Lead Opinion
STRANCH, J., dеlivered the opinion of the court, in which DAUGHTREY, J., joined. CLAY, J. (pp. 642-44), delivered a separate dissenting opinion.
OPINION
We like to think that Poor Richard was right about honesty. See Farrington v. State of Tennessee,
Upon taking the stand, on direct examination by his оwn lawyer, Ruiz voluntarily confessed that his asylum application contained an untrue statement and that he repeated the lie at his 2007 asylum interview. He testified that a notary public had written his 1993 application for him because Ruiz could not read or write English at the time. Ruiz learned only after he submitted the application that the notary had written that Ruiz had been threatened by guerillas in Guatemala. In fact he had not.
Neаr the end of the hearing, the immigration judge asked, “[W]hy did you tell that to the Asylum Officer?” Ruiz replied:
Perhaps because I didn’t have the advice of an attorney and I made a comment with the same people, with the same people who have the same case as mine. And they told me you have to sustain what you said in the application because if you don’t, you are going to be, your work permit is going to be revoked and you are going to be deported. And to tell you the truth, from my working permits depends my life hood and my family’s life hood. I to tell the truth, I have this deep inside of me in my heart that I swear over the Bible to tell the truth and I didn’t.
A.R. 183. Ruiz’s lawyer explained why he had recanted:
Once [Ruiz] advised me that the information was not correct, we came to a decision that obviously if it’s not correct, we cannot go forward with it even if it’s going to hurt him, we can’t go forward with it. And in fact, we have to actually withdraw it and let the Judge know why it has been withdrawn. It’s not an easy choice to make. Obviously the lead respondent is and was very concerned about that because he knows that he made a mistake in April of 2007 [at the interview] as well as in June of 1993 [on his application].
A.R. 280. No government action preceded the retraction and the government’s lawyer told the immigration judge, “I really was not expecting this.” A.R. 263.
The governmеnt’s surprise was understandable: Mr. Ruiz had just voluntarily (and perhaps fatally) harmed his case for cancellation of removal. The government may only cancel removal if the applicant “has been a person of good moral character” during his time in the United States. 8 U.S.C. § 1229b(b)(l)(B). The problem for Ruiz is that “[n]o person shall be regarded as, or found to be, a person of good moral character,” 8 U.S.C. § 1101(f), if he “has given false testimony for the purpose of obtaining any benefits under this chapter,” including asylum, § 1101(f)(6). Mr. Ruiz’s statements during his 2007 interview constitute “false testimony” for the purposes of section 1101(f). See Medina v. Gonzales,
There is a longstanding exception to this rule, however: the doctrine of retraction. “[W]here an alien in an immigration proceeding testifies falsely under oath as to a material fact but voluntarily and without prior exposure of his false testimony comes forward and corrects his testimo
The immigration judge in this case did not considеr whether Ruiz had timely retracted his prior testimony. Instead, the judge found a “clear violation” of Section 101(f)(6). Although the judge believed that Ruiz had shown an honest remorse for his earlier false testimony, he held that the current remorse did not purge Ruiz from his prior false testimony. Accordingly, the judge concluded, Ruiz was “statutorily barred” from being determined to be a person of good moral character.
Ruiz appealed the ruling tо the BIA, arguing that his retraction had been both voluntarily and timely. Stating that “recantation must be timely and without delay,” the BIA, in a single-member decision, concluded that the retraction exception did not apply because it was not timely. “The respondent may have been able to benefit from this doctrine had he recanted his statements in his asylum application at the time of his asylum interview, but here he waited until he was cаlled to appear in Immigration Court seeking other relief,” the BIA wrote. “The respondent delayed retraction of his false testimony before the asylum officer for 4 years” and may not benefit from the doctrine of recantation.
We review the BIA’s resolution of a question of law de novo but, pursuant to the rule of Chevron U.S.A., Inc. v. Natural Resources Defense Council,
The facts are not in dispute. The question here is whether Ruiz’s voluntary confession qualifies under the doctrine of retraction — a question which turns on whether he timely retracted his false testimony.
Some decisions appear to consider the time between the false statement and the retraction as a relevant, but non-disposi-tive factor in determining timeliness — but only where there was also an imminent risk of exposure. See, e.g., Matter of Namio, 14 I. & N. Dec. at 414 (retraction not timely when one year had passed and exposure was imminent); Matter of Ngan, 10 I. & N. Dec. 725, 729 (BIA 1964) (retraction not timely when made “some three and half years later ... and after investigation disclosed evidence that the respondent was not in fact the person he claimed to be”); Valadez-Munoz v. Holder,
Unfortunately, the BIA’s retraction doсtrine is sometimes misunderstood. A decided minority of cases assume without analysis that retraction must occur very shortly after the false statement is made for it to be timely. See, e.g., Aoko v. Holder,
To recap: The issue addressed by the BIA is the statutory requirement that an applicant must be a person of “good moral character” to merit cancellation of removal, 8 U.S.C. § 1229b(b)(l)(B), as defined by the false testimony exclusion under 8 U.S.C. § 1101(f)(6). See Kungys,
The BIA’s decision at issue here, with precious little explanation, concludes Ruiz could not benefit from the retraction exception because he had “delayed retraction of his false testimony before the asylum officer for 4 years.” Perhaps the BIA thought four years to be so long that it saw no need to explain why. But in fact, its conclusion was incorrect under its own сorrect statement of the governing standard — that timeliness is determined by asking whether the false statement was retracted before it had been or was about to be exposed. Ruiz chose, to his own detriment, to retract his statement at the first opportunity he had to testify after his interview and where there is no evidence that his lie would ever have been exposed. It is no secret that the immigration system moves very slowly; Ruiz should not be prejudiced by the BIA’s own backlog. Here, the BIA’s interpretation of the retraction doctrine, although perhaps not “manifestly contrary to the statute,” was at variance with its own binding precedent and cannot stand. See Valdiviezo-Galdamez v. Att’y Gen. of the U.S.,
We cannot, however, determine eligibility for cancellation of removal under the four elements of 8 U.S.C. § 1229b(b)(l)(A)-(D). The IJ found that Ruiz had satisfied
We therefore VACATE the decision of the Board of Immigration Appeals and REMAND to the Board fоr further proceedings consistent with this opinion.
Dissenting Opinion
dissenting.
Although it is not entirely clear from the record that Petitioner Mario Ederrilso Ruiz-Del-Cid knew at the time he submitted an asylum application in 1993 that it contained false material statements, it was clear by 2007, that Petitioner was aware of these falsities. In fact, not only did Petitioner fail to retract those false statements at the time, he also repeated the lies again during an interview with an asylum officer. When asked by an immigration judge why he lied to the asylum officer, Petitioner stated as follows:
Perhaps because I didn’t have the advice of an attorney and I made a comment with the same people, with the same people that have the same case as mine. And they told me you have to sustain what you said in the application because if you don’t, you are going to be, your wоrk permit is going to be revoked and you are going to be deported.
(A.R. at 273.) The immigration judge and the Board of Immigration Appeals (“BIA”) found this explanation unconvincing. The majority disagrees, concluding that Petitioner’s explanation and the facts surrounding his case provide sufficient grounds for application of the doctrine of retraction. Because I disagree with the majority’s characterization of this doсtrine and its application in this case, I respectfully dissent.
First, it does not appear that the law on the doctrine of retraction is as clear as the majority would have us believe. In fact, the majority goes to some lengths to demonstrate that the only correct interpretation of this doctrine is one that does not consider the amount of time that passed between the making of the false statemеnt and the retraction of that statement. Although the majority casts aside the small number of cases and BIA decisions that considers the amount of time that passed between the false statement and the retraction, it appears that there is a non-inconsequential number of cases and BIA decisions that do, in fact, consider this amount of time, either as a dispositive issue or as a non-dispositive factor to bе considered by an immigration judge.
In the instant case, the BIA’s decision was based, in part, on those cases that define timeliness of retraction by the amount of time that passed until the retraction, and also on whether Petitioner retracted when it was possible to do so during his interview with the asylum officer. It does not appear that the BIA relied exclusively on the amount of time that passed; and even if it had, becausе this is a question “implicating ‘an agency’s construction of the statute which it administers,’ the [majority] should have applied the principles of deference described in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
Even accepting the majority’s definition of timeliness of retraction, I dispute the majority’s premise that Petitioner’s retraction meets the appropriate definition of timeliness. First, Petitioner’s retraction was not done “at the next appropriate opportunity.” Maj. Op. at 640. In fact, Petitioner admitted during his hearing before the immigration judge in 2011 that he was aware of the falsity of his statements to the asylum officer when he provided them in 2007. Even assuming that Petitioner’s false statements might have been excusable in 1993 due to faulty language translations or Petitioner’s lack of awareness, Petitioner was certainly aware that he made false statements under oath in 2007 — because he believed his status in the country would have been put in jeopardy had he corrected those statements at that timе. Petitioner did not need legal counsel to tell him that what he did was wrong. In fact, he openly admitted that he was aware that he lied under oath in 2007. Between 2007 and 2011, Petitioner had multiple opportunities to retract his false statements, but he failed to do so. Instead, he waited until his asylum application was denied and the Department of Homeland Security initiated removal proceedings against him. These facts alone provide substantial evidence to support the BIA’s determination that Petitioner failed to timely retract his false testimony.
Furthermore, it is not at all clear from the record that Petitioner’s retraction occurred before the exposure of his false testimony was imminent. One can easily read the facts of this case to conclude that Petitioner did not retract those statements voluntarily before their falsity was about to be exposed. (Petitioner initially made fraudulent statements in his 1993 asylum application, repeated those fraudulent statements under oath during an interview with an asylum officer in 2007 with the knowledge that those statements were false, and only after his application containing the false statements was denied and his attorney pushed him to correct those statements did he actually retract them before the immigration judge.) It appears from the record that Petitioner’s attorney pressured him to retract those statements because after learning of their falsity, the attorney was not willing to allow Petitioner to continue perjuring himself.
The law seems to contemplate that all of the circumstances surrounding a petitioner’s retraction may be taken into account in making a timeliness determination. In the instant case, where Petitioner permitted his fraudulent version of the facts to stand for at least four years and only retracted his false statements after it became clear to him that they would not be useful in his asylum proceedings, there is
I would therefore deny the petition for review on the basis that Petitioner’s failure to establish the requisite good moral character is dispositive of his claim, and remand is not warranted. See Reyes v. Holder,
Notes
. During the hearing before the immigration judge, Petitioner's attorney stated that
once [Petitioner] advised me that the information was not correct, we came to a decision that obviously if it’s not correct, we cannot go forward with it even if it’s going to hurt him, we can’t go forward with it. And in fact, we have to actually withdraw it and let the Judge know why it has been withdrawn. It's not an easy choice to make.... Once he was advised by counsel that that was inappropriate and could not go forward and must be cleared up no matter how it hurt him, he did it.
(A.R. at 279-81.)