U.S.

Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Office of the Clerk
5107 Leesburg Pike. Suite 2000
Falls Church. V1rgin1a 220./1

OHS/ICE Office of Chief Counsel - DET

333 Mt. Elliott St., Rm. 204
Detroit, Ml 48207

Name:Ll,s-

Date of this notice: 8/31 /2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

D~ Ca.Nu
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Miller, Neil P.

-~. ,._.,.

Userteam: Docket

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Rosenberg, Lory D.
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,.
I

U.S. Dep~rtment of Justice

Decision of the Board of Immigration Appeals

Executive Office for1mmigration Review

Falls Church, Virginia 22041

File: . . - 3 6 1 - Detroit MI
In re:

Date:

AUG 312015

IN REMOVAL PROCEEDINGS
MOTION
ON BEHALF OF RESPONDENT: Lory D. Rosenberg. Esquire
ON BEHALF OF DHS:

Rosario S. Shoudy
Assistant Chief Counsel

APPLICATION: Reconsideration; reopening

This matter was last before the Board on May 1, 2015, when we dismissed the respondent's
appeal from the Immigration Judge's decision denying her applications for asylum, withholding
of removal, and protection under the Convention Against Torture (CAT). Currently before us is
the respc,ndent's timely-filed motion to reconsider and reopen. The Department of Homeland
Security has filed an opposition to the motion, and the respondent has filed a reply. The request
for oral Eifgument is denied. The motion will be granted, and the record will be remanded to the
lmmigradon Judge for fwther proceedings. 1
A motion to reconsider must identify an error of fact or law in the Board's prior decision.
See section 240(c)(6) of the Immigration and Nationality Act, 8 U.S.C. 1229a(c)(6); 8 C.F.R.
1003.2(b); Matter of 0-S-G-, 24 I&N Dec. 56 (BIA 2006). In her motion, the respondent has
correctly identified errors in the Board's analysis such that reconsideration is warranted.
The respondent's claim is based upon her allegations that she was twice arrested and detained
in China because of her Falun Gong activities, and that she fears future hann based on her own
continued Falun Gong practice and the practice and recent activism of her husband. We agree
with the respondent that reconsideration is warranted in light of our last decision's reliance on
the respondent's airport interview to affirm the Immigration Judge's adverse credibility finding.
See Yu v Ashcroft, 364 F.3d 700 (6th Cir. 2004). The respondent also correctly observes that our
last decision did not address the extensive additional evidence of record or fully address the
respondent's CAT claim. Upon reconsideration, and for the following reasons, we find it
necessary to remand this matter to the Inunigration Judge.
The Immigration Judge made credibility findings for each of the respondent's witnesses.
However, most of the credibility findings are not grounded in the factors that are appropriately
considered in making a credibility finding, such as inconsistencies and omissions. See S/yusar v.
1

The :,arties are responsible for notifying the United States Court of Appeals for the Sixth
Circuit r.bout this decision.
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s-1111

~361

The fact that a witness testifies about events that include ones for which he does not have
direct personal knowledge is not without more a proper basis for an adverse credibility finding.
Instead, if a witness is otherwise credible but testifies about some events without direct personal
knowledge, the Immigration Judge may accord little or no weight to that testimony. See
generally Fang Huang v. Mukasey, 523 F.3d 640, 652-53 (6th Cir. 2008) (discussing factors
used to evaluate the weight given to an affidavit, including personal knowledge).
We 'ind it necessary to have the Immigration Judge provide new credibility findings
concerning the witnesses who appeared at the respondent's hearing. Also, the Immigration
Judge sh,Juld revisit the respondent's credibility finding to address the respondent's assertion that
she was told at the airport by the translator that sh<! would be jailed if she continued to claim that
2
she was afraid to return to China.
As a final matter, the Immigration Judge's decision significantly relied on the lack of
corroborating documentation that the respondent's former supervisor and mentor warned her to
leave China in April 2014. However, the Immigration Judge did not identify missing evidence
that the respondent could reasonably be expected to produce. Accordingly, it was error to rely
on the la,;k of corroborating documents concerning the former supervisor's alleged warning. See
Abdurak~manov v. Holder, 735 F.3d 341 (6th Cir. 2012).
We will remand the record to allow the Immigration Judge to make new findings consistent
with this opinion. On remand, the Immigration Judge shall also consider evidence of country
conditions, including the evidence already in the record, the new evidence submitted with the

On afpeal, the respondent argued that the only time she stated she was not afraid to return to
China was after the interpreter at the airport, who worked for Delta Airlines, advised that the
respomk nt would be detained in jail if she said she was afraid to return to China
The
respondfnt's appeal brief explained that, given the respondent's history of having been jailed and
abused i:1 China, the prospect of being jailed was traumatic and may have provoked a panicked
response (Mot. at 14-15; Appeal Brief at 28). The respondent has not cited to any testimony in
which she made this assertion. However, her allegations are consistent with an immigration
officer's notes in the record that the respondent withdrew her claim of fear at the airport after
being told she would need to speak to an asylum officer (Exh. 5). Furthermore, we can identify
no place in the transcript showing the respondent was asked about the withdrawal of her claim at
the airpcrt or specifically given an opportunity to explain it.

2
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Holder, ''40 F.3d 1068 (6th Cir. 2014); Zhao v. Holder, 569 F.3d 238 (6th Cir. 2009). For
example, the Immigration Judge found the respondent's sister and husband to be not credible
because wme of their testimony concerned events about which they did not have direct personal
knowledge (I.J~Immigration Judge also made a partial adverse credibility finding
with regm'd t o ~ which was based on his lack of direct personal knowledge or
corroborating documents (I.J. at 30-31 ).

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respondent's motion, and any additional country conditions evidence submitted by the parties.
The partfos may also submit other relevant evidence.

ORDj'lR: The respondent's motion is granted.

FUR11IER ORDER:
vacated.

The Immigration Judge's decision dated November 14, 2014, is

FUR11IER ORDER: The record is remanded to the Immigration Judge for further
proceed.in.gs consistent with the foregoing opinion and for the entry of a new decision.

In concluding that most of the documentary evidence concerning mistreatment of Falun Gong
practitiom:rs in China was unreliable (I.J. at 42), the Immigration Judge did not specifically
address the Congressional Research Service Report for Congress, "China and Falun Gong" dated
May 25, 2006 (Exh. 8 at 83), or the Amnesty International report on Falun Gong dated March 23,
2000 (Ext. 8 at 98).

3
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FURTHER ORDER: The Board's decision dated May 1, 2015, is reconsidered and vacated.