Judge Sanchez authors a dissent that helpfully summarizes both what's at stake as well as his overall position on the matter. He says:
"Petitioner Milly Kalulu, a native of Zambia, alleges she was persecuted because she is a lesbian in a country that criminalizes same-sex relationships. When her relationship with a woman was discovered by her girlfriend’s brothers, she was beaten, whipped, injected with an unknown substance, stabbed in the chest, doused with gasoline, and threatened with death over several violent encounters. Kalulu submitted documentary evidence corroborating her claims, including a copy of her medical report, a declaration from her aunt in California, and declarations from several Zambians who witnessed the attacks on her. The agency, however, dismissed this evidence based on unsupportable or trivial grounds."
I might add that Ms. Kalulu came over here with her Zambian girl scout troupe and lived with her aunt, so suspect that she's quite young as well. Oh, and like many women like Zambia, she's HIV-positive, in case you need some additional sympathetic facts.
Judge Van Dyke nonetheless authors a majority opinion that largely contends that Ms. Kalulu was not a credible witness. The footnotes of his opinion are -- as is sometimes the case -- where things tend to get a bit snippy, or at least directly responsive. For example, from footnote 11:
"The dissent claims the majority does not “dispute that the vast majority of the agency’s credibility findings” are not supported by sufficient evidence. But we do. By the majority’s count, at least five of the agency’s factual bases for its adverse credibility determination are supported. Even assuming all the other findings are unsupported, barely more than one-half of the agency’s findings related to credibility are unsupported, hardly a “vast majority.” Even by the dissent’s count, fully one-third of the agency’s findings remain supported. Apparently “vast majority” too is being affected by inflation."
Though, somewhat charitably, that same footnote goes on to say that "We don’t point this out to be pedantic or to manufacture disagreement where our dissenting colleague is admirably trying to find common ground. Rather, this ungenerous characterization of the majority’s position relates back to the fundamental problems with the dissent’s novel ratio test." That said, at least the "inflation" point was, I think, really more about being snarky ("pedantic") than some fundamental doctrinal problem with the dissent's alternative approach.
Still, it definitely livened things up.
Speaking of livening things up, I also had to smile a little bit with the deadpan manner in which Judge Van Dyke ended the next footnote, which concludes with:
"93.2% of statistics give the illusion of quantitative certainty while providing very little in the way of substance."
Though, as a writing tip, pretty much everyone says that you shouldn't begin a sentence with a numeral.
It was nonetheless funny.
