FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALPHONSE CHARLES BASSENE,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

No. 07-75022

Agency No.

A076-389-204

ORDER AND

AMENDED

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

October 12, 2012—Pasadena, California

Filed July 23, 2013

Amended September 23, 2013

Before: Harry Pregerson and William A. Fletcher, Circuit

Judges, and Lawrence L. Piersol, Senior District Judge.*

Order;

Opinion by Judge Pregerson

* The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.

District Court for the District of South Dakota, sitting by designation.
2 BASSENE V. HOLDER

SUMMARY**

Immigration

The panel granted a petition for review of the Board of

Immigration Appeals’ decision denying on adverse credibility

grounds asylum, withholding of removal, and protection

under the Convention Against Torture to a native and citizen

of Senegal.

The panel held that the Board erred by drawing an

adverse inference from the low level of detail about

persecution provided in petitioner’s mistakenly filed N-400

citizenship application, which was not designed to elicit

information about persecution. The panel further held that

substantial evidence did not support the Board’s finding of

inconsistencies between petitioner’s N-400 application and

his later filed I-589 asylum application. The panel remanded

for further consideration taking petitioner’s testimony as

credible.

COUNSEL

Nene Thiaba Mour Samb (argued), Samb and Associates,

LLC, Minneapolis, Minnesota, for Petitioner.

Marion E. Guyton (argued), Trial Attorney, Office of

Immigration Litigation Civil Division, United States

Department of Justice, Washington, D.C., for Respondent.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
BASSENE V. HOLDER 3

ORDER

The Opinion filed on July 23, 2013 is amended as

follows:

On slip opinion page 9, line 18, remove the following

text:

<We agree with the IJ’s decision to treat the

one-year filing requirement for asylum as

running from the day Bassene’s J-1 visa

expired. We also agree with the IJ’s decision

to treat Bassene’s mistakenly filed N-400

citizenship application as a quasi-asylum

application and we find that it was timely

filed within the one-year period.>

On page 9, line 18, insert the following text:

<The IJ also decided to treat Bassene’s

mistakenlyfiled N-400 citizenship application

as a quasi-asylum application.>

OPINION

PREGERSON, Circuit Judge:

Alphonse Charles Bassene (“Bassene”), a native and

citizen of Senegal, petitions for review of the Board of

Immigration Appeals (“BIA”) decision denying his

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”).
4 BASSENE V. HOLDER

Bassene sought lawful status in the United States by

mistakenly filing an N-400 citizenship application instead of

filing an I-589 asylum application. He attached a one-page

statement to his citizenship application explaining that he had

expected to see questions asking if he had been persecuted for

his ethnicity or political beliefs in Senegal, because these

were the reasons he was seeking refuge in the United States. 

After Bassene’s N-400 citizenship application was denied, an

Immigration and Naturalization ServicesOfficer directed him

to file an asylum application. In his I-589 asylum

application, Bassene answered questions about the political

and ethnic persecution he experienced in great detail. The

answers in Bassene’s I-589 application were consistent with

the testimony he gave at his removal hearing. The

Immigration Judge (“IJ”) found that Bassene was not

credible, however, because Bassene had not supplied the

same level of detail about persecution when he filled out his

mistakenly filed N-400 citizenship application. The BIA

affirmed.

We hold that substantial evidence does not support the

BIA’s adverse credibility finding. The IJ should not have

drawn an adverse inference from the low level of detail about

persecution provided in Bassene’s N-400 citizenship

application, which is not designed to elicit information about

persecution. The BIA erred when it adopted the IJ’s flawed

reasoning. The BIA also erred when it found that Bassene

was not credible on the ground that his citizenship and

asylum applications were inconsistent. We have jurisdiction

under 8 U.S.C. § 1252. We grant the petition for review,

vacate the BIA’s adverse credibility finding, and remand to

the BIA to determine whether Bassene is eligible for asylum.
BASSENE V. HOLDER 5

BACKGROUND

A. Bassene’s Removal Proceedings

The facts of Bassene’s case compel us to conclude that

the BIA’s adverse credibility finding is not supported by

substantial evidence. At his August 29, 2006 removal

hearing, Bassene testified about the ethnic and political

persecution he experienced while living in Senegal. Bassene

grew up in southern Senegal’s Casamance region, in the town

of Zinguinchor. Bassene testified that if he returns to Senegal

he will be persecuted because of his Diola ethnicity and his

affiliation with the armed wing of the Movement of the

Democratic Forces of the Casamance (“MFDC”). The armed

wing of the MFDC is a separatist organization that demands

independence for southern Senegal’s Casamance region and

has been in an armed conflict with the Senegalese military

since the early 1980s.

1. Bassene’s Diola ethnicity

Bassene and his family are Diola, a minority ethnic group

in Senegal. Bassene is recognizable as Diola because of his

family name. From 1990 to 1997, Bassene attended the

University of Dakar on a government scholarship. Bassene

testified that in the capital city of Dakar, the Diola people are

not well-respected because they have a reputation for being

instigators of rebellion. Bassene contends that he was a top

university student studying Spanish and was set to receive a

scholarship to study abroad in Spain, but was replaced with

a non-Diola student at the last minute and had to remain in

Senegal.
6 BASSENE V. HOLDER

2. Bassene’s affiliation with the MFDC

In 1986, when Bassene was eighteen years old, his family

was forcefully recruited into financially supporting the

MFDC. Six gunmen from the movement’s armed wing

intruded into his family’s home in the late evening hours. 

After Bassene’s mother and sisters were moved to another

location within Bassene’s family’s home, the gunmen

demanded that Bassene and his father join the MFDC to help

gain greater prosperity for the region. Bassene’s father

initially refused. The gunmen said if Bassene’s father wanted

to live, his family needed to be involved with the MFDC in

some way. Bassene’s family opted to contribute about $6 per

month to the MFDC. Bassene’s mother and two sisters, who

still live in Senegal, continue to pay this contribution under

threat of retaliation. The Bassenes were issued a family card

to demonstrate their affiliation with the armed wing of the

MFDC. The MFDC also has a distinct and legal political

wing. Bassene testified that he is sympathetic to the peaceful

objectives of the MFDC’s political wing. He once

participated in a large event organized by the political wing

of the MFDC in 1992, whose purpose was to restore peace in

Senegal.

Several of Bassene’s family members have been killed or

have lost their homes because of the conflict between the

armed wing of the MFDC and the Senegalese government. 

Two of Bassene’s male cousins joined the armed wing of the

MFDC in 1991. After a Senegalese military raid in 1993, the

area where the men were camping was burned, they were

arrested by the military, and they were never heard from

again. Bassene’s aunt’s village was burned and she lost her

home as a result of the conflict between the Senegalese

government and the MFDC’s armed wing. As of 2001, over
BASSENE V. HOLDER 7

a hundred civilians have been extrajudicially executed or

“disappeared by” the Senegalese military, and dozens have

been deliberately or arbitrarily killed by the armed wing of

the MFDC.

In 1992, Bassene was detained, arrested, and beaten by

the Senegalese military because of his affiliation with the

MFDC’s armed wing. Bassene was traveling home from

school on the Thursday before the Easter holiday. While

passing through a checkpoint, Bassene was detained and

searched by the Senegalese military. After the soldiers found

Bassene’s MFDC card, they escorted Bassene to a small

building for questioning. Bassene told the soldiers that he

was a student and that he had been forced to carry the MFDC

card.

The soldiers took Bassene to jail and placed him in a cell

with five other men. The soldiers beat Bassene and made

derogatory comments about his Diola heritage. There was no

running water in the cell. It was not until the following

morning, on Friday, that the men were given some food and

allowed to go to the bathroom. The soldiers questioned

Bassene for an additional six hours that day.

On Saturday morning at 2:00 a.m., the soldiers placed a

call to the University of Dakar. The University confirmed

that Bassene was a full-time student. Bassene paid a $30 fine

and was subsequently released. At the time of his release,

Bassene’s face was bleeding and swollen from being pushed

into a wall by a soldier. The soldier escorting Bassene out of

jail threatened him, saying the next time he was caught by the

military, “that will be the end of it.”
8 BASSENE V. HOLDER

Bassene fears that if he returns to Senegal he will be

arrested and interrogated regarding his whereabouts for the

past nine years. Bassene also believes that if he returns to

Senegal, the MFDC’s armed wing will attempt to recruit him

again. He does not believe the Senegalese government will

be able to protect him from the MFDC’s armed wing.

3. Bassene’s immigration proceedings in the United

States

Bassene was legally admitted to the United States on

November 27, 1997, on a J-1 cultural exchange visa. Bassene

came to the United States from Senegal to participate in an

internship program in hotel management. His visa expired a

year-and-a-half later on June 29, 1999. Bassene wanted to

stay in the United States legally. He feared returning to

Senegal because he had been arrested, detained, beaten, and

threatened by the Senegalese military. An American college

student who was an acquaintance of Bassene’s advised

Bassene to apply for United States citizenship. As a result,

Bassene mistakenly believed that he could obtain lawful

status in the United States based on his fear of persecution in

Senegal by filing an N-400 citizenship application.

On November 1, 1999,Bassene filed an N-400 citizenship

application. The N-400 citizenship application requests

information from the applicant setting forth his or her

eligibility for citizenship, including lawful permanent

residency status and compliance with immigration laws. 

Question 15 asked if Bassene had been arrested for “breaking

or violating any law or ordinance.” Bassene checked a box

indicating that he had never been arrested for those reasons. 

Part 9 of the citizenship application asked Bassene to list his

affiliations with “organization[s].” Bassene did not disclose
BASSENE V. HOLDER 9

his membership in the armed wing of the MFDC because he

was forced to be a member of the organization.

Bassene attached a one-page statement to his N-400

citizenship application to convey that he feared returning to

Senegal because he expected to see a question about

persecution in his home country. In the one-page statement,

Bassene elaborated, in general terms, on the turbulent

situation in his home region of Casamance. Bassene’s N-400

application for citizenship was denied on July 20, 2000, and

Bassene requested a hearing on the denial.

On February 15, 2001, Bassene met with an Immigration

and Naturalization Service officer. The officer conducted a

de novo review of Bassene’s N-400 citizenship application

and found Bassene ineligible for naturalization. The officer

told Bassene that he could apply for asylum. The officer gave

Bassene an I-589 asylum application; a list of the countries

whose nationals were eligible for asylum, withholding of

removal, or CAT relief; and a list of free legal services.

On March 8, 2001, Bassene submitted his I-589 asylum

application that he completed without the assistance of

counsel. In his asylum application, Bassene provided detailed

accounts of the night in 1986 when his family was forced to

join the armed wing of the MFDC. Bassene also described

his 1992 arrest by the Senegalese military.

Several years later, on August 29, 2006, Bassene

appeared before the IJ in San Diego at his removal hearing. 
10 BASSENE V. HOLDER

Bassene conceded removability and asked for asylum,

withholding of removal, and relief under CAT.1

B. The IJ Grants the Exceptional Circumstances

Exception for Asylum

At the removal hearing, the Department of Homeland

Security (“DHS”) argued that Bassene was ineligible for

asylum because he filed his application after the one-year

period designated by statute. See 8 U.S.C. § 1158(a)(2)(B). 

Bassene submitted his citizenship application almost two

years after he arrived in the United States, and about six

months after his J-1 visa expired. Bassene argued that he was

exempted from the one year filing period under the

“extraordinary circumstances” exception because he filed the

N-400 citizenship application less than six months after his J1 visa expired. See 8 U.S.C. § 1158(a)(2)(D). The IJ agreed. 

The IJ also decided to treat Bassene’s mistakenly filed N-400

citizenship application as a quasi-asylum application.

C. The IJ Finds that Bassene is Not Credible

At the removal hearing on August 29, 2006, the IJ asked

Bassene why he had not disclosed that he was arrested by the

Senegalese military in the one-page statement he attached to

his N-400 citizenship application. Bassene responded: “I

was arrested. I don’t know why I didn’t (indiscernable) but

I was.” Moments later, the IJ notified Bassene’s attorney that

1 We apply pre-REAL ID Act standards because Bassene filed his

application for relief on November 1, 1999, which was before May 11,

2005, the effective date of the REAL ID Act. See Sinha v. Holder,

564 F.3d 1015, 1021 n.3 (9th Cir. 2009) (applying the pre-REAL ID Act

standard).
BASSENE V. HOLDER 11

the biggest problem in Bassene’s case was credibility. 

Bassene’s attorney argued that the purpose of the one-page

statement attached to the N-400 citizenship application was

to “tell our Government that [Bassene] might not be filing the

correct form but [Bassene] didn’t want to go back to his

country.” In its closing argument, DHS admitted that

Bassene was credible, stating: “The government feels that

overall he has been a very credible witness.” Nonetheless,

DHS declined to stipulate to Bassene’s credibility.

D. The IJ and BIA Decisions

On August 29, 2006, the IJ denied Bassene’s claim for

asylum, withholding of removal, and relief under CAT. The

IJ denied asylum and withholding of removal because he

found that Bassene was not credible. The IJ concluded that

the one-page statement Bassene attached to the N-400

citizenship application showed that he submitted the

application to “convey to the United States Government the

basis of his fear to allow him to stay in” the United States. 

The IJ stated that he was willing to excuse minor omissions

from the N-400, but he was not willing to excuse Bassene’s

omission “that he was arrested and detained for two or three

days[,] and mistreated and interrogated by the Senegalese

military.” The IJ also denied relief under CAT.

The BIA adopted the IJ’s adverse credibility finding and

also found that Bassene failed to meet his burden of proof for

relief. The BIA noted two alleged inconsistencies between

Bassene’s N-400 citizenship application and his I-589 asylum

application: (1) Bassene did not mention his arrest by the

Senegalese military and explicitly denied being “arrested,

imprisoned, or fined” in his N-400 citizenship application;
12 BASSENE V. HOLDER

and, (2) Bassene “failed to reveal his alleged membership in

MFDC” in his N-400 citizenship application.

STANDARD AND SCOPE OF REVIEW

Credibility determinations are reviewed for substantial

evidence. Rizk v. Holder, 629 F.3d 1083, 1087 (9th Cir.

2011). Under the substantial evidence standard, an adverse

credibility finding is “conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” 

Id. (internal quotation marks omitted). The BIA gives

deference to an IJ’s credibility finding because the IJ is in the

best position to assess the trustworthiness of the applicant’s

testimony. See Mendoza Manimbao v. Ashcroft, 329 F.3d

655, 661–62 (9th Cir. 2003). Where, as here, the BIA

summarily affirms an IJ’s decision and does not expressly

conduct a de novo review we may “look to the IJ’s oral

decision as a guide to what lay behind the BIA’s conclusion.” 

Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir. 2007).

DISCUSSION

A. The Lack of Detail in Bassene’s Mistakenly Filed N400 Citizenship Application Does Not Support the

BIA’s Adverse Credibility Finding

The IJ and BIA drew an adverse inference from the

omission of Bassene’s arrest and detention by the Senegalese

military from his N-400 citizenship application. However,

the N-400 citizenship application was not designed to elicit

information about persecution. “[T]he IJ had no reason to

‘expect’ to be told of ‘persecution and assaults’ on [Bassene

or his] family” in Bassene’s mistakenly filed N-400

citizenship application. Joseph v. Holder, 600 F.3d 1235,
BASSENE V. HOLDER 13

1242–43 (9th Cir. 2010) (internal quotation marks omitted)

(reversing adverse credibility finding that relied on

differences between bond hearing testimony and removal

hearing testimony).

In short, the IJ concluded that Bassene was not credible

because he did not include evidence of political and ethnic

persecution in his N-400 citizenship application, information

that would have been relevant had he filed an I-589

application for asylum. That Bassene filed an initial N-400

citizenship application that “was not as complete as might be

desired” of an I-589 asylum application “cannot, without

more, serve as a basis for a finding of lack of credibility.’”

Smolniakova v. Gonzales, 422 F.3d 1037, 1045 (9th Cir.

2005) (quoting Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.

1996)) (internal quotation marks omitted). Bassene provided

information on the ethnic and political persecution he

experienced in Senegal in the I-589 asylum application that

he was later instructed to file.

Moreover, the IJ speculated that because Bassene was an

educated person, he should have known to mention his arrest

and detention by the Senegalese military in his mistakenly

filed N-400 citizenship application. But “[s]peculation and

conjecture cannot form the basis of an adverse credibility

finding.” Shah v. INS, 220 F.3d 1062, 1071 (9th Cir. 2000). 

We hold that the lack of detailed information related to an

asylum claim provided in a non-asylum proceeding, when

consistent with the requirements of the proceeding, cannot on

its own result in an adverse credibility finding. We also hold

that an IJ may not make an adverse credibility finding based

solely on speculation that an asylum applicant should have

been capable of providing more detail related to an asylum

claim in an earlier non-asylum proceeding.
14 BASSENE V. HOLDER

Bassene filed the N-400 citizenship application pro se. 

We are guided by the principle that “asylum forms filled out

by people who are unable to retain counsel should be read

charitably, especially when it comes to the absence of a

comprehensive and thorough account of all past instances of

persecution.” Smolniakova, 422 F.3d at 1045 (internal

quotation marks omitted). We recently stated that

“[o]missions [in I-589 asylum applications] are not given

much significance because applicants usually do not speak

English and are not represented by counsel.” Kin v. Holder,

595 F.3d 1050, 1056 (9th Cir. 2010). We give Bassene’s

omission of his arrest and detention even less weight because

he completed an N-400 citizenship application, rather than an

I-589 asylum application, and properly complied with the

requirements set forth in his N-400 citizenship application. 

The I-589 asylum application would have at least prompted

Bassene to provide information on political and ethnic

persecution, whereas the N-400 citizenship application did

not.

Bassene’s mistakenly filed N-400 citizenship application

is akin to early-stage asylum proceedings like bond hearings,

airport interviews, and asylum interviews. The differences in

detail between statements made during less formal

proceedings and later formal proceedings may not be used to

undermine an applicant’s credibility. In Joseph v. Holder,for

example, we “rejected [an] adverse credibility finding[] that

relied on differences between statements a petitioner made

during removal proceedings and those made during [a] less

formal, . . . unrecorded [bond hearing].” 600 F.3d at 1243. 

We reasoned that an IJ’s credibility finding during a removal

hearing may not rely on statements made by the applicant

during less formal proceedings. Id. at 1244.
BASSENE V. HOLDER 15

In so holding, Joseph relied on precedent explaining that

airport interviews and asylum interviews do not require the

same level of detail as later formal proceedings. See

Arulampalam v. Ashcroft, 353 F.3d 679, 688 (9th Cir. 2003)

(holding that petitioner’s omission during an airport interview

of specific details of torture that were revealed later at the

removal hearing did not support a negative credibility

finding); Singh v. INS, 292 F.3d 1017, 1021–24 (9th Cir.

2002) (holding that an adverse credibility finding could not

rest solely on the fact that an applicant provided less detail in

his statements at the airport than he did at his subsequent

hearing); see also Singh v. Gonzales, 403 F.3d 1081, 1087

(9th Cir. 2005) (holding that a contradiction between a

petitioner’s asylum interview, where the interview was not

recorded and notes were taken by hand, and removal hearing

testimony was not substantial evidence to justify an adverse

credibility finding). The lack of detail in Bassene’s

mistakenly filed but properly completed N-400 citizenship

application, does not on its own undermine Bassene’s

credibility in his asylum proceeding.

The lack of detail in Bassene’s N-400 citizenship

application and speculation that Bassene was capable of

providing information on political and ethnic persecution

does not “bear a legitimate nexus to the [BIA’s] finding” that

Bassene is not credible. Salaam v. INS, 229 F.3d 1234, 1238

(9th Cir. 2000) (per curiam) (internal quotation marks

omitted).
16 BASSENE V. HOLDER

B. The Purported Inconsistencies between Bassene’s N400 Citizenship Application and His I-589 Asylum

Application Do Not Support the BIA’s Adverse

Credibility Finding

When taking both of Bassene’s applications together,

Bassene’s N-400 citizenship application was not inconsistent

with his I-589 asylum application. The BIA believed that the

two applications lacked “sufficient consistency” because

Bassene failed to disclose his arrest and detention by the

Senegalese military and his forced membership in the MFDC

in his N-400 citizenship application. Viewing the purported

inconsistencies “in light of all the evidence presented in the

case” reveals that the applications were not inconsistent. 

Kaur v. Gonzales, 418 F.3d 1061, 1066 (9th Cir. 2005). In

Bassene’s N-400 citizenship application, Bassene correctly

answered that he had not been arrested for unlawful conduct

for “breaking or violating any law or ordinance.” Here,

Bassene was arrested because the Senegalese military

incorrectly identified him as a member of the MFDC’s armed

wing. Bassene was also truthful in declining to list his forced

membership in the MFDC in his N-400 citizenship

application. Bassene agreed to carry an MFDC membership

card and pay a tax to the MFDC only after six gunmen

entered his home and forcefully recruited him and his father.

For these reasons, the claimed inconsistency between the

two applications is not supported by substantial evidence. In

addition, Bassene appropriately answered his N-400

citizenship application.
BASSENE V. HOLDER 17

CONCLUSION

The BIA has not evaluated Bassene’s eligibility for

asylum based on his fear of persecution in Senegal. We grant

Bassene’s petition for review, vacate the BIA’s adverse

credibility finding, and remand the case to the BIA for further

consideration and investigation in light of our ruling that the

petitioner is credible. Guo v. Ashcroft, 361 F.3d 1194,

1203–04 (9th Cir. 2004) (citing INS v. Ventura, 537 U.S. 12,

16 (2002)).

PETITION GRANTED; REVERSED and

REMANDED.