Home Immigration Lawyer BIA Decision Highlights Difficulty in Identifying Asylum Fraud

BIA Decision Highlights Difficulty in Identifying Asylum Fraud

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On January 8, the Board of Immigration Appeals (BIA) issued a choice in Matter of O-M-O-. Briefly, it held that immigration judges (IJs) can discover {that a} facially questionable doc is fraudulent with out submitting it for forensic evaluation, at the least what place the alien is given the chance to clarify its defects. The choice, nevertheless, highlights the difficulties DHS should cope with in defending the asylum system from fraud, and the problems IJs face when ruling on the greater than half-million pending safety functions.

Before I start, although, I have to observe that this case will not be about asylum in any respect, however moderately deferral of removal under the Convention Against Torture (CAT). CAT deferral is the final avenue of safety, as a result of there are not any bars to it being granted, which is probably going why it was the safety of alternative right here.

The respondent is a local and citizen of Nigeria who entered as a nonimmigrant person visiting (B-2) in May 2011, and adjusted his standing to conditional everlasting resident in October 2012.

In August 2014, he was convicted of conspiracy to commit mail, wire, and financial institution fraud in federal court docket, for which he was sentenced to 63 months imprisonment. That similar day, he additionally acquired a federal conviction for aiding and abetting aggravated identification theft, for which he acquired an extra 24 months.

DHS terminated his conditional everlasting residence in June 2017, efficient again to October 2014, and he was positioned into removing proceedings.

The ostensible cost was that the respondent was detachable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA), as an alien convicted of an aggravated felony as outlined in section 101(a)(43)(M)(i) of the INA — a fraud conviction through which the loss or potential loss was $10,000 or extra. I say “ostensible” as a result of the precise floor will not be said, however the conviction matches the fraud invoice, and the BIA explicitly notes that the loss or potential loss was $10,000 or extra.

In any occasion, the respondent conceded removability and sought safety from removing. As famous, the respondent didn’t really search asylum (the aggravated felony cost would have been a bar), however as an alternative sought CAT deferral.

The key takeaway from Matter of O-M-O- applies to any safety under the INA and laws, nevertheless, be it asylum, statutory withholding, or CAT. Each is premised on a declare that one thing unhealthy has occurred or will occur to an applicant if returned dwelling. That requires proof of nation situations overseas, as well as (normally) proof particular to the applicant that the federal government will attempt to mistreat the applicant if returned.

This imposes an uncommon burden on the applicant and DHS, as well as — as this case demonstrates — the court docket. There is a saying in immigration regulation that “persecutors do not provide affidavits”, that means that the applicant is commonly restricted within the extrinsic (that’s, non-testimonial) proof that she or he can current.

DHS (and its ICE attorneys, who symbolize the federal government in immigration court docket) are likewise usually restricted within the proof that they will present, absent an costly in-country investigation (for which DHS lacks the assets, besides in extremely uncommon instances).

Each social gathering can go on the internet to seek out supply supplies to assist their instances. The INA makes clear, nevertheless, that an applicant’s credible testament alone is ample to assist his or her burden of proof — with one exception. If the IJ finds that there’s corroborating proof that’s out there to the applicant, the applicant should current that info or show that it isn’t really out there.

All of which brings me again to Matter of O-B-O-. The respondent claimed that whereas he was a pupil in Nigeria, he joined the Committee for Defense of Human Rights (“CDHR”). In this capability, he and others met with officers within the Oyo State’s formal training ministry, in search of extra formal training funding and higher situations for college kids and academics. Because of that activism, he alleged, he was detained, interrogated, and bodily mistreated by the Nigerian State Secret Service twice, in 2005 and 2010.

In assist of his CAT utility, he offered a December 2009 letter, purportedly issued by the Oyo State commissioner of formal training, and a “wanted” flier from the police. Those paperwork have been key to the IJ’s and BIA’s selections.

With respect to the 2009 letter, ICE confronted the respondent in court docket with the truth that the one that allegedly had signed that letter didn’t change into Oyo State commissioner of formal training till November 2010 (a professor held the place in the course of the interval the letter was allegedly written).

To set up this truth, ICE offered a printout from the Oyo State authorities itemizing its commissioners of formal training and their intervals of service, as well because the professor’s curriculum vitae from his own web site. These revealed that that professor served as commissioner from April 2009 to October 2010. It additionally submitted a newspaper article from November 2010, saying the appointment of the brand new commissioner — the one that purportedly signed the 2009 letter.

The respondent responded with an affidavit supposedly from the statistics officer on the formal training ministry explaining that the professor was actually serving in the course of the interval in query as an understudy to the minister of particular duties (the professor subsequently headed that ministry), and that the signatory of the 2009 letter was assigned the duties of the commissioner of formal training in the course of the interval in query.

The downside, the BIA held, was that there was no proof that the affiant was from the statistics officer, or that he served in that job 9 years earlier or in any other case would have been privy to those info, such that he can be a dependable supply. And the November 2010 newspaper article (which was apparently unrebutted) said that the signatory of the 2009 letter had been “Commissioner for Industries, Applied Science [and] Technology” previous to his appointment.

The “wanted” flier was problematic on its face. In it, “Nigeria” was misspelled (as “Nageia Police Authority”), and the signature and the textual content of that flier have been printed over the seal. Needless to say, paperwork are typically authenticated by a seal after they’ve been ready. The IJ discovered that it appeared “as if the flier was printed on paper with the seal and signature already on it instead of the flier being stamped with the seal and signed after it was created”, and was subsequently fabricated.

You would assume that the submission of a facially invalid (and misspelled) “official” doc would have been the tip of the matter. You would have assumed wrongly, as reviewing federal courts have previously rejected IJ assessments of the validity of facially questionable paperwork as “speculative”, significantly what place the applicant’s testament is in any other case credible.

I’ll admit that IJs usually are not credentialed forensic doc specialists. And ICE does have a Forensic Document Laboratory, to which such paperwork might be submitted (though to say it’s overworked can be an understatement).

But the very fact is that IJs see varied types of paperwork from all around the globe often in the middle of their jobs. And some errors in paperwork are so obvious that you just hardly want credentials to identify them — as on this case. Fortunately, because the BIA present in Matter of O-M-O-: “Courts have long recognized that Immigration Judges may find that documents are not genuine if they contain ‘hallmarks of fraud,’ which include misspellings, overwriting, incorrect information, and alterations.”

The IJ really gave the respondent the chance to clarify these discrepancies in briefs that have been filed with the court docket after the listening to. Counsel for respondent asserted therein that “Nigerians commonly call Nigeria ‘Nageia’ and that signatories generally sign what is already printed.”

Statements of counsel, nevertheless, usually are not proof, and the respondent apparently supplied no extrinsic proof to show both of those points. Nor did the respondent talk about why this colloquialism would seem on an allegedly official doc.

The IJ discovered that the December 2009 letter was fraudulent and falsified, that the “wanted” flier was falsified, and that these paperwork have been submitted to assist key elements of the respondent’s CAT declare. She additionally evaluated the respondent’s assertion that members of CDHR have been persecuted, and located it inconsistent with an affidavit from respondent’s own skilled. Finally, the IJ famous that the respondent was in court docket as a result of he had fraud convictions, which referred to as his credibility into query from the get-go.

Given these info, the IJ discovered that the respondent had failed to ascertain his eligibility for CAT deferral, denied his utility, and ordered him eliminated.

He appealed to the BIA, which (appropriately) dismissed the respondent’s appeal. In the course of that, and to deal with the problems above, that call was issued as precedent, that means that it’s binding on the nation’s 520 IJs, and is the regulation in every single place in all federal circuits absent opposite circuit precedent. That mentioned, the method sanctioned by the BIA of assessing doc fraud is normally extra artwork than science.

So, why is Matter of O-M-O- vital?

Through November, there have been 1,273,885 instances pending earlier than these 520 IJs. As of June 30, in accordance with the State Department, 549,724 of these instances (greater than 43 %) have been asylum claims (a quantity that has seemingly became greater within the final six months). That averages out to greater than 1,050 asylum claims per IJ.

As Matter of O-M-O- and the foregoing evaluation exhibits, nevertheless, adjudication of these claims is commonly a troublesome course of, and one reliant on assessing the credibility of what’s usually self-serving testament and evaluate of what are often unfamiliar paperwork ready in another country (or maybe nearer to dwelling within the case of fraud).

Plus, underlying virtually all asylum claims is the concept that the house authorities is corrupt. If true, acquiring fraudulent — however facially legitimate — paperwork is only a matter of connections, time, and cash.

Finally, there’s the truth that documentary practices in lots of these nations depart much to be desired (one of many key causes for the much-derided and largely misunderstood Presidential Proclamation 9645 — the so-called “travel” or “Muslim” ban).

Even within the United States, official paperwork might be issued by hundreds of presidency authorities, and the identical is true overseas. Record-keeping typically goes downhill the additional you get from the central authorities (with exceptions), which is particularly problematic in a rustic what place record-keeping will not be that nice to start with. Imagine how troublesome it might be for ICE to confirm the validity of an 11-year-old doc issued in a overseas locality, as on this case.

The BIA held:

The immigration court docket system has no extra solemn obligation than to offer refuge to these going through persecution or torture of their dwelling nations, in keeping with the immigration legal guidelines. However, “truthful testimony and disclosures are critical to the effective operation of the immigration court system.” [Internal brackets omitted.]

Both statements are past cavil. Even absent our global obligations, the safety of overseas nationals from persecution has been on the heart of our nation since earlier than its founding. But fraudulent claims not solely gradual the adjudication of meritorious ones, in addition they solid a pall over all the idea of refuge.

We are seemingly essentially the most beneficent nation — each as a political entity and as people — on the face of the earth and within the historical past of man. Nobody needs to be performed for a sucker, although.

Fortunately, the BIA has made the job of these IJs in denying fraudulent claims simpler, by permitting them to make use of widespread sense within the course of — assuming the circuit courts don’t improperly second-guess these factual determinations.

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