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Ninth Circuit:
Past Lies to Officials May Be Enough to Deny Asylum Request
Opinion Says Jurisprudence Applying ‘False in One Thing, False in Everything’ Maxim Remains Good Law in Immigration Context, Judge May Discount Testimony Solely Based on Independent Deception of Authorities
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that evidence of past lies to immigration authorities can support an adverse credibility finding as to a claim of persecution even if the deception is unrelated to the petitioner’s testimony outlining why he is seeking relief from removal.
Saying that while such deception does not “automatically require courts to uphold the adverse credibility determination,” the court declared that evidence supporting the truthfulness of a petitioner’s testimony in the face of evidence of prior fraud will need to be strong enough to overcome “inherent credibility concerns” raised by the prior dishonest actions.
Yesterday’s opinion highlights that jurisprudence allowing immigration judges to make adverse credibility determinations based on the maxim “falsus in uno, falsus in omnibus”—or “false in one thing, false in everything”—remains good law following the court’s 2021 en banc decision in Alam v. Garland.
That decision considered the impact of the Real ID Act of 2005 which altered the standard guiding review of adverse credibility determinations. Prior to the adoption of the statute, the outcome of a petitioner’s challenge to such a finding depended on whether the government had cited at least one valid, independent ground for disbelieving the petitioner that cut to the “heart of the claim.”
Real ID Act
Codified at 8 U.S.C. §1158(b)(1)(B)(iii), the Real ID Act directs courts to consider the totality of the circumstances “without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.”
Decisions following the law’s enactment acknowledged that the “heart of the claim” requirement had been statutorily eliminated but still applied the mandate that courts must uphold adverse credibility determinations if substantial evidence supported a single ground for disbelief.
In Alam, the en banc panel overruled the “single factor” rule, saying “[t]here is no bright-line rule under which some number of inconsistencies requires sustaining or rejecting an adverse credibility determination” and that the court’s “review will always require assessing the totality of the circumstances.”
Circuit Judge Daniel Aaron Bress, joined by Circuit Judge Milan D. Smith and Chief Judge Brian Morris for the District of Montana, sitting by designation, authored yesterday’s opinion addressing the impact of the Alam decision. Bress wrote:
“Although we have not directly so held, our cases recognizing and applying the falsus maxim in the immigration context…survive both the REAL ID Act and our en banc decision in Alam….[D]eliberate deception of immigration authorities will surely reflect an important factor in the totality of circumstances, regardless of whether the deception relates to the eventual claimed basis for asylum.”
Membership in Separatist Group
The question as to the continued applicability of the maxim arose after an immigration judge found Daniel Tochukwu Ani not credible following his testimony in support of a petition for asylum. He averred that his membership in a separatist group in his home country of Nigeria put him at risk of political violence if he returned.
Ani came to the U.S. in December 2005 to attend his niece’s christening, having secured a six-month visitor visa. In May of the following year, he married a U.S. citizen, identified in the opinion as “L.B.” After L.B. admitted to U.S. Citizenship and Immigration Services Officer Rebecca Cataldo that the union was fraudulent, Ani signed an affidavit saying that he had persuaded L.B. to marry him by paying her $6,000.
The Department of Homeland Security initiated removal proceedings in early 2007, charging Ani with marriage fraud and having overstayed his visa.
In 2010, Ani filed an application for asylum, withholding of removal, and protection under the Convention Against Torture. He filed a petition for review after the Board of Immigration Appeals agreed with the immigration judge’s determination that he had failed to present credible testimony establishing an objectively reasonable fear of future persecution.
‘Always’ Language
Bress acknowledged that the court’s pre-Alam 2011 decision in Nirmal Singh v. Holder seemed to indicate, in applying the “false in one thing, false in everything” maxim, that a lie to immigration officials will “always” support an adverse credibility. However, he opined:
“If taken literally, that statement could suggest tension with Alam….But we do not take the ‘always’ language in Nirmal Singh to mean anything more than ‘always,’ in the absence of evidence compelling a contrary conclusion.”
He wrote: “In sum, after the REAL ID Act, the falsus maxim still allows [immigration judges] to make adverse credibility findings based on material falsehoods, even when they are not central to the basis for the present claim for immigration relief….A particularly concerning category of intentional falsehoods involves ‘deliberate deception’ of immigration authorities….Such deception standing alone can support an adverse credibility finding under the totality of the circumstances, even if the deception is not directly relevant to an underlying claim for relief.”
The jurist added:
“Although these findings do not automatically require courts to uphold the adverse credibility determination,…evidence that compels a contrary conclusion will need to be so strong as to overcome the inherent credibility concerns associated with any petitioner who deliberately deceives immigration authorities to gain an immigration benefit.”
Turning to Ani’s petition, he said:
“As in Nirmal Singh, Ani’s ‘intentional deception toward the immigration authorities’ supported an adverse credibility determination even though Ani’s marriage fraud was ‘irrelevant’ to his substantive claim for asylum….And Ani’s continued denial of marriage fraud before the [immigration judge] raised legitimate questions about his ability to testify honestly.”
The case is Ani v. Bondi, 24-2339.
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