BIA Holds That An Immigration Judge May Rely On Impeachment Evidence As Part Of A Credibility Determination Where The Evidence Is Probative And Its Admission Is Not Fundamentally Unfair, And The Witness Is Given An Opportunity To Respond To That Evidence During The Proceedings.
On June 30, 2022 the Board of Immigration Appeals (BIA or Board) dismissed the appeal of a respondent challenging the order of an Immigration Judge (IJ) denying his applications for asylum, withholding of removal, and CAT relief. Respondent, a native and citizen of Cameroon, applied for admission to the U.S. without valid immigration documents; charged with inadmissibility, he conceded the charge and applied for relief, as above. Respondent alleged persecution by the Cameroonian authorities because of his involvement with the Southern Cameroons National Council (“SCNC”). The IJ denied his applications based on an adverse credibility determination; the court also found that there were inconsistencies between Respondent’s testimony and images from his Facebook profile that DHS submitted during cross-examination to impeach his testimony.
Respondent challenged the IJ’s adverse credibility ruling, claiming on appeal that DHS’s impeachment evidence, namely, the images from his Facebook profile, were inadmissible hearsay and that its admission was fundamentally unfair. The BIA reviewed the IJ’s factual findings, including her credibility findings, under a “clearly erroneous” standard. Whether the impeachment evidence was admissible was a question of law, which was reviewed de novo.
Beginning its analysis, the Board found no clear error in the IJ’s credibility finding, as it was based on “specific and cogent reasons derived from the record.” Based on the totality of circumstances, the IJ found inconsistencies between Respondent’s testimony and the documentary evidence, similarities between Respondent’s statement and a witness’s affidavit, and implausible aspects to Respondent’s testimony.
During his testimony, Respondent had stated that he had gone into hiding in Cameroon in a location where he “lacked access to electricity, a cellphone, or the internet”; during cross-examination, DHS submitted social media images showing that Respondent posted and shared pictures on his Facebook profile during the period “when he was allegedly in hiding and without internet access. “Respondent objected to the admission of the images, speculating that a former girlfriend may have posted them while he was in hiding. The IJ overruled the objection and admitted the evidence, in part because of discrepancies between Respondent’s testimony and written application, but also because “he initially claimed he lost access to the Facebook account but later admitted that he had full access to it.”
Respondent contended that the IJ erred in admitting the evidence, arguing that the images were inadmissible hearsay. However, countered the BIA, hearsay rules are not binding in immigration court, as the “sole test” for admission of evidence is whether it is probative and its admission fundamentally fair. Here, concluded the decision, the impeachment evidence was probative of Respondent’s credibility because it indicated that he was not actually in hiding, without access to electricity, a cell phone, or the internet during the period that he claimed to be. Nor did the submission of the images violate his rights to due process; the fact that the impeachment evidence here was admissible under the stricter test of the Federal Roles of Evidence undermined Respondent’s due process argument. As such, held the opinion, an IJ may rely on impeachment evidence as part of a credibility determination where the evidence is probative, its admission is not fundamentally unfair, and the witness is given an opportunity to respond to that evidence during the proceedings.
Further, concluded the Board, the IJ’s findings as to other inconsistencies were also not clearly erroneous. There were unanswered questions regarding Respondent’s exact position and role in the SCNC but, when asked to explain them, he “stated that he purposely chose not to go into greater detail about his secretarial position.” Similarly, there was no clear error in the IJ’s finding that both Respondent’s written statement and the affidavit from an SCNC chairman contained “identical and uncommon phrases”; when asked about the similarities, Respondent did not explain why the statement and affidavit used “other identical language.” The decision thus found that the IJ could have reasonably inferred that these similarities were indicative of fraud.
Finally, Respondent testified to a 2011 beating which resulted in a spine injury and fractures to his eye and neck, preventing him from bending down or turning his head and causing hospitalization and 21 days of bed rest; a doctor’s note termed these injuries “permanent incapacities.” Yet Respondent also testified that upon leaving the hospital, he went out campaigning for the SCNC. Based on the claimed injuries, the BIA concluded that the IJ did not clearly err when she found it implausible that Respondent “would have been physically capable of campaigning within a few hours of being hospitalized” and that he had exaggerated the extent of his injuries.
Because the corroborating evidence did not independently establish Respondent’s claims, the IJ’s adverse credibility finding was dispositive of his ability to meet his burden of proof in establishing eligibility for relief. The IJ’s denial of these applications, which all had the same factual basis, was therefore affirmed, based on the adverse credibility finding. The appeal was dismissed. Matter of E-F-N-, 28 I&N Dec.591 (BIA 2022).