                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-2064


FAUSTIN MUKADI ILUNGA,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   October 28, 2014                 Decided:   January 27, 2015


Before GREGORY, FLOYD, and THACKER, Circuit Judges.


Petition for review granted; vacated and remanded by published
opinion. Judge Gregory wrote the opinion, in which Judge Floyd
and Judge Thacker joined.


ARGUED: Dana Joo Moss, COOLEY LLP, Washington, D.C., for
Petitioner. Catherine Bye, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.    ON BRIEF: Stuart F. Delery,
Assistant   Attorney  General,   Cindy   S.  Ferrier,    Assistant
Director, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
GREGORY, Circuit Judge:

        Faustin Mukadi Ilunga, a citizen of the Democratic Republic

of the Congo, appeals the denial of his application for asylum

and protection under the Convention Against Torture (“CAT”).                      We

hold that the rejection of Ilunga’s asylum application, largely

on   the    basis     of    an    adverse       credibility    finding,    was   not

supported by substantial evidence.                   We thus remand for further

proceedings.



                                           I.

     The following description of Ilunga’s travails in the Congo

and his journey to the United States is based on his asylum

application, testimony before the Immigration Judge (“IJ”), and

corroborating documentation in the record.                     The IJ’s adverse

credibility determination necessarily called into question the

trustworthiness of many of the facts alleged.

                                           A.

     Before fleeing to the United States, Ilunga lived in the

Congo with his wife and five children.                   In 2003, he joined the

Movement for the Liberation of the Congo (“MLC”), a political

party    that   actively         opposed   President     Joseph   Kabila    in   the

country’s 2006 elections.            Ilunga was a paid employee and member

of   the     party,        participating        in    highly   visible     campaign

activities and public appearances in the city of Lubumbashi.

                                            2
      After the MLC candidate lost the 2006 election to President

Kabila,    Ilunga’s    political    activism          endangered    him.     Local

police and others loyal to President Kabila threatened Ilunga’s

life and vandalized his home.                The police also killed two MLC

supporters    with     whom     Ilunga       worked     during     the   campaign.

Increasingly fearful, Ilunga wrote a letter to his childhood

friend living in neighboring Zambia, Bernard Kabeya, expressing

his anxiety while accusing the president of assassinating his

father.

      The letter was intercepted by government agents working for

the   Congolese    intelligence     agency,       the    Agence     Nationale     de

Renseignements (“ANR”).         On December 23, 2006, an undercover ANR

agent went to Ilunga’s home, blindfolded him, and drove him to

prison    where   he   was    interrogated.        Ilunga    admitted      that   he

authored the letter, and the ANR agent stated that Ilunga “would

be killed” as a result.        A.R. 61. 1

      The government sent Ilunga to prison where he spent more

than a month in a small cell shared with Jean Nkongolo Kalala.

Ilunga suffered daily torture.               Prison guards stabbed him and

poured battery acid in the wounds.                They shocked him with an

electrical club, routinely whipped him, and raped him.



      1
       Citations to the “A.R.” refer to the Administrative Record
filed by the parties in this appeal.


                                         3
        On February 2, 2007, Ilunga and Kalala escaped from prison

with the help of a guard whom they paid off.                    The pair fled to

Zambia in the bed of a truck hauling copper.                          While Ilunga

remained in Zambia, the government tortured his family, raped

his wife, and burned his home.

        On June 22, 2008, Ilunga and Kalala boarded a plane for the

United States.        Ilunga’s wife and children fled to a Zambian

refugee camp.

                                          B.

      Ilunga arrived at Washington Dulles International Airport

without a visa.        He told an immigration officer that he “left

[his]      country   for   political      reasons”       and   was    “looking   for

asylum.”      A.R. 2006.     He further specified that he was “afraid

to go back home” and had “no doubt” that he would be harmed

again if he returned to the Congo.               A.R. 2006.

      At a credibility hearing three weeks later, Ilunga attested

to his party membership, the threats against him as a result of

his     political    activity,      the       circumstances      surrounding     his

arrest, the torture he endured in prison, and his escape.                        The

asylum     officer   determined     that       Ilunga    established    a    credible

fear of persecution.

                                          C.

      In    May   2009,    Ilunga   filed       his     application    for   asylum,

withholding of removal, and CAT protection.                    The application is

                                          4
consistent with the account he gave at the credibility hearing,

and it provides greater detail about the arrest and torture in

prison,     including   incidents   when    Ilunga   was   stabbed,   shocked

with an electrical device on the genitals, sexually assaulted,

and beaten.

  For supporting documentation, Ilunga provided:

  •   His    affidavit,    detailing       his   abuse     and   escape;

  •   A medical affidavit from Dr. Michael Viola, who
      examined Ilunga in the United States and found that:
      (1) Ilunga’s “reporting of his torture history and
      symptoms are notable because of his consistent and
      precise description of specific details and the
      correlation of his history to his present symptoms and
      physical    findings”;   (2)   Ilunga’s    psychological
      symptoms are consistent with moderate post-traumatic
      stress   disorder   (“PTSD”);  (3)   Ilunga’s   physical
      injuries are consistent with cuts with a sharp object,
      and his chest wound is consistent with “delayed
      healing of a wound secondary to infection or the
      reported pouring of acid into the cut”; and (4)
      Ilunga’s fear of return to the Congo is credible;

  •   An affidavit from Kalala, Ilunga’s cellmate, that is
      consistent with Ilunga’s statements but does not speak
      to the specific torture that Ilunga suffered in
      prison;

  •   An affidavit from Bernard Kabeya, Ilunga’s friend in
      Zambia, who confirmed Ilunga’s account of his time in
      that country;

  •   Extensive documentation of country conditions in the
      Congo, including descriptions of politically-motivated
      violence,     state-sponsored   executions,     forced
      disappearances, torture in prison, and impunity for
      rape;

  •   Ilunga’s reissued MLC membership card and a letter
      from the MLC expressing concern “about his survival”
      and attesting that his “activism on behalf of

                                       5
       democracy in our country has caused him a lot of
       trouble from the security officers who are in power
       (ANR)”;

  •    Photographs purporting to show scars on Ilunga’s body
       caused by his torture in prison;

  •    Letters from Ilunga’s wife and family warning about
       conditions in the Congo and detailing their flight to
       Zambia; and

  •    The refugee card, and registration attestation, issued
       to   Ilunga’s  wife   by   the   United Nations   High
       Commissioner for Refugees (“UNHCR”).
                                         D.

       Ilunga and Kalala testified at Ilunga’s removal hearing.

Ilunga’s primary language is Tshiluba, but he claimed to speak

French fluently, and a contract French interpreter translated

the proceedings.          After reviewing the two days of testimony and

the record, the IJ found that Ilunga was not credible and denied

his    application    for    asylum,     withholding         of   removal,       and    CAT

relief.

       Three     pieces    of   testimony       were        central      to    the     IJ’s

credibility      determination.          First,       the    IJ   cited        supposedly

inconsistent statements about the location of Ilunga’s torture

inside the prison, and whether Kalala witnessed it.                           Ilunga, the

IJ observed, stated that he was beaten away from his cell and

that     only    guards      witnessed        the     beatings.           In      seeming

incongruity, Kalala’s translated testimony provides that “these

things    took    place    in   the   same     room    where      they    spent      their

nights” and that Kalala “was there” when guards stabbed Ilunga.

                                          6
The    IJ   determined        that    such       an    inconsistency         “cannot     be

explained by a translation error, particularly as one claimed to

have witnessed the beatings in the same room in which they slept

while the other testified to have been taken to a different part

of the prison and to have been beaten with only guards present.”

       Second, the IJ found inconsistencies in testimony regarding

the    prayer    practices     of    Ilunga      and    Kalala.        Ilunga,    the    IJ

determined, was initially non-responsive when asked exactly how

the cellmates prayed together, and he was vague when pressed

about the timing and content of the prayers.                          Moreover, the IJ

claimed Ilunga was “hesitant and vague” when answering questions

about the frequency and timing of prayer.

       Third, the IJ agreed with the government that there were

material inconsistencies in the dates on the MLC documentation

provided.       The date on the membership card and the letter, the

IJ    determined,     was     the    day   before       Ilunga’s       detention,      even

though Ilunga claimed that his wife obtained the documents much

later while he was living in the United States.                           Moreover, the

IJ    believed   it    was    significant        that    the    MLC    letter    did    not

mention Ilunga’s arrest, “which would be expected if it had been

written when claimed and if there was a typographical error in

the date.”

       Regarding      the    testimony     as    a     whole,    the    IJ   found     that

Ilunga’s     demeanor        also     supported         the     adverse      credibility

                                             7
finding,      noting       in    a    single     sentence      that   Ilunga    was    non-

responsive and appeared uncomfortable answering some questions.

The IJ added in passing that “DHS has also raised some valid

concerns regarding plausibility and vagueness.”

       Finding Ilunga incredible, the IJ determined, “necessarily

calls into question all aspects of [his] claim.”                        The IJ further

concluded      in    two    sentences          that   Ilunga    was   not   entitled     to

asylum      based    on    any       independent      evidence    unrelated     to    those

credibility findings.

       As    for     Ilunga’s         application       for    CAT    relief,    the     IJ

separately         held    that       “there    [was]    not     sufficient     reliable,

independent evidence in the record to demonstrate that it is

more likely than not that the Respondent would be tortured if he

had to go back to the Democratic Republic of the Congo.”

                                                E.

       On July 25, 2013, the Board of Immigration Appeals (“BIA”)

upheld each of the IJ’s determinations, largely adopting the

IJ’s   factual       findings         and   reasoning.         Specifically,     the    BIA

credited      the     IJ’s        account       of    testimonial     inconsistencies,

deferred      to    her    demeanor         observations,       and   agreed    with   her

assessment of the documentary evidence.                          The BIA additionally

affirmed the denial of CAT relief.




                                                8
                                                II.

       The    Immigration         and     Nationality            Act       (“INA”)       gives    the

Attorney General the discretionary power “to grant asylum to

aliens who qualify as ‘refugees.’”                        Dankam v. Gonzales, 495 F.3d

113, 115 (4th Cir. 2007).                 To qualify, applicants must establish

they    are   unable       or    unwilling       to       return      to    their       country    of

nationality because of past 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); see also id. § 1231(b)(3).                                     An applicant

can establish eligibility simply by providing credible testimony

about his or her experiences.                   8 C.F.R. § 208.13(a).

       When    the    BIA       affirms    and       adopts      an    IJ’s      decision,       this

Court     reviews      both       decisions          as    the     final         agency     action.

Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010).                                             An

asylum order must be upheld unless “manifestly contrary to the

law and an abuse of discretion.”                      8 U.S.C. § 1252(b)(4)(D).                   Our

review of an adverse credibility determination is specifically

limited to ensuring that substantial evidence supports it.                                        See

Qing    Hua    Lin    v.    Holder,       736    F.3d      343,       351       (4th    Cir.     2013)

(citing Dankam,            495   F.3d     at    119).         Although          broad     deference

extends       to     the    agency’s           determination,              it    “must      provide

specific, cogent reasons” supporting its decision.                                      Djadjou v.

Holder, 662 F.3d 265, 273 (4th Cir. 2011).

                                                 9
                                            A.

       The     REAL    ID       Act   of   2005    requires     that      credibility

determinations be based on the totality of the circumstances,

including:

       the   demeanor,  candor,  or   responsiveness  of  the
       applicant or witness, the inherent plausibility of the
       applicant’s or witness’s account, the consistency
       between the applicant’s or witness’s written and oral
       statements (whenever made and whether or not under
       oath, and considering the circumstances under which
       the statements were made), the internal consistency of
       each   such   statement,  the   consistency   of  such
       statements with other evidence of record . . . and any
       inaccuracies or falsehoods in such statements, without
       regard to whether an inconsistency, inaccuracy, or
       falsehood goes to the heart of the applicant’s claim.
       . . .

8     U.S.C.    § 1158(b)(1)(B)(iii).             As   this     Court     has   held,

“omissions, inconsistent statements, contradictory evidence, and

inherently improbable testimony are appropriate bases for making

an adverse credibility determination.”                      Djadjou, 662 F.3d at

273.

       The totality of the circumstances standard thus provides an

IJ with ample discretion in assessing credibility.                      It does not,

however,       permit       a     judge      to    “cherry     pick”      facts    or

inconsistencies to support an adverse credibility finding that

is unsupported by the record as a whole.                    Ai Jun Zhi v. Holder,

751 F.3d 1088, 1091 (9th Cir. 2014) (quoting Shrestha v. Holder,

590    F.3d    1034,    1040      (9th     Cir.   2010));    see   also    Hanaj   v.

Gonzales, 446 F.3d 694, 700 (7th Cir. 2006) (“The IJ cannot

                                            10
selectively examine evidence. . . .”); Shah v. Att’y Gen. of

U.S., 446 F.3d 429, 437 (3d Cir. 2006) (same).                  Instead, an IJ’s

determination must take into account all the evidence submitted,

including independent documentary support.                   See Shah, 446 F.3d

at   437.       Thus,    at   a   minimum      the   IJ      must    consider      the

petitioner’s explanation for any inconsistency to verify that an

inconsistency     actually    exists,    and    then      evaluate       whether   the

discrepancy renders the entire testimony incredible in light of

the record as a whole.        See Shrestha, 590 F.3d at 1044.

        As   described    above,       the   IJ      based     her       credibility

determination on four grounds:           (1) testimony about the location

of Ilunga’s torture in prison; (2) testimony about the prayer

practices of Ilunga and Kalala inside their cell; (3) the dates

on the MLC membership card and letter obtained by Ilunga; and

(4) Ilunga’s demeanor during testimony.                   We consider each in

turn.

                                        1.

     When asked where he was “whipped” in prison, Ilunga first

testified that it was “inside the cell” and then stated he did

not understand a follow-up question about whether he was “in the

cell”    with   his   cellmate    at   the   time.        Asked     to    elaborate,

Ilunga’s translated reply was:           “Being as they called, they take

one out.     They whipped you good and they take you back inside.”

Minutes later, when asked why he had told a doctor that he was

                                        11
attacked outside his cell, Ilunga stated “[the abuse] was inside

the prison but not in the cell where I was staying in.”                                               He

again struggled to understand follow-up questions about whether

he was additionally tortured “inside” the “cell.”

       Kalala,         meanwhile,        testified            that    “he        was    there”   when

Ilunga was tortured, and that the abuse “was in the same room

where      we    spent     our    nights.”               On   re-direct,          in     front   of   a

different translator, Kalala stated that the first translator

had    used      the     French       word    for     “jailhouse”          instead        of   “room”,

leading to any discrepancy between his testimony and that of

Ilunga.

       A        single     testimonial              discrepancy,            particularly         when

supported by other facts in the record, may be sufficient to

find       an    applicant        incredible          in      some        circumstances.          See

Djadjou,         662   F.3d      at    275     (affirming            an    adverse       credibility

finding when the applicant had testified she was in hiding, but

an eviction notice indicated that she was in her store on the

same       day).         But   such      an     inconsistency              provides        inadequate

justification when, as here, there is a strong indication it

results            from        translation               errors            or          language-based

misunderstanding, particularly when it is belied by an extensive

record      of     otherwise          consistent          statements            and    corroborating

evidence.          See Shrestha, 590 F.3d at 1040 (observing that an IJ

may     not        “cherry       pick        solely       facts       favoring           an    adverse

                                                    12
credibility         determination              while       ignoring     facts      that    undermine

that result”).

       As     an      initial            matter,           the    trustworthiness           of     any

translation, when at issue, must be a relevant factor in the

agency’s       analysis            of     the        totality         of    the      circumstances

supporting a credibility finding.                                Simply put, there must be

reasonable assurances that any inconsistencies in testimony are,

in    fact,    real      and       not    the       product      of    interpretation       errors,

language-based confusion, or similar factors.                                   See Perez-Lastor

v. INS, 208 F.3d 773, 778 (9th Cir. 2000) (“[A]n incorrect or

incomplete         translation            is     the       functional        equivalent      of     no

translation:         the alien must be able to understand the questions

posed to him and to communicate his answers to the IJ.”).

       As     is    well    established,               a    defective       translation       of    an

immigration         proceeding            can       amount       to    a    constitutional         due

process violation when:                    (1) the plaintiff can show he or she

did    not    “receive         a    full       and     fair      hearing      on    [his    or    her]

claims,” Rusu v. INS, 296 F.3d 316, 321-22 (4th Cir. 2002), and

(2) the violation caused prejudice such that the results of the

proceedings were likely impacted, id. at 324 (citing Farrokhi v.

INS, 900 F.2d 697, 703 n.7 (4th Cir. 1990)).                                  But even absent a

constitutional violation, “faulty or unreliable translations can

undermine          the     evidence            on     which       an       adverse    credibility

determination is based.”                   He v. Ashcroft, 328 F.3d 593, 598 (9th

                                                     13
Cir. 2003) (citing Balasubramanrim v. INS, 143 F.3d 157, 162-64

(3d Cir. 1998)).

       Determining         whether      a    flawed         interpretation      fatally

undermines a credibility determination requires an examination

of direct and indirect evidence of error.                      The Eighth and Ninth

Circuits have sensibly identified three types of evidence that

“tend   to       prove    that   a   translation      was    incompetent.”       Perez-

Lastor, 208 F.3d at 778; Tun v. Gonzales, 485 F.3d 1014, 1029-30

(8th    Cir.      2007)    (adopting       the    Perez-Lastor       framework).     As

Perez-Lastor established:

         First, direct evidence of incorrectly translated
         words is persuasive evidence of an incompetent
         translation.  Second, unresponsive answers by the
         witness   provide   circumstantial    evidence   of
         translation problems.    A third indicator of an
         incompetent   translation    is    the    witness’s
         expression of difficulty understanding what is
         said to him.

208 F.3d at 778 (citations omitted).

       Ilunga’s hearing transcript bears all three hallmarks of

unreliability.             Before     turning      to   the     specific     testimony

regarding        the     location     of    torture     in     the    prison,   it   is

instructive to examine the hearing as a whole.                        The two days of

testimony were translated by two different interpreters, with

nearly all instances of potential confusion arising on the first

day.    The transcript of that day reveals:

             •    An instance when the interpreter failed to
                  translate Ilunga’s statement that he was

                                             14
    sexually assaulted in jail, an omission
    caught by Ilunga’s attorney, leading to the
    translator’s opaque admission after the fact
    that he thought Ilunga “was not speaking
    clearly and this interpreter, perhaps, what
    he could hear from him [sic]” (A.R. 615);

•   A repeated disconnect between questions and
    answers (see A.R. 598 (Ilunga’s attorney
    asked    about   threats   made,    and    Ilunga
    responded with a statement about damage done
    in a store); A.R. 609 (the IJ asked about how
    Ilunga was arrested, and Ilunga replied that
    he had been told that two of his colleagues
    had been killed, and that he was afraid);
    A.R. 612-13 (Ilunga’s counsel asked Ilunga to
    describe his prison, and Ilunga answered “I
    do not know” and provided other disconnected
    answers); A.R. 616 (Ilunga’s attorney asked
    where his largest scar was, and Ilunga
    pointed to his chest but answered it was “on
    the right arm and on the right knee”); A.R.
    639   (the    government  asked    about    where
    Ilunga’s wife obtained an MLC letter, and
    Ilunga replied “[b]ecause our party quarters
    are located in Kinshasa”); A.R. 661 (the
    government asked where an event took place,
    and   Kalala   answered  with    when   it   took
    place));

•   At least 16 times during the first day’s
    testimony when Ilunga or Kalala stated they
    did not understand a question (see A.R. 592
    (twice), 595, 604 (three times), 608, 609,
    631, 636, 638, 641, 644, 646, 652, 653);

•   An instance when Ilunga’s attorney believed
    the interpreter translated Ilunga’s statement
    as saying he suffered at the hands of the
    political party he worked for, instead of the
    party he opposed (A.R. 606);

•   Confusion about whether Ilunga testified that
    he told his wife and children to flee their
    home while he was still in prison or after
    (A.R. 634);


                        15
             •   At least 11 times when the interpreter needed
                 a question repeated (see A.R. 585, 591, 593,
                 597, 602, 605-06, 609, 610, 621, 640, 643,
                 650); and

             •   Frequent grammatical errors and questionable
                 word choices (see, e.g., A.R. 585, 597-98).

Those    red     flags   should   inspire         special   caution    before    an   IJ

parses translated statements to assess inconsistencies.

       Indeed,     here     it    is    impossible        to     say   that   Ilunga’s

testimony was inconsistent with that of Kalala regarding the

location of torture because we do not know precisely what the

men    testified     to.     Instead,        the   transcript      reveals    that    the

cellmates were consistently, and genuinely, confused about the

questions regarding location.                 As one example, the IJ observed

that Kalala stated he saw the torture inflicted on Ilunga, in

apparent tension with Ilunga’s statement that he was beaten in a

different part of the prison with only guards present.                          Kalala,

however, was only translated as stating that he was “there” when

the stabbing and beatings took place.                       Thus, even taking the

translation on its face, it is unclear whether Kalala testified

that    he   “saw”   the     abuse     or   not.      Furthermore,      according      to

Kalala’s statement during the second day of testimony, the first

translator used a French word that connotes “jailhouse” instead

of     “room”     when     describing       the    cell     in    question,     causing

confusion in his testimony.                 See A.R. 717.        Neither the IJ nor

the BIA resolved which word was used, or whether Kalala’s claim

                                             16
was correct.   Instead, the BIA observed that Kalala nonetheless

testified that Ilunga “was beaten in the 10 square foot room

where they both slept.”   Kalala, however, is only translated as

stating that he himself had been beaten in that “room,” not that

Ilunga was ever beaten there.

     Against that backdrop, the IJ’s reliance on the alleged

testimonial inconsistency was unfounded. 2

                                2.

     The IJ also based her credibility determination on asserted

inconsistencies in testimony regarding the prayer practices of

Ilunga and Kalala in prison.      The IJ specifically determined

that Ilunga was initially non-responsive and then vague when

asked about his prayer practices.    Moreover, the IJ found he was

“hesitant and vague” when asked about the frequency and timing

of his prayers.

     2
       That conclusion is further supported by the record as a
whole, indicating that Ilunga’s account of his arrest and
torture was otherwise consistent from the moment he stepped off
the airplane at Washington Dulles.         His account is also
consistent with both the independent country condition reports
in the record and other independent documentary evidence. Such
documentary evidence includes confirmation of his family’s
flight from the Congo into Zambia, Ilunga’s MLC party membership
card and letter attesting to problems he faced as a result of
his activism, photographs of his wounds and burned home, letters
from family and friends, and the medical affidavit from
Dr. Viola. Dr. Viola, who examined Ilunga in the United States,
specifically concluded that Ilunga’s “reporting of his torture
history and symptoms are notable because of his consistent and
precise description of specific details and the correlation of
his history to his present symptoms and physical findings.”


                                17
      Tellingly, the BIA did not treat the prayer testimony as

inconsistent,       but   rather   as        part    of     the     IJ’s   demeanor

assessment.     For good reason.        The transcript reveals that there

was not a single substantive inconsistency between the testimony

of   Ilunga   and   Kalala.    Both     testified         they    prayed   together.

Both testified they knelt to pray.                   And both testified they

prayed for their release from jail.                 Nothing more was asked of

them.

      Moreover, any hesitancy and vagueness cited by the IJ is

consistent with the repeated disconnect between questions and

answers throughout the proceeding – strong indirect evidence of

interpretation problems.       The relevant portion of the transcript

is as follows:

      Q: How often did you and he pray together?

      A: I cannot say how many times.

      Q: Okay. My question is how often?                  How many times a
         day did you pray with him?

      A: Every time.

      Q: And exactly how did you and he pray together?

      A: First, after my arrival in the prison, I did not
         know him and I was afraid of him. I did not want
         to know who he was. And the day I was cut on the
         knee, that’s when I started praying in my native
         language, in Tshiluba.   And he heard me praying.
         Then he said we are the same.   We are coming from
         the same region. Then he explained to me where he
         came from. That’s when we decided to start praying
         together.


                                        18
      Q: And my question was, exactly how did you and he
         pray together?

      A: I don’t know.

      Q: You don’t know how you and he prayed together?

      A: We kneel down and we pray in our native tongue.

Such a labored exchange, when considered in the context of the

entire transcript, says more about communication failures than

it does about Ilunga’s credibility in answering the questions.

See   Tun,    485    F.3d       at    1031    (observing        that    language-based

difficulties in understanding can lend “an air of evasiveness

and confusion to the proceedings”).

      The    agency’s         credibility         determination,       however,     again

failed to consider the quality of the interpretation.                         And given

the   otherwise     consistent        nature       of   the    substantive     testimony

regarding prayer practices, it was an abuse of discretion to use

such testimony to find Ilunga incredible.

                                             3.

      The    IJ   further       cited     Ilunga’s      MLC    membership      card   and

letter    from    the    party       as   supporting      an    adverse      credibility

finding.      Both      are    dated      December      24,    2006,   the    day   after

Ilunga’s arrest. 3        Ilunga, however, testified that he asked his

wife to obtain the documents after he arrived in the United


      3
       The IJ incorrectly claimed that the card and letter are
dated a day before Ilunga’s arrest.


                                             19
States      in   2008.      Such      a    discrepancy,         the      IJ     concluded,

constituted a “material inconsistenc[y].”

       The BIA, however, failed to meaningfully consider Ilunga’s

reasonable         explanation       for         the     apparent        inconsistency.

According to Ilunga, MLC officials dated the documents to show

no lapse in membership after the ANR ripped up his original card

when   he    was    arrested.        Ilunga        openly      acknowledged        in   his

affidavit and live testimony that the card in the record was a

reissued replacement, and that his wife obtained it to help with

his asylum claim.         Moreover, his description of the destruction

of   his    original     card   at   the    hands       of    security    officials      is

consistent       with     the     documented           practice     “for        government

officials to illegally arrest MLC party members and confiscate

their MLC party cards.”              Br. of Appellants 31 (citing Amnesty

Int’l, Democratic Republic of Congo:                      Torture and Killings by

State Security Agents Still Endemic 328 (October 2007) (included

in the record at A.R. 386)).

       In rejecting Ilunga’s account, the BIA merely observed that

he failed to make his explanation before the IJ, but the BIA

cited no authority for why it could not consider the explanation

on appeal.       We conclude that any ambiguity that may exist about

the date on the card and letter is insufficient to sustain an

adverse      credibility        determination          given     Ilunga’s        plausible

explanation,       the    agency’s        conclusory         treatment     of    it,    the

                                            20
absence    of     any       contrary    evidence,       and    the     extensive      record

corroborating Ilunga’s claim.                       The IJ’s presumption that MLC

officials should have dated the documents when Ilunga’s wife

requested them amounts to speculation and conjecture.                                See Ayi

v. Gonzales, 460 F.3d 876, 883-84 (7th Cir. 2006) (rejecting an

IJ’s     “speculative          leap”     and        determination       that     a     party

membership card was forged based on a forensics analysis that

showed a “paper disturbance” on the card); Zuh v. Mukasey, 547

F.3d 504, 510 (4th Cir. 2008) (questioning “the appropriateness

of speculating about foreign documents” (citing Ayi, 460 F.3d at

883)); Lin-Jian v. Gonzales, 489 F.3d 182, 189 (4th Cir. 2007)

(observing that “we will not defer to an adverse credibility

finding     that       is     based    on     speculation,       conjecture,          or   an

otherwise       unsupported         personal        opinion”     (quoting       Tewabe     v.

Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (internal quotation

marks omitted)).

       The IJ, however, also reasoned that if the letter had been

written when Ilunga claimed, it should have mentioned Ilunga’s

arrest.    As     we    have    previously          observed,    letters       written     by

political        parties       attesting        to     an     individual’s       political

involvement need not mention such arrests to be credible.                              Tassi

v.     Holder,     660       F.3d     710,     724     (4th    Cir.     2011)     (finding

unpersuasive the government’s argument that letters describing

an     individual’s         political        activities       should    have     mentioned

                                               21
arrests).       In   this     case,     Ilunga           obtained       the        document      to

corroborate his political involvement with the party, not as

evidence of his arrest.             It is entirely speculative to suggest

that    the   party    official       should        have    both       known       of     Ilunga’s

arrest and included it in the letter.                           Furthermore, the letter

does    provide       further      independent            confirmation             that       Ilunga

suffered persecution at the hands of the state on account of his

political activities.            It specifically expresses concern “about

[Ilunga’s] survival” and attests that his “activism on behalf of

democracy in our country has caused him a lot of trouble from

the security officers who are in power.                           . . .       It is in this

way    that     he   has    been    threatened           many     times,       searched         and

intimidated during the presidential elections of 2006.”

       The agency’s reliance on the MLC documentation to support

an    adverse    credibility       determination            was    thus    also         unfounded

given the record as a whole.

                                              4.

       Finally,      Ilunga     urges     this       Court        to    reject          the    IJ’s

demeanor-based        findings     because         the     IJ    failed       to    ground       her

conclusions in specific facts.                      The IJ offered two principal

demeanor      observations:             (1)        Ilunga       and     Kalala          “appeared

uncomfortable        when   asked     detailed           questions      concerning            their

claimed time together;” and (2) Ilunga “appeared non-responsive

at    times   and    uncomfortable       answering          some       questions.”              Such

                                              22
statements     echo    those       made    regarding         the   prayer     practice

testimony.     Ilunga maintains that such broad-brush statements

are insufficient to provide a specific, cogent ground for an

adverse credibility determination.

     An inherent tension exists in evaluating an IJ’s demeanor-

based conclusions in asylum proceedings.                  On the one hand, broad

deference understandably extends to a judge who is in the best

position to gauge the demeanor of a witness and the presentation

of testimony.       See Rusu, 296 F.3d at 323.                 On the other hand,

linguistic and cultural differences, combined with the effects

of trauma, caution against normative determinations.                        See Dia v.

Ashcroft, 353 F.3d 228, 274, 277 n.6 (3d Cir. 2003) (en banc)

(McKee, J., concurring in part and dissenting in part) (sounding

caution   about     demeanor       assessments        based   on   cultural       norms,

particularly for those who have been traumatized).                     Furthermore,

as previously observed, difficulties in understanding during an

asylum    hearing     can   also     lend       “an    air    of   evasiveness       and

confusion to the proceedings.”             Tun, 485 F.3d at 1031.

     In   affirming     the    IJ,    the       BIA    summarily    disagreed       with

Ilunga’s argument that it was normal for a victim of torture to

appear    “uncomfortable”          given    his       experiences.          The   BIA’s

disagreement    manifests      a    basic       misunderstanding     of     the    human

condition.     In this case, the record suggests that Ilunga was

subjected to a pattern of vicious abuse, leaving both body and

                                           23
mind scarred by the experience.                   As Dr. Viola diagnosed, Ilunga

suffered      from    moderate       PTSD    as   a    result   of   his      experiences.

Forced to revisit that trauma at the immigration hearing, Ilunga

specifically testified about being raped by prison guards and

subjected      to    other     forms    of   sexual      abuse.         The    record   also

indicates that he cried while testifying about the torture he

endured.       For the BIA to dismiss the potential impact of such

torture       on    Ilunga’s     testimonial          disposition       is     unsettling. 4

Indeed, the ability to testify in a cool and collected manner

about    an    experience       of    torture     would    arguably          raise   greater

credibility concerns.

     Finally, the IJ cited no specific behavior or mannerisms

that gave her pause.                 Instead, she merely stated that Ilunga

appeared “uncomfortable.”              Such a conclusion fails to provide a

“specific,          cogent       reason[]”            supporting        a      credibility

determination,         particularly          given       both     the       aforementioned


     4
       In the context of a credibility determination, one should
expect moderate PTSD, which Ilunga was diagnosed with, to
influence the content of testimony at times, in addition to
testimonial    demeanor.     The   agency’s   totality  of   the
circumstances analysis should take into account the inherent
instability of memories that are naturally misshapen by time and
disfigured by trauma. See Zubeda v. Ashcroft, 333 F.3d 463, 476
(3d Cir. 2003) (counseling caution when analyzing testimonial
discrepancies that may be due to “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”).


                                             24
interpretation issues and the nature of the testimony at issue.

See Djadjou, 662 F.3d at 273.

                                                   B.

       Even if his testimony was incredible, we additionally find

that   the        IJ    failed    to     sufficiently         consider       whether      Ilunga

presented adequate independent documentary evidence to establish

asylum       eligibility.              As    we     held     in     Camara    v.    Ashcroft,

independent            evidence     may      establish        past     persecution        on    a

protected ground even if an IJ finds the victim’s testimony to

be incredible.            378 F.3d 361, 370-71 (4th Cir. 2004); see also

Djadjou, 662 F.3d at 275.                    When actual past persecution can be

shown,       “a    presumption         arises       that     [the     applicant]      has      the

requisite level of fear of persecution, and thus she need not

prove the subjective component of ‘well-founded fear.’”                                Camara,

378 F.3d at 369-70 (quoting 8 C.F.R. § 208.13(b)(1)).

       The        central     question           here   is    thus     whether      the     non-

testimonial            evidence     independently            established       that       Ilunga

suffered persecution as a result of his political activities.

Such evidence need not include a “smoking gun” or direct proof

of persecution on account of political opinion.                                    See INS v.

Elias-Zacarias,           502     U.S.      478,    483    (1992)     (observing       that     an

asylum applicant must provide some “direct or circumstantial”

evidence of a persecutor’s motives).                         Instead, an applicant may

meet   his        or    her   burden        by    presenting      a   consistent       body     of

                                                   25
circumstantial evidence.           See id.       Here, the strongest pieces of

such independent evidence are:               (1) the doctor’s report obtained

in    the    United    States      that      concludes     Ilunga’s    wounds      are

consistent with the torture he described; (2) the MLC membership

card and letter that expresses concern “about his survival” and

links Ilunga’s political activity with his suffering “a lot of

trouble from the security officers who are in power”; (3) the

UNHCR     refugee     card   and    registration         attestation    issued      to

Ilunga’s wife, corroborating Ilunga’s statements that she was

forced to flee the Congo; (4) photographs, including those of

Ilunga’s scarred body and burned house; (5) Ilunga’s passport

showing he left the Congo for Zambia before entering the United

States; and (6) extensive documentation of country conditions,

describing pervasive violence against minority political parties

and activists.

      Confronted with that body of evidence, the IJ discounted

the MLC documentation during her credibility analysis for the

reasons      described   above.        She     also   stated   that    the   medical

affidavit “does not prove what caused the medical issues noted”

and   that    additional     letters      from   friends    and   family     “do   not

overcome the credibility concerns.”

      We agree with the IJ that absent the MLC membership card

and letter, there is insufficient independent evidence in the

record to support Ilunga’s asylum claim.                    But in light of our

                                          26
determination           that     the    IJ    improperly        discredited       the       MLC

documentation, the agency should consider on remand whether the

documents, when combined with the other circumstantial evidence

in the record, establish that Ilunga was a member of the MLC,

was active in the party, and was persecuted as a result of his

political opinions.            See Li v. Gonzales, 405 F.3d 171, 177 (4th

Cir.       2005)        (observing      that        “[p]ersecution       involves           the

infliction        or    threat    of    death,      torture,     or    injury    to     one’s

person      or     freedom,       on    account      of   one     of    the     enumerated

grounds”).



                                             III.

       We thus grant Ilunga’s petition for review insofar as it

challenges        the    denial    of   his    application       for    asylum,       and    we

vacate the BIA and IJ’s orders with regard thereto. 5                           We remand

the case to the BIA for further proceedings consistent with this

opinion.         If the BIA chooses to further remand the matter to an




       5
       We do not reach the question of whether Ilunga has
separately met his burden for CAT relief by demonstrating it is
more likely than not he would be tortured if returned to the
Congo. If the agency declines to grant Ilunga asylum on remand,
it should reconsider his CAT claim in a manner consistent with
the findings of this opinion.


                                               27
IJ, we recommend that it schedule the case before a different

judge.

                                  PETITION FOR REVIEW GRANTED;
                                          VACATED AND REMANDED




                             28
