Cite as 26 I&N Dec. 329 (BIA 2014) Interim Decision #3805
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Matter of P-S-H-, Respondent
Decided July 1, 2014
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
To terminate a grant of asylum pursuant to 8 C.F.R. § 1208.24 (2013), the Department
of Homeland Security must establish, by a preponderance of the evidence, that (1) there
was fraud in the alien’s asylum application and (2) the fraud was such that the alien was
not eligible for asylum at the time it was granted; however, proof that the alien knew
of the fraud in the application is not required in order to satisfy the first criterion. Matter
of A-S-J-, 25 I&N Dec. 893 (BIA 2012), clarified.
FOR RESPONDENT: Mitchell C. Zwaik, Esquire, Ronkonkoma, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: James B. Gildea, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY, GREER, and WENDTLAND, Board Members.
PAULEY, Board Member:
In a decision dated September 27, 2011, an Immigration Judge
terminated the respondent’s grant of asylum and ordered him removed from
the United States. The respondent has appealed from that decision. The
Department of Homeland Security (“DHS”) opposes the appeal. This case
addresses the nature of the showing that the DHS must make in order for
a grant of asylum to be terminated under 8 C.F.R. § 1208.24 (2013) on the
basis of fraud in the application such that the alien was not eligible for
asylum at the time it was granted. We review this question of law de novo
and hold that (1) the DHS is not required to establish that an alien knew of
the fraud in his or her asylum application in order to terminate a grant of
asylum, but (2) the DHS must nevertheless separately prove that under the
true facts, the alien was not eligible for asylum at the time it was granted.
The respondent’s appeal will be dismissed in part and the record will be
remanded to the Immigration Judge for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of India whose asylum
application was granted by the Immigration Judge on May 6, 2003. WhileCite as 26 I&N Dec. 329 (BIA 2014) Interim Decision #3805
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the respondent’s application for adjustment of status was pending, the DHS
filed a motion to reopen proceedings to terminate his asylum grant on
April 8, 2010. The Immigration Judge granted the DHS’s motion to
reopen on May 24, 2010. After a new hearing following reopening, the
Immigration Judge determined that the DHS met its burden of establishing,
by a preponderance of the evidence, that there was fraud in the respondent’s
application such that he was not eligible for asylum at the time it was
granted. The Immigration Judge therefore terminated the respondent’s
grant of asylum.
II. ISSUES
The primary questions before us are (1) whether the DHS must prove
that an alien knew of the fraud in his asylum application in order for the
grant of asylum to be terminated, and (2) what kind of showing the DHS
must make in order to demonstrate that the fraud was such that the alien
was not eligible for asylum at the time it was granted.
III. STATUTORY AND REGULATORY AUTHORITY
In Matter of A-S-J-, 25 I&N Dec. 893 (BIA 2012), we explained the
statutory and regulatory framework governing the termination of an alien’s
asylum status. As noted in that decision, the statute identifies reasons
for which a grant of asylum may be terminated, and the implementing
regulations provide two avenues for termination, one before the DHS and
the other before an Immigration Judge. Id. at 895−98; see also section
208(c)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1158(c)(2)
(2012); 8 C.F.R. § 1208.24.1
If an Immigration Judge or the Board granted
asylum to the alien, the DHS may seek reopening for the purpose
1 The United States Court of Appeals for the Ninth Circuit, in whose jurisdiction this
case arises, has held that although Congress conferred authority on both the Attorney
General and the DHS to grant asylum, the authority to terminate asylum was given solely
to the Attorney General and that the regulations allowing the DHS to terminate asylum
are therefore ultra vires. Nijjar v. Holder, 689 F.3d 1077, 1085−86 (9th Cir. 2012). The
holding in Nijjar is not applicable here since the respondent’s asylum status was
terminated by the Immigration Judge under the authority delegated by the Attorney
General. Significantly, however, the court observed that although fraud in the application
is not one of the grounds expressly mentioned in section 208(c)(2) of the Act as a ground
for termination of asylum, the statute does provide that the Attorney General may
establish “additional limitations” on an alien’s eligibility for asylum by regulation. Id.
at 1082 & n.22 (quoting section 208(b)(2)(C) of the Act).Cite as 26 I&N Dec. 329 (BIA 2014) Interim Decision #3805
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of requesting that asylum be terminated. 8 C.F.R. § 1208.24(f). In
such a reopened proceeding, the DHS bears the burden of proving, by
a preponderance of the evidence, one or more of the grounds for
termination set forth in 8 C.F.R. § 1208.24(a). 8 C.F.R. § 1208.24(f).
Under 8 C.F.R. § 1208.24(a)(1), a grant of asylum may be terminated if
“[t]here is a showing of fraud in the alien’s application such that he or she
was not eligible for asylum at the time it was granted.”
IV. ANALYSIS
The respondent raises three arguments on appeal. First, he alleges
defective service of the DHS’s motion to reopen. Second, he argues that
the DHS must prove that he knowingly committed fraud in his asylum
application in order to terminate his asylum grant. Third, he argues that the
Immigration Judge erred in not adjudicating his application for 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”).
A. Defective Service
The respondent’s arguments regarding defective service of the DHS’s
motion to reopen are not persuasive. The certificate of service for the
DHS’s motion indicates that it was mailed to the respondent at a Flushing,
New York, address. In the motion, the DHS explained that in 2007, the
respondent indicated in correspondence to the DHS that his new address
was in Flushing, New York.
On appeal, the respondent argues that the DHS should have used the
Jamaica, New York, address that he provided on his adjustment application,
which the Immigration Judge confirmed on the record. However, because
the respondent’s adjustment application was filed in 2005, the address
listed on the 2007 correspondence was the more recent of the two addresses.
The Immigration Judge did confirm the respondent’s Jamaica, New York,
address on the record, but she did so at a hearing held on August 19, 2010,
several months after the DHS’s motion to reopen was filed on April 8, 2010.
In addition, the respondent’s change of address form reflecting his new
address was not filed with the court until August 4, 2010.
Because it appears from the record that the DHS mailed its motion to
reopen to the most recent address provided for the respondent, we conclude
that the respondent has not established defective service. Lastly, we noteCite as 26 I&N Dec. 329 (BIA 2014) Interim Decision #3805
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that the respondent did not challenge the service of the motion to reopen in
his reopened proceedings, during which he was represented by counsel.
B. Termination of Asylum
Before addressing the respondent’s argument that his asylum status
cannot be terminated without a showing that he knowingly committed fraud
in his application, we will summarize the evidence of fraud submitted by
the DHS and addressed by the Immigration Judge.
In 2009, attorneys in the law firm that represented the respondent
regarding his asylum application were convicted of violating 18 U.S.C.
§ 1546 (2006). Specifically, regarding the respondent’s case, his former
attorney was found guilty of making false statements in his asylum
application and of aiding and abetting another in doing the same “relating
to a medical certificate submitted in support of [his] application.” One of
the documents alleged to be false was a “[m]edical certificate of [a] doctor
in India dated 9/10/01 submitted to EOIR in support of [the respondent’s]
application.” The respondent’s asylum application included three letters in
the form of medical certificates from a doctor in India, one of which was
from 2001.
The DHS also submitted the report of a DHS investigation in India
and presented the testimony of a Foreign Service National Investigator.
According to the report and the investigator’s testimony, the doctor denied
issuing the medical certificate in question, stating that it was not on
his letterhead and did not contain his signature. The investigation
concluded that the letter was fraudulent. The Immigration Judge found the
investigator to be credible and determined that neither he nor the doctor had
any incentive to give false information. We discern no clear error in the
Immigration Judge’s determination that the respondent’s explanation―that
the doctor lied about treating him because he did not want to go to court
or get into trouble―does not convincingly rebut the DHS’s evidence
concerning the fraudulent nature of the medical certificate submitted
in support of the respondent’s asylum application.
The Immigration Judge found further evidence of fraud in the
respondent’s asylum application. A DHS Group Supervisor who was
involved in the investigation and trial of the respondent’s former attorney
testified that she performed phrase searches on about 300 asylum narratives.
According to her testimony, certain characteristics were common to
these narratives, such as the applicant’s claim to have been beaten “until
I lost consciousness” without mention of any blood or bleeding. The
Immigration Judge noted that these narratives were present in the
respondent’s asylum statement.Cite as 26 I&N Dec. 329 (BIA 2014) Interim Decision #3805
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Next, the Immigration Judge discussed two affidavits from individuals
in India that the respondent had submitted in support of his asylum
application. They were signed on the same date and their wording was
identical. According to a notation by the respondent’s former attorney in
his working file, the respondent was asked to obtain another affidavit from
one of the individuals because it had “to be worded differently” from the
other affidavit. The respondent subsequently obtained and submitted such
an additional affidavit. The Immigration Judge concluded that this scenario
was “highly suggestive of fraud.”
Lastly, the Immigration Judge identified an inconsistency between
the testimony of the Foreign Service National Investigator and a sworn
statement by a friend that the respondent submitted during his reopened
proceedings. The respondent’s friend claimed that after being beaten, he
stayed at the same hospital as the respondent for an extended period of time.
However, the investigator testified that the doctor he interviewed had
informed him that patients could only stay overnight for emergencies and
would be referred to a city hospital for longer treatment.
On appeal, the respondent appears to concede that the criminal verdict
against his former attorney establishes that the medical certificate from the
doctor was fraudulent and that his attorney was aware of its fraudulent
nature. He argues, however, that he had no knowledge of the fraud in his
asylum application, which he contends the DHS must prove in order
to terminate his grant of asylum.
The respondent’s claim that the DHS must prove that he knowingly
committed fraud in his asylum application has no support in the regulations.
As previously noted, an Immigration Judge may terminate a grant of
asylum if the DHS establishes by a preponderance of the evidence that
“[t]here is a showing of fraud in the alien’s application such that he or
she was not eligible for asylum at the time it was granted.” 8 C.F.R.
§ 1208.24(a)(1), (f). We interpret the regulations to require two showings
by the DHS: (1) that there was fraud in the alien’s asylum application and
(2) that the fraud was such that the alien was not eligible for asylum at the
time it was granted.
The regulations do not require that the DHS must prove that the alien
had knowledge of the fraud.2
If the intent of the regulation was to require
proof of the asylum applicant’s knowing fraud, such language could easily
have been included. The absence of any reference in the regulation to the
alien’s involvement in, or knowledge of, the fraud strongly indicates that
2 We find the regulation in this respect to be at least ambiguous, if not clearly contrary
to the dictum in Matter of A-S-J-, 25 I&N Dec. at 897. See infra p. 336.Cite as 26 I&N Dec. 329 (BIA 2014) Interim Decision #3805
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the relevant inquiry is only whether there was fraud in the application,
regardless of whether the alien was a knowing participant.
Similar language is used to exempt the DHS from the time and number
limitations on motions to reopen when seeking reopening based on “fraud
in the original proceeding or a crime that would support termination of
asylum.” 8 C.F.R. §§ 1003.2(c)(3)(iv), 1003.23(b)(1) (2013); see also
Matter of A-S-J-, 25 I&N Dec. at 897 (stating that under the regulations, the
DHS is not subject to the time and number limitations where a motion
to reopen is based on fraud that would support termination of asylum, but
finding that the motion must be based on “evidence that is material and was
not previously available”). Under the plain language of these motions
regulations, the inquiry is only whether there was “fraud in the original
proceeding,” so they also have no requirement that the alien be personally
involved in or aware of the fraud.
In support of his argument that the DHS must prove that he knew of the
fraud, the respondent relies on Ntangsi v. Gonzales, 475 F.3d 1007 (8th Cir.
2007). In that case, the United States Court of Appeals for the Eighth
Circuit held that to terminate a grant of asylum in reopened proceedings,
the DHS must prove by a preponderance of the evidence that (1) the alien
committed fraud in his or her asylum application, (2) the alien knew of the
fraud, and (3) the fraud was such that the alien was not eligible for asylum
at the time it was granted. Id. at 1012−13. The court found that neither the
Immigration Judge nor the Board placed the burden of proving fraud on the
DHS or addressed the question whether the alien knew that a certain aspect
of her testimony was false. It therefore remanded to the Board to apply the
proper standard. Id.
In holding that the DHS must show that the alien knew of the fraud,
the court relied on an earlier Eighth Circuit case where the Immigration
Judge was found to have improperly terminated an asylum grant. Id.
(citing Hailemichael v. Gonzales, 454 F.3d 878, 885 (8th Cir. 2006)).
The DHS had moved to reopen removal proceedings and terminate the
alien’s grant of asylum in that case, arguing that, contrary to her asylum
application and testimony, her husband was not imprisoned in Ethiopia.
Hailemichael v. Gonzales, 454 F.3d at 880−81. The court determined that
the Immigration Judge “never required DHS to prove by a preponderance
of the evidence that Hailemichael committed fraud.” Id. at 885. It further
held that the DHS could not meet its burden unless it could show that the
alien knew at the time she testified that her husband was not, or had not
been, imprisoned. Id.
In reaching this conclusion, the court cited case law regarding adverse
credibility, as well as the traditional definition of fraud used by the Eighth
Circuit and the Board, both of which generally require that the alien knowCite as 26 I&N Dec. 329 (BIA 2014) Interim Decision #3805
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of the falsity in a document or statement. Id. Accordingly, the court
remanded the matter to the Board with instructions to determine whether
the evidence adduced by the DHS in support of its motion to reopen tended
to prove that the alien committed fraud in her earlier asylum application. Id.
We respectfully disagree with the Eighth Circuit’s holdings that
the DHS must establish that an alien “committed fraud” in his or her
application and knew of the fraud in order to terminate a grant of asylum.
Ntangsi v. Gonzales, 475 F.3d at 1012; Hailemichael v. Gonzales, 454 F.3d
at 885. Under the law of the Ninth Circuit, which has jurisdiction over
these proceedings, the submission of an allegedly fraudulent document
is not necessarily determinative of an alien’s credibility, especially when
there is no indication or finding by the Immigration Judge that the alien
knew the document was fraudulent. See, e.g., Yeimane-Berhe v. Ashcroft,
393 F.3d 907, 911 (9th Cir. 2004). Similarly, to be inadmissible on the
basis of fraud or willful misrepresentation, an alien must know that the
representation was false.3
See Forbes v. INS, 48 F.3d 439, 442 (9th Cir.
1995) (stating that knowledge of the falsity of a representation satisfied
the statutory requirement that a misrepresentation was deliberate and
voluntary); see also Matter of Tijam, 22 I&N Dec. 408, 424 (BIA 1998)
(Rosenberg, concurring and dissenting) (“Fraud requires that the
respondent know the falsity of his or her statement . . . .”); Matter of G-R-,
7 I&N Dec. 508, 510 (BIA 1957) (“Fraud consists of false representation or
concealment of a material fact, made with knowledge of its falsity . . . .”).
But the question whether an alien is credible or has made a fraudulent
misrepresentation is different from the situation in this case. Here, the
regulatory language states that the DHS must establish “fraud in the alien’s
application,” but it does not specify that the alien must have been
personally involved in or aware of the fraud. 8 C.F.R. § 1208.24(a)(1).
The existence of fraud in an asylum application is a serious matter that
undermines the integrity of the entire asylum process. We therefore doubt
that Congress intended an asylum application containing fraud to be
immune from termination if the alien would have been ineligible at the time
it was granted, even if he or she was not complicit in the fraud.
The Eighth Circuit’s holdings in Ntangsi and Hailemichael are not
binding in this case because it arises in the Ninth Circuit. Although we
cited Ntangsi with approval in Matter of A-S-J-, the issue we addressed
there was whether an Immigration Judge has jurisdiction to review the
3 Under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2012), “[a]ny
alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has
sought to procure or has procured) a visa, other documentation, or admission into the
United States or other benefit provided under this Act is inadmissible.”Cite as 26 I&N Dec. 329 (BIA 2014) Interim Decision #3805
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termination of an alien’s asylum status by the DHS, not whether the DHS
must prove that the alien knowingly committed fraud in the asylum
application in order to terminate a grant of asylum. Matter of A-S-J-,
25 I&N Dec. at 895, 897. Therefore, any reliance on Ntangsi in our
decision was dictum, which is not binding on us here and which we now
disavow.4
Accordingly, based on the plain language of 8 C.F.R. § 1208.24(a)(1),
we conclude that the regulations do not require the DHS to establish, for
purposes of showing that there was fraud in an alien’s asylum application,
that the alien knew of the fraud. In this case, the DHS submitted strong
evidence of fraud in the respondent’s asylum application. Moreover, the
respondent has apparently conceded that his former attorney was aware that
one of the medical documents supporting his application was fraudulent.
We therefore agree with the Immigration Judge that the DHS met its burden
of establishing, by a preponderance of the evidence, that there was fraud
in the respondent’s asylum application.
That does not end our inquiry, however, because the regulations also
include a second step that requires the DHS to prove that the fraud in the
alien’s asylum application was “such that he or she was not eligible for
asylum at the time it was granted.”5
8 C.F.R. § 1208.24(a)(1); see also
Matter of A-S-J-, 25 I&N Dec. at 896−97. Thus, a showing of fraud in an
alien’s asylum application is insufficient alone to support the termination of
an asylum grant. If an Immigration Judge determines that an alien was
eligible for asylum at the time it was granted, despite the fraud in his or her
application, then the asylum grant cannot be terminated under 8 C.F.R.
§ 1208.24(a)(1). 6
For example, an unscrupulous attorney might submit
a fraudulent document in an effort to enhance an alien’s otherwise
meritorious asylum claim. The grant of asylum would not be terminated
because of the attorney’s fraud unless the DHS also demonstrated that the
fraud was such that the alien was not eligible for asylum at the time it was
granted.
4 We have no occasion to decide here whether to follow Ntangsi and Hailemichael
in cases arising in the Eighth Circuit.
5 We emphasize that this inquiry is generally limited to ascertaining whether the record
at the time of the fraud indicates that the alien was eligible for asylum notwithstanding
the fraud. Neither the alien nor the DHS is permitted to “start over” and make a new
record in support of or in opposition to the asylum claim.
6 The respondent’s knowledge of the fraud may become relevant at this second stage of
the analysis because to determine if an alien was eligible for asylum at the time it was
granted, an Immigration Judge must assess the alien’s credibility with regard to his
overall claim.Cite as 26 I&N Dec. 329 (BIA 2014) Interim Decision #3805
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In this case, the Immigration Judge extensively reviewed the evidence
of fraud in the record and correctly concluded that the DHS met its burden
of establishing fraud in the respondent’s application. However, although
the Immigration Judge summarily concluded that this fraud was such that
the respondent was not eligible for asylum at the time it was granted, she
did not adequately consider whether the respondent was eligible for asylum
in 2003 but for the fraud in his application. For example, the Immigration
Judge did not make an explicit credibility finding or determine whether the
respondent knowingly submitted fraudulent documents that were relevant
to such a finding. Because this analysis requires fact-finding, we cannot
conduct the necessary analysis on appeal. See 8 C.F.R. § 1003.1(d)(3)(iv)
(2013). We will therefore remand the record to the Immigration Judge
to determine whether the DHS established, by a preponderance of the
evidence, that the fraud in the respondent’s application was such that under
the true facts, he was not eligible for asylum at the time it was granted.
C. Protection Under the Convention Against Torture
Lastly, the respondent argues that the Immigration Judge erred in not
considering whether he is eligible for protection under the Convention
Against Torture. We are unpersuaded by this contention. The DHS sought
reopening for the purpose of terminating the respondent’s asylum grant.
See Matter of A-S-J-, 25 I&N Dec. at 897 (explaining that “if the
Immigration Judge or the Board granted asylum to the alien, the DHS may
seek reopening for the purpose of requesting that asylum be terminated”);
8 C.F.R. § 1208.24(f). The Immigration Judge granted the DHS’s motion
and, upon reopening, the respondent filed written pleadings denying any
allegations of fraud and indicating that the relief he sought was termination
of proceedings. Because the respondent did not seek relief under the
Convention Against Torture in his reopened proceedings, we find no error
by the Immigration Judge in not considering that form of relief. The
respondent has not submitted any previously unavailable, material evidence
of eligibility for relief on appeal that might justify a remand. See 8 C.F.R.
§ 1003.2(c)(1), (4). Nonetheless, in light of our conclusion that a remand
is necessary to further address the termination of the respondent’s grant of
asylum, the respondent may pursue relief under the Convention Against
Torture on remand if he so desires.
V. CONCLUSION
In sum, we conclude that to terminate a grant of asylum, the DHS must
prove, by a preponderance of the evidence, that (1) there was fraud in theCite as 26 I&N Dec. 329 (BIA 2014) Interim Decision #3805
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alien’s asylum application and (2) the fraud was such that the alien was not
eligible for asylum at the time it was granted. With regard to the first
criterion, the DHS is not required to prove that the alien knew of the fraud
in his or her asylum application. The Immigration Judge properly found
that the DHS met its burden to establish by a preponderance of the evidence
that there was fraud in the respondent’s asylum application. However, we
find that a remand is necessary for the Immigration Judge to conduct
a more thorough analysis to determine whether the DHS met its burden
under the second requirement to establish that under the true facts, the
respondent was not eligible for asylum at the time it was granted.
Accordingly, the respondent’s appeal will be dismissed in part and the
record will be remanded to the Immigration Judge for further proceedings.
ORDER: The respondent’s appeal is dismissed in part.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.