                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-23-2005

Butt v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 03-4360




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"Butt v. Atty Gen USA" (2005). 2005 Decisions. Paper 179.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/179


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                   PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT


                No. 03-4360


  KHALID MAHMOOD BUTT, A29 760 955;
     SIDRAD KHALID, A29 760 957;
       ALI KHALID, A29 760 959;
     AYISHA JABEEN, A29 760 956;
     WAQAR KHALID, A29 760 958;
      SADIA KHALID, A29 760 960,

                                 Petitioners

                      v.

*ALBERTO GONZALES, ATTORNEY GENERAL
        OF THE UNITED STATES,

                                 Respondent

      *Substituted pursuant to Rule 43c, F.R.A.P.


     On Petition for Review of an Order of
      The Board of Immigration Appeals
    (BIA Nos. A29-760-955, A29-760-956,
         A29-760-957, A29-760-958
                 A29-760-959, A29-760-960)


                   Argued March 10, 2005

         Before: ROTH and AMBRO, Circuit Judges
                SHAPIRO ,** District Judge

             (Opinion filed: November 23, 2005)

John J. Seehousen, Esquire (Argued)
1530 Chestnut Street, Suite 606
Philadelphia, PA 19102

       Counsel for Petitioners

Peter D. Keisler
  Assistant Attorney General
David V. Bernal
  Assistant Director
Andrew C. MacLachlan, Esquire (Argued)
Office of Immigration Litigation
United States Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, DC 20044

       Counsel for Respondent

        ** Honorable Norma L. Shapiro, Senior District Judge
for the United States District Court for the Eastern District of
Pennsylvania, sitting by designation.

                                 2
                 OPINION OF THE COURT


AMBRO, Circuit Judge

        Khalid Mahmood Butt petitions for review of the
decision of the Board of Immigration Appeals (“BIA”) denying
his claims for asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”).1              The
Immigration Judge (“IJ”) presiding over Butt’s case denied
these claims based on his determination that Butt was not
credible, and that decision was affirmed without opinion by the
BIA. Because the IJ’s credibility determination is not supported
by substantial evidence in the record, we grant the petition.

       I. Factual Background & Procedural History

       Butt is a native and citizen of Pakistan. From 1969 to
1970, he worked full time in his father’s dry cleaning business.
Subsequently, he worked there only part-time so that he could
also work for the Pakistan People’s Party (“PPP”), a political
party. His involvement in that organization increased over time,



   1
    Although there are multiple petitioners in this case, our
discussion references only Butt. The other petitioners are Butt’s
wife and children, whose claims for asylum are derivative of his.

                               3
and in 1971 he began working for the PPP full time. Butt
testified before the IJ that he did not receive compensation from
the PPP, but his family was sufficiently well off to allow him to
continue to work only for the party. Butt was the General
Secretary of his local PPP ward from 1980 to 1990. From 1984
to 1996, he was also a “Counselor,” which appears to be an
elected position within the PPP.

        Butt testified that, as General Secretary, he collected dues
for the PPP and held party meetings at his home. He stated that
the PPP existed to help local people solve their problems and
that it wanted “everyone [to] . . . have a right to speak.” Butt
attempted to assist people within his ward with issues such as
obtaining water facilities and health care. He also helped people
who had problems with the police.

        In the 1980s, Pakistan was under military rule, and Butt
testified that he was arrested twice during this time—in
1987—and charged with being a troublemaker. According to
Butt, the police told him on both occasions that they did not like
the PPP and that he should stop his activities on behalf of the
party. Each time Butt was released after a couple hours.

       Elections were held in Pakistan in 1989, after the
governing general died, and the PPP gained power in the
country. However, its government dissolved on August 6, 1990.
Butt testified that he was again arrested on August 31, 1990 and
detained until September 7, 1990. He stated that he was not

                                 4
given food or water for two days and that he was beaten at least
twice a day, sometimes with a leather strap. Butt related his
treatment while detained as follows: “They hung me upside
down and beat me. They stripped me and beat me . . . . And
they beat me up so brutally that my leg and my back [were] so
hurt and still my leg and my back do[] not function properly.”
Butt stated that he could not walk for some time after he was
released.

        Butt and his wife testified that Butt was treated by a
doctor (Dr. Sasjad) from September 10, 1990 to October 15,
1990 for his injuries and that his treatment took place at home.
At his hearing, Butt introduced a doctor’s note regarding this
time period that reads: “Certified that I have examined and
treated Mr. Khalid Mahmood Butt . . . . He reported at my clinic
with multiple bruises on both legs and back. He remained under
my treatment . . . 10-9-90 to 15-10-90.” When asked about this
note, Butt testified that he did not remember going to the clinic,
but because he was unconscious when he was brought home
after his release from detention, he may have been taken to the
clinic for treatment at that time without having been aware of it.

        Butt testified that, after this incident, his friends, family,
and the PPP advised him that his life was in danger and that he
and his family should leave the country. He stated that he and
his family went into hiding at a friend’s house until they left
Pakistan for the United States in November 1990. According to
Butt, the PPP arranged for their visas and passports.

                                  5
        Butt also testified that he was being “framed” for
“another [criminal] case” right before he left Pakistan. A
criminal information naming Butt, among others, as a member
of the PPP was introduced as documentary evidence at his
hearing before the IJ. Butt stated that he had not seen the actual
document before he left Pakistan but that he knew about it at
that time. According to his testimony, some of the other people
named in the document were arrested and eventually released.

       Butt and his family arrived in the United States in
November 1990 on non-immigrant visitor visas that authorized
them to stay in this country until May 1, 1991. He applied for
asylum on May 21, 1991, claiming that he feared persecution if
returned to Pakistan on account of his work with the PPP.
Butt’s wife and children filed derivative asylum applications.
The Immigration & Naturalization Service (“INS”)2 in 1999
issued the family Notices to Appear for staying in the United
States beyond the period authorized by their visas, 3 and the Butt

  2
    As a result of the Homeland Security Act of 2002, Pub. L.
No. 107-296, 116 Stat. 2135 (2002), the INS has since ceased to
exist as an agency within the Department of Justice, and its
enforcement functions have been transferred to Bureau of
Immigration and Customs Enforcement within the Department
of Homeland Security.
   3
    It is unclear from the record why the INS waited to issue
these Notices to Appear until the Butt family had been in this
country for almost eight years longer than the period authorized

                                6
family conceded removability. At this time, Butt renewed his
application for asylum and withholding of removal.

        Butt appeared at a hearing before the IJ on his asylum,
withholding of removal, and CAT claims in July 2001, and the
IJ issued a written decision denying those claims in October
2001. The discrepancies between the testimony of Butt and his
wife and the documentary evidence that had been submitted
caused the IJ to “conclude that the respondents have deliberately
lied to the court.” Specifically, the IJ identified the “crucial
part” of the Butts’ testimony as their statements regarding the
events leading to Mr. Butt’s “incarceration and mistreatment and
his examination and care by a physician afterwards.” He found
that the Butts’ testimony on these issues could not be reconciled
with the letter from Mr. Butt’s doctor.

       The BIA affirmed the IJ’s decision without opinion in
October 2003. Butt’s petition for review of that decision is now
before us.4


by their visas. During the intervening time period, the PPP
regained power in Pakistan from 1993 to 1996. Butt and his
wife testified that they nevertheless did not return to Pakistan
during that time because they were told by family and friends
that it was not safe for them to go back. Butt was also afraid
that the criminal information against him was still open.
   4
   Because Butt does not assert that the denial of CAT relief
was in error, we deem that claim waived. See Lie v. Ashcroft,

                               7
           II. Jurisdiction & Standard of Review

        Under 8 U.S.C. § 1252(a), we have jurisdiction to hear a
petition for review from a final order of the BIA. When the BIA
affirms an IJ without opinion, “we review the IJ’s opinion and
scrutinize its reasoning.” Smriko v. Ashcroft, 387 F.3d 279, 282
(3d Cir. 2004) (internal quotation marks and citation omitted).
In asylum cases, we must uphold the agency’s factual findings
if they are supported by substantial evidence. Singh-Kaur v.
Ashcroft, 385 F.3d 293, 296 (3d Cir. 2004). That is, the denial
of asylum can be reversed “only if the evidence presented by
[the Petitioner] was such that a reasonable factfinder would have
to conclude that the requisite fear of persecution existed.” INS
v. Elias-Zacarias, 502 U.S. 478, 481 (1992); see also Abdille v.
Ashcroft, 242 F.3d 477, 483–84 (3d Cir. 2001) (“[T]he
[agency]’s finding must be upheld unless the evidence not only
supports a contrary conclusion, but compels it.”). Adverse
credibility determinations, like other factual findings in
immigration proceedings, are reviewed under the substantial
evidence standard. Mulanga v. Ashcroft, 349 F.3d 123, 131 (3d
Cir. 2003).

                        III. Discussion




396 F.3d 530, 532 n.1 (3d Cir. 2005) (holding that petitioner
waived any argument relating to the denial of her CAT claim by
not presenting it in her brief).

                               8
       The Attorney General and his delegates may grant asylum
to any alien who qualifies as a refugee under the Immigration &
Nationality Act (“INA”). 8 U.S.C. § 1158(b)(1). A refugee is
an alien who is “unable or unwilling” to return to his or her
country of origin “because of persecution or a well-founded fear
of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.”
8 U.S.C. § 1101(a)(42)(A). “Aliens have the burden of
supporting their asylum claims through credible testimony.”
Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). “Testimony,
by itself, is sufficient to meet this burden, if ‘credible.’” Id.
(quoting 8 C.F.R. § 208.13(a)). To establish eligibility for
asylum, an applicant must demonstrate past persecution by
substantial evidence or a well-founded fear of persecution that
is both subjectively and objectively reasonable. Lukwago v.
Ashcroft, 329 F.3d 157, 177 (3d Cir. 2003).

      Butt’s principal argument before us is that the IJ’s
adverse credibility finding was not supported by the record.5


    5
     In his brief, Butt also contended that the BIA erred in
affirming the IJ’s decision in his case without an opinion
because the IJ’s decision was erroneous. However, at oral
argument, Butt’s counsel abandoned this argument in light of
our decision in Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003) (en
banc), in which we held that the issuance of an affirmance
without opinion was proper even though we proceeded to
determine that the case should be remanded for the IJ to explain

                               9
Specifically, he contends that the finding was based solely on
the IJ’s erroneous interpretation of the doctor’s note regarding
his treatment and that, if the note is interpreted correctly, the
finding cannot be upheld.6 Butt further argues that, if the IJ’s
credibility determination is overturned, the record compels the
conclusion that he is eligible for asylum.

         A.   The IJ’s Interpretation of the Doctor’s Note




further the reasoning underlying her adverse credibility
determination. Id. at 245, 251.
     6
       The Government urges us to ignore this argument,
contending that Butt failed to exhaust it by not raising it before
the BIA and that our Court therefore does not have jurisdiction
to consider it. According to the Government, “in his opening
brief to this Court[,] Mr. Butt suggests for the first time that
there is no contradiction between the testimony and the doctor’s
memo.”       Gov’t Br. at 18.         As the Government itself
acknowledges, however, Butt’s argument to the BIA was that
the IJ’s adverse credibility finding suffered from an
“overreliance on a detail . . . principally relating to where some
of the medical services were rendered.” Gov’t Br. at 14
(internal quotation marks and citation omitted). We believe that
the Government’s contention that this argument was not
sufficient to preserve the argument Butt raises before us is, at
best, a hyper-technical reading of his brief to the BIA, and thus
we reject it.

                               10
        We must afford the IJ’s adverse credibility finding
“substantial deference so long as the findings are supported by
sufficient cogent reasons.” Reynoso-Lopez v. Ashcroft, 369 F.3d
275, 278 (3d Cir. 2004) (internal quotation marks and citation
omitted); Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998)
(“An immigration judge who rejects a witness’s positive
testimony because in his or her judgment it lacks credibility
should offer a specific, cogent reason for his or her disbelief.”)
(internal quotation marks, brackets, and citation omitted). In
this case, the determination that Butt was not credible was based
on what the IJ perceived as a contradiction between Butt’s
testimony and the doctor’s note that he submitted as
corroborating evidence. The IJ stated:

              If the oral testimony is accurate and
              [Butt,] after being mistreated
              serio u s ly, re c eive d me dic a l
              attention at home only, why, the
              court must ask itself, does the
              doctor’s letter explain[] that
              treatment was given to [Butt] for a
              period of 35 days at the doctor’s
              clinic. Not only does the doctor’s
              record state the period, by
              specifically pointing out the days of
              his admission and discharge, but it
              also provides a feeling of
              seriousness with respect to both the

                               11
              condition [Butt] was [in] before
              admission and the type of diagnosis
              and treatment given . . . . Plain
              language interpretation . . . conveys
              a message that [Butt] was examined
              and treated by the writer, at the
              clinic for 35 days . . . . Assuming a
              reasonable explanation had been
              given, and assuming the court
              would believe the seriousness of
              these injuries, I could probably
              understand his forgetting that he
              was treated at the clinic rather than
              at home . . . . But how does one
              explain that his wife also forgot
              such an important fact and
              distinction?

        The IJ’s decision thus makes clear that he read the
doctor’s note to mean that Butt had been treated at the clinic
itself for thirty-five days. However, we believe that the plain
language of the note does not support that conclusion. As stated
earlier, the note states that Butt “reported at my [the doctor’s]
clinic with multiple bruises on both legs and back. He remained
under my treatment . . . 10-9-90 to 15-10-90.”

       A commonsense interpretation of this statement is that
Butt (1) went to the doctor’s clinic for treatment of his injuries

                               12
and (2) then received further treatment from the same doctor for
a period of thirty-five days. Just because Butt “remained under
[his doctor’s] treatment” after reporting at the clinic does not, in
everyday usage, mean that he remained under his doctor’s
treatment at the clinic. People often say that they have remained
under a particular doctor’s care for a certain period of time. If
these types of statements actually had the meaning the IJ
attributed to the doctor’s similar statement here, a pediatrician
who commented that a newborn had been brought for treatment
at his or her office and remained under his or her care until age
eighteen would be stating that the child continuously received
care at the pediatrician’s office for eighteen years. This
interpretation of the pediatrician’s comment is nonsensical and
is certainly not how the statement would be understood if made
during the course of a normal conversation.

       Our example is extreme, but it illustrates our critical
concern with the IJ’s interpretation of the note. Although the IJ
characterized his reading of the note as based on its “plain
language,” he did not consider the everyday usage of the phrase
“remained under his doctor’s care.” Instead, the IJ read into the
note an additional statement that Butt remained under the
doctor’s care “at the clinic.” The IJ stated that, if the doctor’s
note could not be reconciled with the “crucial part” of Butt’s
and his wife’s testimony regarding his treatment, Butt’s case
would “collapse[] as a pyramid of cards.” Not only does this
simile stretch to excess, it risks a “turnaround is fair play”
response. See Dia v. Ashcroft, 353 F.3d 228, 251 (3d Cir. 2003)

                                13
(en banc) (stating that an IJ’s “reasoning process appear[ed] to
break down as the IJ, repeatedly, [drew] an unreasonable
conclusion from a fact susceptible to differing interpretations”
and that such an “aggregation of empty rationales . . . devolve[d]
into an unsupported finding of adverse credibility”).

         The IJ saw the contradiction he perceived between the
text of the note and Butt’s testimony as evidence that Butt had
made “a deliberate effort . . . to mislead th[e] Court.” This
conclusion cannot stand once we use the straightforward
meaning of the note—that Butt was treated for bruises on his
legs and back at the clinic and then generally remained under the
care of the same doctor for over a month (not necessarily at the
clinic). That reading is consistent with Butt’s testimony that: (1)
he was beaten so “that [his] leg and [his] back [were] . . . hurt
and . . . [did] not function properly”; (2) he was under the care
of Dr. Sajsad, the author of the note, from September 10, 1990
to October 15, 1990; and (3) his treatment took place at home,
but that “there could be one possibility that I was almost
unconscious when they brought be home. Probably they took
me to his clinic and then he treated me.” (Butt did not remember
the details “because [his] situation was extremely worse at that
time.” 7 ) Accordingly, contrary to the IJ’s conclusion, the note


   7
    The IJ characterized Butt’s explanation that he may have
been taken to the clinic while unconscious as not being
“reasonable.” As quoted earlier, the IJ went on to state that,


                                14
can be reconciled with Butt’s testimony. And, as there is no

               [a]ssuming        a    reasonable
               explanation had been given, and
               assuming the court would believe
               the seriousness of these injuries, I
               could probably understand his
               forgetting that he was treated at the
               clinic rather than at home. His
               poor physical condition . . . could
               under those circumstances account
               for the discrepancy. But how does
               one explain that his wife also forgot
               such an important fact and
               distinction?

In asking this question, the IJ ignores that, in her testimony,
Butt’s wife gave an explanation as to why she did not remember
that her husband had been treated at the clinic, stating that, inter
alia, she “did not know” whether Butt “went there [to the
doctor’s office] or not but [she thought] all treatment was given
at home . . . .” Thus, Butt’s wife did not unequivocally testify
that her husband was only treated at home. It may be that the IJ
did not credit Butt’s wife’s explanation, but he did not give any
indication in his decision as to whether that was the case. In
addition, the distinction between the testimony of both Butt and
his wife that they could not remember whether he had been
taken to the clinic, and the doctor’s statement that Butt reported
to the clinic, becomes much less dramatic when the doctor’s
note is understood to refer to only one clinic visit rather than to
an entire month of care at the clinic.

                                15
contradiction between that testimony and the plain language of
the note, there is correspondingly no support for the IJ’s
conclusion that Butt lied to the Immigration Court.

        The IJ also determined that “[t]he doctor’s letter or note
[was] crucial to the reliability [he could] attribute to [Butt]’s
other documents” and that, apparently because of the purported
contradiction between the note and the testimony, “[t]he cloud
that hangs over [Butt]’s evidence has not been dissipated.”
Again, when the commonsense reading of the doctor’s note is
used, it is consistent with Butt’s testimony and therefore cannot
be viewed as casting (or contributing to) a “cloud” over the
other evidence submitted by him in support of his asylum
application.8 Thus, the alleged contradiction between the note


  8
    The IJ’s conclusion that the doctor’s note did not dissipate
the cloud he believed hung over Butt’s other evidence would be
untenable even if we agreed with the IJ’s determination that
there was a contradiction between the note and Butt’s testimony.
That conclusion rested on the IJ’s crediting of what he believed
the doctor had written—that Butt had reported to the clinic and
stayed there for thirty-five days—and not crediting Butt’s
testimony that he was treated (at least principally) at home for
that period. The IJ’s decision repeatedly stated that Butt was
lying and deliberately misleading the Court. If the IJ viewed the
testimony as unreliable and the note as reliable, how then could
he conclude that the note itself contributed to the “cloud”
hanging over the evidence? Thus, we believe that the IJ’s
statement that it did is illogical when viewed in conjunction with

                               16
and the testimony, based as it is on the strained inferences of the
IJ rather than on commonly understood usage, does not provide
a sound basis for his adverse credibility determination. See Dia,
353 F.3d at 251 (holding that adverse credibility determination
was not supported by substantial evidence when, inter alia, “the
conclusions of the IJ [were] more puzzling than plausible, more
curious than commonsense”).

       B.     Other Reasons for the Adverse Credibility
              Determination

       Once the IJ’s conclusions regarding the relationship
between the doctor’s note and Butt’s testimony are unraveled,
we are left with only two other reasons advanced by the IJ in
support of the adverse credibility determination: (1) his generic
critique of the proffered testimony, which he described as “thin”
and “extremely vague”; and (2) his view of the other documents
submitted by Butt as “equally flimsy in that neither is verified or
authenticated.” As stated earlier, we afford an IJ’s adverse
credibility determination substantial deference if it is supported
by “specific, cogent reasons.” Reynoso-Lopez, 369 F.3d at 278
(internal quotations marks and citation omitted). These
statements, which were secondary to the IJ’s determination that
the note and testimony conflicted as a basis for the adverse


the rest of his decision and, as such, does not fall into the
category of a “specific cogent” reason as required by, inter alia,
Reynoso-Lopez to support the adverse credibility determination.

                                17
credibility determination, are simply too general and conclusory
to provide a basis for us to uphold his determination. They do
not give any insight into why the IJ thought the testimony was
vague or why there was reason to question the authenticity of
the documents Butt submitted. Without such an explanation, we
are unable to ascertain whether the IJ’s adverse credibility
determination was supported by substantial evidence.9 See, e.g.,
Dia, 353 F.3d at 252 (stating that “[a]bsent a reason such as
implausibility or inconsistency based in the record . . .[,] the IJ
should not have summarily dismissed [the petitioner]’s


  9
    We note that this is particularly true in this case, where the
record contains testimony that is fairly well developed as well as
documents that appear to support that testimony (including
evidence of Butt’s membership in the PPP, the criminal
information that Butt claimed prompted him to flee Pakistan,
and the doctor’s note stating the places in which Butt was
injured and the length of his treatment). We recognize that the
fact-finder is generally in the best position to judge credibility
and may have insights that cannot be gleaned from the cold
record. If this is the case, however, we do not think it
unreasonable to require the IJ to provide specific, cogent
explanations of why apparently sound testimony was rejected.
As we stated in Dia, “requir[ing] sound reasoning [from the IJ]
breathes life into [the substantial evidence] standard.” 353 F.3d
at 251. We cannot say that this requirement is satisfied when
there is no explanation given for the IJ’s disbelief of Butt’s
testimony other than his erroneous interpretation of the doctor’s
note and his statement that the testimony did not “impress” him.

                                18
testimony on [a particular] point”); Mulanga, 349 F.3d at
137–38 (holding that an IJ’s disbelief of an alien’s testimony
was “unsound” when the only foundation the IJ articulated for
that belief was that the testimony lacked “common sense”).

        In this context, we are compelled to conclude that the IJ’s
adverse credibility determination was erroneous. We also note
that, once the doctor’s note is given its plain language meaning,
it is, as stated above, reconcilable with Butt’s testimony,
removing the only inconsistency the IJ pointed to in his decision.
The IJ himself stated that, without the contradiction he
perceived, “[t]he testimony presented was thin . . . but it would
have survived a certain degree of consistency . . . .” If
consistency is crucial to credibility, as we think it is, we do not
see how the record in this case can support an adverse credibility
determination. However, in keeping with Supreme Court and
our precedent, we give the IJ an opportunity to revisit the
credibility issue on remand (without regard to his prior adverse
credibility determination).10 See INS v. Ventura, 537 U.S. 12, 16


     10
        The Government notes other inconsistencies in the
record—such as the precise date Butt may have been taken to
the clinic—that it believes support the IJ’s adverse credibility
determination. See Gov’t Br. at 15–16 nn. 5–7. However, the
IJ did not rely on any of these other alleged inconsistencies in
making his adverse credibility determination. Moreover, we
emphasize here, as we have previously, that “[g]enerally, minor
inconsistencies and minor admissions that reveal nothing about

                                19
(2002) (per curiam) (appellate courts should, upon reversing a
decision of the BIA, remand the case to the agency for further
proceedings except in rare circumstances); Dia, 353 F.3d at 260
(“concluding . . . that because of the lack of substantial evidence
to support the adverse credibility determination, we will remand
in order for the agency to further explain or supplement the
record”); Ezeagwuna v. Ashcroft, 325 F.3d 396, 411 (3d Cir.
2003) (reversing BIA’s adverse credibility determination and
stating that, in keeping with Ventura, “[w]e [would] not assess
[the petitioner]’s entitlement to relief based on the record as we
have required it to be modified by this opinion because the
agency should have the opportunity to do so”).




an asylum applicant’s fear for his safety are not an adequate
basis for an adverse credibility finding.” Gao, 299 F.3d at 272
(internal quotation marks and citation omitted); see also Dia,
353 F.3d at 278 (McKee, J., concurring in part, dissenting in
part) (“It can not be overstated that ‘[c]aution is required [in
making credibility determinations] because of the numerous
factors that might make it difficult for an alien to articulate
his/her circumstances with the degree of consistency one might
expect from someone who is neither burdened with the language
difficulties, nor haunted by the traumatic memories, that may
hamper communication’ between a government agent and a
petitioner.” (quoting Zubeda v. Ashcroft, 333 F.3d 463, 476 (3d
Cir. 2003))).

                                20
                         V. Conclusion

        Although we must afford substantial deference to an
adverse credibility finding, we are forced to conclude that even
under that standard the IJ’s credibility determination here does
not pass muster. The contradiction the IJ saw between the
doctor’s note and Butt’s testimony was created by the IJ’s own
strained interpretation of the note. In the law, as in all things,
common sense must be our guide. Yet the IJ failed even to
consider the everyday usage of the term “under a doctor’s care”
in concluding that Butt lied about where he received treatment
for his injuries. This flaw colored the whole of the IJ’s analysis,
which was grounded in his incorrect interpretation of the note,
and the only arguably independent reasons the IJ gave for
finding Butt incredible were too general for us to ascertain
whether they were supported by substantial evidence.

       For these reasons, the BIA erred in affirming the IJ’s
decision. Although Butt asks us also to rule in his favor on the
merits of his asylum claim, we decline his invitation in order to
allow the agency the opportunity to review the substance of that
claim. We therefore remand this case to the BIA with
instructions to remand it to the IJ for reconsideration of his
decision and a ruling on Butt’s asylum and withholding of
removal claims without reference to the prior adverse credibility




                                21
finding.11




  11
    In connection with Butt’s asylum claim, we note that Butt’s
longstanding membership in the PPP—a minority party for most
of the time he was affiliated with it, in conjunction with his
arrests and beating that resulted in severe injuries (the general
nature of which were corroborated by the doctor’s note)—seem
on their surface to make out a textbook case of persecution on
account of political opinion.

                               22
