                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 05-1764



JEMMY RAMPENGAN,

                                                           Petitioner,

           versus


ALBERTO R. GONZALES, United States Attorney
General,

                                                           Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals. (A97-188-511)


Argued:   September 19, 2006             Decided:    November 17, 2006


Before MICHAEL and GREGORY, Circuit Judges, and Thomas E. JOHNSTON,
United States District Judge for the Southern District of West
Virginia, sitting by designation.


Petition for review granted; vacated and remanded by unpublished
opinion. Judge Gregory wrote the opinion, in which Judge Michael
and Judge Johnston joined.


ARGUED: Alexander Manjanja Chanthunya, Silver Spring, Maryland, for
Petitioner.   Lindsay L. Chichester, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.     ON BRIEF: Peter D.
Keisler, Assistant Attorney General, Carol Federighi, Office of
Immigration Litigation, Allison Cendali, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
GREGORY, Circuit Judge:

      Petitioner Jemmy Rampengan seeks review of the ruling of the

Board of Immigration Appeals (BIA) denying him and his family

withholding of removal. The BIA, without making its own factual

findings, affirmed the decision of the immigration judge, who found

Rampengan’s testimony incredible. Because the immigration judge did

not   provide   specific   and   cogent   reasons   for   discrediting

Rampengan’s testimony, we grant the petition, vacate the BIA’s

decision, and remand the case for further proceedings consistent

with this opinion.



                                  I.

      According to the declaration he filed with his application for

asylum, Rampengan, who is Christian, was born in Indonesia and

lived there before arriving in the United States. In 1998, while

visiting a business associate and prominent Christian leader named

Herman Parimo, he was kidnapped by a group of Muslims, beaten, and

held captive without food for twelve hours. His captors assailed

him with questions about Parimo, called him a “bastard Christian,”

and broke the middle finger of his right hand, which remains

crippled.

      In February of 1999, Rampengan received threatening phone

calls at least once a week seeking information about Parimo. That

July a stranger gave Rampengan’s daughter a note, warning: “watch


                                  3
out, your daughter would be gone.” In January 2000, Rampengan

received   at   least   one   more   threatening   phone   call     demanding

information     about   Parimo.   One   year   later,   Rampengan    asserts,

Muslims attacked him in his church and destroyed the edifice. The

attackers separated the men from the women and hit Rampengan over

the head with a club. Finally, in June 2001, Muslims allegedly

stoned the house of Rampengan’s father-in-law, in which Rampengan

and others were conducting a prayer meeting that included the

singing of Christian songs. Rampengan applied for a visa to come to

the United States, received it on July 25, 2001, and departed

Indonesia with his family on August 25, 2001.

     Rampengan and his family remained in the United States past

the visas’ February 2002 expiration date and filed for asylum and

withholding of removal early in 2003. In August of 2003, Rampengan

appeared before an immigration judge who denied him and his family

voluntary departure, asylum, withholding of removal, and protection

under the Convention Against Torture (CAT). Immigration Judge John

M. Bryant denied them voluntary departure because Rampengan could

not post the necessary bond and denied asylum because Rampengan

applied too late.1 In June 2005 the BIA affirmed the immigration

judge’s decision. Rampengan timely filed a petition for review in

this Court.



     1
      Rampengan does not contest those rulings. He argues only that
Judge Bryant and the BIA improperly denied withholding of removal.

                                        4
                                       II.

      Because the BIA’s opinion contains no analysis beyond that in

the immigration judge’s decision and makes no additional findings

of   fact,    we    review   the   reasoning    in   the   immigration   judge’s

decision. See Gandarillas-Zambrana v. Board of Immigration Appeals,

44 F.3d 1251, 1255 (4th Cir. 1995). Judge Bryant ruled that

Rampengan did not qualify for withholding of removal because he had

not met his burden of proof: he failed to demonstrate that there

was a clear probability he would be persecuted because of his

religion if he returned to Indonesia. The judge found insufficient

evidence of future persecution to warrant withholding of removal

and waved off evidence of past persecution as incredible.

      Rampengan contends that he demonstrated he was persecuted in

Indonesia on account of his religion and that such persecution

entitles him to a rebuttable presumption that withholding of

removal is appropriate under 8 C.F.R. § 1208.16(b)(1)(I) (2006).

His claims of past persecution are supported almost entirely by his

own testimony, but that testimony, if credible, may suffice to meet

his burden of proof. See 8 C.F.R. § 1208.16(b). Judge Bryant,

however, found Rampengan’s testimony to be unreliable.

      Although we afford substantial deference to the credibility

determinations of immigration judges in asylum proceedings, we

require      that   a   judge   who   rejects    a   witness’s   testimony    as

incredible provide a specific and cogent reason for her disbelief.


                                        5
See Figeroa v. I.N.S., 886 F.2d 76, 78 (4th Cir. 1989). In the

instant case, Judge Bryant found that Rampengan’s tardy petition

for asylum undermined his entire testimony. According to the judge,

“no reasonable person, if he or she had experienced the experiences

which the respondent asserted were experienced by them [sic], would

not, in the normal course and straightaway, make application for

asylum.”   (J.A.   35.)   This   reason,   although   specific,   is   not

particularly cogent. Cf. Tewabe v. Gonzales, 446 F.3d 533, 538 (4th

Cir. 2006) (“Examples of specific and cogent reasons include

inconsistent statements, contradictory evidence, and inherently

improbable testimony . . . .” (internal quotation marks omitted)).

At no point in Rampengan’s testimony was he asked why he did not

submit his application for asylum sooner, and Judge Bryant’s

decision nowhere discusses the justification Rampengan offered in

the application itself.2 A person’s tardy filing of an application

for asylum, without more, is simply an insufficiently impelling

reason to conclude that the entirety of the person’s testimony is

dubious. Cf. id. at 540 (rejecting an immigration judge’s adverse

credibility determination that was based on the early filing of a

witness’s application for asylum).


     2
      Rampengan explained in his application for asylum that he did
not file for asylum within one year of his arrival in the United
States because he was “depressed and confused.” (Supp. J.A. 64.)
Part C of the application indicated that Rampengan should be
prepared to explain himself further at his interview or hearing,
but the record contains no indication that he was ever questioned
on the matter.

                                    6
     Judge Bryant also doubted Rampengan’s testimony because a

letter from Rampengan’s Indonesian pastor failed to corroborate

Rampengan’s account of his church’s destruction. The letter, which

states only that Rampengan and his family members are obedient

Christians of good moral character, is dated July 20, 2001—five

days before Rampengan received his visa to come to the United

States, and more than a month before he left Indonesia. Even so,

Rampengan maintained in his oral testimony that he requested the

letter after his arrival in the United States.

     Judge Bryant did not point to Rampengan’s performance on the

witness stand as a reason to doubt his testimony, however. Instead,

the judge’s distrust stemmed from Rampengan’s request for the

pastor’s letter. Judge Bryant seemed to conclude that, to secure

asylum, Rampengan requested a letter from his Indonesian pastor

attesting only to his Christian faith. To the judge, this narrow

request called into question Rampengan’s account of the church

attack itself.3 But Judge Bryant’s decision never explains how he


     3
      Judge Bryant put it this way:
     The respondents testified that they specifically and
     purposefully requested from their pastor a letter. It
     flies in the face of reason that the respondents would
     have not requested from the respondent in addition to the
     pastor’s attestation to their status as Christians the
     incidents to which they testified which directly
     pertained to their church of which the pastor was the
     pastor and therefore would have knowledge and incidents
     which may have occurred individually to these two
     respondents [sic]. Again, this would suggest, if not
     demonstrate, that the events to which respondents
     testified did not occur in the manner to which they

                                7
arrived at such a confident conclusion regarding the request for

the letter. The muddled testimony on the subject is not clear as to

the nature of Rampengan’s request, or even as to its purpose.4

Furthermore,     Judge    Bryant’s        decision    never   considers   the

possibility that the pastor misunderstood or responded improperly

to Rampengan’s request (a possibility likewise ignored during oral

testimony). We offer no opinion as to whether Judge Bryant might

have found Rampengan to be untrustworthy on other grounds. We

simply conclude that the reasons the judge offered are insufficient

to sustain an adverse credibility determination.

     With   no   cogent   reason     to    doubt     Rampengan’s   credibility

offered, there is no barrier to finding past persecution on account

of religion. Rampengan’s description of the church attack and the



     testified.
(J.A. 34–35.)
     4
      Rampengan’s questioning by the counsel for the Department of
Homeland Security included the following exchange:
Q.   [W]hy did you request that letter?
A.   Letter as recommendation that I am a Christian and I was
     attending church in Indonesia.
Q.   Why did you need the letter?
A.   I get that letter as recommendation that I am a member of the
     church in Indonesia.
Q.   So that you could use it here in the United States to get a
     new church?
A.   I mean it’s not for the church in America but for the
     Government of America.
Q.   Well then why didn’t your pastor write a letter saying that
     they had all the problems that you said in your application
     and not just simply that you were attending church?
A.   Maybe my pastor didn’t know what to put in the letter.
(Supp. J.A. 31–32.)

                                      8
beating he received in 1998 remain uncontradicted in the record.

Judge Bryant’s objection to the 1998 beating—that Rampengan was not

sure why he was attacked—is unavailing.5 Rampengan need not know to

a moral certainty the reason for his persecution; he is required

only to establish that he experienced persecution on account of his

religion. See 8 C.F.R. § 1208.16(b)(1)(I). Here reasonable and

substantial evidence does not support Judge Bryant’s determination

to the contrary, so the decision must be vacated. See I.N.S. v.

Elias-Zacarias,     502   U.S.   478,       481   (1992).   Because   he   has

established that he endured past persecution, Rampengan is entitled

to a rebuttable presumption that he will face persecution on

account of his religion if returned to Indonesia. See 8 C.F.R. §

1208.16(b)(1)(I).



                                   III.

     Rampengan does not explicitly appeal the denial of withholding

of removal under the CAT. Instead, he focuses his argument on

withholding   of   removal   under      8   U.S.C.   §   1231(b)(3)   (2000).

Nevertheless, his claim that the BIA “erred in holding that the

petitioners were not eligible for withholding of removal” (Pet’r

Br. 1) is sufficiently broad to warrant consideration under the

CAT. See 8 C.F.R. § 1208.16(c). Because we here decide that


     5
      When asked why he was attacked, Rampengan answered: “I’m not
sure why they attack me, but I think because I’m a Christian.”
(Supp. J.A. 18.)

                                     9
Rampengan has demonstrated past persecution within the meaning of

8 C.F.R. § 1208.16(b)(1)(I), the immigration judge on remand should

reconsider his and his family’s eligibility for withholding of

removal under the CAT.



                               IV.

     Finally, we note that this appeal lists only Rampengan as a

petitioner in the caption. Federal Rule of Appellate Procedure

15(a)(2)(A) requires a petition for review of an agency order to

name each party seeking review in the caption or body of the

petition. Rampengan’s wife and two children do not appear in the

caption, but they are listed on Rampengan’s application for asylum.

In their briefs, both parties repeatedly refer to “petitioners” and

clearly contemplate the claims of all four applicants rising and

falling as one. Judge Bryant treated the family as one applicant in

the administrative proceedings, as did the BIA on appeal. Because

the application for asylum and withholding of removal was joint,

the claims of Rampengan’s wife and children should be treated the

same as his on remand, notwithstanding the omission of their names

from the petition on appeal. Cf. Miljkovic v. Ashcroft, 366 F.3d

580, 583–84 (7th Cir. 2004).




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                               V.

     For the foregoing reasons, we grant the petition for review,

vacate the decision of the BIA, and remand the case for further

consideration of the evidence in light of Rampengan’s presumption

of future persecution.

                                              PETITION FOR REVIEW
                                                GRANTED; DECISION
                                             VACATED AND REMANDED




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