In re J-C-H-F, Interim Decision #3915

• Decision Date: 20 February 2018
• Docket Number: Interim Decision #3915
• Citation: 27 I&N Dec. 211
• Parties: Matter of J-C-H-F-, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

27 I&N Dec. 211

Matter of J-C-H-F-, Respondent

Interim Decision #3915

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

February 20, 2018

When deciding whether to consider a border or airport interview in making a credibility determination, an Immigration Judge should assess the accuracy and reliability of the interview based on the totality of the circumstances, rather than relying on any one factor among a list or mandated set of inquiries.

FOR RESPONDENT: Michael Franquinha, Esquire, Phoenix, Arizona

FOR THE DEPARTMENT OF HOMELAND SECURITY: Nelson Echevarria-Tolentino, Assistant Chief Counsel

BEFORE: Board Panel: MALPHRUS, CREPPY, and LIEBOWITZ, Board Members.

MALPHRUS, Board Member:

In a decision dated March 16, 2017, an Immigration Judge denied the applicant's request for protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988) ("Convention Against Torture").¹ The applicant has appealed from that decision. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The applicant is a native and citizen of Mexico who attempted to enter the United States on April 20, 2010. At that time, the applicant stated in a border interview that he came to the United States to look for his father. Hesaid that his father "went to the United States three years ago and we have not heard anything from him since." He also stated that he intended to stay for "a week or two," and when asked whether he feared persecution or torture if he returned to Mexico, he said, "No." The applicant signed a sworn statement before the Border Patrol officer and was ordered removed on April 20, 2010. When the applicant returned to the United States illegally on May 11, 2016, the Department of Homeland Security ("DHS") reinstated his prior order of removal from 2010.

The applicant now claims that he fears he will be tortured at the hands of the Michoacán Cartel if he returns to Mexico. He asserts that members of the cartel came to his aunt's house in March 2010 and kidnapped his father. According to the applicant, they returned 2 days later and kidnapped him, threatening to brutally murder him, like they had his father, if he did not give them information. The applicant stated that he has not seen his father since his kidnapping. He asserts that he was released by the cartel after they determined he was not a member of a rival cartel.

Relying on substantial discrepancies between the applicant's 2010 border interview and his testimony in these proceedings, the Immigration Judge found that the applicant lacked credibility and denied his request for protection under the Convention Against Torture. On appeal, the applicant asserts that the Government documents the Immigration Judge considered are not reliable and that the record demonstrates he testified credibly.

II. ANALYSIS

A. Border and Airport Interviews

As a preliminary matter, the applicant challenges the reliability of his border interview and contests its consideration in the adverse credibility finding. Generally, there is a presumption of reliability of Government documents. See Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995) (stating that "information on an authenticated immigration form is presumed to be reliable in the absence of evidence to the contrary presented by the alien").

Information obtained from DHS interviews conducted at the border or an airport prior to removal proceedings must be both accurate and reliable for the purposes for which the document is being used. Circuit courts, including the United States Court of Appeals for the Ninth Circuit, in whose jurisdiction this case arises, have reversed adverse credibility findings based on such interviews when they lacked adequate safeguards. See Yan Xia Zhu v. Mukasey, 537 F.3d 1034, 1040-41 (9th Cir. 2008); Singh v. Gonzales, 403 F.3d 1081, 1088-90 (9th Cir. 2005); see also Tang v. U.S. Att'y Gen., 578 F.3d 1270, 1279-80 (11th Cir. 2009); Moab v. Gonzales, 500 F.3d 656,660-61 (7th Cir. 2007); Balasubramanrim v. INS, 143 F.3d 157, 162-64 (3d Cir. 1998). However, the courts have upheld the use of these interviews if there were adequate indications of their reliability. See Li v. Ashcroft, 378 F.3d 959, 962-63 (9th Cir. 2004); see also Conde Cuatzo v. Lynch, 796 F.3d 153, 156 (1st Cir. 2015); Qing Hua Lin v. Holder, 736 F.3d 343, 352-53 (4th Cir. 2013); Rama v. Holder, 607 F.3d 461, 466-67 (7th Cir. 2010); Shkambi v. U.S. Att'y Gen., 584 F.3d 1041, 1049-52 (11th Cir. 2009); Ramsameachire v. Ashcroft, 357 F.3d 169, 178-82 (2d Cir. 2004).

When Congress codified factors to be considered in credibility determinations, it authorized Immigration Judges to base an adverse credibility finding on a consideration of "the totality of the circumstances, and all relevant factors," including, as relevant here, "the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made)," as well as "the consistency of such statements with other evidence of record." REAL ID Act of 2005, Div. B of Pub. L. No. 109-13, § 101(a)(3), 119 Stat. 302, 303 ("REAL ID Act"); see also sections 208(b)(1)(B)(iii), 240(c)(4)(C), 241(b)(3)(C) of the Act, 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1229a(c)(4)(C), 1231(b)(3)(C) (2012).² This broad language encompasses statements made in border and airport interviews, as long as the Immigration Judge takes into account any issues regarding the circumstances under which they were made.³ See Ye v. Lynch, 845 F.3d 38, 45 (1st Cir. 2017).

The import of the case law regarding these DHS interviews is that, as a preliminary issue, it is necessary to consider whether there are persuasive reasons to doubt the alien's understanding of the interviewer's questions. See Nadmid v. Holder, 784 F.3d 357, 360-61 & n.1 (7th Cir. 2015) (noting that the interpreter spoke a language in which the alien was only minimally proficient); Balasubramanrim, 143 F.3d at 159-64 (doubting the reliability of the interview, in part because of the alien's inability to understand and respond to questions); cf. Ye, 845 F.3d at 44 (rejecting a challenge to an adverse credibility finding where the alien indicated at the time of the interview that he understood the interpreter's questions but subsequently claimed otherwise). The most basic consideration is whether an interpreter was provided if one was requested. Senathirajah v. INS, 157 F.3d 210, 213(3d Cir. 1998) (noting that the alien requested an interpreter before making a statement, but none was provided).

If the alien's statements from the interview are being contrasted with his or her subsequent testimony, it is important to have a detailed and reliable recitation of the questions and answers from the interview. See Moab, 500 F.3d at 660-61; Singh, 403 F.3d at 1089-90; see also Matter of S-S-, 21 I&N Dec. 121, 124 (BIA 1995) (stating the importance of having "a reliable record of what transpired at [the] interview" in order to "evaluate questions with respect to credibility"). Further, to support a finding that the statements are actually inconsistent, the questions asked during the interview should be designed "to elicit the details of an asylum claim," and the interviewer should ask follow-up questions to develop the alien's account. Ramsameachire, 357 F.3d at 180 (citation omitted); see also Yan Xia Zhu, 537 F.3d at 1041 (rejecting an adverse credibility finding because the alien's interview statements, rather than being inconsistencies, were a "vague outline" of her more detailed testimony at the hearing and were not followed up with additional questions).

Finally, some courts have recognized special considerations related to an alien's individual circumstances that may affect the reliability of his or her answers. See, e.g., Moab, 500 F.3d at 661 (finding that the alien's unwillingness to disclose his sexual orientation out of fear of further harm was reasonable); Fiadjoe v. Att'y Gen. of U.S., 411 F.3d 135, 159-60 (3d Cir. 2005) (recognizing that a female alien who suffered sexual abuse in her home country may be less willing to provide details of the trauma to a male immigration official); cf. Shkambi, 584 F.3d at 1049-52 (rejecting the alien's explanation that his inconsistencies and omissions in an airport interview resulted from his fear of being returned to his home country). The Immigration Judge should address any arguments made regarding these issues and explain why they are or are not persuasive in the case.

In assessing the interview, the Immigration Judge should consider the totality of the circumstances presented, based on the evidence presented and the arguments raised by the parties. In Ramsameachire, 357 F.3d at 180, the Second Circuit enumerated the following factors to be considered in determining whether the interview is reliable: (1) whether the record of the interview is verbatim or merely summarizes or paraphrases the alien's statements; (2) whether the questions asked are designed to elicit the details of a claim and the interviewer asks follow-up questions that would aid the alien in developing his or her account; (3) whether the alien appears to have been reluctant to reveal information to the interviewer because of prior interrogation sessions or other coercive experiences in his or her home country; and (4) whether the alien's answers to the questions posed suggest that he or she did not understand English or the interpreter's translations.

In Ye, 845 F.3d at 44, the First Circuit rejected the argument that it should adopt these factors. Noting that the REAL ID Act was enacted after the Second Circuit's decision in Ramsameachire, the court declined to...