On November 8, 2019, the Board of Immigration Appeals (BIA or Board) sustained a DHS appeal, reopened removal proceedings and remanded the record to the Immigration Judge (IJ) so that the government could attempt to prove by a preponderance of the evidence that Respondent’s asylum application was fraudulent. The IJ had granted asylum to Respondent in 2013 and DHS had waived appeal. But the Department filed a motion to reopen, seeking termination of the asylum grant based on fraud, in 2017. The IJ denied the motion almost 4 months later and DHS appealed to the BIA. In support of its motion, DHS had submitted evidence that the attorney who had prepared Respondent’s asylum application had been convicted of conspiracy to commit immigration fraud in 2014, based on “overt acts she committed between 2010 and 2012.” On appeal, the Department claimed that the IJ erred by finding that the attorney’s conviction and related information from the investigation did not amount to new or previously unavailable evidence and that the evidence submitted was insufficient to support reopening.
The issue on appeal, stated the Board, revolved around the “regulatory framework” that sets forth the legal standard governing the reopening of proceedings for a hearing on whether to terminate a grant of asylum. The opinion initially cited to 8 C.F.R. §1208.24, which sets forth the procedure for DHS to follow when it seeks to terminate a grant of asylum by the IJ or BIA, i.e., the requirement to establish, by a preponderance of the evidence, one or more of the grounds set forth in that section. These include that there was fraud in the application, such that a respondent “was not eligible for asylum at the time it was granted.” The Board also noted that, because the basis for the motion was fraud in the original proceeding, the time and number limitation did not apply, per 8 C.F.R. §1003.23(b)(1). However, such a motion will not be granted – per §1003.23 – unless the IJ is satisfied that the evidence sought to be offered is material, was not previously available and could not have been discovered or presented at the prior hearing.
The BIA first restated the rule that information is “material” when it has a natural tendency to affect the official decision of the adjudication. Thus, held the Board, reopening to terminate an asylum grant is warranted if the Department “can demonstrate that there is evidence of fraud in the original proceeding that was not previously available and is material because, if known, it would likely have opened up lines of inquiry” that could call the applicant’s asylum eligibility into doubt.
In support of its motion, DHS submitted proof that Respondent’s lawyer had been convicted of immigration fraud a year after the IJ granted asylum; this evidence included conviction records and a sentencing memo “explaining that the vast majority of the cases the attorney worked on involved fraud and had fact patterns similar to” those in Respondent’s case. As such, the Board expressly disagreed with the IJ’s conclusion that the evidence was not new or previously unavailable because the lawyer was indicted before the asylum grant. The BIA thus held that the attorney’s conviction record and the sentencing memo’s information related to her fraudulent acts were, in fact, not previously available and could not have been discovered or presented at the prior hearing, citing to 8 C.F.R. §1003.23(b)(3). Similarly, the opinion stated that evidence the attorney had prepared Respondent’s asylum application during the same period she “worked on numerous similar applications that were the basis for her conviction” is material, as is evidence that her associates testified as to the nature and extent of her fraud. Had they been known at the time, concluded the BIA, these facts “would have opened up other lines of inquiry for the DHS to pursue” relevant to the bona fides of Respondent’s application and would have called into question her eligibility for asylum.
The Board, therefore, held that reopening to terminate the grant of asylum was warranted and that, in reopened proceedings, DHS carries the burden of proof to establish by a preponderance of the evidence that Respondent’s asylum application was fraudulent, that she was not eligible for asylum when it was granted, and that she was not eligible on the true facts. The record was remanded to the IJ for further proceedings and for entry of a new decision. Matter of X-Q-L-, 27 I&N Dec. 704 (BIA 2019).