The Ninth Circuit has determined that it has the authority to determine the date of change in foreign law, even when the administrative record is unclear about this information. In this case, because the Department of Homeland Security misstated the date of the change in foreign law during its cross-examination, the Court determined that the improper cross-examination may have had a substantial prejudicial effect on the agency’s assessment of the applicant’s credibility. “While the INA thus places strict limits on our ability to consider additional ‘evidence’ that is not contained in the agency record, it does not similarly restrict our ability to conduct independent legal research concerning any question of law that properly arises in our consideration of a petition for review of a removal order.” “And, here, the issue of the effective date of the relevant Chinese law’s repeal is a readily resolvable question of law, not a question of fact.” The Court further concluded that in interpreting foreign law, it may consult “any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.”
The full text of Shen v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/24/16-71315.pdf