Cite as 26 I&N Dec. 319 (BIA 2014) Interim Decision #3803
Matter of E-F-H-L-, Respondent
Decided June 12, 2014
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
In the ordinary course of removal proceedings, an applicant for asylum or for
withholding or deferral of removal is entitled to a hearing on the merits of those
applications, including an opportunity to provide oral testimony and other evidence,
without first having to establish prima facie eligibility for the requested relief. Matter of
Fefe, 20 I&N Dec. 116 (BIA 1989), followed.
FOR RESPONDENT: Frances M. Cruz, Esquire, Dallas, Texas
BEFORE: Board Panel: GREER and WENDTLAND, Board Members; DONOVAN,
Temporary Board Member.
WENDTLAND, Board Member:
In a decision dated September 4, 2012, an Immigration Judge denied the
respondent’s applications for asylum and withholding of removal under
sections 208 and 241(b)(3) of the Immigration and Nationality Act,
8 U.S.C. §§ 1158 and 1231(b)(3) (2012). The Immigration Judge found
that the respondent’s written asylum application and prehearing brief did
not demonstrate his prima facie eligibility for relief and determined that he
was therefore not entitled to a hearing on the merits of his applications.
The respondent has appealed from that decision. Because we conclude on
de novo review that this resolution was legally erroneous, we will remand
the record for the Immigration Judge to conduct a full hearing.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Honduras who entered the
United States without inspection on June 1, 2011. In proceedings before
the Immigration Judge, the respondent submitted his applications for
asylum and withholding of removal.
According to the respondent’s asylum application, his uncle was
murdered in Honduras during a fight over a card game by a member of
another family that had threatened the respondent’s family in the past
because of a land dispute. Several days after his uncle’s murder, the
parents of his uncle’s killer were reportedly murdered. The uncle’s killerCite as 26 I&N Dec. 319 (BIA 2014) Interim Decision #3803
and his family allegedly believed that because the respondent’s mother was
in the United States, she had the economic means to hire individuals to
carry out retaliatory killings. When the respondent and his brother were
subsequently living with their grandparents, their home and barn were
burned down, purportedly by his uncle’s killer. The respondent and his
brother received death threats and were later shot at in front of a house
where they had gone to live in hiding.
In addition to the respondent’s asylum application, the Immigration
Judge received into the record the Notice to Appear (Form I-862), the
court’s “frivolous asylum” warnings, and two evidentiary exhibits—one
consisting of the respondent’s uncle’s alleged death certificate and the other
containing two photographs. Prehearing briefs were also requested and
received from the parties.1
The Immigration Judge declined to hold a hearing on the merits of the
respondent’s asylum application. Instead, he concluded as a matter of law
that the respondent was unable to demonstrate that his proposed particular
social group—members of a family that is persecuted because of its
property ownership in its hometown in Honduras—was cognizable for
purposes of establishing that he qualifies as a “refugee” under section
101(a)(42) of the Act, 8 U.S.C. § 1101(a)(42) (2012). For the reasons that
follow, we conclude that the Immigration Judge erred in adjudicating the
merits of the respondent’s applications for asylum and withholding of
removal without first conducting a full evidentiary hearing to allow the
respondent to present oral testimony and any other available evidence.
Our analysis begins with the language of section 240(b)(4)(B) of
the Act, 8 U.S.C. § 1229a(b)(4)(B) (2012), which governs procedures in
removal proceedings. With an exception that pertains to national security
information, which is not implicated here, the statute provides that
a respondent in removal proceedings “shall have a reasonable opportunity
to examine the evidence against the alien, to present evidence on the alien’s
own behalf, and to cross-examine witnesses presented by the Government.”
In its prehearing brief, the Department of Homeland Security indicated that it would
state a position on the respondent’s claimed particular social group after he was permitted
to testify in support of his application and was subjected to cross-examination. No brief
was filed in response to the respondent’s appeal. Thus, the parties apparently agree that
the respondent should have been given an opportunity to present his testimony prior to
a ruling on his eligibility for relief. In any event, such agreement between the parties
is not necessary to our determination in this case.Cite as 26 I&N Dec. 319 (BIA 2014) Interim Decision #3803
Id. In addition, section 240(c)(4)(B), which sets forth standards for
evaluating whether the respondent has met the burden of proof on any
applications for relief, states that the Immigration Judge should determine
whether the testimony of the respondent and any witnesses is credible and
“weigh the credible testimony along with other evidence of record.”
The regulations implementing these statutory provisions in the context
of asylum and withholding of removal applications also provide that such
applications for relief filed with the Immigration Court will be decided
“after an evidentiary hearing to resolve factual issues in dispute,” 8 C.F.R.
§ 1240.11(c)(3) (2013), and that at such an evidentiary hearing, the
respondent “shall be examined under oath on his or her application and
may present evidence and witnesses in his or her own behalf,” 8 C.F.R.
§ 1240.11(c)(3)(iii). Those regulations also apply to applications for
withholding or deferral of removal under the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted
and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR
Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force
June 26, 1987; for the United States Apr. 18, 1988) (“Convention Against
Torture”). See Matter of C-B-, 25 I&N Dec. 888, 890−91 (BIA 2012).
These regulations clearly give the Immigration Judge “the authority . . .
to properly control the scope of any evidentiary hearing,” 8 C.F.R.
§ 1240.11(c)(3)(ii), and to discontinue an evidentiary hearing once he or
she determines that a mandatory denial of an application for asylum or
withholding of removal is required. 8 C.F.R. § 1240.11(c)(3). However,
we conclude that this authority to control the scope of an evidentiary
hearing in the interests of efficiency, including by limiting testimony and
focusing issues, is necessarily premised on the existence of an evidentiary
hearing, which, at a minimum, must include an opportunity for the
respondent to present evidence and witnesses in his or her own behalf.
In this case, the Immigration Judge erred in denying the respondent’s
applications for asylum and withholding of removal without first
conducting an evidentiary hearing or giving him an opportunity to present
evidence or witnesses in his behalf. The Immigration Judge’s ruling
was not premised on a mandatory bar to asylum or withholding of
removal, and significant factual issues remained in dispute. See 8 C.F.R.
2 Even where an Immigration Judge is inclined to conclude that a mandatory bar applies,
the statutory and regulatory provisions require the Immigration Judge to conduct a full
evidentiary hearing on any disputed factual issues related to that question.Cite as 26 I&N Dec. 319 (BIA 2014) Interim Decision #3803
We have previously addressed the procedural requisites for adjudication
of an application for relief from removal, particularly those relating to
applications for asylum and for withholding or deferral of removal or
deportation. In Matter of Fefe, 20 I&N Dec. 116, 118 (BIA 1989), we held
that the regulations then in effect required that an applicant for asylum or
withholding must, at the very least, have been questioned under oath to
determine whether the information in the written application was complete
and correct before the Immigration Judge adjudicated the application on
the merits. In addition, we found that in the ordinary case, a full oral
examination of the applicant—over and above the preliminary questioning
described above—was “an essential aspect of the asylum adjudication
process for reasons related to fairness to the parties and to the integrity of
the asylum process itself.” 3
We observed that it may be difficult for a respondent to meet the burden
of proof for asylum that we articulated in Matter of Mogharrabi, 19 I&N
Dec. 439, 445 (BIA 1987), without presenting oral testimony that is
consistent with and corroborates the respondent’s prior written statements.
Matter of Fefe, 20 I&N Dec. at 118 (citing Office of the United Nations
High Commissioner for Refugees, Handbook on Procedures and Criteria
for Determining Refugee Status Under the 1951 Convention and the 1967
Protocol Relating to the Status of Refugees paras. 199−200 at 47−48
(Geneva, 1979)). We also acknowledged that an applicant’s testimony can
either help or hinder the case in ways that cannot be predicted before
the testimony is taken. Thus, we noted that in some cases, significant
differences between written and oral statements will arise that would not
have been detected unless the applicant was subjected to direct examination
but that in others an applicant “may establish eligibility for asylum by
means of his oral testimony when such eligibility would not have been
established by the documents alone.” Id.
Relative to this point, the Board and the circuit courts have recognized
that in certain circumstances, the facts underlying an application for relief
from removal may continue to develop up to the time of, and even during,
the final individual hearing on the merits. For example, if an applicant
omits relevant facts from a written asylum application but subsequently
testifies to those facts before the Immigration Judge, the omission from the
3 We also recognized that where “the parties stipulate[d] that the applicant’s testimony
would be entirely consistent with the written materials and that the oral statement would
be believably presented,” a full examination of the applicant might not be strictly
required. Matter of Fefe, 20 I&N Dec. at 118. However, we note that even this limited
exception still requires the applicant to testify under oath as to the correctness and
completeness of the application.Cite as 26 I&N Dec. 319 (BIA 2014) Interim Decision #3803
written application does not necessarily support a finding that the applicant
has not testified credibly, especially where the omission is explained to the
Immigration Judge’s satisfaction. See generally Litvinov v. Holder, 605
F.3d 548, 555−56 (8th Cir. 2010); Hoxha v. Gonzales, 446 F.3d 210, 214,
217−18 (1st Cir. 2006); Arulampalam v. Ashcroft, 353 F.3d 679, 688 (9th
Cir. 2003); Matter of A-S-, 21 I&N Dec. 1106 (BIA 1998). We have also
held that an applicant’s failure to file certain documentary evidence by
a deadline set by the Immigration Judge may warrant exclusion of the
specific untimely documents from the evidentiary record, but it cannot
support a decision by the Immigration Judge to deem the timely filed
underlying application to be abandoned without a full evidentiary hearing
on the merits. Matter of Interiano-Rosa, 25 I&N Dec. 264, 266 (BIA
The result in Matter of Fefe rested on the regulatory requirements that
an applicant for asylum and withholding of deportation “shall be examined
in person by an immigration officer or judge prior to adjudication of the
asylum application,” 8 C.F.R. § 208.6 (1988), and that the applicant “shall
be examined under oath” and be given an opportunity to present evidence
concerning his applications, 8 C.F.R. §§ 236.3(a)(2), 242.17(c) (1988).
Those regulations have been replaced and are no longer in effect.
See Aliens and Nationality; Asylum and Withholding of Deportation
Procedures, 55 Fed. Reg. 30,674, 30,680−81, 30,686−87 (July 27, 1990)
(revising 8 C.F.R. §§ 208.6, 236.3(a)(2), and 242.17(c)); see also
Inspection and Expedited Removal of Aliens; Detention and Removal
of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed.
Reg. 10,312, 10,369−70 (Mar. 6, 1997) (proposing the current regulations).
However, the current regulations similarly require that applications for
asylum and withholding of removal will be decided by the Immigration
Judge “after an evidentiary hearing to resolve factual issues in dispute,”
8 C.F.R. § 1240.11(c)(3), and that during the removal hearing, the
applicant “shall be examined under oath on his or her application and may
present evidence and witnesses in his or her own behalf.” 8 C.F.R.
§ 1240.11(c)(3)(iii). This language does not differ in any material respect
from that in the prior regulations. We therefore see no reason to disturb our
conclusion in Fefe, which, in turn, provides strong support for concluding
that a full evidentiary hearing is ordinarily required prior to the entry of
a decision on the merits of an application for asylum, withholding of
removal under the Act or the Convention Against Torture, or deferral of
removal under the Convention Against Torture.
We also find support for this requirement in the Immigration Judge’s
duty to fully develop the record. See section 240(b)(1) of the Act (requiring
Immigration Judges to “interrogate, examine, and cross-examine the alienCite as 26 I&N Dec. 319 (BIA 2014) Interim Decision #3803
and any witnesses”); Sankoh v. Mukasey, 539 F.3d 456, 467 (7th Cir.
2008); Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir. 2006); Mekhoukh
v. Ashcroft, 358 F.3d 118, 129 & n.14 (1st Cir. 2004); cf. Oshodi v. Holder,
729 F.3d 883, 889−93 (9th Cir. 2013) (en banc) (holding that an alien’s
Fifth Amendment due process right to a full and fair hearing, which
includes the opportunity to present evidence and testify on one’s behalf,
was violated where the Immigration Judge denied relief solely on an
adverse credibility finding after refusing to allow the alien to testify to the
contents of his applications).
We conclude that in the ordinary course of removal proceedings, an
applicant for asylum or for withholding or deferral of removal is entitled to
a hearing on the merits of the applications, including an opportunity to
provide oral testimony and other evidence, without first having to establish
prima facie eligibility for the requested relief. See sections 240(b)(4)(B),
(c)(4)(B) of the Act; Matter of Fefe, 20 I&N Dec. at 118; 8 C.F.R.
§ 1240.11(c)(3); cf. Matter of Ruiz, 20 I&N Dec. 91, 93 (BIA 1989)
(holding that in absentia proceedings should have been reopened once the
alien established reasonable cause for his failure to appear, because he
retained the right to present his asylum claim at a full evidentiary hearing,
regardless of whether prima facie eligibility for relief had been shown).
Accordingly, we will remand the record for the Immigration Judge to
conduct a hearing on the merits of the respondent’s applications for asylum
and withholding of removal.
ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a
Cite as 26 I&N Dec. 319 (BIA 2014) Interim Decision #3803