Ninth Circuit Determines it has Authority to Ascertain Date of Change in Foreign Law

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

Fourth Circuit Finds Mixed Credibility Finding to be Permissible

The Fourth Circuit has determined that an immigration judge may render a mixed credibility determination —deeming an applicant’s testimony credible as to one subject but not another. “In the case of a mixed credibility finding, a presumption of credibility should be applied by the Board on appeal concerning the portion of testimony not explicitly determined incredible.”

The full text of Ayala-Osegueda v. Garland can be found here: https://www.ca4.uscourts.gov/opinions/221707.P.pdf

Second Circuit Casts Doubt on Reliability of Border Interviews

The Second Circuit has again cast doubt on the reliability of border interviews in a credibility determination. The court reiterated that “a border interview record is “‘inherently less reliable’ if (1) the record ‘merely summarizes or paraphrases the [noncitizen’s] statements’ rather than include ‘a verbatim account or transcript,” (2) “the questions asked are not designed to elicit the details of an asylum claim, or the . . . officer fails to ask follow-up questions that would aid the [noncitizen] in developing his or her account,’ (3) ‘the [noncitizen] appears to have been reluctant to reveal information to INS officials because of prior interrogation sessions or other coercive experiences in his or her home country,’ or (4) ‘the [noncitizen’s] answers to the questions posed suggest that the [noncitizen] did not understand English or the translations provided by the interpreter.’” An IJ is required to consider these factors before relying on a border interview for an adverse credibility determination if the record indicates the factors may be relevant.

The full text of Pomavilla-Zaruma v. Garland can be found here: https://www.ca2.uscourts.gov/decisions/isysquery/e263f00e-d425-4546-a54b-58a3fa367add/10/doc/20-3230_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/e263f00e-d425-4546-a54b-58a3fa367add/10/hilite/

Ninth Circuit Reverses Denial of Changed Country Conditions MTR

The Ninth Circuit has reversed the denial of a changed country conditions motion to reopen, finding that the new evidence presented was independent of a prior adverse credibility determination. Among other documents, the motion to reopen included Singh’s birth certificate, a letter from the Mann leader attesting to his membership in the party, and a letter from his mother stating that the police were looking for Singh. This evidence was independent of the facts that formed the prior credibility finding. Indeed, the IJ had expressly relied on the lack of such corroborating evidence to find Singh not credible. The prior adverse credibility finding thus logically could not have implicated the newly submitted evidence. 

The full text of Singh v. Garland can be found here: 

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/30/19-73107.pdf

First Circuit Remands for Agency to Reconsider Psychological Report

The First Circuit has remanded a case for the agency to reconsider the impact of a psychological report that diagnosed the petitioner with PTSD and indicated she was suffering from memory impairment. The court indicated the report was critical for the agency to consider in light of the IJ’s adverse credibility determination.

The full text of Rivera-Medrano v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/20-1667P-01A.pdf

Ninth Circuit Upholds Denial of MTR on Credibility Grounds

The Ninth Circuit has permitted the agency to rely on a prior adverse credibility determination premised on the applicant’s failure to establish his true identity when adjudicating a motion to reopen to pursue asylum. The court found that the issue of the applicant’s identity remained relevant to the new asylum evidence.

The full text of Greenwood v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/16/17-72389.pdf

Fifth Circuit Overturns Adverse Credibility Determination Based on Documents not in the Record

The Fifth Circuit has determined that a judge’s reliance on a credible fear interview transcript and a Q&A document from CBP - when neither document was in the record of proceedings - formed an improper basis for an adverse credibility determination.

The full text of Nkenglefac v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/19/19-60647-CV0.pdf

First Circuit Finds CBP Record of Sworn Statement Insufficient to Sustain Adverse Credibility Determination

The First Circuit has found a record of sworn statement to be insufficiently reliable to sustain an adverse credibility determination where the statement listed a different name in the question and answer section than in the biographic information, listed an incorrect date of birth for the petitioner, and was signed by a border patrol officer months after the alleged encounter with the petitioner.

The full text of Menjivar Bonilla v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/19-1165P-01A.pdf

First Circuit Criticizes Reliance on Boston Gang Database

Sitting en banc, the First Circuit has criticized the agency’s reliance on reports from a gang database used by the Boston Police Department, finding insufficient evidence that the documents used to label the petitioner as a gang member were actually probative of gang membership. The court noted that the reports from the database “show no more than a teenager engaged in quintessential teenage behavior -- hanging out with friends and classmates. These social encounters occurred in unremarkable neighborhood locations for this peer group: at a park, at school, in front of one teenager's home, on the benches in an empty stadium. The record lacks any evidence as to why assigning points for those interactions was a reliable means of determining gang membership. Certainly, the fact that the young men were all Hispanic does not permit an inference that any, or all, of them were gang members.”

The full text of Diaz Ortiz v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/19-1620P2-01A.pdf

My post about the original 3-judge panel decision in this case (which permitted reliance on the gang database documents) can be found here:

https://www.sabrinadamast.com/journal/2020/5/25/first-circuit-permits-reliance-on-gang-database

Ninth Circuit Eliminates Single Factor Rule

The Ninth Circuit has abrogated its prior rule that it must uphold an adverse credibility determination if just one factor cited by the agency is supported by substantial evidence. The court determined that the REAL ID Act requires a “totality of the circumstances” analysis of the credibility determination. “There is no bright-line rule under which some number of inconsistencies requires sustaining or rejecting an adverse credibility determination—our review will always require assessing the totality of the circumstances. To the extent that our precedents employed the single factor rule or are otherwise inconsistent with this standard, we overrule those cases.” The concurring opinion suggests several other “judge-made rules” that Judge Bennett believes should be revisited.

The full text of Alam v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/08/19-72744.pdf

Ninth Circuit Recognizes Impact of Trauma on Testimony

The Ninth Circuit has recognized the impact that the trauma of physical and sexual assault can have on the ability of an asylum applicant to accurately estimate the length of time of certain events in her narrative of persecution. “Ms. Munyuh set forth a reasonable and plausible explanation for the discrepancy between the four-to-five-kilometer estimate in her written declaration and the timeline of her account—namely, that she had been ‘brutally attacked, beaten multiple times, [and] raped within a span of less than about 24 hours.’ It is reasonable and plausible that the trauma caused by multiple physical and sexual assaults would impair Ms. Munyuh’s focus at the time on peripheral matters and therefore on her memory of those matters.”

The full text of Munyuh v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/25/19-72890.pdf

Second Circuit Opines on When Omissions Support Adverse Credibility Determination

The Second Circuit has determined that an omission can support an adverse credibility determination when the applicant could have been expected to disclose the information sooner. In this case, the applicant testified during direct examination that he was on a government black list, but did not disclose until cross-examination that his father and church mate (both of whom had submitted letters in support of his claim that were devoid of any mention of the blacklist) could corroborate that his name was on the list.

The full text of Liang v. Garland can be found here: https://www.ca2.uscourts.gov/decisions/isysquery/d68e31ed-8fb2-4fd4-a7a1-1544a38ff6fa/21/doc/18-2257_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/d68e31ed-8fb2-4fd4-a7a1-1544a38ff6fa/21/hilite/

Ninth Circuit Lays Out Standards for Implausibility Finding

The Ninth Circuit has articulated certain standards for reviewing the agency’s determination that testimony is implausible. To begin, while an IJ must cite contrary evidence in the record, an implausibility finding still hinges on the application of common sense. As such, no express contradiction between testimony and other record evidence is required. In addition, an IJ must provide a witness an opportunity to explain a perceived implausibility during the merits hearing.

The full text of Lalayan v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/13/18-73062.pdf

Fifth Circuit Rejects Adverse Credibility Determination

The Fifth Circuit has rejected an adverse credibility determination rendered by an Immigration Judge with a 99.5% denial rate, based on perceived similarities between the petitioner’s claim and other asylum claims. “Here, the IJ did not compare the petition to specific applications, instead orally describing an amalgam of applications that she had previously seen. Nor did the IJ identify’ a substantial number of instances where the same or remarkably similar language is used to describe the same kind of incident or encounter. As a result, Singh could not meaningfully compare the language and narratives, produce evidence to explain the similarities, or draw attention to important distinctions. A composite description provides only a distillation of several petitions and a glimpse into the mind of the IJ, an insufficient foundation for the fine-grained comparisons that are needed for inter-proceeding similarities to have probative value. For the same reasons, it precludes the BIA and appellate courts from engaging in the searching review that interproceeding similarities require.”

The full text of Singh v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/19/19-60937-CV0.pdf

First Circuit Overturns Adverse Credibility Determination

The First Circuit has overturned an adverse credibility determination based on perceived inconsistencies between in-court testimony and a credible fear interview. The court noted that the credible fear notes are merely the officer’s notes, and not intended to be a full transcript. As such, the agency could not assume that the notes were an entirely accurate and complete record of the petitioner’s fear claim, especially since the credible fear interview only lasted an hour.

The full text of Cuesta-Rojas v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/20-1302P-01A.pdf

First Circuit Reverses Denial of Withholding/CAT Claim

The First Circuit has determined that and “IJ's expression of ‘serious doubts"‘— coupled with her later declaration that all such doubts ‘could have been overcome with appropriate corroborating evidence’ — falls just short of an explicit adverse credibility determination.'“

The full text of Molina Diaz v. Wilkinson can be be found here:

http://media.ca1.uscourts.gov/pdf.opinions/15-2321P-01A.pdf

Ninth Circuit Permits Consideration of CBP Interview and CFI Notes in Credibility Determination

The Ninth Circuit has has determined that it was permissible for an Immigration Judge to rely on inconsistencies between an asylum applicant’s in-court testimony and the information contained in a record of his border interview with Customs and Border Protection and of his credible fear interview with an asylum officer. The court determined that “there were sufficient indicia of reliability” because “the interviews were conducted under oath, with contemporaneous notes containing the questions asked, and transcribed either by a French-speaking officer or with the aid of an interpreter. “

The full text of Mukulumbutu v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/10/13/19-72499.pdf

BIA Clarifies Standards for Changed Country Conditions MTR

The Board of Immigration Appeals has held that a respondent who was previously denied asylum on credibility grounds, and who seeks to reopen proceedings due to changed country conditions related to the same claim of persecution, must also present evidence to overcome the adverse credibility determination. “However, if newly submitted evidence is based on information independent of the prior adverse credibility finding, it must be addressed.”

The full text of Matter of F-S-N- can be found here:

https://www.justice.gov/eoir/page/file/1284876/download

Ninth Circuit Finds Violation of Asylees' Due Process Rights

The Ninth Circuit has found that the admission of a Report on Investigation violated the petitioner’s due process rights. The Immigration Judge (IJ) acknowledged the report lacked detail. The IJ also acknowledged that the report concluded that four documents presented by the petitioner were likely fraudulent, based on exemplars that Petitioner had no access to. The IJ noted that the petitioner was able to prove that at least two of those documents were not, in fact, fraudulent. The petitioner had no ability to cross-examine the investigators or the drafter of the report. Nonetheless, the IJ relied on the report to find that the petitioner had committed fraud to obtain his asylum status, to terminate that status, and to deny petitioner’s renewed application for asylum on credibility grounds.

“The single-page ROI refers to unnamed investigators and ‘exemplars’ of documents that purportedly confirm that some of Petitioner’s asylum application materials are fraudulent. However, DHS did not identify any of the named individuals, present supporting evidence to explain the nature of the investigation, produce the referenced exemplars, or proffer any government witnesses about the alleged fraud. Thus, the Grigoryans were not allowed a meaningful opportunity to rebut the government’s fraud allegations.” “The ROI’s indicia of reliability are further undermined because, despite their limited ability to rebut the ROI’s findings, the Grigoryans were nonetheless able to show that half of the identified documents were not fraudulent. In addition, the mere fact that the ROI is a DHS document does not absolve the government from affording the Grigoryans a fair opportunity to rebut its assertions.”

“DHS must not only show that certain documents submitted with Petitioner’s original application for asylum were fraudulent. The government’s burden here is much higher: It must show that Petitioner would not have been granted asylum in 2001 but for the fraudulent documents. If, and only if, the government meets this heavy burden, does the burden shift to the Grigoryans to prove they are entitled to relief from deportation.”

The full text of Grigoryan v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/02/16-73652.pdf

Eleventh Circuit Remands Asylum Claim Based on Ineffective Assistance of Counsel

The Eleventh Circuit has remanded an asylum claim, where the trial counsel acted deficiently by not (1) communicating with the petitioner about the substance of his case; (2) allowing the petitioner to review the evidence despite his repeated requests; and/or (3) adequately preparing for the merits hearing.

“The BIA reasoned that Gurian’s performance was not deficient because he reasonably relied on evidence that Sow was directly involved in gathering. But Sow was not involved in gathering evidence. Because Sow was detained, his involvement was limited to reviewing evidence that Ibrahim, Diallo, and Gurian collected on his behalf. Sow repeatedly sought to review and correct the mounting evidence. But his efforts were unsuccessful, as Gurian refused to allow Sow access. When Sow finally had the opportunity to review some of the evidence, he attempted to communicate his concerns to Gurian. But Gurian either did not listen, or could not understand Sow, no doubt due to the language barrier and lack of an interpreter. In fact, Gurian failed to obtain an interpreter for any of their meetings or phone conversations, a sanctionable offense. As a result, Sow was unable to communicate with his counsel about the substance of his case.”

“Gurian also failed to familiarize himself with the case. For example, during the merits hearing, Gurian was unaware of basic facts like how many asylum applications Sow had submitted and how many individuals named Djibril Barry were involved in the case. And because of Gurian’s failure to review the evidence, he submitted contradictory affidavits. The evidence was not only internally inconsistent—he submitted multiple, contradictory affidavits prepared by Djibril Barry—but it was also inconsistent with his own client’s account.”

“Because the IJ explicitly said that he would have granted Sow’s application but for the evidentiary inconsistencies, we have no trouble concluding that there is a reasonable probability that the outcome of Sow’s merits hearing would have been different with adequate assistance of counsel.”

The full text of Sow v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201715245.pdf