Material Omissions, Credibility, and Jurisdiction in Asylum Proceedings: Commentary on Bakouan v. Bondi

Material Omissions, Credibility, and Jurisdiction in Asylum Proceedings: Commentary on Bakouan v. Bondi

I. Introduction

The Second Circuit’s summary order in Bakouan v. Bondi, No. 23‑7100 (2d Cir. Nov. 18, 2025), addresses three recurring issues in modern removal litigation:

  • Whether a Notice to Appear (“NTA”) that omits the time and date of the initial hearing nonetheless vests jurisdiction in the Immigration Court;
  • How Immigration Judges (“IJs”) and the Board of Immigration Appeals (“BIA”) may evaluate omissions and later embellishments in an applicant’s written and oral accounts when making an adverse credibility determination in asylum-related claims; and
  • The limits of appellate jurisdiction to direct or compel a favorable exercise of prosecutorial discretion by the Department of Homeland Security (“DHS”).

The petitioner, Roland Bakouan, a native and citizen of Burkina Faso, applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Both the IJ and the BIA rejected his claims, primarily on the ground that he was not a credible witness, pointing to significant omissions in his initial written statement and the lack of reliable corroborative evidence. On petition for review, the Second Circuit denied relief.

Although this is a summary order and thus does not have precedential effect under the Second Circuit’s Local Rule 32.1.1, it is nonetheless a useful illustration of how the court applies well-established principles governing:

  • Jurisdictional challenges based on allegedly defective NTAs; and
  • The evaluation of credibility where an applicant’s later claims are much more detailed—and more severe—than his initial account.

This commentary explains the court’s reasoning, situates it within existing Second Circuit and Supreme Court case law, and explores its practical implications for future asylum and removal cases, with a particular focus on credibility, corroboration, and jurisdiction.

II. Summary of the Opinion

A. Procedural Posture

The case reached the Second Circuit as a petition for review of a BIA decision dated August 25, 2023, which had affirmed a September 5, 2019 decision of an IJ sitting in New York City. The IJ denied:

  • Asylum;
  • Withholding of removal; and
  • Relief under the Convention Against Torture.

The BIA agreed with the IJ’s core finding that Mr. Bakouan was not credible and affirmed without rejecting any of the IJ’s grounds. The Second Circuit, under its established practice, therefore reviewed the IJ’s decision “including the portions not explicitly discussed by the BIA.” (citing Guan v. Gonzales).

B. Issues Presented

The Second Circuit addressed three main issues:

  1. Jurisdiction of the Immigration Court: Did the Immigration Court lack jurisdiction because the original Notice to Appear did not specify a hearing date and time?
  2. Adverse Credibility Determination: Was the IJ’s adverse credibility finding—based on omissions and inconsistencies between the petitioner’s initial written statement and later testimony—supported by substantial evidence?
  3. Request for Prosecutorial Discretion: Could the court remand the case to allow the petitioner to pursue a favorable exercise of prosecutorial discretion by DHS?

C. Holding

The Second Circuit:

  • Rejected the jurisdictional challenge to the Immigration Court;
  • Upheld the adverse credibility determination under the substantial evidence standard, concluding that the IJ reasonably relied on significant material omissions and the lack of reliable corroboration; and
  • Held it lacked jurisdiction to order or review prosecutorial discretion decisions by DHS under 8 U.S.C. § 1252(g).

Because the asylum, withholding, and CAT claims all rested on the same factual predicate, the adverse credibility finding was dispositive of all three forms of protection.

III. Detailed Analysis

A. Precedents Cited and Their Role in the Court’s Reasoning

The Second Circuit’s order relies heavily on its own immigration jurisprudence and on statutory provisions governing judicial review of removal orders. The key cases and statutes cited include:

1. Guan v. Gonzales, 432 F.3d 391 (2d Cir. 2005)

Guan governs the scope of review when the BIA accepts an IJ’s adverse credibility determination and merely highlights certain aspects of the IJ’s reasoning. In such cases, the reviewing court:

  • Considers the IJ’s decision as the primary decision under review; and
  • Includes the portions of the IJ’s reasoning even if the BIA did not discuss them explicitly.

The Bakouan panel invokes Guan to clarify that it is reviewing the IJ’s decision in its entirety, because the BIA agreed with the IJ’s credibility conclusion and did not reject any ground relied upon by the IJ.

2. Hong Fei Gao v. Sessions, 891 F.3d 67 (2d Cir. 2018)

Hong Fei Gao is central to the modern Second Circuit framework for evaluating credibility in asylum cases, especially regarding omissions. It established that:

  • Omissions may be less probative of credibility than direct contradictions;
  • However, the weight of an omission depends on whether the omitted fact is one that a reasonable, credible applicant would be expected to mention in the earlier statement under the circumstances; and
  • The court must consider the totality of the circumstances in assessing adverse credibility.

In Bakouan, the panel relies on Hong Fei Gao to justify giving substantial probative weight to the petitioner’s omissions, because they concerned:

  • The alleged most severe physical harm (severe beatings, head trauma, lost tooth, serious leg and foot injuries);
  • Whether he personally fled Burkina Faso with his father; and
  • The extent and nature of his political activity (from being merely a party member to later claiming to be a student activist, recruiter, and informant).

These are precisely the sorts of facts that Hong Fei Gao indicates would be expected in an initial persecution narrative.

3. Xiu Xia Lin v. Mukasey, 534 F.3d 162 (2d Cir. 2008)

Xiu Xia Lin is cited for the highly deferential standard applicable to IJ credibility determinations. It emphasizes that:

  • Credibility decisions are reviewed under the substantial evidence standard;
  • The court defers to the IJ’s findings unless “no reasonable fact-finder” could make such an adverse credibility ruling, after considering the totality of the circumstances.

In Bakouan, the panel uses Xiu Xia Lin (and reaffirms it via Hong Fei Gao) to underscore how difficult it is for a petitioner to overturn an adverse credibility finding on appeal. This is especially so when multiple, material inconsistencies or omissions are documented.

4. Singh v. Garland, 6 F.4th 418 (2d Cir. 2021)

Singh refines the analysis concerning omissions versus inconsistencies, stating:

  • Whether two statements are inconsistent depends in part on the importance of the omitted fact for the purpose of the earlier telling; and
  • If an applicant later claims to have been brutally beaten but failed to mention any beating in the earlier account, an IJ may reasonably conclude that the later assertion is fabricated, because such a severe beating would be expected to appear in the initial description.

The Bakouan panel quotes this logic verbatim in applying it to the petitioner’s evolving description of harm. Initially, he mentioned only harassment and verbal threats; later, he alleged serious physical assaults with lasting injuries. Under Singh, this kind of late introduction of major harm is inherently suspect.

5. Majidi v. Gonzales, 430 F.3d 77 (2d Cir. 2005)

Majidi governs how an IJ may treat an applicant’s explanations for inconsistencies. It holds that:

  • A petitioner must do more than offer a plausible explanation for an inconsistency to prevail;
  • He must show that a reasonable fact-finder would be compelled to accept the explanation.

In Bakouan, the petitioner offered two main explanations for his omissions:

  1. He was assisted by a non-lawyer acquaintance in filling out his application; and
  2. He suffered from post-traumatic stress disorder (PTSD).

Applying Majidi, the court holds that:

  • These explanations might be plausible, but the IJ was not required to accept them; and
  • The petitioner failed to explain specifically how PTSD (or the non-lawyer’s help) caused the particular omissions at issue, especially concerning the alleged severe beatings and flight.

6. Biao Yang v. Gonzales, 496 F.3d 268 (2d Cir. 2007)

Biao Yang is the key authority on the role of corroborative evidence in asylum and withholding cases. It provides:

  • While credible testimony alone can sometimes suffice, an applicant’s failure to corroborate can justifiably weigh against credibility, particularly where testimony has already been called into question; and
  • The absence of corroboration may leave the applicant “unable to rehabilitate” testimony undermined by inconsistencies or omissions.

In Bakouan, after concluding that the petitioner’s testimony was suspect, the IJ looked for corroboration. The only supporting material consisted of letters from friends. The IJ, and then the Second Circuit, found that:

  • The letters were from “interested parties” (friends) rather than neutral witnesses; and
  • The declarants were not available for cross-examination, limiting their probative value.

Under Biao Yang, this weak corroboration did not rescue the discredited testimony.

7. Gao v. Barr, 968 F.3d 137 (2d Cir. 2020)

Although distinct from Hong Fei Gao, Gao v. Barr is similarly central to credibility doctrine. The panel cites it for two propositions:

  • That the IJ may give reduced weight to letters from interested parties who are not available for cross-examination; and
  • That even a single inconsistency may suffice to sustain an adverse credibility finding under the substantial evidence standard, while multiple inconsistencies strengthen the case for upholding the IJ.

In a notable line from Gao v. Barr quoted by the panel:

“If even a single inconsistency might preclude an alien from showing that an IJ was compelled to find him credible, multiple inconsistencies … would so preclude [him] even more forcefully.”

The Second Circuit applies this rationale directly to the multiple, material omissions in Bakouan.

8. Cupete v. Garland, 29 F.4th 53 (2d Cir. 2022)

Cupete addresses whether an NTA that does not specify the date and time of the initial hearing is sufficient to vest jurisdiction in the Immigration Court. The Second Circuit held that:

  • An NTA missing the time/date can still vest jurisdiction if a subsequent notice of hearing later supplies that information; and
  • Therefore, such a defect is not jurisdictional where the alien is subsequently notified of the hearing details.

In Bakouan, the petitioner argued that the immigration court lacked jurisdiction because his initial NTA did not include a hearing date. Applying Cupete, the panel rejects this argument: he later received a notice of hearing specifying the date and time, which sufficed to confer jurisdiction.

9. 8 U.S.C. §§ 1252(b)(4)(B) and 1252(g)

The opinion quotes two key statutory provisions:

  • § 1252(b)(4)(B): Governs review of factual findings, stating that “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” This is the textual basis for the substantial evidence standard and underpins the high deference given to IJ credibility determinations.
  • § 1252(g): A jurisdiction-stripping provision that bars courts from reviewing “any cause or claim … arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders….” The Supreme Court in Reno v. American-Arab Anti-Discrimination Committee (“AADC”) interpreted this as aimed at limiting judicial intrusion into prosecutorial discretion.

10. Ali v. Mukasey, 524 F.3d 145 (2d Cir. 2008) and Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999)

These cases are cited in relation to § 1252(g):

  • Ali v. Mukasey clarifies that references in § 1252(g) to the “Attorney General” should be understood to include DHS, given statutory reorganization (citing 6 U.S.C. § 557). Thus, it applies to DHS’s charging and enforcement decisions.
  • Reno v. AADC explains that § 1252(g) was enacted to prevent courts from constraining the Executive’s prosecutorial discretion in deportation matters.

In Bakouan, the petitioner sought remand in part to pursue prosecutorial discretion (e.g., possibly administrative closure, deferred action, or other non-enforcement decisions). The panel, relying on these authorities, concludes that it lacks jurisdiction to direct or review such discretionary decisions.

B. The Court’s Legal Reasoning

1. Jurisdiction Based on a Defective NTA

The petitioner claimed that the Immigration Court lacked jurisdiction because his initial NTA omitted the date and time of his first hearing. The Second Circuit frames this issue squarely under Cupete v. Garland and disposes of it succinctly:

  • An NTA without time/date information is “nevertheless adequate to vest jurisdiction” if a later notice of hearing provides that information; and
  • Because the record indicates that Mr. Bakouan did receive such additional notice, jurisdiction properly vested in the immigration court.

Thus, the court rejects the argument that the proceeding was void for lack of jurisdiction. Notably, the opinion avoids any broader reconsideration of NTA doctrines beyond what Cupete already established.

2. Adverse Credibility: Omissions, Inconsistencies, and the “Totality of the Circumstances”

The core of the opinion is its analysis of credibility. The court reiterates statutory and case law principles:

  • Under 8 U.S.C. § 1158(b)(1)(B)(iii), credibility may be based on:
    • Consistency of written and oral statements;
    • Internal consistency of each statement;
    • Consistency with other evidence of record; and
    • Any inaccuracies or falsehoods, “without regard to whether” they go to the heart of the claim.
  • The IJ must consider the “totality of the circumstances and all relevant factors” in making a credibility determination.

Here, the IJ identified several key omissions and discrepancies between the petitioner’s:

  • Initial written statement and asylum application; and
  • Later written submissions and oral testimony.

The most significant issues were:

  1. Nature and Severity of Harm: In his initial written statement, Mr. Bakouan described “harassment and verbal threats” against his family. Only later did he claim that he had been severely beaten on two occasions, resulting in:
    • Head trauma,
    • A lost tooth, and
    • Serious leg and foot injuries.
    Under Singh and Hong Fei Gao, such a dramatic escalation—from mere verbal harassment to serious physical assault—is precisely the kind of omission that can legitimately support an adverse credibility determination.
  2. Flight from Burkina Faso: The initial statement indicated that only his father fled to the Ivory Coast. Later, he asserted that he fled with his father. The discrepancy is substantial: whether the applicant personally fled persecution is central to both an asylum narrative and an assessment of feared future harm.
  3. Nature of Political Activity: Initially, he wrote that he was merely a member of the Congress for Democracy and Progress (CDP). Later, he claimed to have been:
    • A student activist,
    • A recruiter, and
    • An informant.
    These more active and dangerous roles would materially increase his risk profile and, again, are the type of facts one would expect to see in an initial statement if they were true.

The court emphasizes that these are material omissions under the reasoning of Hong Fei Gao and Singh. They concern:

  • The worst harm allegedly suffered;
  • Whether the applicant had to flee his country; and
  • The level of political engagement that allegedly motivated the persecution.

Given this, the IJ’s conclusion that the applicant was not credible is “supported by substantial evidence.” Under the deferential standard of § 1252(b)(4)(B) and Xiu Xia Lin, the court cannot overturn the IJ’s determination unless a reasonable adjudicator would be compelled to find the applicant credible—which is not the case here.

3. Explanations for the Omissions: Non-lawyer Assistance and PTSD

The petitioner offered two main reasons for the problems in his written statement:

  • A non-lawyer acquaintance helped fill out his asylum application; and
  • He suffers from PTSD, which might affect memory or disclosure.

The court, invoking Majidi, explains why these did not compel a finding in his favor:

  • Non-lawyer Assistance: Given his level of education, his awareness of the purpose of the asylum application, and the form’s own instruction to provide detailed information, the IJ was not required to accept that he misunderstood the form or failed to realize that critical facts should be disclosed. The Second Circuit treats this as a matter within the IJ’s discretion.
  • PTSD: While PTSD could in principle affect memory or willingness to disclose trauma, the petitioner did not provide a specific, causal explanation linking his PTSD to the particular omissions at issue (e.g., why he omitted the beatings but was able to recount lesser harassment). The record did not compel the IJ to accept PTSD as a satisfactory explanation.

Under Majidi, a petitioner must show that no reasonable fact-finder could reject his explanation; that demanding standard was not met in this case.

4. Lack of Reliable Corroboration

Even if testimony is less than fully consistent, strong corroborative evidence might potentially rehabilitate an applicant. However, as Biao Yang and Gao v. Barr explain, the absence of such evidence can reinforce doubts about credibility.

Here, the only corroboration offered were letters from friends. The IJ gave these “little weight” because:

  • The authors were “interested parties” (friends, not neutral observers); and
  • They were not available for cross-examination, limiting the ability of the IJ or DHS to test their assertions.

The Second Circuit approved this approach, citing Gao v. Barr. With no strong corroborating documentation (e.g., medical records, party membership documents, contemporaneous reports, or testimony from neutral witnesses), the applicant was left unable to rehabilitate his already-suspect account.

5. Impact of Adverse Credibility on Asylum, Withholding, and CAT

The court reiterates a familiar but critical principle: if the same factual predicate underlies claims for asylum, withholding of removal, and CAT protection, an adverse credibility determination that undermines that predicate forecloses all three forms of relief.

The panel cites Hong Fei Gao for this proposition. Because Mr. Bakouan’s asylum, withholding, and CAT claims were all premised on the same alleged persecution and risk of future harm, the finding that he was not credible about those events necessarily defeated all three.

6. Prosecutorial Discretion and Jurisdiction under § 1252(g)

Lastly, the court addresses the petitioner’s request for remand to pursue a favorable exercise of prosecutorial discretion (PD) by DHS. This might include, for example, decisions not to execute a removal order, to grant deferred action, or to seek administrative closure.

The panel concludes it has no jurisdiction over such matters, citing:

  • 8 U.S.C. § 1252(g), which bars judicial review of decisions:
    • “to commence proceedings,”
    • “to adjudicate cases,” or
    • “to execute removal orders,”
    all of which are aspects of prosecutorial discretion in the immigration context.
  • Ali v. Mukasey, confirming that § 1252(g) applies to DHS’s actions; and
  • Reno v. AADC, explaining that § 1252(g) was specifically designed to prevent courts from imposing judicial constraints on prosecutorial discretion.

As a result, the Second Circuit cannot order DHS to consider, or grant, prosecutorial discretion, nor can it remand for that purpose. Any such exercise remains entirely within the Executive’s domain.

C. Impact and Practical Implications

1. Credibility and the Importance of Initial Written Statements

Although Bakouan is a non-precedential summary order, it underscores—and exemplifies—the Second Circuit’s evolving but now firmly established approach to credibility under Hong Fei Gao, Singh, and Gao v. Barr. Practically, this means:

  • Initial asylum statements (including the Form I‑589 and attached narrative) are crucial. They will often be treated as the baseline against which all later testimony is measured.
  • Major harm—such as serious beatings, torture, or forced flight—must be disclosed early. Omitting them and mentioning them only later will likely be seen as fabrication.
  • Upgrading one’s political or social role from “member” to “leader,” “recruiter,” or “informant” after the fact will be scrutinized, and courts will expect convincing explanations for any evolution in the narrative.

2. Handling Vulnerable Applicants and Mental Health Issues

The opinion illustrates a tension in the law:

  • On one hand, the system recognizes that trauma, PTSD, language barriers, and lack of legal counsel can complicate how applicants describe their experiences.
  • On the other hand, Majidi and the statutory burden of proof require that applicants present credible, consistent accounts, and that explanations for discrepancies be compelling—not merely plausible.

For practitioners, this suggests:

  • Where PTSD or other mental health conditions are at issue, detailed documentation and expert explanation connecting the condition to specific memory or disclosure problems are critical.
  • Attorneys must carefully review initial applications to ensure that key incidents and roles are fully and accurately described, even at early stages.

3. Corroboration Strategy

Bakouan reinforces that letters from friends or relatives, especially when unsworn or from parties not subject to cross-examination, will often receive only limited weight. Effective corroboration should, whenever possible, include:

  • Neutral or official documents (medical records, police reports, party membership cards, NGO or press reports);
  • Affidavits with detailed, specific accounts, preferably notarized or sworn, and explaining the basis of the declarant’s knowledge; and
  • Live testimony or telephonic/remote testimony from witnesses where feasible.

4. NTA Defects and Jurisdictional Challenges

After Cupete, the Second Circuit’s position is that a missing time/date on the original NTA is not a jurisdictional defect so long as the noncitizen is later served with a notice of hearing specifying that information. Bakouan applies this rule straightforwardly.

Practitioners should understand:

  • Jurisdictional arguments premised solely on a defective NTA will likely fail in the Second Circuit if a proper notice of hearing was later served.
  • Any challenge must therefore focus on other issues (e.g., failure of service, due process concerns, or failure to receive actual notice).

5. Limits of Judicial Review over Prosecutorial Discretion

By reaffirming the jurisdictional bar of § 1252(g), Bakouan signals once again that:

  • Requests for prosecutorial discretion—such as deferred action, termination, or non-execution of a removal order—must be directed to DHS, not to the courts.
  • Courts cannot compel DHS to exercise discretion, nor can they retain jurisdiction solely for PD-related purposes once substantive claims for relief are denied.

This limits the role of the judiciary in humanitarian or policy-based relief decisions that are not grounded in statutory eligibility but in executive grace.

IV. Simplifying Key Legal Concepts

1. “Substantial Evidence” Standard

The “substantial evidence” standard is highly deferential to the agency’s factual findings. It does not ask whether the reviewing judges would have reached the same decision. Instead, it asks:

Is there enough evidence in the record that a reasonable fact-finder could have reached this conclusion?

Under 8 U.S.C. § 1252(b)(4)(B), the court must treat factual findings as “conclusive” unless a reasonable adjudicator would be compelled to decide differently. This is a very high bar for petitioners.

2. “Adverse Credibility Determination”

An adverse credibility determination means the IJ does not believe the applicant’s account is truthful or reliable. It can rest on:

  • Inconsistencies within the applicant’s own statements;
  • Differences between what the applicant says and other evidence;
  • Omissions of key facts in earlier statements that appear only later; and
  • Implausible or contradictory details.

Once an applicant is found not credible about the core events, the entire case—especially when dependent on personal testimony—often collapses.

3. Omissions vs. Inconsistencies

An inconsistency is a direct conflict (e.g., “I was beaten” vs. “I was never beaten”). An omission is when a fact appears in a later account that was absent from an earlier one.

While omissions might sometimes be benign (e.g., leaving out minor details), they become serious credibility problems when the omitted facts are so important that a truthful person would reasonably have disclosed them earlier. Bakouan treats the omission of severe beatings and flight from the country as exactly that kind of serious omission.

4. Prosecutorial Discretion

Prosecutorial discretion in immigration law refers to the government’s power to decide:

  • Whether to start removal proceedings;
  • How aggressively to pursue them; and
  • Whether to execute a removal order.

Examples include:

  • Declining to arrest or charge a person who is technically removable;
  • Agreeing to administrative closure or termination of proceedings; or
  • Choosing not to deport a person even after a removal order is final.

Courts generally cannot second-guess or compel these decisions because Congress has explicitly limited jurisdiction over them through § 1252(g).

5. Relationship between Asylum, Withholding, and CAT

While all three forms of relief aim to protect noncitizens from harm, they differ in:

  • Asylum: Discretionary relief. Requires a “well-founded fear” of persecution on one of five protected grounds. Lower burden of proof.
  • Withholding of Removal: Mandatory if granted. Requires showing it is “more likely than not” the person would be persecuted on a protected ground if removed. Higher burden.
  • CAT Protection: Mandatory if granted. Requires showing it is “more likely than not” the person would be tortured by, or with the acquiescence of, a public official.

However, when all three are based on the same story about what happened and what will happen upon return, an adverse credibility finding generally defeats them all. This is what happened in Bakouan.

V. Conclusion

Bakouan v. Bondi does not create new binding precedent, as it is a summary order. Nonetheless, it vividly illustrates the Second Circuit’s application of a now well-developed framework for:

  • Evaluating the jurisdictional sufficiency of NTAs in light of Cupete v. Garland;
  • Assessing credibility using the “totality of the circumstances” standard under § 1158(b)(1)(B)(iii) and the case law of Hong Fei Gao, Singh, and Gao v. Barr;
  • Weighing explanations for inconsistencies under Majidi;
  • Determining the significance of corroboration under Biao Yang; and
  • Recognizing the strict limits on judicial review of prosecutorial discretion under § 1252(g) and Reno v. AADC.

The case underscores several practical lessons:

  1. Consistency from the Start: Asylum applicants and their counsel must treat initial written statements as foundational. Key facts—especially severe harm, flight, and political involvement—must be included from the outset, or they risk later being viewed as fabrications.
  2. Detailed Explanations and Evidence for Vulnerabilities: If PTSD, trauma, or language barriers affect disclosure, this must be documented and specifically connected to any omissions or inconsistencies in the record.
  3. Robust Corroboration: Where credibility may be questioned, applicants need strong, reliable corroborative evidence, not just letters from friends or relatives who cannot be cross-examined.
  4. Limited Role of NTA Defects in Jurisdiction: In the Second Circuit, defective NTAs that omit time/date are unlikely to defeat jurisdiction if a notice of hearing later supplies that information.
  5. Separation of Judicial and Executive Functions: Courts cannot order or supervise prosecutorial discretion. Once statutory claims fail, any residual hope for humanitarian relief often lies solely with DHS.

In the broader landscape of immigration law, Bakouan is best understood as a careful application—not an expansion—of existing doctrine. It demonstrates how difficult it is to overcome an adverse credibility finding on appeal and how crucial it is for applicants to present a coherent, consistent, and corroborated account from the very beginning of their case.

Case Details

Year: 2025
Court: Court of Appeals for the Second Circuit

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