Argued and Submitted June 12, 2013 —San Francisco, California
On Petition for Review of a Final Order of the Board of Immigration Appeals Agency Nos. A-098-144-358, A-098-144-359.
Jonathan M. Kaufman, Law Offices of Jonathan M. Kaufman, San Francisco, California, for Petitioners.
John Blakeley (argued), Tony West, Assistant Attorney General, Civil Division, Emily Radford, Assistant Director, and Patrick J. Glen, Office of Immigration Litigation, Department of Justice-Civil Division, Washington, D.C., for Respondent.
Before: Marsha S. Berzon and Jay S. Bybee, Circuit Judges, and Consuelo B. Marshall, District Judge. [*]
The panel granted a petition for review of the Board of Immigration Appeals' decision terminating petitioners' asylum status.
The panel held that the Board erred by relying on impeachment evidence only in concluding that the Department of Homeland Security had established grounds for termination of asylum by a preponderance of the evidence. The panel explained that DHS could not meet its burden in this case through rebuttal documents submitted in conjunction with the adverse inference drawn from petitioner Sumaira Urooj's refusal to answer questions at the hearing.
Dissenting, Judge Bybee would deny the petition because the IJ based his decision not only on an adverse inference drawn from Urooj's refusal to testify, but also on her sworn statement admitting to concocting a false story to support the asylum application. Judge Bybee wrote that even if the Board erred by improperly applying its own precedent, the proper procedure would be to remand to the Board for an explanation and further proceedings.
MARSHALL, District Judge
Petitioners Sumaira Urooj ("Urooj") and her husband, Khalid Mahmood Turk ("Turk"), seek review of the Board of Immigration Appeals' ("BIA") dismissal of their appeal from a final order of removal. The order terminated their asylum status and held them removable under § 237(a)(1)(B) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(1)(B), for remaining in the United States longer than permitted. The order also held Urooj removable for misrepresenting a material fact, and declared that Urooj had filed a frivolous asylum application.
Petitioners seek review on three bases: First, the Department of Homeland Security ("DHS") failed to establish grounds for termination of asylum by a preponderance of the evidence. Second, the IJ violated Urooj's due process rights when he did not require DHS to adhere to the local operating procedures requiring advance disclosure of both witnesses and exhibits. Finally, the BIA's decision affirming the IJ's finding that Petitioners' asylum application was frivolous was not supported by substantial evidence.
Because we agree that the BIA erred in finding that DHS established grounds for termination of asylum by a preponderance of the ...