Omissions of Key Events and Evasive Testimony Sustain Adverse Credibility Findings in Asylum/CAT Review

Introduction

In Gary Barnes v. Attorney General United States of America (3d Cir. May 19, 2026) (not precedential), the Third Circuit denied pro se petitioner Gary Alexander Barnes’s petition for review of a Board of Immigration Appeals (“BIA”) final order of removal. Barnes, a Jamaican national who entered the United States without inspection in 2022, sought asylum and withholding of removal, and later added Convention Against Torture (“CAT”) relief.

The case turned on credibility. Barnes’s initial pro se I-589 framed the feared harm as politically motivated violence, while a later counseled amended I-589 shifted to a gang-retaliation narrative rooted in an alleged 2010 sexual assault of his mother, her cooperation with police, and ensuing gang targeting of the family. The Immigration Judge (“IJ”) found Barnes not credible (and also found insufficient corroboration and other defects). The BIA affirmed solely on adverse credibility. The Third Circuit’s review therefore focused narrowly on whether substantial evidence supported the credibility determination.

Summary of the Opinion

The Third Circuit held that Barnes failed to show the “extraordinary circumstances” required to overturn an adverse credibility finding. The court emphasized:

  • Material omission: Barnes’s initial I-589 omitted the core gang-persecution narrative and the asserted triggering event (his mother’s testimony), supporting an adverse credibility inference.
  • Demeanor and plausibility: The IJ permissibly relied on Barnes’s evasiveness (including interrupting cross-examination) and implausible or inconsistent explanations (e.g., “all over the news” yet “hard to find”).
  • Dispositive effect: Without credible testimony, Barnes could not establish protected-ground nexus for asylum/withholding or government acquiescence for CAT.
  • Procedural limits: Barnes forfeited an undeveloped corroboration argument, and the court would not consider extra-record materials attached to briefing.

Analysis

Precedents Cited

The panel’s analysis is anchored in a line of Third Circuit cases governing (1) the scope of review when the BIA affirms on limited grounds, (2) the deference owed to adverse credibility findings, and (3) the elements of asylum/withholding and CAT claims.

1) Scope of review when the BIA relies on a single ground

  • Blanco v. Att'y Gen., 967 F.3d 304 (3d Cir. 2020): Cited for the proposition that when the BIA affirms on a discrete basis (here, credibility), the court reviews only that ground. This foreclosed appellate consideration of the IJ’s alternative merits rulings.

2) Deference to credibility findings; omissions and demeanor

  • Sunuwar v. Att'y Gen., 989 F.3d 239 (3d Cir. 2021): This was the opinion’s centerpiece. It supplied multiple controlling propositions: (a) adverse credibility is reviewed for substantial evidence; (b) IJs have “wide latitude” and reversals are reserved for “extraordinary circumstances”; (c) “omission of a key event” from a written asylum application can support an adverse credibility finding; and (d) blaming prior counsel for an omission is not necessarily an explanation “a reasonable factfinder would be compelled to accept.” The Barnes panel treated the initial I-589’s failure to mention the gang narrative as a core credibility defect under Sunuwar.
  • Lin v. Att'y Gen., 543 F.3d 114 (3d Cir. 2008), abrogated on other grounds by Santos-Zacaria v. Garland, 598 U.S. 411 (2023): Used to support reliance on “unpersuasive and evasive testimony” as a credibility factor. The court invoked Lin to validate the IJ’s demeanor-based findings (e.g., interrupting cross-examination) and unpersuasive explanations. The reference to Santos-Zacaria clarifies that Lin remains good law on this credibility point notwithstanding abrogation on unrelated issues.

3) Credibility’s practical centrality to relief

  • Ordonez-Tevalan v. Att'y Gen., 837 F.3d 331 (3d Cir. 2016): Cited with Sunuwar for the proposition that where a claim depends on the applicant’s testimony, an adverse credibility determination can be dispositive.

4) Substantive elements: asylum/withholding nexus and CAT acquiescence

  • Shehu v. Att'y Gen., 482 F.3d 652 (3d Cir. 2007): Referenced for the nexus requirement—harm must be “on account of” a protected ground for asylum and withholding. The panel used this to explain why, absent credible testimony, Barnes could not show political opinion or social-group causation.
  • Myrie v. Att'y Gen., 855 F.3d 509 (3d Cir. 2017): Cited regarding government acquiescence for CAT. The court noted that without credible testimony, Barnes had no evidentiary basis to prove the Jamaican government would acquiesce in torture.

5) Timeliness and appellate procedure (ancillary but instructive)

  • Webb v. Dep't of Just., 117 F.4th 560 (3d Cir. 2024) and United States v. Rinaldi, 447 F.3d 192 (3d Cir. 2006): Used to support the conclusion that Barnes’s petition was timely filed under the circumstances. These citations show the court’s willingness to analyze filing mechanics carefully even while denying relief on the merits.
  • In re Wettach, 811 F.3d 99 (3d Cir. 2016) and Saravia v. Att'y Gen., 905 F.3d 729 (3d Cir. 2018): Cited for forfeiture: issues not developed in the opening brief are forfeited. This barred a meaningful review of Barnes’s brief mention of corroboration problems.
  • Yoc-Us v. Att'y Gen., 932 F.3d 98 (3d Cir. 2019): Cited to reinforce that the court cannot consider materials outside the administrative record in a petition for review.

Legal Reasoning

The court applied the statutory and doctrinal framework governing credibility and judicial review:

  • Review standard (substantial evidence): Under Sunuwar v. Att'y Gen., the agency’s credibility finding is conclusive unless the record compels the opposite conclusion. This is a highly deferential posture.
  • Credibility factors under 8 U.S.C. § 1158(b)(1)(B)(iii): The opinion pointed to the statute’s express permission for IJs to consider demeanor, candor, responsiveness, plausibility, and inconsistencies between written and oral statements and with other evidence. Barnes’s case implicated multiple factors at once: (i) omission of an alleged root cause of persecution from the initial application, (ii) shifting narratives between applications, (iii) demeanor on cross-examination, and (iv) plausibility problems in supporting details.
  • Omission as inconsistency: The court treated the missing gang narrative in the original I-589 as a “key event” omission that reasonably undermined credibility. Barnes’s attempt to attribute this to prior counsel did not compel acceptance—particularly because the initial filing was pro se and because the IJ could permissibly view the later story as a material shift rather than a mere elaboration.
  • Demeanor and explanation credibility: Beyond omissions, the IJ relied on Barnes’s conduct and answers during cross-examination. The court accepted that evasiveness (interrupting questioning) and internally inconsistent descriptions (news “all over” yet difficult to locate) may rationally support disbelief.
  • Dispositive consequences of disbelief: Once the testimony was found not credible, Barnes lacked proof of (a) protected-ground nexus for asylum/withholding and (b) government acquiescence for CAT—elements highlighted via Shehu v. Att'y Gen. and Myrie v. Att'y Gen..
  • Appellate constraints: The court enforced forfeiture rules (In re Wettach; Saravia v. Att'y Gen.) and the record rule (8 U.S.C. § 1252(b)(4)(A); Yoc-Us v. Att'y Gen.), narrowing review to arguments properly developed and evidence properly before the agency.

Impact

Although designated “NOT PRECEDENTIAL,” the decision reflects and reinforces operative Third Circuit doctrine in three practical ways:

  1. Early application content matters: The court again treats omissions of central events from the initial I-589 as powerful credibility evidence, particularly when later filings introduce a materially different causal narrative for feared harm.
  2. Demeanor findings remain hard to dislodge: The opinion underscores the “wide latitude” afforded IJs on demeanor and responsiveness, making appellate reversal unlikely absent a record that clearly compels a contrary view.
  3. Briefing discipline is outcome-determinative: For petitioners (especially pro se), undeveloped arguments risk forfeiture, and extra-record attachments will not be considered—often leaving credibility as the only live battleground on review.

Complex Concepts Simplified

  • Adverse credibility determination: A finding by the IJ (sometimes affirmed by the BIA) that the applicant’s testimony is not believable. If the testimony is the main proof of persecution, losing credibility can effectively end the case.
  • Substantial evidence review: A very deferential appellate standard. The court does not ask whether it would have decided differently; it asks whether the record forces a different conclusion. If not, the agency wins.
  • Nexus (asylum/withholding): The applicant must show the harm feared is “on account of” a protected ground (such as political opinion or membership in a particular social group), not merely general violence or private revenge.
  • CAT acquiescence: For CAT protection, it is not enough to fear torture by private actors; the applicant must show the government would consent to, be willfully blind to, or otherwise “acquiesce” in the torture.
  • Forfeiture: If an appellant mentions an issue but does not develop an argument in the opening brief, the court treats it as abandoned.
  • Administrative record rule: In a petition for review, the court generally considers only the evidence that was before the agency; new documents attached to the appellate brief are excluded.

Conclusion

The Third Circuit denied Barnes’s petition because substantial evidence supported the agency’s adverse credibility determination. The court emphasized that omitting a core persecution narrative from the initial asylum application, coupled with evasive or implausible testimony on cross-examination, provides a legally sufficient basis to disbelieve the applicant. Without credible testimony, Barnes could not establish protected-ground nexus for asylum/withholding or government acquiescence for CAT, and procedural rules further narrowed what the court could consider. The decision thus exemplifies the decisive role of consistency, demeanor, and properly developed appellate arguments in immigration judicial review.