8/20/2019 S-L-, AXXX XXX 361 (BIA Aug. 31, 2015)
http://slidepdf.com/reader/full/s-l-axxx-xxx-361-bia-aug-31-2015 1/4
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For more unpublished BIA decisions, visitwww.irac.net/unpublished/index/
p p
,
Cite as: S-L-, AXXX XXX 361 (BIA Aug. 31, 2015)
8/20/2019 S-L-, AXXX XXX 361 (BIA Aug. 31, 2015)
http://slidepdf.com/reader/full/s-l-axxx-xxx-361-bia-aug-31-2015 2/4
.
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.
p p
,
Cite as: S-L-, AXXX XXX 361 (BIA Aug. 31, 2015)
8/20/2019 S-L-, AXXX XXX 361 (BIA Aug. 31, 2015)
http://slidepdf.com/reader/full/s-l-axxx-xxx-361-bia-aug-31-2015 3/4
~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
p p
,
Cite as: S-L-, AXXX XXX 361 (BIA Aug. 31, 2015)
8/20/2019 S-L-, AXXX XXX 361 (BIA Aug. 31, 2015)
http://slidepdf.com/reader/full/s-l-axxx-xxx-361-bia-aug-31-2015 4/4
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
p p
,
Cite as: S-L-, AXXX XXX 361 (BIA Aug. 31, 2015)
Top Related