FEFE
20 I. & N. Dec. 116 (1989)
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Rule of Law:
An applicant for asylum cannot meet their burden of proof unless they testify under oath regarding their application, and an immigration judge should not adjudicate a written asylum application if no oral testimony has been offered in support thereof, absent a specific stipulation by the parties.
Facts:
- Fefe is a 24-year-old native and citizen of Haiti who arrived in the United States on November 5, 1988.
- Fefe completed a Request for Asylum in the United States (Form I-589), including a two-page, typewritten addendum detailing his fear of persecution in Haiti.
- At Fefe's exclusion hearing, his counsel stated they would "just rest on" the I-589, and the Service attorney declined to cross-examine Fefe.
- The immigration judge denied Fefe's requests for asylum and withholding of deportation, reviewing only his written testimony, which the judge described as "self-serving" and lacking corroboration, stating, "[w]e don't know whether his story is true or not."
Procedural Posture:
- The Immigration and Naturalization Service (INS) initiated exclusion proceedings against Fefe by issuing a Notice to Applicant for Admission Detained for Hearing (Form I-122), alleging inadmissibility under sections 212(a)(19) and (20) of the Immigration and Nationality Act.
- An immigration judge denied Fefe's requests for asylum and withholding of deportation and ordered his exclusion and deportation from the United States.
- Fefe, as the appellant, appealed the immigration judge's decision to the Board of Immigration Appeals.
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Issue:
Does an immigration judge err by adjudicating a written asylum application without oral testimony from the applicant, when no stipulation regarding the consistency and credibility of the written application has been made?
Opinions:
Majority - Board of Immigration Appeals
Yes, an immigration judge errs by adjudicating a written asylum application without oral testimony from the applicant, particularly without a stipulation. The Board of Immigration Appeals found that the immigration judge did not comply with federal regulations, specifically 8 C.F.R. § 208.6 and 8 C.F.R. § 236.3(a)(2), which require an asylum applicant to be "examined in person" and "examined under oath on his application." Citing Matter of Balibundi, the Board reiterated that an asylum application should not be adjudicated if the applicant fails to appear. The Board emphasized that oral testimony is an "essential aspect" of the asylum adjudication process, important for fairness to the parties and the integrity of the process, as it allows for the detection of discrepancies or omissions, identifies fabricated claims, and can establish eligibility not apparent from documents alone. To meet the standard from Matter of Mogharrabi (testimony must be believable, consistent, and detailed), an alien must present oral testimony. Therefore, an immigration judge must inform counsel that an alien cannot meet their burden of proof without testifying under oath, unless the parties stipulate that oral testimony would be entirely consistent with the written application and believably presented.
Analysis:
This case establishes a critical procedural requirement for asylum hearings, mandating oral testimony under oath from applicants unless specific stipulations are met. It reinforces the importance of direct examination for assessing credibility and the thoroughness of an asylum claim, thereby preventing adjudication based solely on potentially unsubstantiated written statements. This decision ensures a more robust and equitable process for evaluating asylum eligibility, fostering greater consistency and integrity in immigration court proceedings.
