S-L-, AXXX XXX 361 (BIA Aug. 31, 2015)

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Rosenberg Lory D.

IDEAS

Consultation

and Coaching

14015 erryville Rd

Darnestown

MD

20874

Name:Ll s

U.S. epartment of Justice

Executive Office for Immigration Review

Board o mmigration Appeals

Office

o

he 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

Date

of

this notice: 8/31 /2015

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

Enclosure

Panel Members:

Miller Neil P.

Sincerely,

~ Ca Nu

Donna Carr

Chief Clerk

~.

._. .

Userteam: Docket

For more unpublished BIA decisions, visitwww.irac.net/unpublished/index/

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Cite as: S-L-, AXXX XXX 361 (BIA Aug. 31, 2015)



.

U.S. Dep~rtment o Justice

Executive Office for1mmigration Review

Falls Church, Virginia 22041

File:

. . 361

Detroit MI

n re:

s 1111

IN REMOVAL PROCEEDINGS

MOTION

Decision o the Board o Immigration Appeals

Date:

UG

312 15

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

o

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

o

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 o fact or law in the Board's prior decision.

See

section 240(c)(6)

o

the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(6); 8 C.F.R.

§ 1003.2(b);

Matter o 0-S-G-

24 I N Dec. 56 (BIA 2006).

n

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

n China because o her Falun Gong activities, and that she fears future hann based on her own

continued Falun Gong practice and the practice and recent activism

o

her husband. We agree

with the respondent that reconsideration is warranted in light o 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 o 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

o

the respondent's witnesses.

However, most

o

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 o Appeals for the Sixth

Circuit r.bout this decision.

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~36

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 ~

hich was based

on

his lack of direct personal knowledge or

corroborating documents (I.J. at 30-31 ).

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

she

was

afraid to return to China.

2

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

2

n 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

w s

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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61

respondent's motion, and any additional country conditions evidence submitted by the parties.

3

The partfos may also submit other relevant evidence.

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

FURTHER ORDER: The Board's decision dated May

1

2015, is reconsidered and vacated.

FUR11IER ORDER: The Immigration Judge's decision dated November 14, 2014, is

vacated.

FUR11IER ORDER: The record is remanded to the Immigration Judge for further

proceed.in.gs consistent with

the foregoing opinion and for the entry o a new decision.

3

n concluding that most o the documentary evidence concerning mistreatment o 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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S-L-, AXXX XXX 361 (BIA Aug. 31, 2015)

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