In re J-R-R-A
| Decision Date | 11 June 2015 |
| Docket Number | Interim Decision #3841 |
| Citation | 26 I&N Dec. 609 |
| Parties | Matter of J-R-R-A-, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
If an applicant for asylum has competency issues that affect the reliability of his testimony, the Immigration Judge should, as a safeguard, generally accept his fear of harm as subjectively genuine based on the applicant's perception of events.
FOR RESPONDENT: Kedron Benham, Esquire, Springdale, Arkansas
BEFORE: Board Panel: NEAL, Chairman; HOLMES and GREER, Board Members.
GREER, Board Member:
In a decision dated November 21, 2013, an Immigration Judge found the respondent removable under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I) (2012), and denied his applications for asylum, withholding of removal, and 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). The respondent has appealed from that decision. The appeal will be sustained in part, and the record will be remanded for additional consideration of the respondent's competency.
The respondent is a native and citizen of Honduras. He conceded removability through counsel and applied for relief from removal, claiming that he would be harmed upon his return to Honduras by a man who murdered his brother approximately 15 years ago.
During proceedings before the Immigration Judge, the respondent had difficulty meaningfully answering basic questions. His testimony was confusing and disjointed. His attorney expressed concern that the respondent has a cognitive disability that affected his ability to testify. However, counsel did not develop the record in this regard. Although theImmigration Judge observed that the respondent's behavior and testimony were unusual, he did not evaluate the respondent's mental competency.
In this decision, we address the safeguard of accepting an asylum applicant's fear of harm as subjectively genuine where competency issues affect the reliability of the applicant's testimony.
As a threshold matter, based on observations made by both the Immigration Judge and the respondent's counsel, we conclude that the respondent's competency should have been assessed. See Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011). In particular, the record reflects that the respondent was confused and frequently provided nonresponsive testimony before the Immigration Judge. For example, it is not in dispute that the respondent arrived in the United States in June 2012, but he testified that he arrived in 2006. He also stated that 2006 was "last year" at the time of the hearing, which occurred in 2013. In addition, the respondent laughed inappropriately during the hearing.
Based on these indicia of incompetence, the Immigration Judge should have taken measures to determine whether the respondent is competent to participate in these proceedings under the guidelines we outlined in Matter of M-A-M-, 25 I&N Dec. at 479-81. Accordingly, we will remand for the Immigration Judge to determine whether the respondent is competent for purposes of participating in immigration proceedings according to the framework set forth in that decision.
Given the facts of this case, we also find it appropriate to provide guidance regarding credibility assessments in cases involving aliens who are incompetent or who have serious mental health or cognitive issues that may affect their testimony, particularly with respect to asylum and related claims for relief from removal.
The Immigration Judge found that the respondent was not credible based on his demeanor and the inconsistencies in his testimony, which the Immigration Judge characterized generally as disjointed, confusing, and "self-serving." The Immigration Judge acknowledged counsel's concerns that the respondent may have cognitive difficulties, but he opined that such problems are "not a license to give incredible testimony." Based on hisfinding that the respondent was not credible, the Immigration Judge denied the respondent's claim without any further evaluation. On appeal, the respondent argues that the deficiencies in his testimony are the result of a cognitive disability or mental illness and are not reflective of an attempt to deceive the Immigration Judge.
To establish that a fear is well founded for purposes of asylum, the applicant must have a genuine subjective fear of persecution in the country of return and present evidence establishing an objective situation in which that fear is reasonable. Perkovic v. INS, 33 F.3d 615, 620-21 (6th Cir. 1994) (citing IKS v. Cardoza-Fonseca, 480 U.S. 421, 430-31, 440 (1987)); see also Gilaj v. Gonzales, 408 F.3d 275, 283-84 (6th Cir. 2005). Therefore, an assessment of an asylum applicant's claim involves both subjective and objective components. An applicant may meet his burden of proof through his own testimony standing alone, but only if the trier of fact is satisfied that the testimony "is credible, is persuasive, and refers to specific facts" sufficient to demonstrate that the applicant is a refugee. Section 208(b)(1)(B)(ii) of the Act, 8 U.S.C. § 1158(b)(1)(B)(ii) (2012).
Generally, when determining an asylum applicant's credibility, we are concerned with whether an individual is presenting false information in an attempt to bolster or fabricate an application for relief. However, in this case, we address the complicating issue of assessing an asylum claim where an individual has...
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