Costa (not precedential): Prompt Withdrawal Of False Testimony After Asylum Interview Avoids Bar To Good Moral Character

Costa v. Mukasey, 2007 WL 4296754 (3d Cir. Dec. 10, 2007) (not precedential).

Judges Barry, Fuentes, and Garth. Decision by Judge Garth. For Mr. Costa, Thomas E. Moseley, Newark, NJ. For the government, Douglas E. Ginsburg and John D. Williams of OIL.

The Third Circuit held that the BIA and Judge Dogin erred by holding that Mr. Costa lacked good moral character due to giving false testimony even though he later voluntarily withdrew them. That was a mistake because the statutory bar to good moral character for false testimony does not apply if the person voluntarily and before any exposure of the attempted fraud corrects the testimony. See Matter of M, 9 I&N Dec. 118 (BIA 1960). It was a valid withdrawal even though it did not take place until after the asylum hearing, because it was done before the merits hearing in the immigration court case.

The Third Circuit remanded for more findings on good moral character.