Tuesday, February 12, 2019
Page 1
Ninth Circuit:
Asylum Can’t Be Denied Based Solely on Alien’s Lies
Opinion—Coming in Long-Litigated Case in Which Federal Appeals Court Previously Upheld Finding That Petition Is Frivolous—Now Says a 2001 Decision Was Previously Overlooked
By a MetNews Staff Writer
A citizen of the former Soviet republic of Balarus, who filed an application for asylum 13 years ago and whose case has bounced from the administrative hearing level, to the Board of Immigration Appeals, to the Ninth U.S. Circuit Court of Appeals, and back down, and back up, has gained an order from the Ninth Circuit that further proceedings be conducted.
Friday’s memorandum opinion by a three-judge panel vacates an order by the Board of Immigration Appeals (“BIA”) denying the motion of Uladzimir Sliusar to reopen asylum proceedings and remands the matter with a directive “to exercise its discretion against the correct legal framework.” It holds that the determination by an immigration judge (“IJ”) that the asylum-seeker lacks credibility did not justify an apparent refusal to consider documentary evidence he sought to put forth, the opinion holds.
“An immigration judge must consider all of the documentary evidence in the record, regardless of its type” before ruling on an asylum application, even if the IJ finds the application “to be frivolous,” it declares.
2005 Application
Sliusar, gained admission to the United States on June 4, 2004 and applied for asylum on Jan. 27, 2005 under the Convention Against Torture (“CAT”). He asserted that as a member of a pro-democracy student group, he had been subjected to arrest and being beaten by a KBG agent, and would be in jeopardy if returned to Balarus.
However, an immigration judge (“IJ”) on June 27, 2006, following a hearing, determined that the petition was frivolous, noting that Sliusar had plagiarized chunks of asylum petitions of other Belarusians.
The BIA remanded for reconsideration in light of a 2007 decision; on remand, the judge again found the petition to be frivolous; the BIA affirmed; Sliusar sought to reopen but his motion was denied; and he then sought a reversal in the Ninth Circuit of the order denying asylum.
2015 Opinion
In a Feb 5, 2015 memorandum opinion, a three-judge panel said:
“The agency’s finding that Sliusar was not credible and his asylum application frivolous are well supported by the record….Given the obvious plagiarism in his application, his inability to explain why his statement was so similar to others, and the inconsistencies within his own sworn testimony, the IJ properly found Sliusar not credible.”
Sliusar was not deported. He hired new lawyers who argued that the BIA should grant his third motion to reopen proceedings on the ground that the IJ had failed to address the Ninth Circuit’s 2001 opinion in Al-Harbi v. INS, which reversed an order denying withholding of removal, relying on documentary evidence.
Case Found Applicable
Friday’s opinion rejects the government’s contention that Al-Harbi is inapposite, setting forth:
“In Al-Harbi, we held that an immigration judge must decide whether ‘substantial, non-testimonial, evidence in the record’ supports a claim for asylum or withholding of removal—even if she deems the applicant’s testimony not to be credible….The same requirement applies to claims for relief under CAT.”
The fact that the judge found that Sliusar’s application was frivolous does not alter the result, the opinion says, explaining:
“While a person who files a frivolous asylum application cannot receive any form of legal status under the Immigration and Nationality Act (“INA”)…, he remains eligible for withholding of removal…and protection under CAT….Thus, there must be some way that the filer of a frivolous asylum application can seek relief through withholding of removal or under CAT. The scheme only makes sense if the immigration judge must consider the entire record, not just the applicant’s fabricated testimony, and determine whether independent evidence still warrants non-INA relief.”
Documentary evidence—admitted as exhibits at the hearing by the IJ but not alluded to in her decision—included two letters from other student activists and hospital records which, the opinion says, “corroborated much” of Sliusar’s account, while the government insisted in merely supported factual contentions that had previously been rejected.
The Ninth Circuit panel—comprised of Circuit Judges Richard Paez and John B. Owens, along with Sixth Circuit Judge Danny J. Boggs, sitting by designation—spurned the governments contention that Sliusar did not act with diligence in failing to cite the 2001 opinion in Al-Harbi until 2016. The opinion points to the appellant’s declaration that he did not learn of the opinion until he hired new lawyers in 2016.
It notes that the BIA provided no reason to depart from the rule that an alien is entitled to rely on advice from counsel and no basis for doubting Sliusar’s declaration that he did not learn of Al-Harbi until 2016, concluding that the appellant “acted with due diligence” in invoking the decision when he did.
In a footnote, the opinion relates that Sliusar has, in later years, admitted lying about having been beaten by a KBG agent.
The applicant’s wife, initially ascribed with complicity in her husband’s false statements, has subsequently been admitted as a citizen.
The case is Sliusar v. Whitaker, 16-74019.
Copyright 2019, Metropolitan News Company