R-K-K-

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658
Matter of R-K-K-, Respondent
Decided September 8, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Significant similarities between statements submitted by applicants in different
proceedings can be considered by an Immigration Judge in making an adverse
credibility determination if certain procedural steps are undertaken to preserve the
fairness of the proceedings.
(2) When relying on inter-proceeding similarities, the Immigration Judge should give the
applicant meaningful notice of the similarities and a reasonable opportunity to explain
them prior to making a credibility determination that is based on the totality of the
circumstances.
FOR RESPONDENT: Inna Lipkin, Esquire, Redwood City, California
BEFORE: Board Panel: PAULEY and WENDTLAND, Board Members; O’HERRON,
Temporary Board Member.
PAULEY, Board Member:
In a decision dated February 11, 2013, an Immigration Judge denied the
respondent’s applications for asylum and withholding of removal and his
request for protection under the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, adopted and
opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR
Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force
June 26, 1987; for the United States Apr. 18, 1988). The respondent has
appealed from that decision. The appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of India. On May 11, 2011,
within 1 year of entering the United States, he filed an application for
asylum with the Department of Homeland Security (“DHS”). On July 1,
2011, the DHS initiated removal proceedings against the respondent,
charging him with removability as an alien who is present in the United
States without being admitted or paroled. The respondent has conceded
that he is removable as charged.

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The Immigration Judge denied the respondent’s applications for relief
based on an adverse credibility determination. In this regard, the
Immigration Judge noted that the form, substance, and tone of the
respondent’s asylum application and an associated declaration were
substantially similar, and in some regards identical, to an asylum
application previously filed by the respondent’s brother in a different
proceeding. After giving the respondent an opportunity to respond, the
Immigration Judge found that his explanations for the similarities were
insufficient to show that he had not copied significant parts of his brother’s
claim. The Immigration Judge further held that the respondent’s additional
corroborating evidence was inadequate to establish his claim.1
II. ISSUE
The primary issue in this case is whether, in making an adverse
credibility determination, an Immigration Judge can consider significant
similarities between statements submitted by applicants in different
proceedings. We conclude that such consideration is permissible and
outline the procedural framework under which an Immigration Judge
should address such inter-proceeding similarities.
III. ANALYSIS
The respondent’s applications are governed by the amendments brought
about by the passage of the REAL ID Act of 2005, Division B of Pub. L.
No. 109-13, 119 Stat. 302. Pursuant to these provisions, he bears the
burden to prove that he is eligible for any relief sought and, where
applicable, that it should be granted in the exercise of discretion. Section
240(c)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(4)
(2012); 8 C.F.R. § 1240.8(d) (2015).
In adjudicating such applications, a trier of fact should take a
commonsense approach to determining credibility, considering the totality
of the circumstances, including the applicant’s demeanor and any
inconsistencies in testimony or instances of implausibility. See section
208(b)(1)(B)(iii) of the Act, 8 U.S.C. § 1158(b)(1)(B)(iii) (2012); see also
Jibril v. Gonzales, 423 F.3d 1129, 1135 (9th Cir. 2005) (recognizing that an
Immigration Judge “must be allowed to exercise common sense in rejecting
a petitioner’s testimony”); Matter of J-Y-C-, 24 I&N Dec. 260, 262 (BIA
1 We review the Immigration Judge’s findings of fact, including those relating to
credibility, to determine if they are clearly erroneous. 8 C.F.R. § 1003.1(d)(3)(i) (2015).
We review de novo all questions of law, discretion, and judgment. 8 C.F.R.
§ 1003.1(d)(3)(ii).

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2007). Section 208(b)(1)(B)(ii) of the Act provides that although the
“testimony of the applicant may be sufficient to sustain the applicant’s
burden [of proof] without corroboration,” the applicant must demonstrate
that his testimony “is credible, is persuasive, and refers to specific facts
sufficient to demonstrate that the applicant is a refugee.”
A. Framework for Adjudicating Cases With
Inter-Proceeding Similarities
Neither the Board nor the United States Court of Appeals for the Ninth
Circuit, in whose jurisdiction this case arises, has issued a precedent
decision addressing the situation presented here. However, the Second
Circuit considered this issue in Mei Chai Ye v. U.S. Department of Justice,
489 F.3d 517 (2d Cir. 2007), and has approved of the reliance on
inter-proceeding similarities in credibility determinations.
In this case, the Immigration Judge relied on the Second Circuit’s
approach in making his adverse credibility finding based on substantial
similarities between the respondent’s asylum application and that of his
brother. We find that this approach provides a useful framework for
adjudicating cases with inter-proceeding similarities.2
Mei Chai Ye involved an asylum claim related to China’s family
planning policies. After the alien testified, the Immigration Judge noted
that the testimony “strikingly resembled” that of an alien in a different case.
Id. at 520. The DHS produced a redacted version of the application from
that other case. After reviewing the documents, the Immigration Judge
concluded that they were so “similar in language and grammatical
structure” that the number of similarities between them was too great to be
the result of an accident. Id. at 522. The Immigration Judge provided
continuances for the alien to address this issue but ultimately rejected her
explanations and entered an adverse credibility determination.
In denying the alien’s petition for review, the Second Circuit approved
of the procedural safeguards that were meticulously followed by the
Immigration Judge to avoid making a mistaken finding of falsity. Id. at
524–25. However, the court stated that it did “not purport to promulgate
and impose a specific set of procedural safeguards which [Immigration
Judges] must follow in all respects and in all cases.” Id. at 526.
2 We are not aware of any circuit court that had rejected the Second Circuit’s approach.
See Nadeem v. Holder, 599 F.3d 869, 873 (8th Cir. 2010) (citing Mei Chai Ye in a case
where an alien submitted letters that contained “similar language, grammar, and spelling
errors”); see also Dehonzai v. Holder, 650 F.3d 1, 13−15 (1st Cir. 2011) (Thompson, J.,
dissenting) (stating that Mei Chai Ye is “helpful” and noting its emphasis on the “specific
procedural protections” that should be followed).

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As the Second Circuit noted, cases such as these present a difficult
issue. Id. at 519. On the one hand, some inter-proceeding similarities are
so significant that, when left unexplained, they cannot be ignored. See id.
at 524. On the other hand, innocent similarities may be mistakenly
interpreted as evidence of falsity. We therefore conclude that Immigration
Judges may rely on inter-proceeding similarities as part of an adverse
credibility determination, but we must also review such determinations with
“an especially cautious eye.” See id. at 519–20.
To preserve the fairness of the proceedings, we adopt the following
three-part framework for Immigration Judges to use when relying on
inter-proceeding similarities as part of an adverse credibility determination.
First, the Immigration Judge should give the applicant meaningful notice of
the similarities that are considered to be significant. Second, the
Immigration Judge should give the applicant a reasonable opportunity to
explain the similarities. Finally, the Immigration Judge should consider the
totality of the circumstances in making a credibility determination. Each of
these steps must be done on the record in a manner that will allow the
Board and any reviewing court to ensure that the procedures have been
followed. This framework will permit Immigration Judges to draw
reasonable inferences of falsity from inter-proceeding similarities while
establishing procedural safeguards to protect faultless applicants.
In the first step of our framework, the Immigration Judge should
identify the similarities between the documents or other evidence under
consideration and notify the applicant of the similarities that need to be
explained.3 The Immigration Judge should provide the applicant with
copies of the statements or documents in question and explain how the
similarities appear to undermine the applicant’s credibility. Identifying all
the similarities clearly on the record will make it easier for the Immigration
Judge to ascertain the extent and nature of similarities in the case and will
facilitate any appellate review of the credibility finding.
Identification of a substantial number of instances where the same or
remarkably similar language is used to describe the same kind of incident
or encounter would tend to raise credibility questions that should be further
addressed. This is particularly true where there is additional material in
3 This should be done in a manner consistent with the confidentiality concerns of the
regulation at 8 C.F.R. § 1208.6 (2015). In that regard, 8 C.F.R. § 1208.6(a) provides:
Information contained in or pertaining to any asylum application, records
pertaining to any credible fear determination conducted pursuant to § 1208.30, and
records pertaining to any reasonable fear determination conducted pursuant to
§ 1208.31, shall not be disclosed without the written consent of the applicant,
except as permitted by this section or at the discretion of the Attorney General.

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both statements that “wouldn’t necessarily have to be mentioned but [was]
mentioned.” Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d at 521 (quoting
the Immigration Judge). But the presence of even a relatively few
similarities could raise the same credibility concerns if, in the context of an
overall asylum claim, distinct language was used or unique factual
circumstances were repeated without reasonable explanation. See, e.g.,
Dehonzai v. Holder, 650 F.3d 1, 8 (1st Cir. 2011) (rejecting the applicant’s
explanation that language describing a beating with a bundle of wires
attached to a tennis ball, which was “virtually identical” to his cousin’s
statement, was “mere coincidence”).
The second step of our framework provides the applicant with an
opportunity to explain the similarities. If appropriate, the Immigration
Judge may continue the hearing to allow the applicant to obtain evidence in
support of his or her explanation. We can envision scenarios in which an
applicant will offer a reasonable explanation or credible evidence to dispel
doubts about the authenticity or reliability of the initial evidence. As the
Second Circuit has noted, a reviewing court can more confidently defer to
an Immigration Judge who has considered
(a) whether there is a meaningful likelihood that [the inter-proceeding similarities]
resulted from mere coincidence, (b) whether it is plausible that different asylum
applicants inserted truthful information into a standardized template or, for
illiteracy reasons, conveyed it to a scrivener tied to an unchanging style;
(c) whether the same translator converted valid accounts into a peculiarly similar
story; and (d) whether there is a likelihood that the petitioner was an innocent
“plagiaree.”
Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d at 526–27.
As a final step in the credibility determination, the Immigration Judge
should assess all of the alien’s evidence for reliability to determine whether,
considering the totality of the circumstances, it adequately explains the
inter-proceeding similarities. See Matter of J-Y-C-, 24 I&N Dec. at 262.
B. Respondent’s Claim
The respondent’s asylum claim is based primarily on two alleged
incidents of arrest and abuse at the hands of the police in his home State of
Uttar Pradesh, India. According to the respondent, in both of the incidents,
which occurred in April and May 2010, he was arrested and taken from his
home to a police station, where he was accused of being connected to
Kashmiri militants and aiding Muslim terrorists at his place of business.
The respondent claimed that in the first incident, which occurred at 8 p.m.,
he was forced to undress and was beaten on his buttocks and back with

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sticks and was released when his father paid a 350,000 rupee bribe. During
the second arrest, he was undressed, beaten on his back and buttocks with
batons, and held by his feet and arms while two sets of officers pulled his
legs and arms apart. The respondent stated that during this incident, which
occurred at 9 p.m., he refused to sign a blank sheet of paper. Again, he
alleged that he was released upon payment of a bribe by his father. The
respondent stated that he sought medical attention on both occasions and
was never charged with a crime or fingerprinted.
The DHS raised the issue of similarities between the respondent’s
declaration and the asylum application of his brother, who was granted
asylum in 2009.4 The brother’s claim related to two arrests in 2004 and
2006, during which he was accused of aiding Muslim terrorists. His
application stated that the arrests occurred at the same time in the evening
as the respondent’s and that he was similarly beaten on his back and
buttocks after having his clothes removed. The respondent’s brother was
allegedly arrested the second time with his wife, so his application included
claims that they were both mistreated while in detention. He stated that
during his second arrest, he was allegedly told to sign a blank form, but he
refused. The brother also claimed that his legs were pulled apart by officers
and that his release was secured when his father paid a bribe.
The respondent’s application used similar language to describe events
that were almost identical to those claimed by his brother.5 Both brothers’
declarations included the same spelling and grammatical errors. In
referring to the harm he suffered, the respondent used the pronouns “we”
and “us,” as did his brother, whose claim, however, also related to his wife.
Because of these similarities between the respondent’s asylum declaration
and the statement submitted by his brother, both the DHS and the
Immigration Judge questioned the respondent in this regard. Among other
4 This case comports with the confidentiality requirements in 8 C.F.R. § 1208.6 because
the respondent’s brother waived his confidentiality protections. The brother’s unredacted
declaration was part of the record below, so the parties and the Immigration Judge were
able to fully compare the two documents. The respondent was permitted to use the
separate declaration, including information about the transcriber, in attempting to
demonstrate that the inter-proceeding similarities did not undermine his credibility. We
do not address what procedural protections are sufficient to offer an adequate opportunity
to explain similarities between asylum applications absent a confidentiality waiver.
5 For example, in regard to the first arrest, each brother stated that “the impact of this
incident is still on my mind” and that whenever he remembered it, he would “start
shivering.” Both applications identically alleged that the police “again falsely blame that
I have still connection with the Muslim” militants. Each brother also stated, “I was very
much astonished on their allegation and I told them I am not aware” of the terrorists.
They added, “They did not beleive [sic] me and they told me that they had record of my
last police arrest.”

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things, he was asked to explain why the experiences of the two brothers
were so similar, why identical language was used by each brother to
explain what happened and how those events made them feel, why each
declaration had the same syntax and spelling irregularities, and why the
respondent used plural pronouns in his statement.
The respondent’s explanation was that he and his brother were brought
up in similar ways and experienced mistreatment in a similar place. He
also claimed that the similarities in their applications could be attributable
to the fact that they used the same transcriber, who may have inserted his
own “flair for words and syntax.” The respondent stated that he provided a
verbal account of his experiences in India to the transcriber, who then wrote
his statements out and read them back over the course of two meetings.
The respondent denied ever seeing his brother’s asylum application prior to
submitting his own.
The respondent’s brother testified that he had used the same transcriber
to prepare his asylum application and had introduced the respondent to him.
The brother initially stated that the transcriber used a written version of
events prepared in Hindi by the respondent to complete the respondent’s
application and that this written document was then discarded. At a
subsequent hearing, the brother retracted this testimony, stating that he was
confused and that the transcriber actually prepared the respondent’s
application from a verbal account only. He added that, in any case, he was
not privy to the transcriber’s conversations with the respondent because he
was not sitting close enough to hear what was said at the time.6
The Immigration Judge granted the respondent approximately 3 months
to locate the transcriber and present his testimony or a statement describing
the preparation of the application. However, the respondent did not
produce the transcriber to testify. Even when the respondent appeared at
the continued hearing without the transcriber’s testimony, the Immigration
Judge indicated that he would be willing to reopen the record if the
respondent obtained additional evidence bearing on the preparation of his
application. The respondent did not do so.
In his decision, the Immigration Judge found that the similarities
between the respondent’s claim and that of his brother indicated that they
were not created independently of one another. Citing specific examples,
he observed that both applications shared identical wording, typographical
and spelling errors, and spacing irregularities in describing the same events.
6 The Immigration Judge found that the respondent’s brother’s testimony regarding his
confusion was not credible. We find no clear error in this determination. We note in
particular that the brother’s claim that he thought the questions referred to the manner in
which he prepared his own statement is belied by the transcript, which includes his clear
testimony that the respondent wrote out a statement in Hindi for the transcriber to use.

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In addition, the Immigration Judge noted that the respondent’s statement
used plural pronouns, as did his brother’s declaration, which also related to
his wife.
Having identified the inter-proceeding similarities that he believed
negatively affected the respondent’s credibility, the Immigration Judge
gave the respondent a reasonable opportunity to explain them. In response,
the respondent argued only that it was reasonable for his claim to be similar
to his brother’s since they come from the same location, they were accused
of the same offenses, and they used the same transcriber.
Considering the totality of the circumstances, the Immigration Judge
determined that the respondent lacked credibility. In addition to the
similarities in the applications, the Immigration Judge pointed to the
conflicting accounts of how the respondent’s application was prepared and
his brother’s incredible explanation for the inconsistency. He also noted
the absence of testimony from the transcriber and the lack of any other
persuasive evidence to establish that the respondent’s claim was credible.
We conclude that the Immigration Judge’s adverse credibility
determination is not clearly erroneous. The record fully supports his
finding that the nearly identical wording in the brothers’ accounts raises
substantial concerns about the respondent’s credibility. The Immigration
Judge identified similarities in the declarations that were too numerous and
obvious to be coincidental. Both declarations use the same distinctive
descriptions of the alleged events, using an almost identical narrative. Each
misspells several words in exactly the same way. The brothers both
claimed they were arrested at the same times in the evening, although the
respondent stated that his arrests occurred several years later. The
respondent’s declaration has spacing gaps that suggest that words included
in the brother’s declaration were simply deleted.
Moreover, the Immigration Judge did not clearly err in determining that
the respondent’s explanation did not sufficiently account for the similarities
in the brothers’ declarations. The respondent’s assertion that their nearly
verbatim statements are the result of their common backgrounds and
experiences is not persuasive. Nor is his claim that the similarities were
created by the transcriber. Also, the respondent did not account for the fact
that his declaration contains plural pronouns in a narrative describing a
scenario that he testified happened only to him. Furthermore, the brothers
gave inconsistent explanations of the transcriber’s preparation of the
declarations and their encounters with him.
The Immigration Judge considered the totality of the circumstances in
making his adverse credibility determination. Not only did he detail the
numerous inter-proceeding similarities in the case, he also thoroughly
analyzed the respondent’s explanations for them and outlined his reasons

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for finding them to be unpersuasive. Although the Immigration Judge gave
the respondent an opportunity to provide the transcriber’s testimony, the
respondent did not produce any additional evidence. Under these
circumstances, there is no clear error in the Immigration Judge’s
determination that the respondent did not present a credible claim for relief.
The respondent also did not meet his burden of proof through
independent corroborating evidence. See section 208(b)(1)(B)(ii) of the
Act; Matter of J-Y-C-, 24 I&N Dec. at 263. Without credible testimony, and
in the absence of other reliable evidence sufficient to prove his claims, the
respondent cannot satisfy the burden of proof that is applicable to asylum or
the more stringent burden required for withholding of removal. See Matter
of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).
The respondent argues that the Immigration Judge erred in not giving
dispositive weight to his documentary evidence, including a medical
document, letters from his father and brother-in-law, and copies of his
driver’s license and election commission card. However, the Immigration
Judge did not find this evidence insufficient merely because the
respondent’s documents were unauthenticated and submitted by witnesses
who are unavailable for cross-examination. Rather, he determined that the
conclusory and generic nature of the evidence was insufficient to
independently establish that the respondent had a well-founded fear of
persecution.7 The Immigration Judge did not clearly err in finding that
although the respondent’s evidence of country conditions in India reflects
that human rights abuses by the Government or its agents were reported,
particularly in certain areas of conflict, the evidence did not reflect a pattern
or practice of persecution of suspected associates of Kashmiri militants
outside of those areas.
Finally, we affirm the Immigration Judge’s conclusion that the
respondent has not established eligibility for relief under the Convention
Against Torture. The respondent did not establish a credible basis to
believe that he was detained and mistreated as claimed. Moreover, the
other evidence of record was insufficient to show that it is more likely than
not that anyone in India will torture the respondent with the consent or
acquiescence of a government official. See Ridore v. Holder, 696 F.3d 907
(9th Cir. 2012). Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.
7 We do not assess whether the above evidence would have sufficiently corroborated the
respondent’s claim if he had been found credible.