Category Archives: Border Interview

BIA Holds That In Deciding On Whether To Consider A Border Or Airport Interview In Making A Credibility Determination, An IJ Should Assess The Accuracy And Reliability Of The Interview Based On The Totality Of The Circumstances, Rather Than Relying On Any One Factor In A List Or On A Mandated Set Of Inquiries.

On February 20, 2018, the Board of Immigration Appeals (BIA or Board) issued a decision dismissing an appeal in a case where the respondent had stated at a border interview that he came to the U.S.  to look for his father and that he did not fear persecution or torture in Mexico; he was subsequently removed. Upon later reentering without inspection, he asserted before the Immigration Judge (IJ) that he feared torture if returned home, testifying that cartel members had kidnapped his father, then kidnapped and threatened him.  Because of the discrepancies between his border statement and his testimony in court, the IJ found respondent lacked credibility and denied his CAT claim. On appeal, the appellant claimed that Government documents considered by the IJ were not reliable and that he had testified credibility.

In its analysis, the BIA first noted that respondent challenged both the reliability of his border interview and its consideration in the adverse credibility finding, stating that courts have upheld the use of these interviews if there were adequate indications of their reliability.  The Board further found that Congress authorized IJs to base an adverse credibility finding on a consideration of the totality of the circumstances and all relevant factors, including the consistency between one’s written and oral statements, as well as “the consistency of such statements with other evidence of record.”  This broad language, the decision stated, encompasses “statements made in border and airport interviews” as long as the IJ takes into account “any issues regarding the circumstances under which they were made.”

Therefore, the preliminary issue, held the BIA, is whether there are persuasive reasons to doubt the applicant’s understanding of the interviewer’s questions.  The “most basic consideration” is whether an interpreter was provided if one was requested. Where the applicant’s interview statements are contrasted with his or her subsequent testimony, the court needs “a detailed and reliable recitation of the questions and answers from the interview.”  The Board therefore concluded that in assessing the interview, the IJ should weigh the totality of the circumstances presented, based on the evidence and arguments of record. Citing to Ramasameachire v. Ashcroft, 357 F.3d 169 (2nd Cir. 2004),  the BIA enumerated four factors to be considered in determining whether an interview was reliable, then noted that other courts of appeal had rejected the adoption of these standards, agreeing that IJs should not be required to determine the reliability of Border Patrol interviews “using specifically enumerated factors”.  Although the Ramasameachire factors are proper considerations, found the opinion, IJs should assess reliability based on the totality of circumstances, rather than relying on any one factor among a list or on a mandated set of inquiries.  

The BIA next noted that here the applicant claimed he had difficulty understanding the officer at his border interview, that he does not recall being asked about his fear of harm if returned to Mexico and that the statement was in English, which he does not read.  However, the Board found that “the record supports the Immigration Judge’s findings to the contrary,” reasoning that the reliability of DHS interviews is a matter of fact to be determined by the IJ and reviewed on appeal for clear error. Because respondent’s interview was conducted in Spanish; the evidence of record shows that specific, detailed questions were asked regarding his past experiences and fear of future harm; and, he presented no other factors that might have affected the reliability of the interview, the BIA concluded that the IJ did not clearly err in finding the interview documents were reliable and therefore could properly be considered as part of his credibility determination.  The adverse determination was not clearly erroneous held the Board, as the IJ had based his credibility ruling on “specific and cogent reasons” involving discrepancies between the applicant’s testimony and the documentary evidence, as well as his implausible explanations for the inconsistencies.

Finally, stated the opinion, the IJ had noted other inconsistencies relating to the injuries respondent claimed to have experienced and to the medical treatment he received after “his purported kidnapping and beating”.  Based on these inaccuracies and unpersuasive testimony, the BIA concluded there was no clear error in the IJ’s adverse credibility finding. Because the applicant lacked credibility and the evidence did not support his claim, he could not satisfy his burden and prove CAT eligibility.  The appeal was thus dismissed. Matter of J-C-H-F-, 27 I&N Dec. 211 (BIA 2018).

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