (BIA) en banc granted the application of Joseph Kalubi, a native and citizen of the Democratic Republic of Congo, for withholding of removal but denied asylum as a matter of discretion. In a split decision, the BIA held (among other things) that although the determination of the immigration judge (IJ) that Kalubi’s testimony was not forthcoming was insufficient to justify an adverse credibility determination under the law of the Ninth Circuit, this finding could support the discretionary denial of asylum. We disagree. If an applicant’s testimony on an issue is found credible for purposes of determining whether he is eligible for asylum, he cannot be found incredible on the same issue for purposes of determining whether he is entitled to asylum. The BIA also dismissed its obligation under 8 C.F.R. § 208.16 (e) to consider Kalubi’s separation from his spouse as not “determinative.” However, this factor need not be dispositive and we cannot tell upon what other basis, if any, the BIA discounted its importance. We conclude that the BIA erred in these respects, and therefore reverse and…