Ah May Ruth Lee v. Eric H. Holder, Jr.
765 F.3d 851
| 8th Cir. | 2014Background
- Lee, a Burmese national, entered the U.S. in 2007 on a fraudulent Thai passport and sought asylum in October 2008, alleging persecution by Burmese soldiers and multiple sexual assaults (including by Burmese soldiers, a Thai police officer, and an attempted assault by her father).
- After an IJ hearing, the IJ found Lee not credible due to numerous inconsistencies in her testimony and prior statements (childhood, residences, employment, her daughter’s identity and documents, and delayed reporting of sexual assaults) and discredited corroborating evidence.
- Lee changed counsel and appealed to the BIA, claiming ineffective assistance by prior counsel for failing to present or explain delayed reporting of sexual assaults; she submitted a therapist’s letter and a cousin’s affidavit and a shipping label as evidence of a bar complaint.
- The BIA held Lee failed to meet Matter of Lozada procedural requirements for an ineffective-assistance claim (shipping label insufficient), but nonetheless reviewed the merits and concluded the IJ’s adverse credibility findings were not clearly erroneous and denied remand.
- Lee later moved to reopen with additional psychological records and affidavits; the BIA denied reopening as the new evidence was substantially similar to previously submitted evidence and would not likely change the outcome.
- The Eighth Circuit denied Lee’s consolidated petitions for review, finding no abuse of discretion in the BIA’s denials because the additional evidence would not have overcome multiple, material credibility inconsistencies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA abused discretion by denying remand to consider new evidence and ineffective-assistance claim | Lee: new therapist letter and cousin affidavit explain delayed reporting and translation issues; prior counsel was ineffective under Lozada | Government/BIA: Lozada requirements not met; evidence presented does not overcome IJ credibility findings or justify remand | Denied — BIA did not abuse discretion; Lozada defect noted and, on the merits, additional evidence would not have changed credibility finding |
| Whether BIA abused discretion by denying motion to reopen with further evidence | Lee: additional counseling records and affidavits are new, material, and would likely change the result | BIA: new evidence is substantially similar to earlier evidence and does not establish prima facie entitlement or materiality to alter outcome | Denied — BIA reasonably concluded the new evidence would not likely change the result; no abuse of discretion |
Key Cases Cited
- Clifton v. Holder, 598 F.3d 486 (8th Cir. 2010) (abuse-of-discretion standard for remand)
- Strato v. Ashcroft, 388 F.3d 651 (8th Cir. 2004) (standards for motions to reopen/remand; new evidence must likely change result)
- Zine v. Mukasey, 517 F.3d 535 (8th Cir. 2008) (deference to BIA decisions)
- Esenwah v. Ashcroft, 378 F.3d 763 (8th Cir. 2004) (BIA abuse-of-discretion definition)
- Feleke v. INS, 118 F.3d 594 (8th Cir. 1997) (factors for BIA abuse of discretion review)
- Berte v. Ashcroft, 396 F.3d 993 (8th Cir. 2005) (BIA will not remand for evidence that was available earlier)
- Khalaj v. Cole, 46 F.3d 828 (8th Cir. 1995) (grounds for denying motions to reopen)
- Clemente-Giron v. Holder, 556 F.3d 658 (8th Cir. 2009) (adverse credibility may rest on numerous material inconsistencies)