Elen Grigoryan v. William Barr ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELEN GRIGORYAN; SIRUN No. 16-73652
HARUTYUNYAN; ARTAVAZD
GRIGORYAN; KAREN Agency Nos.
GRIGORYAN, A075-748-697
Petitioners, A079-275-042
A079-275-043
v. A079-275-044
WILLIAM P. BARR, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 7, 2019
Pasadena, California
Filed June 2, 2020
Before: Mary H. Murguia and Andrew D. Hurwitz, Circuit
Judges, and Jack Zouhary, * District Judge.
Opinion by Judge Murguia
*
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
2 GRIGORYAN V. BARR
SUMMARY **
Immigration
Granting a petition for review of a Board of Immigration
Appeals decision, and remanding, the panel held that the
government violated petitioners’ due process rights by
failing to provide them a full and fair opportunity to rebut
the government’s fraud allegations before terminating their
asylum status.
The panel first rejected petitioners’ argument that the
immigration judge lacked jurisdiction to terminate their
asylum status. The panel explained that although Congress
conferred exclusively on the Attorney General the authority
to terminate asylum, the federal regulations specifically
contemplate that an IJ may terminate asylum after notice is
provided by DHS, and petitioners did not point to any
statutory proscription of this notice requirement and
regulatory framework. Because the government provided
sufficient notice of the fraud allegations and request to
terminate asylum, the panel concluded that the IJ had
jurisdiction.
The panel next held that despite having authority to
terminate petitioners’ asylum status, the government did not
afford petitioners due process in doing so. The panel
concluded that the IJ’s admission of, and reliance on, a
Record of Investigation (ROI), was fundamentally unfair
and did not comport with constitutional due process, because
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
GRIGORYAN V. BARR 3
it did not provide petitioners with sufficient information
about the fraud investigation, and thus failed to afford
petitioners a meaningful opportunity to rebut its allegations.
The panel explained that the single-page ROI referred to
unnamed investigators and “exemplars” of documents that
purportedly confirmed that some of the asylum application
materials were fraudulent, but did not identify any of the
named individuals, present supporting evidence to explain
the nature of the investigation, produce the referenced
exemplars, or proffer any government witnesses about the
alleged fraud. In addition, the panel stated that the ROI’s
indicia of reliability were further undermined because,
notwithstanding their limited ability to rebut the report’s
findings, petitioners were nonetheless able to show that half
of the identified documents were not fraudulent. The panel
stated that the mere fact that the ROI is a DHS document
does not absolve the government from affording petitioners
a fair opportunity to rebut its assertions.
Lastly, the panel held that petitioners were prejudiced by
the admission and consideration of the ROI, where the ROI
was the only evidence DHS introduced to support its fraud
allegations, the Board accorded it “considerable weight,”
and the government conceded at oral argument that without
admission of the ROI, fraud was not established by a
preponderance of the evidence.
The panel vacated the Board’s decision and the IJ’s order
of removal, and remanded for the Board to conduct further
proceedings consistent with this opinion.
4 GRIGORYAN V. BARR
COUNSEL
Catalina Gracia (argued), Law Office of Catalina Gracia,
Los Angeles, California; Areg Kazaryan, Law Offices of
Areg Kazaryan, Glendale, California; for Petitioners.
Sherease Rosalyn Pratt (argued), Senior Litigation Counsel;
S. Nicole Nardone, Trial Attorney; Anthony P. Nicastro,
Assistant Director; Office of Immigration Litigation, United
States Department of Justice, Washington, D.C.; for
Respondent.
OPINION
MURGUIA, Circuit Judge:
Our government granted asylum to Karen Grigoryan
(“Petitioner”), his wife, and two of their children
(collectively, the “Grigoryans”) in 2001. Beginning in 2005,
the Grigoryans were subjected to a protracted immigration
ordeal triggered by the government’s allegations of fraud in
Petitioner’s asylum application. The Grigoryans’
bureaucratic nightmare culminated when, after they had
resided in the United States for nearly fourteen years, an
immigration judge (“IJ”) terminated their asylum status,
denied their renewed requests for deportation relief, and
ordered them removed to Armenia.
The IJ terminated the Grigoryans’ asylum status by
relying almost exclusively on a single-page “report”
introduced by the Department of Homeland Security
(“DHS”) that purportedly revealed that Petitioner’s original
asylum application contained fraudulent documents.
Although the Grigoryans were not allowed to examine any
GRIGORYAN V. BARR 5
of the documents or the individuals referred to in the report,
they ultimately proved that half of the fraud allegations in
the report were unfounded. The IJ also relied on adverse
credibility findings entered against Petitioner at an earlier
hearing that never should have taken place. The question
before us is whether, in light of this series of missteps, the
agency erred in terminating the Grigoryans’ asylum status.
We have jurisdiction over the Grigoryans’ petition for
review pursuant to 8 U.S.C. § 1252. We hold that the
government violated the Grigoryans’ due process rights by
failing to provide them a full and fair opportunity to rebut
the government’s fraud allegations at the termination
hearing. We therefore grant the petition, vacate the decision
by the Board of Immigration Appeals (“BIA”) and the IJ’s
order of deportation, and remand to the BIA for further
proceedings consistent with this opinion.
I.
Petitioner was granted asylum by the now-defunct
Immigration and Naturalization Service (“INS”) 1 in
1
Congress significantly restructured our immigration system in
2003. As we explained in Nijjar v. Holder:
Prior to 2003, two agencies within the Department of
Justice—the Immigration and Naturalization Service
(INS) and the Executive Office of Immigration
Review (EOIR)—handled asylum applications. On
March 1, 2003, the INS ceased to exist. Most of its
functions were transferred to a new cabinet-level
department, the Department of Homeland Security.
Various agencies within the Department of Homeland
Security became responsible for the immigration
functions previously administered by the INS. One of
the new Department of Homeland Security agencies,
6 GRIGORYAN V. BARR
February 2001 on the basis that he was persecuted in
Armenia because of his association with the People’s Party
of Armenia. Petitioner’s wife and two of their children were
later admitted into the United States as asylees following-to-
join. Petitioner has a third child who is a minor born in the
United States.
A. 2005 Asylum Termination by USCIS
Four years after the INS’s grant of asylum, in January
2005, the United States Citizenship and Immigration
Services (“USCIS”) served Petitioner with a Notice of Intent
to Terminate Asylum Status. The notice claimed that a
USCIS investigation revealed that certain documents
Petitioner submitted in support of his asylum application
were fraudulent and, therefore, he was not eligible for
asylum. The notice also asked Petitioner to appear for a
scheduled interview to “present information and evidence to
show that [he was] still eligible for asylum.” The notice did
not otherwise describe the nature of the investigation or the
purportedly fraudulent documents.
Following Petitioner’s interview, USCIS served him
with a Notice of Termination of Asylum Status. That notice
informed Petitioner that the agency had terminated his
asylum status—and, consequently, the derivative asylum
the United States Citizenship and Immigration
Services (USCIS), administers asylum applications
through its asylum officers. The EOIR, which remains
an agency of the Department of Justice, also continues
to administer asylum applications, through
immigration judges.
689 F.3d 1077, 1078–79 (9th Cir. 2012) (footnotes omitted).
GRIGORYAN V. BARR 7
status of his wife and children—because of “fraud in [his]
application for asylum.”
B. 2011 Order of Removal by the IJ
Once USCIS revoked the Grigoryans’ asylum status,
DHS served them with Notices to Appear (“NTAs”) on the
basis that they were without authority to remain in the United
States. 2 Petitioner then sought asylum anew, with his wife
and children as derivatives. He also sought withholding of
removal and protection under the Convention Against
Torture (“CAT”).
Petitioner appeared before the IJ on three occasions in
August and September of 2010—over nine years after his
original asylum grant—to testify in support of his renewed
application for asylum. During these hearings, Petitioner
testified primarily about his past persecution in Armenia,
since he bore the burden of proving that he was entitled to
relief from deportation.
At the request of DHS, and over Petitioner’s objection,
the IJ admitted into evidence a one-page March 2008 Report
of Investigation (“ROI”) produced by DHS. The ROI stated
that, on August 8, 2006 (a year after USCIS revoked the
Grigoryans’ asylum status), “USCIS-Moscow received a
request from [an individual named] Rachel Ruane, ACC Los
Angeles, to open an investigation of several documents
issued to [Petitioner],” and that “USCIS-Moscow forwarded
this request to local investigators at the US Embassy in
Yerevan.” The ROI also listed four documents that unnamed
2
The NTAs served on the Grigoryans are on INS letterhead.
Because the INS no longer existed, see supra n.1, we assume DHS
served the NTAs. “We make this assumption because nothing else
makes any sense.” Nijjar, 689 F.3d at 1080.
8 GRIGORYAN V. BARR
local investigators suspected of being altered or fraudulent
based on “exemplars” of those documents. 3 The ROI further
indicated that there were no “fraud indicators” as to
Petitioner’s membership card and certificate from the
“People’s Party of Armenia.” The Grigoryans were not
provided any of the referenced exemplars or afforded an
opportunity to cross-examine any of the individuals
referenced in the ROI or government witnesses. 4
In August 2011, the IJ denied the Grigoryans’ renewed
applications for asylum, withholding of removal, and CAT
relief and ordered them deported. The IJ acknowledged that
Petitioner had shown that at least two of the documents
identified by DHS in the ROI were neither fraudulent nor
altered. The IJ also acknowledged that Petitioner had no
opportunity to cross-examine the preparer of the ROI and
that the report’s findings “lack detail.” The IJ further noted
that Petitioner offered additional documents to corroborate
his asylum claim—which DHS acknowledged were not
fraudulent—and that Petitioner “testified that he did not
personally obtain any of the documents which the Court []
found to be fraudulent, indicating that he may not have
known that the documents were fraudulent.” Nonetheless,
3
The ROI identifies the four documents as “[t]he letter from the
Ministry of Defense,” “[t]he NGO registration document,” “[t]he
document from the Ministry of Justice,” and a document from a hospital
in Armenia.
4
The ROI raises serious questions about the timing of the
government’s report and investigation. Although USCIS terminated the
Grigoryans’ asylum due to the allegedly fraudulent documents in August
2005, the ROI suggests that the government opened its investigation into
Petitioner’s asylum application documents a year later, in August 2006.
In addition, the ROI is dated March 2008—approximately two and a half
years after USCIS terminated the Grigoryans’ asylum status.
GRIGORYAN V. BARR 9
the IJ relied on the ROI in denying Petitioner’s applications,
concluding that the report was “fundamentally fair” and
“probative to [Petitioner’s] claim as well as to his credibility
because it discusses documents [Petitioner] submitted which
go to the heart of his asylum claim.” Based on the two
documents in the ROI that Petitioner was unable to rebut,
and on certain inconsistencies, omissions, and non-
responsive answers provided by Petitioner during his 2010
hearings, the IJ found him not credible. Therefore, the IJ
found the Grigoryans ineligible for relief from deportation
and ordered them removed to Armenia. The BIA upheld the
IJ’s decision and dismissed the appeal.
C. Nijjar and Reopening of Proceedings
Shortly after the BIA’s decision, we held in Nijjar that
the regulations authorizing USCIS to terminate asylum,
8 C.F.R. §§ 208.24(a), 1208.24(a), “are ultra vires because
the governing statute, 8 U.S.C. § 1158(c)(2), confers that
authority exclusively on the Attorney General.” 689 F.3d
at 1085–86. In light of Nijjar, the Grigoryans moved to
reopen their case, arguing that USCIS had unlawfully
terminated their asylum status in 2005. The BIA granted the
motion and remanded the case to the same IJ who had
conducted the prior proceedings.
On remand, the Grigoryans moved to terminate the
removal proceedings, arguing that DHS never had the
authority to terminate their asylum status and initiate the
removal proceedings. In the alternative, they again
requested asylum, withholding of removal, and CAT
protection. The government opposed the motion to
10 GRIGORYAN V. BARR
terminate proceedings and cross-moved to terminate the
Grigoryans’ asylum status. 5
Dall. 2015 Asylum Termination by the IJ
On February 9, 2015—fourteen years after the
Grigoryans were originally granted asylum—the IJ, without
conducting an evidentiary hearing, granted DHS’s motion to
terminate the Grigoryans’ asylum status and denied the
Grigoryans’ motion to terminate removal proceedings and
renewed applications for asylum, withholding of removal,
and CAT relief. The Grigoryans were again denied an
opportunity to cross-examine any government witnesses or
inspect the exemplars referenced in the ROI.
The IJ found that termination was warranted because
DHS “established by a preponderance of the evidence that
[Petitioner] committed multiple instances of fraud in his
asylum application,” again giving “considerable weight to
the findings from the ROI.” Moreover, relying on her prior
adverse credibility determination from 2011, and on
Petitioner’s inability to fully address or rebut the
government’s fraud allegations, the IJ found unconvincing
Petitioner’s claim that he did not know of the fraudulent
nature of the documents. The IJ reasoned that Petitioner had
sworn to the veracity of his asylum application, yet the ROI
5
DHS’s motion attached the ROI, USCIS’s 2005 Notice of Intent to
Terminate Asylum Status, and a Form I-261 titled “Additional Charges
of Inadmissibility/ Deportability” that alleged, among other things, that
Petitioner’s “asylum claim was fraudulent in that documents [he]
submitted as corroborating evidence of [his] role and membership in the
PPA Youth Party [were] found to be false and other issues,” and that
“[o]n August 19, 2005, USCIS issued this Notice to Appear to permit the
Attorney General to determine whether to terminate the prior grant of
asylum by USCIS.”
GRIGORYAN V. BARR 11
showed the documents were fraudulent. Therefore, the IJ
concluded, DHS established by a preponderance of the
evidence that Petitioner knew the documents were false and
intended to deceive the government. The IJ reiterated that
the documents identified as fraudulent in the ROI went “to
the very heart of [Petitioner’s] asylum claim.” Based on
these findings, the IJ terminated the Grigoryans’ asylum
status.
Finally, the IJ concluded that the Grigoryans were
removable because they no longer had asylum. Therefore,
she denied the Grigoryans’ renewed applications for asylum,
withholding of removal, and CAT relief, and ordered them
removed to Armenia.
The BIA subsequently dismissed the Grigoryans’ appeal.
As a threshold matter, the BIA held that the IJ had
jurisdiction to terminate the Grigoryans’ asylum status,
despite the improper original asylum termination by USCIS.
The BIA then concluded that the IJ did not err in finding that
DHS established fraud by a preponderance of the evidence.
The BIA reasoned that the IJ properly admitted and accorded
“considerable weight” to the ROI, which showed fraud in
Petitioner’s application, and that the allegedly fraudulent
documents “[went] to the heart” of Petitioner’s claim. 6
Finally, the BIA affirmed the IJ’s decision to deny asylum,
withholding of removal, and CAT relief. This petition for
review followed.
6
As part of its decision to terminate asylum, the BIA cited to Matter
of P-S-H-, 26 I. & N. Dec. 329, 333–36 (BIA 2014), which held that
DHS does not need to prove that the individual knew of the fraud in the
application. Accordingly, the BIA did not appear to adopt any of the IJ’s
findings regarding Petitioner’s knowledge about the fraudulent nature of
the documents.
12 GRIGORYAN V. BARR
II.
“On review from a decision to terminate asylum status,
this Court reviews the BIA’s factual findings for substantial
evidence,” and “[q]uestions of law are reviewed de novo.”
Urooj v. Holder, 734 F.3d 1075, 1077–78 (9th Cir. 2013)
(citing Brezilien v. Holder, 569 F.3d 403, 411 (9th Cir.
2009)). We review de novo claims of “due process
violations in removal proceedings.” Cruz Rendon v. Holder,
603 F.3d 1104, 1109 (9th Cir. 2010) (citing Sandoval-Luna
v. Mukasey, 526 F.3d 1243, 1246 (9th Cir. 2008) (per
curiam)).
III.
The Grigoryans challenge the BIA’s decision on four
grounds: (1) the IJ lacked jurisdiction to revoke their asylum
status; (2) DHS did not meet its burden of establishing fraud
by a preponderance of the evidence; (3) the government
violated the Grigoryans’ due process rights; and (4) the BIA
erred in denying the Grigoryans’ renewed applications for
asylum, withholding of removal, and CAT relief. We hold
that, although the IJ had jurisdiction to terminate the
Grigoryans’ asylum status, the government violated their
due process rights in doing so. Because the agency did not
properly terminate the Grigoryans’ asylum status, we need
not address whether the IJ erred in denying the Grigoryans’
renewed request for asylum, withholding of removal, and
CAT relief.
A. Jurisdiction
Relying on our decision in Nijjar, the Grigoryans claim
that DHS did not have authority to trigger termination
proceedings by issuing a Notice of Intent to Terminate
GRIGORYAN V. BARR 13
Asylum Status to Petitioner, because that authority is
reserved for the Attorney General.
The Grigoryans misread Nijjar. In that case, we held that
Congress conferred the authority to terminate asylum
exclusively on the Attorney General. Nijjar, 689 F.3d
at 1085–86. It does not follow, however, that DHS may not
request such termination by an IJ. Indeed, federal
regulations specifically contemplate that an IJ may terminate
asylum after notice is provided by DHS. See 8 C.F.R.
§§ 208.24(f), 1208.24(f); see also Urooj, 734 F.3d at 1077
(evaluating whether DHS met its burden of proving fraud to
terminate asylum, where DHS provided Notices to Appear
and Notices of Intent to Terminate Asylum Status to the
petitioners, and the IJ terminated the petitioners’ asylum
status). The Grigoryans do not point to any statutory
proscription of this notice requirement and regulatory
framework. 7
Consistent with federal regulations, DHS provided
Petitioner notice and the IJ adjudicated the asylum
termination. DHS also served the Grigoryans with NTAs
and amended Petitioner’s NTA with allegations of fraud in
Petitioner’s asylum application and a request that the IJ
determine whether termination of asylum was warranted.
We therefore find no error in the BIA’s decision that the IJ
had jurisdiction.
7
The Grigoryans do not dispute that the IJ—as opposed to USCIS—
may terminate their asylum status if there was fraud in Petitioner’s
application. See Nijjar, 689 F.3d at 1082 (“Fraud in the application is
not mentioned explicitly [in the INA], but is one of the ‘additional
limitations . . . under which an [individual] shall be ineligible for asylum’
that the Attorney General is authorized to establish by regulation.”
(quoting 8 U.S.C. § 1158(b)(2)(C))).
14 GRIGORYAN V. BARR
B. Due Process
Even though the IJ had the authority to terminate the
Grigoryans’ asylum status, we conclude that the government
did not afford the Grigoryans due process. “The right to a
fair hearing derives from the Due Process Clause of the Fifth
Amendment, which applies in removal proceedings.”
Cinapian v. Holder, 567 F.3d 1067, 1074 (9th Cir. 2009)
(citing Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000)).
The Grigoryans—who underwent a rigorous screening
process resulting in their admission into our country—must
be afforded “the full panoply of procedural due process
protections” under the Constitution, Angov v. Lynch,
788 F.3d 893, 898 (9th Cir. 2015), and “may be expelled
only after proceedings conforming to traditional standards of
fairness,” id. (quoting Shaughnessy v. United States ex rel.
Mezei, 345 U.S. 206, 212 (1953)). Due process requires “a
full and fair hearing,” Colmenar, 210 F.3d at 971, which, at
a minimum, includes a reasonable opportunity to present and
rebut evidence and to cross-examine witnesses, see
Cinapian, 567 F.3d at 1073–74; Hernandez-Guadarrama v.
Ashcroft, 394 F.3d 674, 681–82 (9th Cir. 2005).
“To prevail on a due process challenge to deportation
proceedings, [the Grigoryans] must show error and
substantial prejudice.” Lata v. INS, 204 F.3d 1241, 1246
(9th Cir. 2000) (citing Getachew v. INS, 25 F.3d 841, 845
(9th Cir. 1994)). The Grigoryans thus “must demonstrate
that the challenged proceeding ‘was so fundamentally unfair
that [they were] prevented from reasonably presenting
[their] case.’” Cruz Rendon, 603 F.3d at 1109 (quoting
Colmenar, 210 F.3d at 971). Substantial prejudice is
established when “the outcome of the proceeding may have
been affected by the alleged violation.” Colmenar, 210 F.3d
at 971.
GRIGORYAN V. BARR 15
Here, the IJ’s admission of, and reliance on, the ROI was
fundamentally unfair and did not comport with
constitutional due process. The report did not provide
sufficient information about the fraud investigation, and the
Grigoryans were not afforded a meaningful opportunity to
rebut its allegations. See, e.g., Banat v. Holder, 557 F.3d
886, 891–93 (8th Cir. 2009); Anim v. Mukasey, 535 F.3d
243, 256–62 (4th Cir. 2008); Alexandrov v. Gonzales,
442 F.3d 395, 407 (6th Cir. 2006); Ezeagwuna v. Ashcroft,
325 F.3d 396, 405–08 (3d Cir. 2003).
The single-page ROI refers to unnamed investigators and
“exemplars” of documents that purportedly confirm that
some of Petitioner’s asylum application materials are
fraudulent. However, DHS did not identify any of the named
individuals, present supporting evidence to explain the
nature of the investigation, produce the referenced
exemplars, or proffer any government witnesses about the
alleged fraud. Thus, the Grigoryans were not allowed a
meaningful opportunity to rebut the government’s fraud
allegations. See Banat, 557 F.3d at 891 (“Reliance on
reports of investigations that do not provide sufficient
information about how the investigation was conducted are
fundamentally unfair” and do not comport with due process
“because, without that information, it is nearly impossible
for the immigration court to assess the report’s probative
value and the [petitioner] is not allowed a meaningful
opportunity to rebut the investigation’s allegations.”);
Alexandrov, 442 F.3d at 407 (“We do not know who the
investigator was . . . We do not know how the investigation
was conducted. . . . There is not much that we do know aside
from the apparent conclusions of the mysterious
investigation. . . . We conclude that the [government’s]
reports in this case do not meet our standards of
16 GRIGORYAN V. BARR
trustworthiness and reliability and therefore were
improperly relied upon by the immigration court.”).
The ROI’s indicia of reliability are further undermined
because, despite their limited ability to rebut the ROI’s
findings, the Grigoryans were nonetheless able to show that
half of the identified documents were not fraudulent. In
addition, the mere fact that the ROI is a DHS document does
not absolve the government from affording the Grigoryans a
fair opportunity to rebut its assertions. See Ezeagwuna,
325 F.3d at 407 (“[W]e are concerned that the INS is
attempting to use the prestige of the State Department
letterhead to make its case and give credibility to the letter’s
contents. . . . [T]he [BIA’s] decisions cannot be sustained
simply by invoking the State Department’s authority.”
(quoting Li Wu Lin v. INS, 238 F.3d 239, 246 (3d Cir.
2001))). For all these reasons, we conclude that reliance on
the ROI was fundamentally unfair. 8
Relying on our decision in Angov, the government
argues that the Grigoryans were not denied due process. In
Angov, we held that the IJ’s admission of, and reliance on, a
letter prepared by a Department of State employee
summarizing an overseas investigation did not violate the
statutory rights of an asylum applicant. 788 F.3d at 899–
900. Angov does not control, however, for one important
reason: that case did not implicate constitutional due
8
DHS argues that the Grigoryans had five months to review and
examine the ROI and, therefore, they had an “opportunity to rebut the
[ROI]’s findings.” The fact that the Grigoryans may have had access to
the ROI, however, does not cure the due process violation because it does
not change the reality that the Grigoryans were not given a proper
opportunity to rebut the report’s allegations. See, e.g., Anim, 535 F.3d
at 250–51, 262 (finding due process violation even though petitioner had
knowledge of the government’s report for many months).
GRIGORYAN V. BARR 17
process. See id. at 898 n.3. Because Angov involved an
asylum applicant who had not “technically ‘entered’ the
United States,” id. at 898 (quoting Mezei, 345 U.S. at 212),
we examined only whether the government violated the
statutory rights that Congress afforded such applicants, id.
at 898–99. By contrast, our sister circuits that have
considered the due process question before us have held that
reliance on government records such as the ROI violates the
Fifth Amendment. See Banat, 557 F.3d at 891–93; Anim,
535 F.3d at 256–62; Alexandrov, 442 F.3d at 407;
Ezeagwuna, 325 F.3d at 405–08. We join those circuits
today and conclude that Angov does not foreclose the due
process claims of petitioners like the Grigoryans, who are
protected by the Fifth Amendment. 9
It cannot be seriously disputed that the Grigoryans were
prejudiced by the ROI’s admission and consideration. The
ROI was the only evidence DHS introduced to support its
fraud allegations, and the BIA accorded it “considerable
weight.” Indeed, the government conceded at oral argument
that without admission of the ROI, fraud was not established
by a preponderance of the evidence. Based on the ROI’s
9
Angov is also distinguishable because the petitioner in that case
bore the burden of proof at the hearing. 788 F.3d at 903. As a result,
DHS sought to admit the letter in question “solely to rebut or impeach
petitioner’s case.” Id. We acknowledged that the letter “lack[ed] certain
indicia of reliability,” but in light of the burden allocation and pursuant
to “our ‘extremely deferential’ review” of adverse credibility
determinations, we concluded in Angov that admission of the letter did
not constitute grounds to disturb the agency’s denial of asylum. Id.
at 902–03 (quoting Wang v. INS, 352 F.3d 1250, 1257 (9th Cir. 2003)).
Here, by contrast, the government bore the burden of proving the
grounds for terminating the Grigoryans’ asylum status by a
preponderance of the evidence. Urooj, 734 F.3d at 1078 (citing 8 C.F.R.
§ 1208.24(f)). DHS indeed sought to introduce the ROI to meet this
heavy burden, not merely for impeachment purposes as it did in Angov.
18 GRIGORYAN V. BARR
findings, the IJ terminated not only Petitioner’s asylum
status, but also that of his wife and children. In turn, the IJ
found the Grigoryans removable and ordered them deported
after they had built their lives in the United States for nearly
fourteen years. We thus have no difficulty concluding that
the IJ’s admission of, and reliance on, the ROI was
substantially prejudicial. See Cruz Rendon, 603 F.3d
at 1111.
The IJ’s error was compounded by the fact that Petitioner
had previously testified before the same IJ in 2010. Because
USCIS incorrectly terminated the Grigoryans’ asylum status
without congressional authority in 2005, Petitioner was
improperly forced to re-apply for asylum and to testify in
support of his claim. Therefore, at the 2010 hearings,
Petitioner was erroneously assigned the burden of proof and
the government sought to introduce the ROI to impeach him.
The IJ’s reliance on the ROI thus resulted in a series of
improper adverse credibility findings against Petitioner.
The IJ then infused the 2015 termination proceedings
with the testimony improperly obtained from Petitioner in
2010. Instead of conducting a new hearing in 2015, and
forcing the government to prove first and foremost that
termination of asylum was warranted notwithstanding what
transpired in 2010, the IJ instead referred back to her adverse
credibility findings from the 2010 hearings. As a result, the
IJ effectively conflated the findings from two proceedings
with different burden allocations. The sequence and manner
in which the IJ entered her findings further prejudiced the
Grigoryans. See Colmenar, 210 F.3d at 973 (“We do not
enjoy second-guessing the way Immigration Judges run their
courtrooms. But when a petitioner has so clearly been
denied a full and fair hearing, we have no choice. . . . This is
consistent with our role as judges, and the values of our
GRIGORYAN V. BARR 19
Constitution demand no less.”); see also Urooj, 734 F.3d
at 1079 (noting that it is an error to “improperly conflate[]
impeachment evidence with substantive evidence”).
It is also worth noting that DHS bears the initial burden
of proving, by a preponderance of the evidence, “fraud in
[Petitioner]’s application such that he . . . was not eligible for
asylum at the time it was granted.” 8 C.F.R. §§ 208.24(a)(1),
1208.24(a)(1); see Matter of P-S-H-, 26 I. & N. Dec. at 337
(“[A]lthough the Immigration Judge summarily concluded
that this fraud was such that the respondent was not eligible
for asylum at the time it was granted, she did not adequately
consider whether the respondent was eligible for asylum in
2003 but for the fraud in his application.”). In other words,
DHS must not only show that certain documents submitted
with Petitioner’s original application for asylum were
fraudulent. The government’s burden here is much higher:
It must show that Petitioner would not have been granted
asylum in 2001 but for the fraudulent documents. Matter of
P-S-H-, 26 I. & N. at 337. If, and only if, the government
meets this heavy burden, does the burden shift to the
Grigoryans to prove they are entitled to relief from
deportation. 10
10
We decline to decide at this juncture whether DHS must show that
Petitioner knew the documents were fraudulent. A serious question is
raised, however, whether the government can establish “fraud” in the
application without establishing that Petitioner knew the documents
were fraudulent. Compare Matter of P-S-H-, 26 I. & N. Dec. at 336
(“[W]e conclude that the regulations do not require the DHS to establish,
for purposes of showing that there was fraud in [petitioner’s] asylum
application, that the [petitioner] knew of the fraud.”), with Ntangsi v.
Gonzales, 475 F.3d 1007, 1012 (8th Cir. 2007) (“[T]he government
cannot meet its burden of proving fraud unless it can show that the
petitioner knows the statement or document is fraudulent at the time she
20 GRIGORYAN V. BARR
IV.
Because we find that admission of, and reliance on, the
ROI was improper and the ROI is the only purported
evidence of fraud in Petitioner’s application, we grant the
petition, vacate the BIA’s decision and the IJ’s order of
removal, and remand the case to the BIA to conduct further
proceedings consistent with this opinion. In any new
hearing, the government must first prove asylum termination
is warranted by a preponderance of the evidence. If the
Grigoryans’ asylum status is properly terminated, the agency
must then conduct a hearing to allow the Grigoryans an
opportunity to seek asylum and other relief from deportation.
On remand, the government must afford the Grigoryans a
full and fair opportunity to challenge the ROI.
PETITION FOR REVIEW GRANTED, VACATED,
AND REMANDED WITH INSTRUCTIONS. The
government shall bear the costs on appeal.
presents such evidence[.]”); see also Yeimane-Berhe v. Ashcroft,
393 F.3d 907, 911 (9th Cir. 2004) (holding that fraudulent documents
without knowledge are insufficient to deny asylum); In re Tijam, 22 I. &
N. Dec. 408, 424 (BIA 1998) (“Fraud requires that the respondent know
the falsity of his or her statement[.]”); Matter of G-R-, 7 I. & N. Dec.
508, 510 (BIA 1957) (interpreting “fraud” to mean a “false
representation or concealment of a material fact, made with knowledge
of its falsity and with intent to deceive the other party” (emphasis
added)).