Dan Kowalski reports from LexisNexis Immigration Community:
https://www.ca5.uscourts.gov/opinions/pub/19/19-60647-CV0.pdf
https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca5-on-due-process-credibility-nkenglefac-v-garland#
“Petitioner Giscard Nkenglefac, a native and citizen of Cameroon, applied for admission into the United States on May 9, 2018. The immigration judge (“IJ”), Agnelis Reese, denied Nkenglefac’s application for relief from removal and ordered him removed to Cameroon after determining that Nkenglefac was not credible. The Board of Immigration Appeals (“BIA”) subsequently affirmed the IJ’s determination, and Nkenglefac was removed to Cameroon. Nkenglefac now petitions for review of the BIA’s dismissal of his appeal from the IJ’s denial of application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Nkenglefac challenges the IJ’s reliance on his U.S. Customs and Border Protection (“CBP”) and asylum credible fear interviews that were not entered into the hearing record of the removal proceeding, nor, indeed, raised in that hearing at all, to make an adverse credibility finding. … Nkenglefac argues that the IJ erred as a matter of law by drawing negative credibility inferences from summaries of his CBP and credible fear interviews because neither interview was submitted into the record during his proceeding, much less adverted to. Nkenglefac also argues that he did not waive this argument because he could not have raised the issue before the IJ given that he had no notice the IJ would rely on these documents prior to issuance of her decision. … [A]t no point during the hearing before the IJ was Nkenglefac provided with the opportunity to explain any apparent inconsistencies or dispute the accuracy of the records in question, or cross examine the individuals who prepared the interview summaries, much less object to their introduction, or offer views on weight to be given to the evidence. Inspection of the hearing record confirms that Nkenglefac was not given the opportunity to explain perceived inconsistencies in the government summaries of his prior uncounseled interviews.5 Indeed, the voluminous testimonial record, including extensive government cross-examination and IJ direct inquiry, gives no indication that Nkenglefac had previously made any inconsistent statements, yet the IJ, three months later, determined that “inconsistencies and omissions . . . undermine critical parts of Respondent’s claim” to such an extent that the court denied “Respondent’s application based on lack of credibility.” … The BIA majority—affirming the IJ’s decision—also determined that Nkenglefac’s argument regarding the absence of the CBP and credible fear interviews from the record was “waived” because “the [trial] transcript reflects that [Nkenglefac’s] former counsel never requested that these records . . . be made a part of the record.” However, we fail to understand why Nkenglefac’s counsel should have introduced these government summaries into the record to anticipate and explain later-perceived inconsistencies when they were never identified, referenced, or discussed. It is also worth noting that there is no evidence—beyond the statement of the BIA majority—that Nkenglefac’s counsel failed to preserve this issue on appeal. The issue was discussed at length in Nkenglefac’s appeal brief to the BIA and again in his brief to this court. Furthermore, this observation stands in contravention to existing BIA law that “an adverse credibility determination should not be based on inconsistencies that take an alien by surprise.” Matter of Y-I-M-, 27 I. & N. Dec. 724, 726-29 (BIA 2019) (quote at 726). Notably, the Government’s brief on appeal does not argue that Nkenglefac has waived this argument. … We GRANT the petition for review and REMAND this case to the BIA for further proceedings consistent with this opinion.”
[Hats waaaayyyy off to Homero López, Jr., who reports that he is in touch with his client and is hopeful of bringing him back to the USA. Audio of the oral argument is here.]
—
Daniel M. Kowalski
Editor-in-Chief
Bender’s Immigration Bulletin (LexisNexis)
cell/text/Signal (512) 826-0323
@dkbib on Twitter
dan@cenizo.com
Free Daily Blog: www.bibdaily.com
***********************
Once again, credibility, the problematic issue in this case, is not a profound legal concept. It’s supposedly the “bread and butter of Immigration Judging.” Yet, both the IJs and the BIA continue to often get it wrong. Perhaps “dead wrong” in the cases of asylum seekers! Why isn’t this fundamental flaw at the all-important “retail level” of our justice system receiving the necessary attention and corrections from Garland and the Biden Administration?
As one “Courtside Commenter” said:
I think this is the IJ who retired with a 100% asylum denial rate [actually it was 99.4%, denying 155 of 156 claims she “heard” — but didn’t listen to — over a career that lasted far too long]!And Cameroon is now a TPS country.
This decision is proof perfect of EOIR’s deportation assembly line approach.And I’ve mentioned a number of times the alarming problems with CBP arrival statements noted by the US Commission for International Religious Freedom, an internal government component, which has repeatedly flagged the fact that the resulting “statements” are not the verbatim transcripts they appear to be, and often contain questions that were never actually asked of the respondent.
How bad was this now retired Judge who has been the subject of frequent adverse publicity? See, e.g., https://www.topic.com/your-judge-is-your-destiny; https://www.motherjones.com/crime-justice/2019/07/inside-the-courtroom-where-every-asylum-seeker-gets-rejected/.
As pointed out in the above comment, Cameroon is now a TPS country. Additionally, one of the “five top nationalities” that came before this “asylum denial machine” were asylum seekers from Eritrea. Although they found no success with her, the EOIR statistics for FY 2022 show that that every “merits decision” on Eritrean asylum was granted. There were exactly ZERO, “0” merits denials. See https://www.justice.gov/eoir/page/file/1107366/download.
Thankfully, Judge Reese has retired. But the endemic problems she symbolized, the lack of effective appellate review, and disdain for due process for asylum seekers by the BIA remain overarching problems that Garland has stubbornly failed to effectively address.
Additionally, in another “under the radar yet highly significant problem,” Garland’s OIL within the USDOJ Civil Division continues to “defend the indefensible” coming out of the BIA. This wastes Government and private sector litigation resources, not to mention precious Article III Court time. It also turns due process and immigrant justice in the U.S. into a random game of chance.
Obviously, there is a severe lack of leadership all over the USDOJ under Garland. Moving toward the “halfway point” in the Biden Administration, there still is no appointed and confirmed Assistant Attorney General for the Civil Division!
🇺🇸Due Process Forever!
PWS
05-20-22
