                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

JOHN KALOUMA,                           
                          Petitioner,        No. 03-74488
                v.
                                             Agency No.
                                             A78-535-064
ALBERTO R. GONZALES, Attorney
General,                                       OPINION
                     Respondent.
                                        
        On Petition for Review of an Order of the
             Board of Immigration Appeals

                Argued and Submitted
          May 11, 2007—Pasadena, California

                     Filed August 28, 2007

      Before: John T. Noonan, Richard A. Paez, and
           Richard C. Tallman, Circuit Judges.

                Opinion by Judge Noonan;
                Dissent by Judge Tallman




                            10745
                    KALOUMA v. GONZALES                 10747
                         COUNSEL

Mark A. Teeter, Newport Beach, California, for the petitioner.

Carol Federighi, Assistant United States Attorney, Washing-
ton, D.C., for the respondent.


                         OPINION

NOONAN, Circuit Judge:

   John Kalouma petitions for review of a decision of the
Board of Immigration Appeals (“the Board”) summarily
affirming the decision of an Immigration Judge denying his
application for asylum, withholding of removal, and protec-
tion under the Convention Against Torture. Holding that the
Immigration Judge (“IJ”) committed an error of law that per-
meated his decision, we reverse and remand.

               FACTS AND PROCEEDINGS

   John Kalouma entered the United States in March 2001,
was intercepted by the Border Patrol, identified himself as
Sudanese, and was promptly charged with inadmissibility. At
a hearing before the IJ in 2001, Kalouma admitted the charge
and applied for relief. On April 24, 2002, Kalouma’s case was
presented to the IJ, who issued an oral decision, denying it.
Kalouma appealed to the Board of Immigration Appeals. The
Board, on October 23, 2003, adopted the IJ’s decision, which
thus became central to Kalouma’s timely petition to us.

  At the hearing, Kalouma testified that he was a native of
Sudan, a Nuer, born in 1972 in Khartoum, to a family from
Shambe in southern Sudan, the son of William and Adasha
Kalouma. Kalouma identified himself as a Christian and,
more specifically, as a Catholic. Kalouma went on to set out
10748                 KALOUMA v. GONZALES
his experiences of persecution by Muslims or Arabs — he
used the terms interchangeably.

   After hearing Kalouma on direct and on cross-examination
by the Government and by himself, the IJ gave his oral deci-
sion. In his first sentence, he referred to Kalouma as “a person
of unknown identity.” Then, after reviewing the procedural
steps in the case and the law governing Kalouma’s applica-
tion, he went on as to the changes made in 1996 by the Illegal
Immigration Reform and Immigrant Responsibility Act, 8
U.S.C. § 1158. He stated:

       Congress has added Section 208(d)(5)(A) of the
    Act which enumerates very specific procedures that
    must be followed regarding an individual’s identity
    before asylum can be granted. The law now requires
    that “asylum cannot be granted until the identity of
    the applicant has been checked” against all appropri-
    ate places enumerated within the statute.

       It would appear then that Congress has imposed a
    requirement that an identity must be checked and
    that it is an absolute requirement before asylum can
    be granted. It would seem to mean that if an individ-
    ual who would be otherwise eligible for asylum
    refuses to have an “identity” check notwithstanding
    other factors impacting eligibility, this individual
    could not be granted asylum. It would also seem to
    suggest, although the Court is not aware of any spe-
    cific regulations or case law that would offer further
    guidance, that if the person’s “identity” is undeter-
    mined, then that person would not be able to be
    granted asylum as it would seem to follow that the
    identity would not be able to be checked if it was
    unknown identity.

  The IJ continued:
                    KALOUMA v. GONZALES                 10749
       The Court emphasizes that since the amendments
    made to the Act by IIRAIRA, Congress for the first
    time has imposed two new requirements mentioned
    above that need to be met for an asylum seeker. In
    this case, of those two amendments, the one that
    seems to impact or have the greatest impact is the
    question of “identity.” It suggests to this Court that
    before an identity can be checked, the Immigration
    and Naturalization Service and the Executive Office
    for Immigration Review must have an idea of an
    individual’s identity before it can be checked within
    the parameters expressed by the statute. This Court
    is not aware of any published decision from the
    Board of Immigration Appeals or precedent deci-
    sions which discuss the impact that the identity
    requirement now has on the burden of proof.

                         ANALYSIS

   We review de novo the IJ’s statement of the law. Singh v.
INS, 134 F.3d 962, 966 (9th Cir. 1998). Acknowledging that
he was not aware “of any specific regulations or case law” on
the point, the IJ attributed a pivoted place to the amendment
to 8 U.S.C. § 1158(d). The relevant language reads as follows:

    (5)(A) Procedures

    The procedure established under paragraph (1) shall
    provide that —

    (i)   asylum cannot be granted until the identity of
          the applicant has been checked against all
          appropriate records or databases maintained by
          the Attorney General and by the Secretary of
          State, including the Automated Visa Lookout
          System, to determine any grounds on which the
          alien may be inadmissible to or deportable from
10750                KALOUMA v. GONZALES
         the United States, or ineligible to apply for or be
         granted asylum. . . .

   [1] The statute, as amended, imposes duties on the Attorney
General and the Secretary of State. No new burden for the
asylum-seeker is imposed by the amendment. In his interpre-
tation, the IJ found a duty on the part of the asylum-seeker to
provide information so that the Attorney General and Secre-
tary of State could carry out their statutory responsibilities. As
the IJ acknowledged, no case or regulation so holds. To find
this additional burden on the applicant to have been implicitly
created by the amendment does not appear to be a sensible
way of interpreting a statute that has been so carefully articu-
lated and critically revised. The Government, in its answering
brief here, notes what the IJ did but makes no attempt to cite
case authority or regulations supporting the IJ’s unusual inter-
pretation. We hold the interpretation to be an error of law.

   Armed with what appeared to him to be a significant
change in the law, the IJ began with calling Kalouma “a per-
son of unknown identity.” It then became Kalouma’s burden
to prove who he was. After reviewing all the testimony, the
IJ concluded: “The Court is unsure of his identity.” In the IJ’s
eyes, Kalouma has failed to meet what the IJ has seen as a
kind of legal precondition to an asylum application. The IJ’s
doubt as to his identity and the legal limbo Kalouma therefore
inhabits, permeates the IJ’s decision.

   [2] A man who identified himself in terms of his parents,
birth date, birth place, tribe and religion and who testified
knowledgeably about a variety of specific sites in Sudan,
appeared in the IJ’s cold conclusion to be simply a stranger
who had accidentally arrived at the border. We are compelled
to reject this conclusion and the legal error on which the con-
clusion is based.

  [3] For the reason stated, the decision of the Board of
Appeals is REVERSED, and the case is REMANDED.
                     KALOUMA v. GONZALES                  10751
TALLMAN, Circuit Judge, dissenting:

   I respectfully dissent. I would agree that had the Immigra-
tion Judge (“IJ”) found Kalouma to be who he claims to be
and found his testimony credible, he would be entitled to asy-
lum. The Board of Immigration Appeals affirmed the denial
because Kalouma did not meet his burden to show entitlement
to asylum. It cited Matter of Burbano, 20 I&N Dec. 872, 874
(BIA 1994), and focused solely on the adverse credibility
finding. We do not review the record de novo and retry the
case without regard to what the IJ heard and articulated when
he denied the asylum application. The IJ found Kalouma
incredible, substantial evidence supports that determination,
and the record does not compel a reasonable fact-finder to
conclude otherwise, see Singh-Kaur v. INS, 183 F.3d 1147,
1153 (9th Cir. 1999). The majority nonetheless finds that the
IJ committed legal error on a separate ground regarding
Kalouma’s identity that makes no difference to the ultimate
conclusion. I would deny Kalouma’s petition for review based
solely on the adverse credibility determination. The majority
takes no issue with it and that is the end of the petition.

   The IJ did not, as the majority states, impose some new,
legally erroneous burden on Kalouma to prove his identity.
Maj. at 10750. An asylum applicant bears the burden of prov-
ing that he is a refugee entitled to asylum. 8 C.F.R. § 208.13;
Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir. 2001). Just
as the government in a criminal trial bears the burden of prov-
ing that the defendant on trial is the person who committed
the crime, the alien bears the burden both to establish persecu-
tion, and to prove satisfactorily who he is. See Farah v. Ash-
croft, 348 F.3d 1153, 1156 (9th Cir. 2003) (citing identity as
a key element of the asylum application). The IJ rightly ques-
tioned Kalouma’s identity based on his incredible story sur-
rounding his claimed persecution, and doubts about an
asylum-seeker’s identity can also preclude asylum. See id.
There is substantial fraud in immigration matters, and we
should not blind ourselves to the black market in false docu-
10752                KALOUMA v. GONZALES
mentation that exists in many of these cases. See R. Wasem,
Congressional Research Service, Report for Congress, Immi-
gration Fraud: Policies, Investigations, and Issues, CRS-14
(May 17, 2007) (reporting widespread immigration fraud and
citing “[t]he integrity of immigration documents and the
capacity to curb immigration fraud” as “among the central
themes that underlie the bigger issue of comprehensive immi-
gration reform legislation”); see also id. (noting the likelihood
that many of the estimated twelve million unauthorized aliens
in the United States possess some form of an expired or coun-
terfeit immigration document).

   On this record, the IJ raised a legitimate concern over
Kalouma’s identity, a concern at the heart of his asylum peti-
tion, and the inability to confirm his identity constitutes a
cogent and substantial reason supporting the adverse credibil-
ity determination. After articulating reasons doubting Kalou-
ma’s identity, the IJ could properly consider the lack of any
proffered documentary evidence to corroborate who he says
he is. See Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir. 2004).

   Even assuming the IJ erred by imposing a new burden on
asylum applicants under 8 U.S.C. § 1158(d), we should none-
theless deny Kalouma’s petition for review. The IJ here gave
completely independent, sufficiently cogent, and substantial
reasons for finding Kalouma incredible, and these findings
went to the heart of Kalouma’s asylum application—his
inability to prove his identity, inconsistencies in the alleged
past persecution against him and his family, and questionable
fear of future persecution based on race and religion.

   I disagree with the majority’s failure to credit as an inde-
pendent ground for denying Kalouma’s petition several spe-
cific adverse credibility findings, particularly those based on
(1) Kalouma’s conflicting statement in his asylum affidavit
that his family was “abducted” when he later testified that his
family “voluntarily” left Sudan, (2) Kalouma’s inability to
recall more than four incidents of personal mistreatment
                          KALOUMA v. GONZALES                          10753
despite his claim that he had been beaten up many times, (3)
Kalouma’s confusing and inconsistent details about his
uncle’s alleged torture,1 (4) Kalouma’s omission from his asy-
lum application of incidents of mistreatment directed at him,2
(5) Kalouma’s admission to the Border Patrol that he came to
the United States for an education,3 and (6) Kalouma’s return
to Sudan after 1998 notwithstanding the claimed persecution
against him, his uncle, and his sister.

   As required by our law, the IJ identified these specific and
cogent reasons for disbelieving Kalouma’s credibility, they go
to the heart of his claim, and it is improper to disregard them
absent evidence compelling us to do so. See Singh-Kaur, 183
  1
     In his asylum application, Kalouma stated that he “watched [his] uncle
tortured and murdered in his hut in the village,” but at the merits hearing,
he testified that his uncle died within the week following the torture.
Given an opportunity to explain the inconsistency, Kalouma unsatisfac-
torily explained that his uncle was beaten in the hut, “so when they beat
him he couldn’t survive,” they “had to take, rush him, no hospital[,]” and
“it was in the hut.” Id. Prior inconsistent statements are a classic ground
to impeach a witness. See United States v. Hale, 422 U.S. 171, 176 (1975)
(“A basic rule of evidence provides that prior inconsistent statements may
be used to impeach the credibility of a witness.”); Grunewald v. United
States, 353 U.S. 391, 418-19 (1957) (“It is, of course, an elementary rule
of evidence that prior statements may be used to impeach the credibility
of a criminal defendant or an ordinary witness.”); see also Pal v. INS., 204
F.3d 935, 938 (9th Cir. 2000) (concluding that testimony inconsistent with
the details of the asylum application supported an adverse credibility find-
ing).
   2
     “Common law traditionally has allowed witnesses to be impeached by
their previous failure to state a fact in circumstances in which that fact nat-
urally would have been asserted.” Jenkins v. Anderson, 447 U.S. 231, 239
(1980) (citing 3A J. Wigmore, Evidence § 1042, p. 1056 (Chadbourn rev.
1970)).
   3
     Kalouma conceded he told the Border Patrol agent not that he sought
refuge from persecution but that he “came here for an education for four
years before returning to Sudan.” The IJ was entitled to consider that prior
statement coupled with Kalouma’s long delay in seeking asylum as yet
another reason to question the sincerity of the alien’s claim of entitlement
to it.
10754                KALOUMA v. GONZALES
F.3d at 1153. Even had the IJ committed legal error in inter-
preting the alien’s burden of proving his identity under 8
U.S.C. § 1158(d), we should deny Kalouma’s petition based
on the IJ’s sound adverse credibility determination, the
ground upon which the Board upheld the denial of asylum.

  I respectfully dissent.
