Agbortabi (not precedential): BIA May Not Make Its Own Credibility Finding Based Solely On How Asylum-Seeker Submitted Some False Documents
This case focuses on whether the BIA has the power to issue in the first instance a credibility finding against an asylum-seeker based solely on how some of the documents he submitted were fake. The Third Circuit resoundingly concluded that the BIA does not have that power in this case and based on the details in this particular case, the BIA had to send the case down to the Immigration Judge to make his findings and could not enter its own findings instead.
This case almost makes you want to scratch your head, wondering why the government is fighting so hard against the asylum-seeker.
The case involves two sets of documents -- a newspaper article and some items that the asylum-seeker submitted to support his claim. In 2002, the IJ denied asylum but granted withholding of removal, relying partly on the newspaper article. Later, the CIA completed an investigation (of disputed reliability) that concluded the newspaper articles and some of the items the asylum-seeker submitted were fake. The BIA vacated the IJ's conclusion and gave the case back to him to make a new ruling that considered the CIA report. Let's call this Remand #1.
During Remand #1 (the second time the IJ reviewed the case), the IJ analyzed the CIA report and still granted withholding of removal. The BIA again vacated the IJ's decision and remanded the case for an explicit credibility determination. Let's call this Remand #2.
In 2004, during Remand #2, the IJ analyzed the CIA report and ultimately concluded that the asylum-seeker was credible. The BIA vacated the IJ's decision and independently made its own conclusion that the asylum-seeker was not credible. The case was appealed to the Third Circuit, which remanded the case to the BIA (let's stop numbering the remands) to clarify whether the BIA instead should have remanded the case rather than inject its own credibility determination. The BIA did not take the hint and insisted that it had the power to make its own credibility determination. This appeal followed and, no surprise, the Third Circuit ruled the BIA did not have the power to inject its own credibility determination.
The key is that if someone submits some false documents, that does not automatically mean that everything that person says must be deemed a lie. There is no justification for the BIA's proposition. The BIA attempted to cling to In re O-D-, 21 I&N Dec. 1079 (BIA 1998), but that case only said that submitting fake documents is a critical factor toward deciding credibility, but certainly was not dispositive. This makes sense -- if someone has lots of credible documents, corroborating witnesses, and is completely convincing on the stand in court, the person should not suffer an automatic loss if one of the documents his relatives mailed to him turn out to be fake. It's possible the asylum-seeker was tricked by a well-meaning but shady relative who was gathering documents in his faraway home country.
The Third Circuit concludes with an unclear rule -- sometimes the BIA might be able to inject its own credibility determination but certainly it could not do so in this particular case. It is hard to tell in which types of cases the BIA may not inject its credibility determination. Maybe the rule over time will turn out to be -- if there is a substantial chance that the IJ would find the asylum-seeker credible despite submitting some false documents, then the BIA must give the IJ a chance to make his ruling. If it is extremely obvious and there is no doubt that the IJ has signaled that he wants to find the asylum-seeker not credible and would do so upon seeing any document was fake, then the BIA can do the obvious and inject its own credibility determination.
Before you pack away the case, keep in mind that it is still open and will probably be remanded back to Judge Reifkohl, after which we will have to see whether ICE counsel in Newark, NJ files yet another appeal in the case. Quite a saga.