In re S-B-

• Decision Date: 02 November 2006
• Docket Number: Interim Decision No. 3545.
• Citation: 24 I&N Dec. 42
• Parties: In re S-B-, Respondent.
• Court: U.S. DOJ Board of Immigration Appeals

24 I&N Dec. 42

In re S-B-, Respondent.

Interim Decision No. 3545.

Board of Immigration Appeals.

Decided November 2, 2006.

(1) The provisions regarding credibility determinations enacted in section 101(a)(3) of the REAL ID Act of 2005, Div. B of Pub. L. No. 109-13, 119 Stat. 231, 303 (effective May 11, 2005) (to be codified at section 208(b)(1)(B)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(iii)), only apply to applications for asylum, withholding, and other relief from removal that were initially filed on or after May 11, 2005, whether with an asylum officer or an Immigration Judge.

(2) Where the respondent filed his applications for relief with an asylum officer prior to the May 11, 2005, effective date of section 208(b)(1)(B)(iii) of the Act, but renewed his applications in removal proceedings before an Immigration Judge subsequent to that date, the provisions of section 208(b)(1)(B)(iii) were not applicable to credibility determinations made in adjudicating his applications.

FOR RESPONDENT: Ted Sofer, Esquire, New York, New York.

BEFORE: Board Panel: HURWITZ, Acting Vice Chairman; MILLER, and GRANT, Board Members.

GRANT, Board Member.

In a decision dated June 16, 2005, an Immigration Judge found the respondent removable and denied his applications for relief based on his claim of persecution. The respondent has appealed from that decision. The appeal will be sustained and the record will be remanded to the Immigration Judge for further proceedings.

The Immigration Judge denied the respondent's applications for relief based on an adverse credibility finding, relying on the new provisions regarding credibility determinations enacted in the REAL ID Act of 2005, Div. B of Pub. L. No. 109-13, 119 Stat. 231 (enacted May 11, 2005) ("REAL ID Act"). The REAL ID Act amended section 208(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1) (2000), by adding a paragraph that specifies the factors to be considered by the trier of fact in making a credibility determination. REAL ID Act, § 101(a)(3), 119 Stat. at 303 (to be codified at section 208(b)(1)(B)(iii) of the Act, 8 U.S.C. § 1158(b)(1)(B)(iii)).¹ The REAL ID Act provides that its framework for assessing credibility shall "take effect on the date of the enactment of this division [May 11, 2005] and shall apply to applications for asylum, withholding, or other relief from removal made on or after such date." REAL ID Act, § 101(h)(2), 119 Stat. at 305.

This case presents the question whether the REAL ID Act is applicable to the respondent's applications for relief. That determination depends on whether the effective date provision for section 208(b)(1)(B)(iii) of the Act refers to the date an application is initially filed with an asylum officer of the Department of Homeland Security ("DHS"), or the date it is subsequently filed with the Immigration Court.² We find that the effective date provision refers to the date the asylum application is initially filed, whether the filing is with an asylum officer or an Immigration Judge.

Prior to being placed in removal proceedings, the respondent filed an asylum application in July 2004 with the DHS. See 8 C.F.R. §§ 1208.4(a)-(b) (2006) (providing that aliens not yet in exclusion, deportation, or removal proceedings may file an application for asylum with the service center servicing the asylum office with jurisdiction over the place of the applicant's residence). After considering the respondent's application, an asylum officer placed the respondent in removal proceedings by filing a Notice to Appear (Form I-862) in September 2004. Under current regulations, if an asylum officer does not grant the application for asylum, the DHS must "refer the application to an immigration judge, together with the appropriate charging document, for adjudication in removal proceedings." 8 C.F.R. § 1208.14(c)(1) (2006). The respondent's application for asylum contains a July 19, 2004, time-stamp reflecting filing with the DHS asylum office and a June 16, 2005, time-stamp reflecting the date the Immigration Judge accepted the respondent's asylum application for filing in Immigration Court.

Since 2003, responsibility for adjudicating asylum claims has been shared by the Department of Homeland Security and the Attorney General.³ The REAL ID Act reflects this dual system by providing that the Secretary of Homeland Security or the Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the DHS or the Attorney General. Section 208(b)(1)(A) of the Act.

Since 1996, Congress has limited asylum eligibility, with certain exceptions, to an alien who establishes that "the application has been filed within 1 year after the date of the alien's arrival in the United States." Section 208(a)(2)(B) of the Act. This deadline may be met by filing an affirmative application with the asylum office within 1 year of arrival. Such an application may be renewed or refiled in removal proceedings before an Immigration Judge after the 1-year filing deadline has passed. In the context of the 1-year filing deadline, therefore, the general reference to the date the application is filed refers to the date the application is initially filed, whether with an asylum office or with an Immigration Judge. If an asylum application has been filed within 1 year of arrival with an asylum officer, the 1-year deadline does not apply to the date of filing a referred application with an Immigration Judge in removal proceedings.

Similarly, the statute affords employment authorization 180 days "after the date of filing of the application for asylum." Section 208(d)(2) of the Act. The employment authorization clock continues to run in a case in which an application is first filed with an asylum officer and then referred to an Immigration Judge for consideration in removal proceedings. 8 C.F.R. §§ 1208.7(b)-(c) (2006). Therefore, this reference to the "filing of the application for asylum" also refers to the date an asylum application is initially filed with an asylum officer or with an Immigration Judge.

As with the 1-year filing deadline and the employment authorization clock, the effective date provision at issue in this case refers generally to the date an application is made. Had Congress intended the statutory credibility provision to apply to applications filed prior to the effective date but then referred for filing with an Immigration Judge after the effective date, it could have so specified. See, e.g., Antiterrorism and Effective Death Penalty Act of 1996 Pub. L. No. 104-132, § 421(b), 110 Stat. 1214, 1270 (effective Apr. 24, 1996) (providing that certain amendments "shall take effect on the date of the enactment of this Act and apply to asylum determinations made on or after such date").

We find that the general reference to the date an application is filed in the effective date provision at issue refers to the date an application for asylum is initially filed, whether before an asylum officer or before an Immigration Judge. In this case, the application for asylum was initially filed with an asylum officer prior to the effective date of the REAL ID Act. Therefore the standards for determining credibility in the existing case law, to the extent that they differ from the provisions of section 208(b)(1)(B)(iii) of the Act, should be applied in adjudicating the respondent's applications for relief.⁴

The Immigration Judge based his adverse credibility finding in this case on four factors, two of which involved events tangential to the respondent's claim to mistreatment in Guinea, his country of origin....