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Department of Justice
Name: C , J H A 365
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
Cynthia L. Crosby
Acting Chief Clerk
Enclosure
Panel Members:
Wendtland, Linda S.
Cole, Patricia A.
Pauley, Roger
Userteam: Docket
APPEAL
CHARGE:
In a decision dated December 17, 2014, the Immigration Judge found the respondent
removable as charged and denied his application for asylum, withholding of removal, and
protection under the Convention Against Torture. The respondent's appeal of that decision will
be sustained and the record will be remanded for required background and security
investigations.
We review for clear error the findings of fact, including any determination of credibility,
made by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de novo all other issues,
including issues of law,judgment, or discretion. 8 C.F.R. 1003.l(d)(3)(ii).
The respondent, a native and citizen of China, alleges that he will be persecuted if forced to
return to China because he is a practicing Christian. The Immigration Judge denied the
respondent's application for relief, because he found the respondent not credible (l.J. at 3-4).
Specifically, the Immigration Judge noted that the respondent's former attorney who filed the
respondent's first asylum application (Exh. 2) is now in jail for preparing fraudulent asylum
applications and also found that this first application was "completely different" from the
respondent's testimony and contradictory to the second asylum application (l.J. at 3-4; see Exh.
3; Tr. at 9-6, 25-26). Since the Immigration Judge concluded that the respondent was aware of
the fraud being perpetrated by his former attorney on the asylum office and the court, and since
the two asylum applications differed, the Immigration Judge found the respondent not credible
and denied all forms of relief (I.J. at 4).
On appeal, the respondent argues that the Immigration Judge's adverse credibility
determination contains clear error in that the respondent never indicated that he was aware that
his prior attorney prepared fraudulent asylum applications, and there is nothing in the record to
support the Immigration Judge's conclusion that the respondent's first asylum application is
fraudulent (Respondent's Br. at 16). According to the respondent, there was no documentation
provided to support the conclusion that the respondent's first asylum application was fraudulent
(Respondent's Br. at 16-17), and the fact that the Immigration Judge is basing his conclusions on
Cite as: J-H-C-, AXXX XXX 365 (BIA March 9, 2017)
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other fraudulent asylum applications is improper because the Immigration Judge did not comply
with the procedural safeguards outlined by the United States Court of Appeals for the Second
Circuit (Respondent's Br. at 17-18). The respondent argues that since the Immigration Judge did
not base his conclusion about the fraudulent nature of the first asylum application on evidence
contained in the record, the conclusion was based on speculation and is clearly erroneous
(Respondent's Br. at 18). Furthermore, the respondent argues that there is no evidence that the
The Department of Homeland Security did not respond to the respondent's arguments on
appeal. We are persuaded by the respondent's arguments that the Immigration Judge clearly
erred in finding the respondent not credible based on the first asylum application filed by his
former attorney who has been found guilty of fraud in other immigration cases. An adverse
credibility determination must be based on "specific, cogent reasons" that "bear a legitimate
nexus" to the finding, and must not be "based on speculation or conjecture." Secaida-Rosales
v. INS, 331 F.3d 297, 307 (2d Cir. 2003). The record does not establish that the respondent was
aware of any fraud perpetrated by his former attorney prior to the hearing (see Tr. at 16). There
is also insufficient evidence to show that the respondent's first asylum application was fraudulent
based merely on the attorney's conviction for fraud in other cases. See Mei Chai Ye v. US.
Dep't ofJustice, 489 F.3d 517, 527-28 (2d Cir. 2007) (stating that relying on inter-proceedings
similarities is not appropriate unless certain procedural safeguards are followed, including
allowing the parties an opportunity to investigate and contest similarities); see also Matter of
R-K-K-, 26 I&N Dec. 658 (BIA 2015) (stating that significant similarities between statements
submitted in different proceedings can be considered by the Immigration Judge in making an
adverse credibility determination, provided the following procedural steps are undertaken to
preserve the fairness of the proceedings: (1) the Immigration Judge should give the alien notice
of the similarities; (2) as well as an opportunity to explain any similarities; and (3) the
Immigration Judge should consider the totality of the circumstances when assessing credibility).
Finally, while it does appear that the respondent's direct testimony and second asylum
application (Exh. 3) omitted a significant aspect of his claim relating to the beating and arrest for
attending a house church in China which was described in his first asylum application (Exh. 2), it
is not clear that the two applications are in conflict or completely different as stated by the
Immigration Judge. The respondent asserts that both statements are true, and that it was "a
strategic decision based on his counsel's reasonable judgment regarding Respondent's best claim
for relief' to limit the second asylum application to more recent Christian activities in the United
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1
States (Respondent's Br. at 21; see Tr. at 25-26). Since the only reason for finding this
I
I
explanation not convincing was that the Immigration Judge concluded the first application was
fraudulent (see I.J. at 3-4), a conclusion we have found to be clearly erroneous, we determine
that the adverse credibility determination is clearly erroneous overall. The Immigration Judge
indicated that, but for finding the respondent not credible, he would find that the respondent had
met his burden of proving a well-founded fear of persecution and, therefore, that he is eligible for
Board Member Roger A. Pauley concurs in the reversal of the adverse credibility finding as
improperly founded, but would remand for a new credibility determination that comports with
Second Circuit case law.
1 Notably, the respondent did testify during direct examination that "due to [his] religious
practice, (he] was persecuted in China by the Chinese government" (Tr. at 9), although he did
not provide details at that time.
In the Matter of
)
J H C ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )
China who last entered the United States on or about July 24, 2011 without inspection.
The Department charges him with removability under 212(a)(6)(A)(i). At his hearing, the
upon his admissions, removability has been shown by clear and convincing evidence.
Although he did not designate a country for removal, People's Republic of China has
been designated by the Department. He has applied for relief under Section 208 of the
request for withholding of removability under 241(b)(3). He has also applied for relief
208.11. The Court notes that there are documents from the Department of State in
and withholding of removal under Convention Against Torture is very well established
and the Court will not cite the law in its decision except to say that the burden is on the
granted withholding of removal he must demonstrate that it is more likely than not he
would be subject to persecution under the five grounds. And that also to be given
testified on direct that he came to this country for religious freedom. He became a
Christian in China and under the influence of the older sister. And when he came to this
country, he was introduced to the church and started attending the Church of Grace of
Church located in Brooklyn. He states that he quite often spreads the gospel to friends
and family. And he was baptized in China, so he did not undergo any baptism here. He
states that if he were to return to China, he would continue to practice his religion. He is
aware that there are government churches in China, but he would feel uncomfortable
attending government churches because they do not reflect the true Christianity. He
fears if he were to return to China after continuing his practice of his religion, he would
the respondent was aware that his first attorney, Vanessa Bandrich, was in jail for the
aware and that her office is now shut down. Several other questions were asked
concerning his one-year witness. And the Court then asked the respondent several
respondent was shown a copy of the statement in Chinese attached to that application.
Respondent recognized his own handwriting and the Court then asked him why his
story that he told the Court today under direct and cross-examination was completely
different from that in his asylum application. The Court noted that in Exhibit 2, the first
asylum application, he indicates he attended a house church and was arrested along
with his oldest sister and incarcerated for 1 O days undergoing harsh treatment, beatings
at the hands of Public Security Bureau, and noting that the respondent did not testify at
all to any arrests today before the Court. When asked which is the true statement, the
The Court has listened to respondenfs testimony and notes that in these
cases the respondents, if credible, would have demonstrated that they would have a
materials more than bear out that the government in China treats Christians very
harshly, especially those who practice in house churches. However, in this case, the
Court will note that the respondenfs initial application was prepared by an attorney who
is now in jail for preparing fraudulent asylum applications. The Court showed the
respondent the initial application, which is in evidence at Exhibit 2, and asked him why
his statement was completely different from that of his statement today. It is very
both were truthful and correct. The Court is of the opinion that the initial application was
one of the fraudulent applications that was generated by that law office. Significantly,
the respondent did not disavow that application. It is very clear from his testimony that
he was aware of the fraud that was being perpetrated upon the asylum office and the
Court. And by his testimony today, he has continued to insist that what he told the
Court and the asylum office below was the truth. It is very clear that the respondent, by
the two contradictory asylum applications, has not told a credible story today and the
Court will make a finding that the respondent has failed to meet his burden of
Having found that the respondent has been incredible in his asylum
testimony, the Court will make the finding that he has failed the heavier showing
indicate that he would more likely than not be tortured on his return to China. And that
form of relief will also be denied and the following orders will be issued.
ORDERS
of removal, withholding of removal under the Convention Against Torture will be denied.
CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE GEORGE T. CHEW,
J H C
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was held as herein appears, and that this is the original transcript thereof for the file of
(Completion Date)