Lai v. Holder

A petitioner’s omission of details concerning third parties until cross-examination, which were not contradictory to his earlier testimony or application materials, does not support an adverse credibility determination; and it is an error to reject a petitioner’s explanation for failing to amend or add this information to his asylum application at the outset of his merits hearing.

Yongguo Lai petitioned for review of a decision by the Board of Immigration Appeals ("BIA") dismissing Lai's appeal of the Immigration Judge's ("IJ") decision denying his application for asylum, withholding of removal and protection under the Convention Against Torture ("CAT"). The IJ found that "Lai’s claim of persecution and torture on account of his Christian religion was not credible.” She “based her adverse credibility ruling, in relevant part, on Lai’s testimony during cross-examination that contained information the IJ found to be missing from and inconsistent with Lai’s initial written application and direct testimony, and uncorroborated in one respect." The Ninth Circuit held that there was not substantial evidence to support the IJ's finding of adverse credibility and the BIA's dismissal of Lai's appeal by relying upon the IJ's adverse credibility finding was erroneous. The panel also held that the lack of corroboration does not support the adverse credibility determination. PETITION FOR REVIEW GRANTED; REMANDED.