FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN KALOUMA,  No. 03-74488

Petitioner, Agency No.

v. A78-535-064

ALBERTO R. GONZALES, Attorney ORDERS

General, AMENDING

Respondent.  OPINION AND

DISSENT AND

AMENDED

OPINION AND

AMENDED

DISSENT 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

May 11, 2007—Pasadena, California

Filed August 28, 2007

Amended January 15, 2008

Before: John T. Noonan, Richard A. Paez, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Noonan;

Dissent by Judge Tallman

457
COUNSEL

Mark A. Teeter, Newport Beach, California, for the petitioner.

Carol Federighi, Assistant United States Attorney, Washington, D.C., for the respondent. 

ORDER

The opinion filed on August 28, 2007 is amended as follows: 

Slip op. page 10750 [2], Strike the paragraph in its entirety

and substitute the following: 

On petition for rehearing, the government now supports its

case by citation of Farah v. Ashcroft, 348 F.3d 1153 (9th Cir.

2003). No question exists that an asylum seeker must show

that he is a refugee. In the first instance that decision belongs

to the IJ. We do not intrude upon it but remand for the decision to be made free of the alleged statutory burden added by

the IJ that Kalouma had to prove he is who he says he is under

§ 1158(d)(5)(A)(i). He did provide information as to his birth,

his birthplace, his parents, his nationality and his religion. The

KALOUMA v. GONZALES 459
IJ gave no reason for finding this identification insufficient or

incredible except for the misread statute. The IJ should have

the opportunity to assess Kalouma’s testimony absent the conviction that the person before him could not be a refugee

because he could not demonstrate who he was under

§ 1158(d)(5)(A)(i). The amended statute does not, as the IJ

appeared to think, impose a heightened standard of proof on

Kalouma as to his identity. 

On remand, it will be appropriate for the IJ to assess Kalouma’s credibility afresh apart from a specific statutory burden

under § 1158(d). Part of his case, of course, must be satisfactory proof of his refugee status in which identity operates as

an element. Farah v. Ashcroft, supra at 1156. 

As instances where his underlying scepticism as to identity

led the IJ to distort or misread petitioner’s testimony, we may

cite the following: 

(1) In his asylum application he stated that he watched his

uncle murdered in the hut. In his testimony, Kalouma stated

that his uncle died one week after he was beaten in the hut.

Finding these two statements inconsistent, the IJ either

showed unfamiliarity with American idiom or a determination

to discredit Kalouma as if he were a liar. It is perfectly idiomatic, not inconsistent, to say you saw a man being murdered

in one place and that he died later at another. John Wilkes

Booth murdered Abraham Lincoln in Ford’s Theater. Lincoln

died nine hours later at a neighboring house. It would be

absurd to say Lincoln died at the theater or that he was murdered at the house. American idiom divides in two the cause

of death and the result. 

(2) Kalouma told the Border Patrol that he had come to

America for an education for four years before returning to

Sudan. He later applied for asylum as a refugee. The IJ treated

these two positions as inconsistent, establishing Kalouma’s

insincerity. The IJ either showed ignorance of the way aliens

460 KALOUMA v. GONZALES
learn of the asylum process or a predetermined disbelief in

Kalouma’s credibility. Arriving at the border of the United

States, an alien may well have a four-year college education

uppermost in his mind. He will probably know little or nothing of the asylum application process. He will certainly not

know that he needs to begin the process by claiming asylum

before an agent of the Border Patrol. That Kalouma had two

motives in coming here proves nothing as to his truthfulness.

(3) In his asylum application Kalouma did not cite specific instances of mistreatment and in his testimony he gave

only four incidents of mistreatment, although he testified that

he had been beaten many times. The IJ thought the omissions

undermined the petitioner’s credibility. So concluding, the IJ

revealed either an unawareness of the asylum process and the

nature of testimony at the merits hearing or a partiality inclining him to distrust the petitioner. Anyone who has had any

experience with asylum cases is aware that asylum applications are usually slapped together with little or inexpert legal

advice and that they rarely tell the asylum-seeker’s whole

story. They are not a preview of the petitioner’s testimony.

They are not required to be. To fault an applicant because he

omitted some fact of significance would be to rule a priori

that most asylum applicants are liars because they fail to lay

out their case before they get to the judge. As to the “many”

beatings, the adjective is imprecise and emphatic. If you or I

were mistreated four times on account of our faith, we might

well say that we’d been beaten many times. Three examples

are usually considered enough to establish a point. A fourth

is supererogatory. 

So, in this opinion, three examples of the IJ’s non-credible

credibility findings are enough to show that this IJ did not

assess Kalouma’s testimony unimpeded by the IJ’s assumption as to Kalouma’s specific statutory burden. 

With these amendments, the petition for rehearing is

denied. Judge Tallman would grant the petition for rehearing.

No further petitions for rehearing will be entertained.

KALOUMA v. GONZALES 461
ORDER

Judge Tallman’s dissent, filed on August 28, 2007, is to be

stricken in its entirety and replaced by the following:

“RICHARD C. TALLMAN, Circuit Judge, dissenting: 

I respectfully dissent. 

On petition for rehearing, the majority now agrees that

proof of identity is an element of the petitioner’s asylum

claim. Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003)

(citing identity as a key element of the asylum application);

Matter of O-D-, 21 I. & N. Dec. 1079, 1081 (BIA 1998) (en

banc) (noting that an asylum applicant bears the burden of

establishing identity). We also agree that 8 U.S.C. § 1158(d)

places no additional burden on an asylum applicant. Rather,

as the majority points out, that statutory provision requires the

Attorney General to follow certain procedures before granting

an asylum application. In interpreting that provision otherwise, the IJ erred. 

We disagree on the effect of that error on the IJ’s determination of Kalouma’s credibility. In my view, the IJ’s determination that Kalouma had not proven his identity was

supported by substantial evidence in the record, and we can

reverse that determination only if Kalouma’s evidence is “so

compelling that no reasonable factfinder” could have found

otherwise. Garovillas v. INS, 156 F.3d 1010, 1015-16 (9th

Cir. 1998). On this record, the IJ raised a legitimate concern

over Kalouma’s identity, a concern at the heart of his asylum

petition, and the inability to confirm his identity constitutes a

cogent and substantial reason supporting the adverse credibility determination. After articulating reasons doubting Kalouma’s identity, the IJ could properly consider the lack of any

proffered documentary evidence to corroborate who he says

he is. See Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir. 2004).

462 KALOUMA v. GONZALES
Moreover, even if we put aside the issue of identity, we

should nonetheless deny Kalouma’s petition for review

because the IJ gave completely independent, sufficiently

cogent, and substantial reasons for finding Kalouma incredible, and these findings went to the heart of Kalouma’s asylum

application—inconsistencies in the alleged past persecution

against him and his family, and questionable fear of future

persecution based on race and religion. 

The majority fails to credit as an independent ground for

denying Kalouma’s petition several specific adverse credibility findings, particularly those based on (1) Kalouma’s conflicting statement in his asylum affidavit that his family was

“abducted” when he later testified that his family “voluntarily” left Sudan, (2) Kalouma’s inability to recall more than

four incidents of personal mistreatment despite his claim that

he had been beaten up many times, (3) Kalouma’s confusing

and inconsistent details about his uncle’s alleged torture,1 (4)

Kalouma’s omission from his asylum application of incidents

of mistreatment directed at him,2 (5) Kalouma’s admission to

1

In his asylum application, Kalouma stated that he “watched [his] uncle

tortured and murdered in his hut in the village,” but at the merits hearing,

he testified that his uncle died within the week following the torture.

Given an opportunity to explain the inconsistency, Kalouma unsatisfactorily explained that his uncle was beaten in the hut, “so when they beat

him he couldn’t survive,” they “had to take, rush him, to hospital[,]” and

“it was in the hut.” Id. Prior inconsistent statements are a classic ground

to impeach a witness. See United States v. Hale, 422 U.S. 171, 176 (1975)

(“A basic rule of evidence provides that prior inconsistent statements may

be used to impeach the credibility of a witness.”); Grunewald v. United

States, 353 U.S. 391, 418-19 (1957) (“It is, of course, an elementary rule

of evidence that prior statements may be used to impeach the credibility

of a criminal defendant or an ordinary witness.”); see also Pal v. INS., 204

F.3d 935, 938 (9th Cir. 2000) (concluding that testimony inconsistent with

the details of the asylum application supported an adverse credibility finding). 

2

“Common law traditionally has allowed witnesses to be impeached by

their previous failure to state a fact in circumstances in which that fact naturally would have been asserted.” Jenkins v. Anderson, 447 U.S. 231, 239

(1980) (citing 3A J. Wigmore, Evidence § 1042, p. 1056 (Chadbourn rev.

1970)). 

KALOUMA v. GONZALES 463
the Border Patrol that he came to the United States for an education,3

 and (6) Kalouma’s return to Sudan after 1998 notwithstanding the claimed persecution against him, his uncle, and

his sister. Not one of these grounds supporting the adverse

credibility determination relates to Kalouma’s inability to

prove his identity. 

As required by our law, the IJ identified these specific and

cogent reasons for disbelieving Kalouma’s credibility, they go

to the heart of his claim, and it is improper to disregard them

absent evidence compelling us to do so. See Singh-Kaur, 183

F.3d at 1153. Notwithstanding the IJ’s error in statutory interpretation of § 1158(d), we should deny Kalouma’s petition

based on the IJ’s sound adverse credibility determination

which is adequately supported by substantial evidence in the

record, and which is the ground upon which the Board upheld

the denial of asylum. 

I respectfully dissent.”

OPINION

NOONAN, Circuit Judge: 

John Kalouma petitions for review of a decision of the

Board of Immigration Appeals (“the Board”) summarily

affirming the decision of an Immigration Judge denying his

application for asylum, withholding of removal, and protection under the Convention Against Torture. Holding that the

Immigration Judge (“IJ”) committed an error of law that permeated his decision, we reverse and remand.

3Kalouma conceded he told the Border Patrol agent not that he sought

refuge from persecution but that he “came here for an education for four

years before returning to Sudan.” The IJ was entitled to consider that prior

statement coupled with Kalouma’s long delay in seeking asylum as yet

another reason to question the sincerity of the alien’s claim of entitlement

to it. 

464 KALOUMA v. GONZALES
FACTS AND PROCEEDINGS

John Kalouma entered the United States in March 2001,

was intercepted by the Border Patrol, identified himself as

Sudanese, and was promptly charged with inadmissibility. At

a hearing before the IJ in 2001, Kalouma admitted the charge

and applied for relief. On April 24, 2002, Kalouma’s case was

presented to the IJ, who issued an oral decision, denying it.

Kalouma appealed to the Board of Immigration Appeals. The

Board, on October 23, 2003, adopted the IJ’s decision, which

thus became central to Kalouma’s timely petition to us. 

At the hearing, Kalouma testified that he was a native of

Sudan, a Nuer, born in 1972 in Khartoum, to a family from

Shambe in southern Sudan, the son of William and Adasha

Kalouma. Kalouma identified himself as a Christian and,

more specifically, as a Catholic. Kalouma went on to set out

his experiences of persecution by Muslims or Arabs — he

used the terms interchangeably. 

After hearing Kalouma on direct and on cross-examination

by the Government and by himself, the IJ gave his oral decision. In his first sentence, he referred to Kalouma as “a person

of unknown identity.” Then, after reviewing the procedural

steps in the case and the law governing Kalouma’s application, he went on as to the changes made in 1996 by the Illegal

Immigration Reform and Immigrant Responsibility Act, 8

U.S.C. § 1158. He stated: 

Congress has added Section 208(d)(5)(A) of the

Act which enumerates very specific procedures that

must be followed regarding an individual’s identity

before asylum can be granted. The law now requires

that “asylum cannot be granted until the identity of

the applicant has been checked” against all appropriate places enumerated within the statute. 

It would appear then that Congress has imposed a

requirement that an identity must be checked and

KALOUMA v. GONZALES 465
that it is an absolute requirement before asylum can

be granted. It would seem to mean that if an individual who would be otherwise eligible for asylum

refuses to have an “identity” check notwithstanding

other factors impacting eligibility, this individual

could not be granted asylum. It would also seem to

suggest, although the Court is not aware of any specific regulations or case law that would offer further

guidance, that if the person’s “identity” is undetermined, then that person would not be able to be

granted asylum as it would seem to follow that the

identity would not be able to be checked if it was

unknown identity. 

The IJ continued: 

The Court emphasizes that since the amendments

made to the Act by IIRAIRA, Congress for the first

time has imposed two new requirements mentioned

above that need to be met for an asylum seeker. In

this case, of those two amendments, the one that

seems to impact or have the greatest impact is the

question of “identity.” It suggests to this Court that

before an identity can be checked, the Immigration

and Naturalization Service and the Executive Office

for Immigration Review must have an idea of an

individual’s identity before it can be checked within

the parameters expressed by the statute. This Court

is not aware of any published decision from the

Board of Immigration Appeals or precedent decisions which discuss the impact that the identity

requirement now has on the burden of proof. 

ANALYSIS

We review de novo the IJ’s statement of the law. Singh v.

INS, 134 F.3d 962, 966 (9th Cir. 1998). Acknowledging that

he was not aware “of any specific regulations or case law” on

466 KALOUMA v. GONZALES
the point, the IJ attributed a pivoted place to the amendment

to 8 U.S.C. § 1158(d). The relevant language reads as follows:

(5)(A) Procedures 

The procedure established under paragraph (1) shall

provide that — 

(i) asylum cannot be granted until the identity of

the applicant has been checked against all

appropriate records or databases maintained by

the Attorney General and by the Secretary of

State, including the Automated Visa Lookout

System, to determine any grounds on which the

alien may be inadmissible to or deportable from

the United States, or ineligible to apply for or be

granted asylum. . . . 

[1] The statute, as amended, imposes duties on the Attorney

General and the Secretary of State. No new burden for the

asylum-seeker is imposed by the amendment. In his interpretation, the IJ found a duty on the part of the asylum-seeker to

provide information so that the Attorney General and Secretary of State could carry out their statutory responsibilities. As

the IJ acknowledged, no case or regulation so holds. To find

this additional burden on the applicant to have been implicitly

created by the amendment does not appear to be a sensible

way of interpreting a statute that has been so carefully articulated and critically revised. The Government, in its answering

brief here, notes what the IJ did but makes no attempt to cite

case authority or regulations supporting the IJ’s unusual interpretation. We hold the interpretation to be an error of law. 

Armed with what appeared to him to be a significant

change in the law, the IJ began with calling Kalouma “a person of unknown identity.” It then became Kalouma’s burden

to prove who he was. After reviewing all the testimony, the

IJ concluded: “The Court is unsure of his identity.” In the IJ’s

KALOUMA v. GONZALES 467
eyes, Kalouma has failed to meet what the IJ has seen as a

kind of legal precondition to an asylum application. The IJ’s

doubt as to his identity and the legal limbo Kalouma therefore

inhabits, permeates the IJ’s decision. 

[2] On petition for rehearing, the government now supports

its case by citation of Farah v. Ashcroft, 348 F.3d 1153 (9th

Cir. 2003). No question exists that an asylum seeker must

show that he is a refugee. In the first instance that decision

belongs to the IJ. We do not intrude upon it but remand for

the decision to be made free of the alleged statutory burden

added by the IJ that Kalouma had to prove he is who he says

he is under § 1158(d)(5)(A)(i). He did provide information as

to his birth, his birthplace, his parents, his nationality and his

religion. The IJ gave no reason for finding this identification

insufficient or incredible except for the misread statute. The

IJ should have the opportunity to assess Kalouma’s testimony

absent the conviction that the person before him could not be

a refugee because he could not demonstrate who he was under

§ 1158(d)(5)(A)(i). The amended statute does not, as the IJ

appeared to think, impose a heightened standard of proof on

Kalouma as to his identity. 

On remand, it will be appropriate for the IJ to assess Kalouma’s credibility afresh apart from a specific statutory burden

under § 1158(d). Part of his case, of course, must be satisfactory proof of his refugee status in which identity operates as

an element. Farah v. Ashcroft, supra at 1156. 

As instances where his underlying scepticism as to identity

led the IJ to distort or misread petitioner’s testimony, we may

cite the following: 

(1) In his asylum application he stated that he watched his

uncle murdered in the hut. In his testimony, Kalouma stated

that his uncle died one week after he was beaten in the hut.

Finding these two statements inconsistent, the IJ either

showed unfamiliarity with American idiom or a determination

468 KALOUMA v. GONZALES
to discredit Kalouma as if he were a liar. It is perfectly idiomatic, not inconsistent, to say you saw a man being murdered

in one place and that he died later at another. John Wilkes

Booth murdered Abraham Lincoln in Ford’s Theater. Lincoln

died nine hours later at a neighboring house. It would be

absurd to say Lincoln died at the theater or that he was murdered at the house. American idiom divides in two the cause

of death and the result. 

(2) Kalouma told the Border Patrol that he had come to

America for an education for four years before returning to

Sudan. He later applied for asylum as a refugee. The IJ treated

these two positions as inconsistent, establishing Kalouma’s

insincerity. The IJ either showed ignorance of the way aliens

learn of the asylum process or a predetermined disbelief in

Kalouma’s credibility. Arriving at the border of the United

States, an alien may well have a four-year college education

uppermost in his mind. He will probably know little or nothing of the asylum application process. He will certainly not

know that he needs to begin the process by claiming asylum

before an agent of the Border Patrol. That Kalouma had two

motives in coming here proves nothing as to his truthfulness.

(3) In his asylum application Kalouma did not cite specific instances of mistreatment and in his testimony he gave

only four incidents of mistreatment, although he testified that

he had been beaten many times. The IJ thought the omissions

undermined the petitioner’s credibility. So concluding, the IJ

revealed either an unawareness of the asylum process and the

nature of testimony at the merits hearing or a partiality inclining him to distrust the petitioner. Anyone who has had any

experience with asylum cases is aware that asylum applications are usually slapped together with little or inexpert legal

advice and that they rarely tell the asylum-seeker’s whole

story. They are not a preview of the petitioner’s testimony.

They are not required to be. To fault an applicant because he

omitted some fact of significance would be to rule a priori

that most asylum applicants are liars because they fail to lay

KALOUMA v. GONZALES 469
out their case before they get to the judge. As to the “many”

beatings, the adjective is imprecise and emphatic. If you or I

were mistreated four times on account of our faith, we might

well say that we’d been beaten many times. Three examples

are usually considered enough to establish a point. A fourth

is supererogatory. 

So, in this opinion, three examples of the IJ’s non-credible

credibility findings are enough to show that this IJ did not

assess Kalouma’s testimony unimpeded by the IJ’s assumption as to Kalouma’s specific statutory burden. 

[3] For the reason stated, the decision of the Board of

Appeals is REVERSED, and the case is REMANDED. 

TALLMAN, Circuit Judge, dissenting: 

I respectfully dissent. 

On petition for rehearing, the majority now agrees that

proof of identity is an element of the petitioner’s asylum

claim. Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003)

(citing identity as a key element of the asylum application);

Matter of O-D-, 21 I. & N. Dec. 1079, 1081 (BIA 1998) (en

banc) (noting that an asylum applicant bears the burden of

establishing identity). We also agree that 8 U.S.C. § 1158(d)

places no additional burden on an asylum applicant. Rather,

as the majority points out, that statutory provision requires the

Attorney General to follow certain procedures before granting

an asylum application. In interpreting that provision otherwise, the IJ erred. 

We disagree on the effect of that error on the IJ’s determination of Kalouma’s credibility. In my view, the IJ’s determination that Kalouma had not proven his identity was

supported by substantial evidence in the record, and we can

470 KALOUMA v. GONZALES
reverse that determination only if Kalouma’s evidence is “so

compelling that no reasonable factfinder” could have found

otherwise. Garovillas v. INS, 156 F.3d 1010, 1015-16 (9th

Cir. 1998). On this record, the IJ raised a legitimate concern

over Kalouma’s identity, a concern at the heart of his asylum

petition, and the inability to confirm his identity constitutes a

cogent and substantial reason supporting the adverse credibility determination. After articulating reasons doubting Kalouma’s identity, the IJ could properly consider the lack of any

proffered documentary evidence to corroborate who he says

he is. See Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir. 2004).

Moreover, even if we put aside the issue of identity, we

should nonetheless deny Kalouma’s petition for review

because the IJ gave completely independent, sufficiently

cogent, and substantial reasons for finding Kalouma incredible, and these findings went to the heart of Kalouma’s asylum

application—inconsistencies in the alleged past persecution

against him and his family, and questionable fear of future

persecution based on race and religion. 

The majority fails to credit as an independent ground for

denying Kalouma’s petition several specific adverse credibility findings, particularly those based on (1) Kalouma’s conflicting statement in his asylum affidavit that his family was

“abducted” when he later testified that his family “voluntarily” left Sudan, (2) Kalouma’s inability to recall more than

four incidents of personal mistreatment despite his claim that

he had been beaten up many times, (3) Kalouma’s confusing

and inconsistent details about his uncle’s alleged torture,1 (4)

1

In his asylum application, Kalouma stated that he “watched [his] uncle

tortured and murdered in his hut in the village,” but at the merits hearing,

he testified that his uncle died within the week following the torture.

Given an opportunity to explain the inconsistency, Kalouma unsatisfactorily explained that his uncle was beaten in the hut, “so when they beat

him he couldn’t survive,” they “had to take, rush him, to hospital[,]” and

“it was in the hut.” Id. Prior inconsistent statements are a classic ground

KALOUMA v. GONZALES 471
Kalouma’s omission from his asylum application of incidents

of mistreatment directed at him,2 (5) Kalouma’s admission to

the Border Patrol that he came to the United States for an education,3

 and (6) Kalouma’s return to Sudan after 1998 notwithstanding the claimed persecution against him, his uncle, and

his sister. Not one of these grounds supporting the adverse

credibility determination relates to Kalouma’s inability to

prove his identity. 

As required by our law, the IJ identified these specific and

cogent reasons for disbelieving Kalouma’s credibility, they go

to the heart of his claim, and it is improper to disregard them

absent evidence compelling us to do so. See Singh-Kaur, 183

F.3d at 1153. Notwithstanding the IJ’s error in statutory interpretation of § 1158(d), we should deny Kalouma’s petition

based on the IJ’s sound adverse credibility determination

which is adequately supported by substantial evidence in the

record, and which is the ground upon which the Board upheld

to impeach a witness. See United States v. Hale, 422 U.S. 171, 176 (1975)

(“A basic rule of evidence provides that prior inconsistent statements may

be used to impeach the credibility of a witness.”); Grunewald v. United

States, 353 U.S. 391, 418-19 (1957) (“It is, of course, an elementary rule

of evidence that prior statements may be used to impeach the credibility

of a criminal defendant or an ordinary witness.”); see also Pal v. INS., 204

F.3d 935, 938 (9th Cir. 2000) (concluding that testimony inconsistent with

the details of the asylum application supported an adverse credibility finding). 

2

“Common law traditionally has allowed witnesses to be impeached by

their previous failure to state a fact in circumstances in which that fact naturally would have been asserted.” Jenkins v. Anderson, 447 U.S. 231, 239

(1980) (citing 3A J. Wigmore, Evidence § 1042, p. 1056 (Chadbourn rev.

1970)). 

3Kalouma conceded he told the Border Patrol agent not that he sought

refuge from persecution but that he “came here for an education for four

years before returning to Sudan.” The IJ was entitled to consider that prior

statement coupled with Kalouma’s long delay in seeking asylum as yet

another reason to question the sincerity of the alien’s claim of entitlement

to it. 

472 KALOUMA v. GONZALES
the denial of asylum. 

I respectfully dissent.

KALOUMA v. GONZALES 473