Motion to Reopen after Asylum Denial Based on Adverse Credibility (Matter of F-S-N)

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Introduction: Matter of F-S-N-, 28 I&N Dec. 1 (BIA 2020)

On June 12, 2020, the Board of Immigration Appeals published a precedent decision in the Matter of F-S-N-, 28 I&N Dec. 1 (BIA 2020) [PDF version]. The Board's decision deals with motions to reopen immigration proceedings to apply for asylum/withholding based on a claim of changed country conditions. The Board held that where the respondent's claim of persecution was previously denied based on an adverse credibility finding in the prior proceedings, the respondent's motion to reopen based on changed country conditions may only be granted in either of two circumstances. First, the motion may be granted if the respondent can overcome the prior adverse credibility finding. Second, the motion may be granted if the respondent can show that the new persecution claim exists independent of the evidence that was previously found to be not credible.

In this article, we will examine the BIA's decision in Matter of F-S-N- and what it means going forward.

Factual and Procedural History of Original Denial: 28 I&N Dec. at 1-2

The Board first adjudicated Matter of F-S-N- on August 4, 2017. In the respondent's immigration court hearings, the immigration judge had determined that the respondent, a native and citizen of Cameroon, had failed to present credible evidence to establish a factual basis for her persecution claim.

The immigration judge's adverse credibility finding under INA 208(b)(1)(B)(iii) was based on inconsistencies, omissions, and contradictions in the respondent's testimony and evidence. The immigration judge also found that the respondent failed to present reasonably available evidence to support her claim in light of the fact that her testimony regarding the severity of her physical mistreatment was not corroborated by her credible fear interview, prior statements, medical records, or third party affidavits. Her claim that she had been in hiding was directly contradicted by other evidence in the record.

The immigration judge also found the respondent's assertion that the Cameroonian Government perceived her to be a member of an anti-government group and would arrest and detain her on that basis to be implausible based on the evidence presented.

The immigration judge afforded diminished weight to affidavits submitted on the respondent's behalf by her family, friends, and medical provider due to those statements both lacking detail and being inconsistent with the respondent's own statements.

In an unpublished decision, the Board agreed with the immigration judge's adverse credibility finding and affirmed the immigration judge's decision.

Instant Motion to Reopen: 28 I&N Dec. at 2

The respondent filed a motion to reopen her proceedings to pursue a persecution claim based on changed personal circumstances and country conditions in Cameroon.

The Board noted that the factual basis for her fear of persecution based on changed circumstances and country conditions “is essentially the same as her previous claim before the immigration judge…” Specifically, the respondent again alleged that the Cameroonian Government associated her with the Anglophone Nationalist Movement.

The respondent added to her original claim by asserting that a cousin in Cameroon who bore a close resemblance to her was arrested in July 2019 based on the mistaken assumption that the cousin was her. In support of this new claim, the respondent submitted undated affidavits from her mother, grandmother, a different cousin, and two of her mother's neighbors. The respondent also submitted an arrest warrant, search notice, and a letter from an attorney in Cameroon. She further submitted 2017 and 2018 general country conditions reports for Cameroon, neither of which specifically referenced her.

General Points on Motions to Reopen: 27 I&N Dec. at 2-3

In general, a motion to reopen removal proceeding must be filed within 90 days of the date of a final administrative order of removal. INA 240(c)(7)(C)(i). This time limitation does not apply, however, to motions to reopen seeking to pursue a claim for asylum or withholding of removal based on changed circumstances in the respondent's country of nationality, provided that such evidence is material and was both unavailable and could not have been presented at the time of the previous hearing. INA 240(c)(7)(C)(ii). The party moving to reopen must state the new facts that he or she intends to establish if reopening is granted, supported by affidavits or other evidentiary material. INA 240(c)(7)(B); 8 CFR 1003.2(c)(1), 1003.23(b)(3).

In order for reopening to be granted, the evidence presented in support of the motion must establish prima facie eligibility for relief. See e.g., INS v. Doherty, 502 U.S. 314, 323 (1992) [PDF version]; Matter of J-G-, 26 I&N Dec. 161, 169 (BIA 2013) [PDF version]. Citing to Supreme Court precedent, the Board explained that the respondent has the “heavy burden” of establishing that if reopening were granted, with all the delays that would entail, the new evidence would likely change the outcome of the case. INS v. Abudu, 485 U.S. 94, 110 (1988) [PDF version].

Motions to Reopen Based on Changed Country Conditions: 28 I&N Dec. at 3-4

The Board considers a respondent's motion to reopen based on changed country conditions by comparing the evidence of current country conditions with those that existed at the time of the merits hearing; Matter of S-Y-G-, 24 I&N Dec. 247, 253 (BIA 2007) [PDF version].

In cases such as the instant case where the respondent's earlier persecution claim was denied based on an adverse credibility finding in the underlying proceedings, the respondent must establish one of the following in order for the motion to reopen to be granted:

1. The respondent may overcome the prior adverse credibility determination; or
2. The respondent may show that the new claim is independent of the evidence previously found to not be credible.

See e.g., Paul v. Gonzales, 444 F.3d 148, 154 (2d Cir. 2006) [PDF version] (“[A]n applicant may prevail … despite an [Immigration Judge's] adverse credibility ruling …, so long as the factual predicate of the applicant's claim … is independent of the testimony that the [Immigration Judge] found not to be credible.”) (Emphasis added by the Board.) The Board need not consider whether the respondent who was previously denied based on an adverse credibility finding can make a prima facie showing that he or she is eligible for relief unless the respondent can either rebut the adverse credibility determination or present a claim that does not depend on the not credible facts.

The Board explained in pages 3-4 of the decision why its rule was consistent with decisions of the United States Court of Appeals for the Fourth Circuit, in whose jurisdiction the instant matter arose. The Board noted that, under Fourth Circuit precedent, when the respondent presents a changed country conditions claim that is based on information independent of the prior adverse credibility finding, the Board must at least address it in adjudicating the motion.

Adjudicating the Instant Motion: 28 I&N Dec. at 4-6

The Board found that the respondent in the instant case alleged factual circumstances that were previously determined to lack credibility. Furthermore, the respondent did not address the immigration judge's prior adverse credibility finding.

The Board acknowledged that the new motion was supported by new allegations. However, as the Board explained, the new evidence had a substantially similar factual basis to the evidence found to be not credible in the earlier proceedings. Thus, the Board described the new motion as consisting of, “in essence, a continuation of the respondent's previously discredited claims.”

The Board explained where it found the respondent's motion to reopen to be deficient. First, it found that the respondent's new evidence lacked specificity and detail. Her written statements and supporting affidavits were both undated and lacked specific reference to the mistreatment alleged. Second, the Board found that the new evidence did not explain the nature of the harm allegedly inflicted on the respondent's cousin.

The Board further noted that the respondent failed to present evidence addressing the immigration judge's having not found her claim of perceived membership in the Anglophone Nationalist Movement (SCNC) to be credible. The Board concluded that the respondent's allegation that her cousin was detained based on mistaken identity did not address the immigration judge's adverse credibility finding on this point. The Board reasoned that “[t]he respondent's failure to rehabilitate the credibility of her previous claim makes her statements that she is still pursued by law enforcement officials several years after her departure from Cameroon less believable.”

The Board noted that the respondent presented an arrest warrant on appeal. The warrant stated that she failed to appear for a summons that was issued in Cameroon in December 2014. The warrant, however, “ma[de] no reference to her perceived continued association with the SCNC.”

The Board concluded that the respondent's evidence of worsened country conditions were not sufficiently independent of her earlier claims in order to rehabilitate her credibility.

The Board also found that the respondent failed to establish that changed circumstances warranted an exception to the generally applicable 90-day filing deadline for motions to reopen. The Board added that the evidence did not indicate that the unrest in Cameroon subsequent to 2016 had materially deteriorated, but rather had continued in its general course. The Board explained that the lack of materially changed country conditions was a separate and independent basis for denying the respondent's motion to reopen.

For the foregoing, the Board denied the respondent's motion to reopen.

Conclusion

The Board's decision clarifies the rules for motions to reopen based on changed circumstances for a persecution claim after the respondent's original claim was adjudicated not credible. In order for the motion to succeed, the respondent must either rebut the original adverse credibility finding or present a claim predicated on facts that were not previously found to be not credible. Furthermore, in order for the motion to be exempt from the generally applicable filing deadline for motions to reopen proceedings, the changed circumstances must make a case materially different from those at issue in the original claim.

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