26 I. & N. Dec. 360
BIA2014Background
- Respondent (Mexican national) applied for special rule cancellation of removal under INA § 240A(b)(2) (VAWA-related relief) after long U.S. residence and with U.S. citizen children.
- IJ made an adverse credibility finding based on discrepancies between respondent’s and her father’s testimony about who accompanied her entry to the U.S. and relied on a 1997 fraudulent asylum application to deny good moral character (GMC) under INA § 101(f)(6).
- On remand the IJ concluded the false entry testimony was not given to obtain an immigration benefit but reaffirmed denial based on the 1997 asylum fraud and exercised discretion unfavorably citing respondent’s 2001 divorce from an abusive spouse and subsequent long-term relationship.
- Board previously remanded for clarification of the GMC finding; DHS did not oppose the appeal to the Board.
- Board held the 1997 asylum filing fell outside the 3-year GMC period for special-rule cancellation, the false-entry testimony was not shown to be for benefit, and respondent’s substantial equities (20+ years residence, family ties, no criminal record, unauthorized-work history) outweighed adverse factors.
- Appeal sustained; case remanded to IJ for completion/update of DHS identity, law enforcement, and security checks and further proceedings as necessary.
Issues
| Issue | Respondent's Argument | DHS/IJ Argument | Held |
|---|---|---|---|
| Whether adverse credibility finding precludes relief | Credibility finding was erroneous and not adequately explained | IJ relied on inconsistencies between respondent and father to support adverse credibility | Board upheld IJ’s adverse credibility finding as supported and explained |
| Whether pre-3‑year conduct (1997 asylum fraud) bars GMC under INA § 101(f)(6) | 1997 asylum fraud is outside the 3‑year GMC period and should not bar eligibility | IJ treated 1997 fraud as disqualifying for GMC | Board held conduct outside the coterminous 3‑year GMC period (continuing application accrues until final admin order), so 1997 fraud may not be considered to bar GMC |
| Whether respondent merits discretionary relief given divorce/remarriage | Respondent urged full consideration of equities and distinguished Matter of A‑M‑ | IJ emphasized divorce/remarriage and prior VAWA relief in A‑M‑ as adverse; weighed fraud and credibility heavily | Board distinguished A‑M‑, found respondent had not received prior VAWA relief and that her positive equities outweighed negatives; granted remand for checks |
| Procedural relief requested (remand, further proceedings) | Asked Board to reverse and grant relief or remand for proper analysis | IJ denied relief and found respondent failed to meet burden | Board sustained appeal and remanded for DHS background checks and further proceedings as needed |
Key Cases Cited
- Wang v. Holder, 569 F.3d 531 (5th Cir. 2009) (REAL ID Act permits adverse credibility findings based on inconsistencies and totality of circumstances)
- Xiu Xiu Lin v. Mukasey, 534 F.3d 162 (2d Cir. 2008) (any inconsistency may support adverse credibility under REAL ID Act)
- Zhang v. Gonzales, 432 F.3d 339 (5th Cir. 2005) (standard for upholding IJ credibility findings requires support by record and reasoned explanation)