Alexei, Michael, Esq.

1301 Pennsylvania Ave., Ste 305

Washington, DC 20004
Name :lxxxxxxxxxxxxxxxxxxxx
U.S. Department of Justice
Executive Office for Immigration Review
Board of Imrnigration Appeals
Office of the Clerk
5107 /.eesburg Pike. Suite 2000
Falls Church, Virginia 22041
DHSIICE Office of Chief Counsel LVG
3373 Pepper Lane
Las Vegas, NV 89120
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Date of this notice: 5/6/2013
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Mullane, Hugh G.
Grant, Edward R.
Creppy, Michael J.
Sincerel.r,
Donna Can
Chief Clerk
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Userteam: ocket
AILA InfoNet Doc. No. 13120342. (Posted 12/3/13)
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U.S. Department of Justice
Executive Office for Immigration Review
Falls Church, Virginia 22041
File: j- Las Vegas, NV
In re: xxxxxxxxxxxxxxxxxxxxxxxxxxx
IN REMOVAL PROCEEDINGS
APPEAL
Decision of the Board oflmmigration Appeals
Date:
MAY -6 2013
ON BEHALF OF RESPONDENT: Michael Alexei, Esquire
ON BEHALF OF DHS: Peter Eitel
Assistant Chief Counsel
APPLICATION: Asylum; withholding of removal; Convention Against Torture
The respondent, a native and citizen of Moldova, appeals from that portion of an
Immigration Judge's decision dated March 7, 2011, denying her application for asylum and
withholding ofremoval under sections 208 and 241(Q}(3) of the Immigration and Nationality Act,
8 U.S.C. 1158 and 1231(b)(3), and for protection under the Convention Against Torture
("CAT"), 8 C.P.R. 1208.18. The record will be remanded.
We review for clear error the findings of fact, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. 1 003.l(d)(3)(i). We review de novo all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. 1003.l(d)(3)(ii). The respondent's application for reliefwas filed after May 11 ,2005,
and is thus subject to the statutory amendments made by the REAL ID Act of 2005. Matter of
S-B-, 24 I&N Dec. 42 (BIA 2006).
The Immigration Judge denied the respondent' s asylum claim based on an adverse credibility
finding, and in the alternate, because she did not prove past persecution or an objectively well-
founded fear of persecution (I.J. at 7-12). Based on the absence of sufficient factual findings by
the Immigration Judge to support his reasons for denying the respondent's claim, we cannot
conduct a proper appellate review. See 8 C.F.R. 1003.1 (d)(3)(iv) (stating that the Board may
not engage in fact finding in the course of deciding appeals except for taking administrative
notice of commonly known facts). Matter of S-H-, 23 I&N Dec. 462 (BIA 2002) (in light of
Board's limited fact-finding ability on appeal, a remand is appropriate when the record is
inadequate for review).
On remand, the Immigration Judge shall provide additional factual findings to support his
adverse credibility finding. The Immigration Judge incorporated by reference the majority of the
testimony and closing arguments (I.J. at 5). Although the government counsel argued against the
respondent's credibility during his closing argument, the Immigration Judge's decision needs to
specify the particular inconsistencies and contradictions he relied on in finding the respondent
not credible. In discussing the respondent's explanation for why she did not tell her husband
about the bas.is for her claim, the Immigration Judge did not state whether or why he found the
AILA InfoNet Doc. No. 13120342. (Posted 12/3/13)
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explanation not persuasive (I.J. at 8). Moreover, it is not clear if the Immigration Judge
ultimately admitted Exhibit 7, which he initially stated was "marked only because it was
untimely submitted" (I.J. at 4.). Subsequently, however, the Immigration Judge referred to this
exhibit in discussing the respondent's credibility and burden of proof (I.J. at 8, 11). In addition,
in stating that a letter from the respondent ' s father was the extent of the respondent ' s
corroborative evidence, the Immigration Judge did not acknowledge and address the weight of
the respondent's Medico-Legal Examination Report in Group Exhibit 4 (I.J. at 9).
We are also unable to conduct a meaningful appellate review of the Immigration Judge's
alternate burden of proof denial of the respondent's claim. The Immigration Judge concluded
that the respondent did not establish past persecution, however, he did not adequately address the
respondent's corroborative evidence and make specific findings of fact regarding the harm the
respondent alleged (J.J. at 10- 11). On remand, the Immigration Judge shall analyze the
respondent's claim based on applicable Ninth Circuit and Board precedent.
The Immigration Judge shall address the material corroborative evidence of record, and if
relevant, issue findings of fact from such evidence. Moreover, if the Immigration Judge
determines that additional corroborative evidence is required for the respondent to meet her
burden of proof, then we note the Ninth Circuit' s recent (and pending) case law, Ren v. Holder,
648 F.3d 1079 (9th Cir. 2011), and Oshodi v. Holder, 671 F.3d 1002 (9th Cir. 2012) rehearing
en bane ordered by 678 F.3d 776 (9th Cir. 20 12).
The Immigration Judge shall also separately analyze the respondent' s claims for withholding
of removal and CAT protection.
Accordingly, the following order will be entered.
ORDER: The record is remanded to the Immigration Judge for further proceedings and the
entry of a new decision consistent with the foregoing opinion.
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AILA InfoNet Doc. No. 13120342. (Posted 12/3/13)