Matter of Fefe, Interim Decision Number 3121

• Decision Date: 01 August 1989
• Docket Number: A-28556862,Interim Decision Number 3121
• Citation: 20 I&N Dec. 116
• Parties: MATTER OF FEFE In Exclusion Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

20 I&N Dec. 116

MATTER OF FEFE

In Exclusion Proceedings

Interim Decision Number 3121

A-28556862

Board of Immigration Appeals

Decided by Board August 1, 1989

(1) An applicant for asylum cannot meet his burden of proof unless he testifies under oath regarding his application; and, therefore, an immigration judge should not proceed to adjudicate a written application for asylum if no oral testimony has been offered in support of that application.

(2) At a minimum, the regulations require that an asylum applicant take the stand, be placed under oath, and be questioned as to whether the information in his written application is complete and correct; the examination of an applicant will ordinarily be this brief only where the parties have stipulated that the applicant's oral testimony would be consistent with his written application and that his testimony would be believably presented.

EXCLUDABLE: Act of 1952 — Sec. 212(a)(19) [8 U.S.C. § 1182(a)(19)] — Fraud or willful misrepresentation of a material fact

Sec. 212(a)(20) [8 U.S.C. § 1182(a)(20)] — No valid immigrant visa

ON BEHALF OF APPLICANT: Candace L. Jean, Esquire 7103 S.W. 102 Avenue Miami, Florida 33173

ON BEHALF OF SERVICE: John R. Frenkel General Attorney

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

In a decision dated February 17, 1989, the immigration judge denied the applicant's requests for asylum and withholding of deportation pursuant to sections 208(a) and 243(h) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(a) and 1253(h) (1982), and ordered that the applicant be excluded and deported from the United States. The applicant appealed. The record will be remanded for further proceedings.

The applicant is a 24-year-old native and citizen of Haiti. He arrived in the United States on November 5, 1988. The Immigration and Naturalization Service then initiated exclusion proceedings against the applicant by issuing a Notice to Applicant for Admission Detained for Hearing before Immigration Judge (Form I-122) which alleged that the applicant was inadmissible to the United States pursuant to sections 212(a)(19) and (20) of the Act, 8 U.S.C. §§ 1182(a)(19) and (20) (1982).

At his exclusion hearing, the applicant did not contest his excludability, but he requested asylum. He completed a Request for Asylum in the United States (Form I-589), including a two-page, typewritten addendum providing details concerning his fear of persecution in Haiti, which was forwarded to the Department of State Bureau of Human Rights and Humanitarian Affairs for an advisory opinion. See 8 C.F.R. § 236.3(a)(1) (1988).

The applicant appeared with counsel for the hearing on the merits of his asylum application. Applicant's counsel stated that because "the I-589 [is] such an extensive story in itself, we'll just rest on that." The Service attorney also declined to ask the applicant any questions concerning his written asylum request, stating that he was "not going to cross examine." In a closing statement, the Service attorney raised various questions regarding the nature of the information provided in the applicant's affidavit. The immigration judge then entered his decision denying the applicant's requests for asylum and withholding of deportation. In his decision, the immigration judge reviewed the applicant's written testimony but described his statements as "self-serving." The immigration judge also noted that the applicant had offered no corroboration for his Form I-589, and he stated that "[w]e don't know whether his story is true or not."

On appeal, the applicant contends that the immigration judge erred in denying his applications for asylum and withholding of deportation.¹ We find that the record should be remanded because the immigration judge has not complied with the regulations concerning asylum hearings.

The regulations regarding the procedure for adjudication of asylum applications provide at 8 C.F.R. § 208.6 (1988) that an "applicant shall be examined in person by an immigration officer or judge prior to the adjudication of...