Introduction: Matter of X-Q-L-, 27 I&N Dec. 704 (BIA 2019)

On November 8, 2019, the Board of Immigration Appeals (BIA) published a precedential decision in the Matter of X-Q-L-, 27 I&N Dec. 704 (BIA 2019) [PDF version]. The case considered the standard for granting a Government motion to reopen proceedings to terminate a grant of asylum based on evidence of fraud. The Board held that if the Department of Homeland Security (DHS) demonstrates that there is evidence of fraud that was not available in the original proceedings and that, if known, would have opened up lines of inquiry that would call the alien’s eligibility for asylum into question. In this particular case, the Board reinstated removal proceedings where the DHS had proffered evidence that the alien’s attorney had been convicted of fraud relating to multiple asylum applications filed during the same period in which the alien applied for asylum.

In this article, we will examine the factual and procedural history of Matter of X-Q-L-, the Board’s analysis and conclusions, and what the decision may mean going forward.

Factual and Procedural History: 27 I&N Dec. at 704-05

The respondent in the case was a native and citizen of China. Her attorney prepared her application for asylum in May 2011. On November 26, 2013, the Immigration Judge granted the respondent’s application for asylum. The DHS waived appeal.

On October 31, 2017, the DHS moved to reopen removal proceedings against the respondent, seeking termination of the grant of asylum. The DHS motion was prompted by the fact that the respondent’s attorney had been convicted of conspiracy to commit immigration fraud on November 24, 2014. The conviction was based on overt acts which occurred between 2010 and 2012. The attorney prepared the respondent’s asylum application during that period.

On February 16, 2018, the Immigration Judge denied the DHS’s motion to reopen. The Immigration Judge determined that the evidence of fraud presented by the DHS was neither new nor previously unavailable because, although the attorney was not convicted until after the respondent had been granted asylum, the attorney had already been indicted prior to the grant of asylum. Furthermore, the Immigration Judge also found that the DHS’s evidence that this particular respondent had committed fraud was insufficient to warrant reopening. The Immigration Judge faulted the DHS for not submitting evidence showing that the respondent’s application was part of the larger fraud investigation connected to the attorney, or that the facts in the application followed a similar pattern to the attorney’s fraudulent applications.

The BIA appealed from the denial of its motion to the BIA. It argued that the Immigration Judge erred both in finding that its evidence was not new or previously unavailable and that it did not meet the threshold to support reopening.

Relevant Regulations and Precedents: 27 I&N Dec. at 705-06

The Board began by examining the important regulations and precedents regarding motions to reopen to terminate asylum.

8 CFR 1208.24(f) allows the DHS to move to reopen a case for the purpose of terminating a grant of asylum. In order to terminate the grant of asylum once removal proceedings have been reopened, the DHS must establish by the preponderance of the evidence that there was “fraud in the alien’s application such that he or she was not eligible for asylum at the time it was granted.” 8 CFR 1208.24(a)(1); 8 CFR 1208.24(f).

The DHS filed its motion to reopen with the Immigration Judge because the Immigration Judge had granted the respondent’s application for asylum in 2013, and because the DHS had waived its right to appeal. 8 CFR 1003.23. The numerical limit on motions did not apply in the instant case because the DHS had alleged fraud in the original removal proceedings. 8 CFR 1003.23(b)(1).

Under 8 CFR 1003.23(b)(3), the DHS’s motion to reopen could only be granted if it satisfied the Immigration Judge that the evidence presented was material and was not available or could not have been discovered or presented at the time of the original removal hearing.

The Supreme Court of the United States has held that information is “material” when it has a “natural tendency to affect[] the official decision” of the adjudicator. Kungys v. United States, 485 U.S. 759, 771 (1988) [PDF version]. The Board has held for over five decades that the central question in determining materiality of a misrepresentation is whether the misrepresentation has a tendency to shut off a line of inquiry which would have disclosed relevant facts to the alien’s eligibility for the benefit sought. See e.g., Matter of D-R-, 27 I&N Dec. 103, 115 (BIA 2017) [PDF version] [see article].

In the context of reopening proceedings to terminate a grant of asylum, the Board held that reopening is warranted “if the DHS 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 alien’s eligibility for asylum into doubt.” Citing to 8 CFR 1003.23(b)(3), 1208.24(a)(1), (f). The United States Court of Appeals for the Second Circuit, in whose jurisdiction [see article] the instant case arose, held similarly that the movant must satisfy the Immigration Judge that the information on which the motion is based is both material and was not previously available. Alrefae v. Chertoff, 471 F.3d 353, 361 (2d Cir. 2006) [PDF version]. The Board has previously held that motions should not ordinarily be granted unless the new evidence would likely change the result of the original proceeding. Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992) [PDF version].

Applying Rules to the Facts of the Instant Case: 27 I&N Dec. at 706-07

In the instant case, the DHS supported its motion to reopen with evidence that the respondent’s attorney was convicted of immigration fraud in 2014, one year after the Immigration Judge had granted the respondent’s application for asylum. This evidence included the conviction record and a sentencing memo, both of which explained that the majority of cases the respondent’s attorney had worked on involved fraud and had fact patterns similar to the respondent’s case. The record also specified that the conviction was for overt acts occurring in 2010-2012 — which the DHS highlighted as significant because the respondent’s attorney prepared the respondent’s asylum application in 2011.

First, the Board disagreed with the Immigration Judge’s conclusion that the evidence submitted by the Board was neither new nor previously unavailable at the time of the original hearing. The Immigration Judge had based this conclusion on the fact that the respondent’s attorney had already been indicted at the time the respondent’s application for asylum was granted. The Board noted, however, that an indictment is not the same thing as a conviction, and that it was not yet known at the time the respondent was granted asylum whether her attorney would be convicted. Because the respondent’s attorney had not been convicted at the time the asylum application was granted, the record of conviction and the sentencing memo were not available at the time and could not have been discovered or presented at the original hearing, as contemplated by 8 CFR 1003.23(b)(3).

The Board also disagreed with the Immigration Judge’s conclusion that the DHS’s evidence was immaterial, even if were previously unavailable. Contrary to the Immigration Judge, the Board held that it was material that the attorney had prepared the respondent’s application during the same period she had prepared numerous other fraudulent asylum applications that formed the basis of her criminal conviction. The Board explained that there was “evidence that the lawyer’s prior associates testified regarding the nature and extent of the fraud she committed” during the period she represented the respondent. The Board added that had these facts been known at the time of the respondent’s original proceedings, “they would have opened up other lines of inquiry for the DHS to pursue that are relevant to the authenticity of the respondent’s claim and would call into question her eligibility for asylum at the time of the grant.”

In denying the DHS’s motion, the Immigration Judge found that the DHS did not present sufficient evidence to prove that the respondent’s particular asylum application was fraudulent. The Board held, however, that the DHS did not have to prove that the respondent’s application was fraudulent in its motion to reopen. While the DHS would have to prove that the application was fraudulent by a preponderance of the evidence in reopened proceedings for the grant of asylum to be terminated, “the standard for reopening based on an allegation of fraud in the underlying proceedings is lower than the ‘preponderance of the evidence’ standard required to prove fraud in the reopened proceeding.” Thus, because the DHS submitted evidence indicating fraud that was not available at the time of the original proceeding and was material to the respondent’s eligibility for asylum, the Board concluded that reopening proceedings to terminate the respondent’s grant of asylum was warranted.

The Board explained that, in the reopened proceedings, the DHS would bear the burden of proof of establishing by a preponderance of the evidence that the respondent’s asylum application was fraudulent, that she was not eligible for asylum at the time it was granted, and that she would not have been eligible for asylum based on true facts. The Board has held previously that a preponderance of the evidence is “evidence which as a whole shows that the fact sought to be proved is more probable than not.” Matter of Lemhammad, 20 I&N Dec. 316, 320 n.5 (BIA 1991) [PDF version]. We discuss the “preponderance of the evidence” standard in detail in our article on Matter of E-M-, 20 I&N Dec. 77 (Comm. 1989) [see article]. The Board explained that the DHS may submit additional evidence to sustain its burden of proof, such as evidence derived from the USCIS review of the respondent’s asylum application establishing that it was fraudulent. The respondent will be granted the opportunity to rebut the DHS’s evidence in the reopened proceeding. While granting the DHS’s motion to reopen, the Board expressly “express[ed] no opinion on the outcome in remanded proceedings.”

Conclusion

Matter of X-Q-L- is significant for two main points. First, it clearly articulates the standard the DHS must meet in order to reopen removal proceedings to terminate a grant of asylum. The DHS must submit evidence that was not previously available in the original proceeding and that is material to the alien’s eligibility for asylum. Second, it distinguishes this standard from the standard for actually terminating a grant of asylum in reopened proceedings. If reopening is granted, the DHS then bears the higher burden of establishing that the asylum application was fraudulent by a preponderance of the evidence (that the application was more likely fraudulent than not, or probably fraudulent). The DHS does not have to establish that the application was probably fraudulent in order to reopen proceedings.

Alien’s seeking asylum in removal proceedings, or seeking to oppose a DHS motion to reopen proceedings, should work closely with a reputable immigration attorney. Immigration fraud carries serious, and often fatal, immigration consequences. For this reason, noncitizens should work with reputable immigration attorneys and be honest with their attorneys. An honest attorney may then vigorously represent his or her client based on facts.

To learn more about these and related issues, please see our website’s growing sections on asylum [see category], immigration appeals [see category], and removal and deportation defense [see category].