Matter of Y-I-M- (BIA 2019)
It has always been the case that an adverse credibility determination should not be based on inconsistencies that take the immigrant by surprise. This is true even though the immigration judge is obviously not required to adopt the immigrant’s explanation for any inconsistency.
An Immigration Judge may ask the applicant to respond to a perceived inconsistency, but that is not the only way to bring it to his attention. The Government may give the applicant an opportunity to respond through cross-examination. The applicant’s representative may also decide to elicit testimony on direct examination, or on redirect to clarify inconsistencies that are brought out during the hearing, particularly if they are not obvious or apparent. See, e.g., Martinez v. Holder, 734 F.3d 105, 112 (1st Cir. 2013) (noting that the applicant, who was represented by counsel, had “many missed opportunities” for clarification of his testimony). Although an Immigration Judge is not required to ask about obvious inconsistencies, there is nothing that precludes him or her from doing so for the sake of clarity and completeness of the record.
