Pursuant to Fed. R. App. P. 43(c)(2), Attorney General *

Michael B. Mukasey has been substituted for former Attorney General

Alberto R. Gonzáles as the respondent herein.

United States Court of Appeals

For the First Circuit

No. 07-1390

SARETH YOSD,

Petitioner,

v.

MICHAEL B. MUKASEY,*

Attorney General,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF 

THE BOARD OF IMMIGRATION APPEALS

Before

 Torruella, Lipez, and Howard, 

Circuit Judges.

Joseph A. MacDonald on brief for petitioner.

Peter D. Keisler, Assistant Attorney General, David V. Bernal,

Assistant Director, Office of Immigration Litigation, and Lauren E.

Fascett, Trial Attorney, Office of Immigration Litigation, on brief

for respondent.

January 29, 2008
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LIPEZ, Circuit Judge. Sareth Yosd, a Cambodian national,

seeks review of a final order of the Board of Immigration Appeals

("BIA") denying his claims for asylum relief, withholding of

removal, under sections 208 and 241(b)(3) of the Immigration and

Nationality Act, 8 U.S.C. §§ 1158, 1231(b)(3), and protection

pursuant to the U.N. Convention Against Torture ("CAT"). Following

the BIA's determination that his first hearing had been marred by

inadequate translation services, the BIA remanded the case for a

second hearing before the same immigration judge ("IJ") who had

previously ruled that Yosd was not credible. Yosd contends that

this remand violated his due process rights because the IJ was

predictably predisposed to rule against him during the second

hearing in order to defend her earlier decision. We find no due

process violation and conclude that the IJ's adverse credibility

determination is supported by substantial evidence. Accordingly,

we affirm.

I.

Yosd entered the United States on May 25, 2001, using a

non-immigrant visa that permitted him to remain here until August

24, 2001. In January 2002, Yosd filed an application requesting

asylum relief, withholding of removal, and protection pursuant to

the CAT. Yosd's asylum application was premised on his active

membership in political parties opposed to the ruling Cambodian

People's Party (CPP). He asserted that because of his political
The IJ granted Yosd a continuance at the end of the September 1

2002 hearing to permit him to submit additional documentary

evidence in support of his claims, and resumed hearing testimony in

March 2003. The same interpreter translated both hearings. For

convenience, we refer to the September 2002 and March 2003 hearings

collectively as the "first hearing."

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activism in opposition to Hun Sen, the CPP leader, he had been

forced to go into hiding in 1997 and again in 2000. He also

recounted being arrested, jailed for two days, and beaten by police

in September 1998 for bringing bread and water to protesters

outside the National Assembly building. 

After an initial interview concerning his asylum

application, Yosd was referred to the Boston Immigration Court and

charged with removability pursuant to 8 U.S.C. § 1227(a)(1)(B) for

having overstayed his visa. An IJ heard testimony from Yosd on

September 13, 2002 and March 12, 2003, and subsequently denied his 1

requests for relief and ordered him removed from the United States.

The IJ's ruling was based on a finding that Yosd's

testimony was not credible. In particular, the IJ noted that Yosd

had been inconsistent regarding where he was living between

November 2000 and his departure for the United States in May 2001.

In the affidavit attached to his asylum application, Yosd claimed

that he had gone into hiding in "the countryside and jungle" in

November 2000 and had remained in hiding until his departure from

Cambodia. However, he later testified that he returned home in

January 2001 to celebrate the New Year with his family and remained
The Sam Rainsy Party is one of two opposition parties in 2

which Yosd asserted he had been an active member. He testified

that he had joined the FUNCINPEC Party in 1992, but that he became

disillusioned with Prince Ranariddth's leadership of that party in

1998, prompting him to join the Sam Rainsy Party.

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"in hiding" at his home until May 2001. But Yosd also testified

that during the period just prior to his departure from Cambodia

while he purported to be in hiding, he requested a passport in

person from Cambodian government officials, traveled to the U.S.

Embassy to obtain a visa, and was permitted to leave the country

without incident. The IJ also noted that Yosd had testified in

September 2002 that he had destroyed his Sam Rainsy Party2

membership card prior to leaving Cambodia, but in March 2003 he

introduced just such a membership card into evidence at his

hearing. 

The IJ also found his testimony inconsistent concerning

where his wife and children had lived and the status of his sewing

machine business following his departure from Cambodia. He

testified in September 2002 that he had closed his business two

days before he left the country and that his family had moved to a

village some 30 kilometers from Phnom Penh. He then testified in

March 2003 that his wife and children had lived in the family home

in Phnom Penh following Yosd's departure and that his spouse had

continued to run Yosd's sewing machine shop until some time in

2002. Given these inconsistencies, the IJ concluded that Yosd's
We refer to this March 2005 hearing as the "second hearing." 3

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testimony as to his "true motivations in leaving Cambodia cannot be

given any weight."

Yosd appealed the IJ's decision to the BIA, challenging

the quality of the translation services he had received during the

first hearing. The BIA found that there was a "significant

probability" that "the interpretation of [Yosd's] testimony was

inadequate." The BIA found "a likelihood that the respondent was

unable to meaningfully participate in the removal proceedings"

because of poor translation services, and remanded the case to the

same IJ for "further proceedings consistent with this opinion and

for the entry of a new decision."

Following the remand, the IJ held another hearing on

March 9, 2005. The IJ had requested that the Language Services 3

Unit evaluate the interpreter who had translated the first hearing,

and she began the second hearing by submitting that report into

evidence. The report gave the translator a score of 70% and ranked

his services as "good" or "minimally acceptable" in all categories.

Using a different interpreter, the IJ proceeded to hear additional

testimony from Yosd. She then issued an oral decision, once again

finding Yosd not credible and denying his requests for relief. 

In this decision, the IJ noted many of the same

inconsistencies in Yosd's testimony that she had noted in her first

decision. In particular, she questioned the credibility of Yosd's
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testimony regarding when he was in hiding. At the second hearing,

he testified that he went into hiding for several months following

the arrest of two of his friends, but testified at various points

during the hearing that this arrest occurred in May, June, and

November 2001. Yosd also testified, as he had at the first

hearing, that he was in hiding at his home from January 2001 to May

2001. Yosd's testimony made clear that Hun Sen supporters knew

where he lived. Therefore, the IJ concluded that his statement

that he was in hiding at home made "very little sense,"

particularly when paired with his testimony that he had obtained

a passport and visa by traveling in person to the Cambodian

passport office and the U.S. Embassy. The IJ also noted that,

although Yosd had testified that two of his politically active

friends had been arrested, he had "not established with any level

of specificity that anybody ever really came looking for him or

threatened to harm him in any way other than the one arrest" in

September 1997, many years before he left Cambodia. Thus, the IJ

concluded that Yosd's testimony, even with the benefit of a new

interpreter at the second hearing, was "so inconsistent and lacking

in detail as to be incredible." 

On February 5, 2007, the BIA affirmed the IJ's decision,

rejecting Yosd's claim that the IJ was biased against him and

finding no clear error in her determination that Yosd's testimony

lacked credibility. This petition for review followed, alleging
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that the IJ's lack of impartiality in the second hearing violated

Yosd's due process right to a hearing before a neutral finder of

fact. See Kheireddine v. Gonzales, 427 F.3d 80, 84 (1st Cir. 2005)

(quoting Marincas v. Lewis, 92 F.3d 195, 203-04 (3d Cir. 1996)

(holding that one of the "most basic of due process protections" is

"a hearing before a neutral immigration judge")).

II.

We review Yosd's due process claim de novo. See

Kheireddine, 427 F.3d at 83; Aguilar-Solís v. INS, 168 F.3d 565,

568 (1st Cir. 1999). That claim takes two forms. As an

institutional matter, he argues that the BIA should never remand a

case to the same IJ who had made a previous adverse credibility

determination. He also argues that the conduct of the IJ at the

second hearing demonstrated a bias that deprived him of a fair

hearing. We find no merit in either argument.

A. The Remand

In addressing the recusal of federal judges, the Supreme

Court has noted that "[i]t has long been regarded as normal and

proper for a judge to sit in the same case upon its remand."

Liteky v. United States, 510 U.S. 540, 551 (1994); cf. Mass. Dist.

Ct. local rule 40.1(K) (permitting further proceedings following a

remand to be conducted before the same judge if that judge

determines that "there will result a substantial saving in the time

of the whole court and there is no reason why, in the interest of
Although the Liteky Court was analyzing a recusal statute, 28 4

U.S.C. § 455, that does not apply to immigration judges, Liteky

nonetheless informs our analysis of allegations of judicial bias in

the immigration context. See Aguilar-Solís, 168 F.3d at 569

(citing Liteky in analyzing a due process claim against an IJ); Shu

Ling Ni v. BIA, 439 F.3d 177, 180-181 (2d Cir. 2006) (applying

Liteky in the context of an alien's allegation of bias against an

IJ in an asylum hearing).

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justice, further proceedings should be conducted before another

judge"). As the Liteky Court further explained: 

[O]pinions formed by the judge on the basis of

facts introduced or events occurring in the

course of the current proceedings, or of prior

proceedings, do not constitute a basis for a

bias or partiality motion unless they display

a deep-seated favoritism or antagonism that

would make fair judgment impossible.

Liteky, 510 U.S. at 555. In a case where an IJ's decision is 4

vacated due to some misconduct on the judge's part, we agree that

it would be wise for the BIA to order the case remanded to a new IJ

for a second hearing. See, e.g., Ti Wu Gao v. Gonzales, 200 Fed.

Appx. 31, 34-35 (2d Cir. 2006) (unpublished) (directing the BIA to

assign a case to a different judge on remand where the particular

IJ's conduct had been found to suggest bias and hostility toward

Chinese petitioners in three separate cases). Cf. Sosnovskaia v.

Gonzalez, 421 F.3d 589, 594 (7th Cir. 2005) (strongly encouraging

the BIA to assign the case to a different judge on remand because

the same IJ had twice found petitioner deportable, only to have one

of her rulings reversed and the other vacated). However, in Yosd's

case, there was no allegation or finding of misconduct by the IJ
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during the first hearing. Instead, the BIA simply found that the

translation of Yosd's testimony by the interpreter had likely been

inadequate. Under these circumstances, we find no fault with the

BIA for remanding the case to the same IJ for further proceedings

despite the adverse credibility finding in the first proceeding.

B. The Conduct of the IJ

To the extent that Yosd's due process claim is based on

the IJ's conduct at the second hearing, it also fails. Yosd's bias

allegations arise directly from the IJ's participation in Yosd's

prior proceedings. To prevail under these circumstances, Yosd must

"meet the substantial burden of proving that the IJ displayed a

'deep-seated favoritism or antagonism that would make fair judgment

impossible.'" See Shu Ling Ni, 439 F.3d at 181 (quoting Liteky,

510 U.S. at 555). Yosd has not met this burden.

Yosd alleges that the IJ's conduct at the second hearing

was improper because she chose to use that hearing to justify her

prior ruling. In support of this claim, he cites her introduction

into evidence at the second hearing of an evaluation of the quality

of the translation during the first hearing. We fail to see how

the IJ's request for an evaluation of the interpreter and her

introduction of that evaluation into evidence provides proof of the

IJ's bias. As she thoroughly explained during the hearing, the IJ

believed that the errors noted by the BIA stemmed as much from

inadequate transcription of the first hearing as from inadequate
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translation services by the interpreter. She expressed concern

that this was a chronic problem because the BIA reviews transcripts

rather than audio tapes of the hearings. She explained that she

was introducing the evaluation of the translation services into the

record to illustrate to the BIA that errors in transcription may be

to blame for what the BIA perceives to be an inadequacy in

translation services. She noted that the evaluation of the

translation in the prior hearing was "not something [she was]

considering" during the second hearing. Instead, she felt it was

"something for the Board to consider." 

Yosd characterizes the IJ's introduction of the

translation evaluation as an expression of "disdain or

disagreement" with the remand itself. Even if that were the case,

such disdain alone does not amount to a due process violation. See

Aguilar-Solís, 168 F.3d at 569 (noting that "charges of judicial

bias and partiality cannot be established solely by 'expressions of

impatience, dissatisfaction, annoyance, and even anger'" (quoting

Liteky, 510 U.S. at 555)). However, we disagree with Yosd's

characterization and instead conclude, as the BIA did, that the

IJ's request for an evaluation of the first interpreter and her

submission of that evaluation to the BIA was "in support of an

institutional concern for the integrity of interpretations before

EOIR [the Executive Office of the Immigration Review], not to

justify her prior ruling." 
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Yosd also contends that the IJ's bias was revealed in her

comment at the outset of the second hearing that she was "going to

send the case back to the Board unless [she saw] something

different in the testimony here today to make [her] believe that

[her] decision was incorrect." In context, this comment is merely

a restatement of the IJ's understanding of the purpose of the

remand. Earlier in the hearing, the IJ explained that the purpose

of the second hearing was to use a new translator and to hear new

testimony to "clarify anything that [Yosd's counsel] felt was not

properly translated [and]. . . to clarify anything that maybe I

misunderstood or was otherwise not properly translated." This

statement of the purpose for the second hearing is consistent with

the BIA's order that the IJ conduct further proceedings to allow

the respondent to "meaningfully participate in the removal

proceedings." Thus, we find nothing improper, much less any

evidence of the deep-seated antagonism necessary to establish a due

process violation, in the IJ's explanation that she would need to

see "something different" during the second hearing in order to

find Yosd credible. 

Yosd next alleges that the IJ's "use of some of the

testimony from the prior hearings to support her lack of

credibility determination while ignoring other testimony further
Yosd apparently does not argue that all of the testimony at 5

the first hearing was tainted by the poor quality of the

translation and thus that any reference to the testimony from the

first hearing was inherently improper. In fact, in his brief

before this Court, Yosd cites exclusively to the transcript from

the first hearing to establish his version of the facts of the

case. 

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illustrates her predisposition." We do not agree. The IJ has 5

broad discretion to consider unexplained inconsistencies as

evidence of a lack of credibility. See Mewengkang v. Gonzales, 486

F.3d 737, 739-40 (1st Cir. 2007) (holding that an alien may be

found incredible based on unexplained discrepancies in testimony

when the IJ provides specific and cogent reasons to conclude that

the respondent's testimony was not credible). The second hearing

with a new interpreter afforded Yosd the opportunity to explain any

inconsistencies he wished to explain. Indeed, Yosd had the

advantage of a prior decision pointing out the specific

discrepancies with which the IJ was particularly concerned. The

fact that he failed to clarify these points in the second hearing

is a proper ground for an adverse credibility finding and does not

suggest that the IJ prejudged Yosd's credibility on remand. Thus,

we conclude that Yosd's due process claim fails.

III.

We now turn to the merits of Yosd's asylum claim. Under

the highly deferential "substantial evidence" standard, we must

uphold the IJ's finding that Yosd lacked credibility "unless any

reasonable adjudicator would be compelled to conclude to the
The REAL ID Act of 2005, Pub.L. 109-13, 119 Stat. 302, 6

altered, among other things, the standards governing credibility

determinations in asylum cases. See 8 U.S.C. § 1158(b)(1)(B)(iii).

However, the new provisions of the Act are not applicable to this

case because Yosd's application for asylum was filed prior to the

effective date of the amendments.

An adverse credibility finding is similarly determinative of 7

an alien's petition for withholding of removal and CAT protection.

See Abdullah v. Gonzales, 461 F.3d 92, 97 (1st Cir. 2006) ("An

alien who fails to satisfy the standard for asylum automatically

fails to satisfy the more stringent standard for withholding of

removal."); Hana v. Gonzales, --- F.3d ---,2007 WL 2696491, *4 (1st

Cir. 2007) (noting that alien bears the burden of establishing a

likelihood of torture to prevail on a CAT claim).

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contrary." 8 U.S.C. § 1252(b)(4)(B); see also Kheireddine, 427

F.3d at 87. "Where the record supports plausible but conflicting 6

inferences . . . , the IJ's choice between those inferences is, a

fortiori, supported by substantial evidence." López de Hincapie v.

Gonzales, 494 F.3d 213, 219 (1st Cir. 2007). 

The burden of proof is on the asylum applicant to

demonstrate, through credible testimony or corroborating evidence,

that he is a refugee either because he has suffered past

persecution or because he has a well-founded fear of future

persecution. 8 C.F.R. § 1208.13; Hoxha v. Gonzales, 446 F.3d 210,

216 (1st Cir. 2006). As a result, an adverse credibility

determination, if supported by a "specific, cogent, and supportable

explanation," Heng v. Gonzales, 493 F.3d 46, 48 (1st Cir. 2007), is

generally fatal to an asylum applicant's claim for relief, Chen v.

Gonzales, 418 F.3d 110, 113 (1st Cir. 2005).7
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As described above, the IJ's decision detailed numerous

inconsistencies that led to her conclusion that Yosd lacked

credibility. Yosd attacks these inconsistency findings. First, he

questions the IJ's determination that he failed to set forth any

ongoing threats after he had left the country, noting that he had

testified at his first hearing to incidents in which his wife had

been questioned by Hun Sen followers about his whereabouts

following his departure from Cambodia. However, the prior

testimony about these incidents was vague; its lack of specificity

could reasonably lead the IJ to infer that it lacked credibility.

Yosd suggests that his vagueness could be attributed to his wife's

hesitancy to give him details about the incidents for fear that he

may return to Cambodia out of concern for her. Although this is

one possible explanation for his vagueness, it is not the only

reasonable one. We defer to the IJ's determination that the proper

inference to be drawn from Yosd's lack of specificity is a lack of

truthfulness.

Next, Yosd questions the adverse inference the IJ drew

from Yosd's original testimony that he had destroyed his Sam Rainsy

Party membership card, followed by Yosd's introduction of just such

a membership card in a subsequent hearing. Yosd argues that "a

fair reading of the transcript of the prior hearing seems to

suggest" that the card produced was a duplicate sent to him by his

wife. Again, that is one possible reading of the testimony
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regarding the card, but it is not the only reading. As Yosd

himself admits, his testimony on this point was confusing. The

IJ's finding that his production of the card demonstrated a lack of

credibility is one reasonable inference to be drawn from the

juxtaposition of his testimony and his subsequent production of a

membership card.

Finally, Yosd contends that the IJ erred in finding his

testimony lacking in credibility based on his assertion that he

went into hiding away from his home for five or six months, from

May or June 2000 until January 2001, followed by his detailed

description of being at home in November 2000 when two of his

friends were arrested for their political activities. Although the

IJ noted that Yosd had difficulty with dates, this particular

inconsistency transcends a mere difficulty with dates and goes to

the heart of his claim of past persecution. Our review of the

transcripts leads us to conclude, as the IJ did, that it is unclear

when and where Yosd was hiding. Although Yosd argues that the

"confusion may easily have stemmed from the fact that [he] did go

into hiding for five months following the coup of 1997," it is also

reasonable to find, as the IJ did, that the confusion stems from a

fabricated story. 

IV.

In sum, we conclude that Yosd was afforded full due

process on remand. We find that the IJ's adverse credibility
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finding following the second hearing was supported by a "specific,

cogent, and supportable explanation." Thus, we deny the petition

for review. 

 So ordered.