Elen Grigoryan v. William Barr, 959 F.3d 1233

Karen Grigoryan and family were granted asylum in the U.S. in 2001; derivatives (wife and two children) admitted later; family lived in U.S. ~14 years.
In 2005 USCIS served a Notice of Intent to Terminate alleging fraud in Petitioner’s asylum application; Petitioner was not given details or exemplars of the alleged fraudulent documents.
A one‑page DHS Report of Investigation (ROI) dated March 2008 referenced unnamed investigators and exemplars allegedly showing several documents were fraudulent; the Grigoryans were not allowed to inspect exemplars or cross‑examine investigators.
IJ proceedings in 2010 and 2011 admitted the ROI over objection; IJ found some documents nonfraudulent but also made adverse credibility findings and denied relief; BIA affirmed; case reopened after Nijjar v. Holder.
On remand in 2015 the IJ terminated the family’s asylum without an evidentiary hearing, relied heavily on the ROI and prior adverse credibility findings, and ordered removal; BIA affirmed.
Ninth Circuit held DHS’s admission and reliance on the ROI—without opportunity to examine exemplars or cross‑examine witnesses—violated the family’s Fifth Amendment due process rights; vacated and remanded for further proceedings.

Issue	Grigoryan's Argument	Barr/DHS's Argument	Held
Jurisdiction to terminate asylum	DHS/USCIS lacked authority to trigger termination; only AG may terminate	IJ may terminate after DHS notice; regulations allow IJ action	IJ had jurisdiction to terminate; Nijjar does not bar DHS from requesting termination before an IJ
Admission/reliance on ROI (due process)	Admission of single‑page ROI without exemplars or cross‑examination denied due process and a fair opportunity to rebut	Angov and agency reports permit use; Grigoryans had time to review ROI	Admission and reliance on ROI violated Fifth Amendment due process because it was the sole proof, lacked indicia of reliability, and defendants could not meaningfully rebut it
Whether DHS met burden to prove fraud by preponderance	DHS failed to prove fraud; half the ROI allegations were rebutted	ROI established fraud going to heart of claim; IJ/BIA gave it considerable weight	Court did not reach merits due to due process violation; government conceded without ROI fraud not established by preponderance
Denial of renewed asylum/withholding/CAT relief	Denial premised on improperly admitted ROI and tainted credibility findings	Prior credibility findings and ROI supported denial	Merits not decided; vacated IJ and BIA decisions and remanded for proceedings where government must first meet termination burden and Grigoryans get full opportunity to rebut ROI

Nijjar v. Holder, 689 F.3d 1077 (9th Cir. 2012) (limits on USCIS termination authority; background for reopening)
Angov v. Lynch, 788 F.3d 893 (9th Cir. 2015) (admissibility of foreign investigative letters; distinguished on due process grounds)
Urooj v. Holder, 734 F.3d 1075 (9th Cir. 2013) (standard of review and DHS burden to terminate asylum)
Cinapian v. Holder, 567 F.3d 1067 (9th Cir. 2009) (due process right to fair hearing in removal proceedings)
Colmenar v. INS, 210 F.3d 967 (9th Cir. 2000) (full and fair hearing requirement)
Cruz Rendon v. Holder, 603 F.3d 1104 (9th Cir. 2010) (prejudice standard for due process challenges)
Banat v. Holder, 557 F.3d 886 (8th Cir. 2009) (reports of investigation lacking detail violate due process)
Anim v. Mukasey, 535 F.3d 243 (4th Cir. 2008) (same)
Alexandrov v. Gonzales, 442 F.3d 395 (6th Cir. 2006) (same)
Ezeagwuna v. Ashcroft, 325 F.3d 396 (3d Cir. 2003) (concern about government letterhead and reliability)