P-S-H, 26 I. & N. Dec. 329

Respondent (Indian national) was granted asylum by an IJ in 2003; DHS moved to reopen in 2010 to terminate the asylum grant based on alleged fraud in the original application.
DHS presented evidence: criminal convictions of respondent’s former attorneys for submitting a fraudulent medical certificate, a DHS investigation in India where the doctor denied issuing the certificate, and other indicia of template-style affidavits and narrative similarities.
The IJ reopened, found by a preponderance that fraud existed in the asylum application, and terminated the respondent’s asylum grant.
Respondent conceded his former attorney knew a medical certificate was fraudulent but argued he personally did not know of any fraud and that DHS must prove his knowledge to terminate asylum.
The Board reviewed whether DHS must show the applicant’s knowledge of fraud and whether DHS satisfied the second regulatory requirement that the fraud rendered the applicant ineligible at the time asylum was granted.

Issue	Respondent's Argument	DHS's Argument	Held
Was service of DHS motion defective?	Service was defective because IJ confirmed a different address at a later hearing	DHS mailed to the most recent address it had on file from 2007	Service not shown defective; respondent did not timely challenge and DHS used more recent address
Must DHS prove applicant knew about fraud to terminate asylum?	DHS must prove respondent knowingly committed fraud to terminate asylum	Regulation requires showing "fraud in the application" but does not require applicant’s knowledge	DHS need not prove applicant knew of the fraud to satisfy the first regulatory element
What must DHS prove beyond existence of fraud? (eligibility at time asylum granted)	Fraud alone insufficient; respondent argued eligibility should be assessed in light of his lack of knowledge	DHS must also prove the fraud was such that, under the true facts, the applicant was ineligible when asylum was granted	Two-step test: DHS must show (1) fraud in the application and (2) that the fraud rendered the applicant ineligible at the time; remand required for IJ to determine eligibility under true facts
Did IJ err by not adjudicating CAT relief on reopening?	IJ should have considered Convention Against Torture relief	DHS sought reopening only to terminate asylum; respondent did not seek CAT relief in reopened proceedings	No error in decline to consider CAT on reopening; respondent may raise CAT on remand if he chooses

Ntangsi v. Gonzales, 475 F.3d 1007 (8th Cir. 2007) (Eighth Circuit required DHS to prove applicant committed and knew of fraud to terminate asylum)
Hailemichael v. Gonzales, 454 F.3d 878 (8th Cir. 2006) (court vacated termination where DHS had not proved the applicant knew alleged falsity)
Yeimane-Berhe v. Ashcroft, 393 F.3d 907 (9th Cir. 2004) (submission of an allegedly fraudulent document is not dispositive of credibility when no showing the applicant knew of falsity)
Forbes v. INS, 48 F.3d 439 (9th Cir. 1995) (knowledge of falsity is required to find inadmissibility for fraud or willful misrepresentation)
Nijjar v. Holder, 689 F.3d 1077 (9th Cir. 2012) (discusses authority to terminate asylum and regulatory limitations)