FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELEN GRIGORYAN; SIRUN 

HARUTYUNYAN; ARTAVAZD 

GRIGORYAN; KAREN 

GRIGORYAN,

Petitioners,

v.

WILLIAM P. BARR, Attorney 

General,

Respondent.

No. 16-73652

Agency Nos.

A075-748-697

A079-275-042

A079-275-043

A079-275-044

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted November 7, 2019

Pasadena, California

Filed June 2, 2020

Before: Mary H. Murguia and Andrew D. Hurwitz, Circuit 

Judges, and Jack Zouhary,* District Judge.

Opinion by Judge Murguia

* The Honorable Jack Zouhary, United States District Judge for the 

Northern District of Ohio, sitting by designation.
2 GRIGORYAN V. BARR

SUMMARY**

Immigration

Granting a petition for review of a Board of Immigration 

Appeals decision, and remanding, the panel held that the 

government violated petitioners’ due process rights by 

failing to provide them a full and fair opportunity to rebut 

the government’s fraud allegations before terminating their 

asylum status. 

The panel first rejected petitioners’ argument that the 

immigration judge lacked jurisdiction to terminate their 

asylum status. The panel explained that although Congress 

conferred exclusively on the Attorney General the authority 

to terminate asylum, the federal regulations specifically 

contemplate that an IJ may terminate asylum after notice is 

provided by DHS, and petitioners did not point to any 

statutory proscription of this notice requirement and 

regulatory framework. Because the government provided 

sufficient notice of the fraud allegations and request to 

terminate asylum, the panel concluded that the IJ had 

jurisdiction.

The panel next held that despite having authority to 

terminate petitioners’ asylum status, the government did not 

afford petitioners due process in doing so. The panel 

concluded that the IJ’s admission of, and reliance on, a 

Record of Investigation (ROI), was fundamentally unfair 

and did not comport with constitutional due process, because 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
GRIGORYAN V. BARR 3

it did not provide petitioners with sufficient information 

about the fraud investigation, and thus failed to afford 

petitioners a meaningful opportunity to rebut its allegations. 

The panel explained that the single-page ROI referred to 

unnamed investigators and “exemplars” of documents that 

purportedly confirmed that some of the asylum application 

materials were fraudulent, but did not identify any of the 

named individuals, present supporting evidence to explain 

the nature of the investigation, produce the referenced 

exemplars, or proffer any government witnesses about the 

alleged fraud. In addition, the panel stated that the ROI’s 

indicia of reliability were further undermined because, 

notwithstanding their limited ability to rebut the report’s 

findings, petitioners were nonetheless able to show that half 

of the identified documents were not fraudulent. The panel 

stated that the mere fact that the ROI is a DHS document 

does not absolve the government from affording petitioners 

a fair opportunity to rebut its assertions. 

Lastly, the panel held that petitioners were prejudiced by 

the admission and consideration of the ROI, where the ROI 

was the only evidence DHS introduced to support its fraud 

allegations, the Board accorded it “considerable weight,” 

and the government conceded at oral argument that without 

admission of the ROI, fraud was not established by a 

preponderance of the evidence.

The panel vacated the Board’s decision and the IJ’s order 

of removal, and remanded for the Board to conduct further 

proceedings consistent with this opinion.
4 GRIGORYAN V. BARR

COUNSEL

Catalina Gracia (argued), Law Office of Catalina Gracia, 

Los Angeles, California; Areg Kazaryan, Law Offices of 

Areg Kazaryan, Glendale, California; for Petitioners.

Sherease Rosalyn Pratt (argued), Senior Litigation Counsel;

S. Nicole Nardone, Trial Attorney; Anthony P. Nicastro, 

Assistant Director; Office of Immigration Litigation, United 

States Department of Justice, Washington, D.C.; for 

Respondent.

OPINION

MURGUIA, Circuit Judge:

Our government granted asylum to Karen Grigoryan 

(“Petitioner”), his wife, and two of their children 

(collectively, the “Grigoryans”) in 2001. Beginning in 2005, 

the Grigoryans were subjected to a protracted immigration 

ordeal triggered by the government’s allegations of fraud in 

Petitioner’s asylum application. The Grigoryans’ 

bureaucratic nightmare culminated when, after they had 

resided in the United States for nearly fourteen years, an 

immigration judge (“IJ”) terminated their asylum status, 

denied their renewed requests for deportation relief, and 

ordered them removed to Armenia.

The IJ terminated the Grigoryans’ asylum status by 

relying almost exclusively on a single-page “report” 

introduced by the Department of Homeland Security 

(“DHS”) that purportedly revealed that Petitioner’s original 

asylum application contained fraudulent documents. 

Although the Grigoryans were not allowed to examine any 
GRIGORYAN V. BARR 5

of the documents or the individuals referred to in the report, 

they ultimately proved that half of the fraud allegations in 

the report were unfounded. The IJ also relied on adverse 

credibility findings entered against Petitioner at an earlier 

hearing that never should have taken place. The question 

before us is whether, in light of this series of missteps, the 

agency erred in terminating the Grigoryans’ asylum status.

We have jurisdiction over the Grigoryans’ petition for 

review pursuant to 8 U.S.C. § 1252. We hold that the

government violated the Grigoryans’ due process rights by 

failing to provide them a full and fair opportunity to rebut 

the government’s fraud allegations at the termination 

hearing. We therefore grant the petition, vacate the decision 

by the Board of Immigration Appeals (“BIA”) and the IJ’s 

order of deportation, and remand to the BIA for further 

proceedings consistent with this opinion.

I.

Petitioner was granted asylum by the now-defunct 

Immigration and Naturalization Service (“INS”)1 in 

1 Congress significantly restructured our immigration system in 

2003. As we explained in Nijjar v. Holder:

Prior to 2003, two agencies within the Department of 

Justice—the Immigration and Naturalization Service 

(INS) and the Executive Office of Immigration 

Review (EOIR)—handled asylum applications. On 

March 1, 2003, the INS ceased to exist. Most of its 

functions were transferred to a new cabinet-level 

department, the Department of Homeland Security.

Various agencies within the Department of Homeland 

Security became responsible for the immigration 

functions previously administered by the INS. One of 

the new Department of Homeland Security agencies, 
6 GRIGORYAN V. BARR

February 2001 on the basis that he was persecuted in 

Armenia because of his association with the People’s Party 

of Armenia. Petitioner’s wife and two of their children were 

later admitted into the United States as asylees following-tojoin. Petitioner has a third child who is a minor born in the 

United States.

A. 2005 Asylum Termination by USCIS

Four years after the INS’s grant of asylum, in January 

2005, the United States Citizenship and Immigration 

Services (“USCIS”) served Petitioner with a Notice of Intent 

to Terminate Asylum Status. The notice claimed that a 

USCIS investigation revealed that certain documents 

Petitioner submitted in support of his asylum application 

were fraudulent and, therefore, he was not eligible for 

asylum. The notice also asked Petitioner to appear for a 

scheduled interview to “present information and evidence to 

show that [he was] still eligible for asylum.” The notice did 

not otherwise describe the nature of the investigation or the 

purportedly fraudulent documents.

Following Petitioner’s interview, USCIS served him 

with a Notice of Termination of Asylum Status. That notice 

informed Petitioner that the agency had terminated his 

asylum status—and, consequently, the derivative asylum 

the United States Citizenship and Immigration 

Services (USCIS), administers asylum applications 

through its asylum officers. The EOIR, which remains 

an agency of the Department of Justice, also continues 

to administer asylum applications, through 

immigration judges.

689 F.3d 1077, 1078–79 (9th Cir. 2012) (footnotes omitted).
GRIGORYAN V. BARR 7

status of his wife and children—because of “fraud in [his] 

application for asylum.”

B. 2011 Order of Removal by the IJ

Once USCIS revoked the Grigoryans’ asylum status, 

DHS served them with Notices to Appear (“NTAs”) on the 

basis that they were without authority to remain in the United 

States.2 Petitioner then sought asylum anew, with his wife 

and children as derivatives. He also sought withholding of 

removal and protection under the Convention Against 

Torture (“CAT”).

Petitioner appeared before the IJ on three occasions in 

August and September of 2010—over nine years after his 

original asylum grant—to testify in support of his renewed 

application for asylum. During these hearings, Petitioner 

testified primarily about his past persecution in Armenia, 

since he bore the burden of proving that he was entitled to 

relief from deportation.

At the request of DHS, and over Petitioner’s objection, 

the IJ admitted into evidence a one-page March 2008 Report 

of Investigation (“ROI”) produced by DHS. The ROI stated 

that, on August 8, 2006 (a year after USCIS revoked the 

Grigoryans’ asylum status), “USCIS-Moscow received a 

request from [an individual named] Rachel Ruane, ACC Los 

Angeles, to open an investigation of several documents 

issued to [Petitioner],” and that “USCIS-Moscow forwarded 

this request to local investigators at the US Embassy in 

Yerevan.” The ROI also listed four documents that unnamed 

2 The NTAs served on the Grigoryans are on INS letterhead. 

Because the INS no longer existed, see supra n.1, we assume DHS 

served the NTAs. “We make this assumption because nothing else 

makes any sense.” Nijjar, 689 F.3d at 1080.
8 GRIGORYAN V. BARR

local investigators suspected of being altered or fraudulent 

based on “exemplars” of those documents.3 The ROI further 

indicated that there were no “fraud indicators” as to 

Petitioner’s membership card and certificate from the 

“People’s Party of Armenia.” The Grigoryans were not 

provided any of the referenced exemplars or afforded an 

opportunity to cross-examine any of the individuals 

referenced in the ROI or government witnesses.4

In August 2011, the IJ denied the Grigoryans’ renewed 

applications for asylum, withholding of removal, and CAT 

relief and ordered them deported. The IJ acknowledged that 

Petitioner had shown that at least two of the documents 

identified by DHS in the ROI were neither fraudulent nor 

altered. The IJ also acknowledged that Petitioner had no 

opportunity to cross-examine the preparer of the ROI and 

that the report’s findings “lack detail.” The IJ further noted 

that Petitioner offered additional documents to corroborate 

his asylum claim—which DHS acknowledged were not 

fraudulent—and that Petitioner “testified that he did not 

personally obtain any of the documents which the Court [] 

found to be fraudulent, indicating that he may not have 

known that the documents were fraudulent.” Nonetheless, 

3 The ROI identifies the four documents as “[t]he letter from the 

Ministry of Defense,” “[t]he NGO registration document,” “[t]he 

document from the Ministry of Justice,” and a document from a hospital 

in Armenia.

4 The ROI raises serious questions about the timing of the 

government’s report and investigation. Although USCIS terminated the 

Grigoryans’ asylum due to the allegedly fraudulent documents in August 

2005, the ROI suggests that the government opened its investigation into 

Petitioner’s asylum application documents a year later, in August 2006. 

In addition, the ROI is dated March 2008—approximately two and a half 

years after USCIS terminated the Grigoryans’ asylum status.
GRIGORYAN V. BARR 9

the IJ relied on the ROI in denying Petitioner’s applications, 

concluding that the report was “fundamentally fair” and 

“probative to [Petitioner’s] claim as well as to his credibility 

because it discusses documents [Petitioner] submitted which 

go to the heart of his asylum claim.” Based on the two 

documents in the ROI that Petitioner was unable to rebut, 

and on certain inconsistencies, omissions, and nonresponsive answers provided by Petitioner during his 2010 

hearings, the IJ found him not credible. Therefore, the IJ 

found the Grigoryans ineligible for relief from deportation 

and ordered them removed to Armenia. The BIA upheld the 

IJ’s decision and dismissed the appeal.

C. Nijjar and Reopening of Proceedings

Shortly after the BIA’s decision, we held in Nijjar that 

the regulations authorizing USCIS to terminate asylum, 

8 C.F.R. §§ 208.24(a), 1208.24(a), “are ultra vires because 

the governing statute, 8 U.S.C. § 1158(c)(2), confers that 

authority exclusively on the Attorney General.” 689 F.3d 

at 1085–86. In light of Nijjar, the Grigoryans moved to 

reopen their case, arguing that USCIS had unlawfully 

terminated their asylum status in 2005. The BIA granted the 

motion and remanded the case to the same IJ who had 

conducted the prior proceedings.

On remand, the Grigoryans moved to terminate the 

removal proceedings, arguing that DHS never had the 

authority to terminate their asylum status and initiate the 

removal proceedings. In the alternative, they again 

requested asylum, withholding of removal, and CAT 

protection. The government opposed the motion to 
10 GRIGORYAN V. BARR

terminate proceedings and cross-moved to terminate the 

Grigoryans’ asylum status.5

D. 2015 Asylum Termination by the IJ

On February 9, 2015—fourteen years after the

Grigoryans were originally granted asylum—the IJ, without 

conducting an evidentiary hearing, granted DHS’s motion to 

terminate the Grigoryans’ asylum status and denied the 

Grigoryans’ motion to terminate removal proceedings and 

renewed applications for asylum, withholding of removal, 

and CAT relief. The Grigoryans were again denied an 

opportunity to cross-examine any government witnesses or 

inspect the exemplars referenced in the ROI.

The IJ found that termination was warranted because 

DHS “established by a preponderance of the evidence that 

[Petitioner] committed multiple instances of fraud in his 

asylum application,” again giving “considerable weight to 

the findings from the ROI.” Moreover, relying on her prior 

adverse credibility determination from 2011, and on 

Petitioner’s inability to fully address or rebut the 

government’s fraud allegations, the IJ found unconvincing 

Petitioner’s claim that he did not know of the fraudulent 

nature of the documents. The IJ reasoned that Petitioner had 

sworn to the veracity of his asylum application, yet the ROI 

5 DHS’s motion attached the ROI, USCIS’s 2005 Notice of Intent to 

Terminate Asylum Status, and a Form I-261 titled “Additional Charges 

of Inadmissibility/ Deportability” that alleged, among other things, that 

Petitioner’s “asylum claim was fraudulent in that documents [he] 

submitted as corroborating evidence of [his] role and membership in the 

PPA Youth Party [were] found to be false and other issues,” and that 

“[o]n August 19, 2005, USCIS issued this Notice to Appear to permit the 

Attorney General to determine whether to terminate the prior grant of 

asylum by USCIS.”
GRIGORYAN V. BARR 11

showed the documents were fraudulent. Therefore, the IJ 

concluded, DHS established by a preponderance of the 

evidence that Petitioner knew the documents were false and 

intended to deceive the government. The IJ reiterated that 

the documents identified as fraudulent in the ROI went “to 

the very heart of [Petitioner’s] asylum claim.” Based on 

these findings, the IJ terminated the Grigoryans’ asylum 

status.

Finally, the IJ concluded that the Grigoryans were 

removable because they no longer had asylum. Therefore, 

she denied the Grigoryans’ renewed applications for asylum, 

withholding of removal, and CAT relief, and ordered them 

removed to Armenia.

The BIA subsequently dismissed the Grigoryans’ appeal. 

As a threshold matter, the BIA held that the IJ had 

jurisdiction to terminate the Grigoryans’ asylum status, 

despite the improper original asylum termination by USCIS. 

The BIA then concluded that the IJ did not err in finding that 

DHS established fraud by a preponderance of the evidence. 

The BIA reasoned that the IJ properly admitted and accorded 

“considerable weight” to the ROI, which showed fraud in 

Petitioner’s application, and that the allegedly fraudulent 

documents “[went] to the heart” of Petitioner’s claim.6

 

Finally, the BIA affirmed the IJ’s decision to deny asylum, 

withholding of removal, and CAT relief. This petition for 

review followed.

6 As part of its decision to terminate asylum, the BIA cited to Matter 

of P-S-H-, 26 I. & N. Dec. 329, 333–36 (BIA 2014), which held that 

DHS does not need to prove that the individual knew of the fraud in the 

application. Accordingly, the BIA did not appear to adopt any of the IJ’s 

findings regarding Petitioner’s knowledge about the fraudulent nature of 

the documents.
12 GRIGORYAN V. BARR

II.

“On review from a decision to terminate asylum status, 

this Court reviews the BIA’s factual findings for substantial 

evidence,” and “[q]uestions of law are reviewed de novo.” 

Urooj v. Holder, 734 F.3d 1075, 1077–78 (9th Cir. 2013) 

(citing Brezilien v. Holder, 569 F.3d 403, 411 (9th Cir. 

2009)). We review de novo claims of “due process 

violations in removal proceedings.” Cruz Rendon v. Holder, 

603 F.3d 1104, 1109 (9th Cir. 2010) (citing Sandoval-Luna 

v. Mukasey, 526 F.3d 1243, 1246 (9th Cir. 2008) (per 

curiam)).

III.

The Grigoryans challenge the BIA’s decision on four 

grounds: (1) the IJ lacked jurisdiction to revoke their asylum 

status; (2) DHS did not meet its burden of establishing fraud 

by a preponderance of the evidence; (3) the government 

violated the Grigoryans’ due process rights; and (4) the BIA 

erred in denying the Grigoryans’ renewed applications for 

asylum, withholding of removal, and CAT relief. We hold 

that, although the IJ had jurisdiction to terminate the 

Grigoryans’ asylum status, the government violated their 

due process rights in doing so. Because the agency did not 

properly terminate the Grigoryans’ asylum status, we need 

not address whether the IJ erred in denying the Grigoryans’ 

renewed request for asylum, withholding of removal, and 

CAT relief.

A. Jurisdiction

Relying on our decision in Nijjar, the Grigoryans claim 

that DHS did not have authority to trigger termination 

proceedings by issuing a Notice of Intent to Terminate 
GRIGORYAN V. BARR 13

Asylum Status to Petitioner, because that authority is 

reserved for the Attorney General.

The Grigoryans misread Nijjar. In that case, we held that 

Congress conferred the authority to terminate asylum 

exclusively on the Attorney General. Nijjar, 689 F.3d 

at 1085–86. It does not follow, however, that DHS may not 

request such termination by an IJ. Indeed, federal 

regulations specifically contemplate that an IJ may terminate 

asylum after notice is provided by DHS. See 8 C.F.R. 

§§ 208.24(f), 1208.24(f); see also Urooj, 734 F.3d at 1077 

(evaluating whether DHS met its burden of proving fraud to 

terminate asylum, where DHS provided Notices to Appear 

and Notices of Intent to Terminate Asylum Status to the 

petitioners, and the IJ terminated the petitioners’ asylum 

status). The Grigoryans do not point to any statutory 

proscription of this notice requirement and regulatory 

framework.7

Consistent with federal regulations, DHS provided 

Petitioner notice and the IJ adjudicated the asylum 

termination. DHS also served the Grigoryans with NTAs 

and amended Petitioner’s NTA with allegations of fraud in 

Petitioner’s asylum application and a request that the IJ 

determine whether termination of asylum was warranted. 

We therefore find no error in the BIA’s decision that the IJ

had jurisdiction.

7 The Grigoryans do not dispute that the IJ—as opposed to USCIS—

may terminate their asylum status if there was fraud in Petitioner’s 

application. See Nijjar, 689 F.3d at 1082 (“Fraud in the application is 

not mentioned explicitly [in the INA], but is one of the ‘additional 

limitations. . . under which an [individual] shall be ineligible for asylum’

that the Attorney General is authorized to establish by regulation.” 

(quoting 8 U.S.C. § 1158(b)(2)(C))).
14 GRIGORYAN V. BARR

B. Due Process

Even though the IJ had the authority to terminate the 

Grigoryans’ asylum status, we conclude that the government 

did not afford the Grigoryans due process. “The right to a 

fair hearing derives from the Due Process Clause of the Fifth 

Amendment, which applies in removal proceedings.” 

Cinapian v. Holder, 567 F.3d 1067, 1074 (9th Cir. 2009) 

(citing Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000)). 

The Grigoryans—who underwent a rigorous screening 

process resulting in their admission into our country—must 

be afforded “the full panoply of procedural due process 

protections” under the Constitution, Angov v. Lynch, 

788 F.3d 893, 898 (9th Cir. 2015), and “may be expelled 

only after proceedings conforming to traditional standards of 

fairness,” id. (quoting Shaughnessy v. United States ex rel. 

Mezei, 345 U.S. 206, 212 (1953)). Due process requires “a 

full and fair hearing,” Colmenar, 210 F.3d at 971, which, at 

a minimum, includes a reasonable opportunity to present and 

rebut evidence and to cross-examine witnesses, see 

Cinapian, 567 F.3d at 1073–74; Hernandez-Guadarrama v. 

Ashcroft, 394 F.3d 674, 681–82 (9th Cir. 2005).

“To prevail on a due process challenge to deportation 

proceedings, [the Grigoryans] must show error and 

substantial prejudice.” Lata v. INS, 204 F.3d 1241, 1246 

(9th Cir. 2000) (citing Getachew v. INS, 25 F.3d 841, 845 

(9th Cir. 1994)). The Grigoryans thus “must demonstrate 

that the challenged proceeding ‘was so fundamentally unfair 

that [they were] prevented from reasonably presenting 

[their] case.’” Cruz Rendon, 603 F.3d at 1109 (quoting 

Colmenar, 210 F.3d at 971). Substantial prejudice is 

established when “the outcome of the proceeding may have 

been affected by the alleged violation.” Colmenar, 210 F.3d 

at 971.
GRIGORYAN V. BARR 15

Here, the IJ’s admission of, and reliance on, the ROI was 

fundamentally unfair and did not comport with 

constitutional due process. The report did not provide 

sufficient information about the fraud investigation, and the 

Grigoryans were not afforded a meaningful opportunity to 

rebut its allegations. See, e.g., Banat v. Holder, 557 F.3d 

886, 891–93 (8th Cir. 2009); Anim v. Mukasey, 535 F.3d 

243, 256–62 (4th Cir. 2008); Alexandrov v. Gonzales,

442 F.3d 395, 407 (6th Cir. 2006); Ezeagwuna v. Ashcroft,

325 F.3d 396, 405–08 (3d Cir. 2003).

The single-page ROI refers to unnamed investigators and 

“exemplars” of documents that purportedly confirm that 

some of Petitioner’s asylum application materials are 

fraudulent. However, DHS did not identify any of the named 

individuals, present supporting evidence to explain the 

nature of the investigation, produce the referenced 

exemplars, or proffer any government witnesses about the 

alleged fraud. Thus, the Grigoryans were not allowed a 

meaningful opportunity to rebut the government’s fraud 

allegations. See Banat, 557 F.3d at 891 (“Reliance on 

reports of investigations that do not provide sufficient 

information about how the investigation was conducted are 

fundamentally unfair” and do not comport with due process 

“because, without that information, it is nearly impossible 

for the immigration court to assess the report’s probative 

value and the [petitioner] is not allowed a meaningful 

opportunity to rebut the investigation’s allegations.”); 

Alexandrov, 442 F.3d at 407 (“We do not know who the 

investigator was . . . We do not know how the investigation 

was conducted. . . . There is not much that we do know aside 

from the apparent conclusions of the mysterious 

investigation. . . . We conclude that the [government’s] 

reports in this case do not meet our standards of 
16 GRIGORYAN V. BARR

trustworthiness and reliability and therefore were 

improperly relied upon by the immigration court.”).

The ROI’s indicia of reliability are further undermined 

because, despite their limited ability to rebut the ROI’s 

findings, the Grigoryans were nonetheless able to show that 

half of the identified documents were not fraudulent. In 

addition, the mere fact that the ROI is a DHS document does 

not absolve the government from affording the Grigoryans a 

fair opportunity to rebut its assertions. See Ezeagwuna, 

325 F.3d at 407 (“[W]e are concerned that the INS is 

attempting to use the prestige of the State Department 

letterhead to make its case and give credibility to the letter’s 

contents. . . . [T]he [BIA’s] decisions cannot be sustained 

simply by invoking the State Department’s authority.” 

(quoting Li Wu Lin v. INS, 238 F.3d 239, 246 (3d Cir. 

2001))). For all these reasons, we conclude that reliance on 

the ROI was fundamentally unfair.8

Relying on our decision in Angov, the government 

argues that the Grigoryans were not denied due process. In 

Angov, we held that the IJ’s admission of, and reliance on, a 

letter prepared by a Department of State employee 

summarizing an overseas investigation did not violate the 

statutory rights of an asylum applicant. 788 F.3d at 899–

900. Angov does not control, however, for one important 

reason: that case did not implicate constitutional due 

8 DHS argues that the Grigoryans had five months to review and 

examine the ROI and, therefore, they had an “opportunity to rebut the 

[ROI]’s findings.” The fact that the Grigoryans may have had access to

the ROI, however, does not cure the due process violation because it does 

not change the reality that the Grigoryans were not given a proper 

opportunity to rebut the report’s allegations. See, e.g., Anim, 535 F.3d 

at 250–51, 262 (finding due process violation even though petitioner had 

knowledge of the government’s report for many months).
GRIGORYAN V. BARR 17

process. See id. at 898 n.3. Because Angov involved an 

asylum applicant who had not “technically ‘entered’ the 

United States,” id. at 898 (quoting Mezei, 345 U.S. at 212), 

we examined only whether the government violated the 

statutory rights that Congress afforded such applicants, id. 

at 898–99. By contrast, our sister circuits that have 

considered the due process question before us have held that 

reliance on government records such as the ROI violates the 

Fifth Amendment. See Banat, 557 F.3d at 891–93; Anim,

535 F.3d at 256–62; Alexandrov, 442 F.3d at 407;

Ezeagwuna, 325 F.3d at 405–08. We join those circuits 

today and conclude that Angov does not foreclose the due 

process claims of petitioners like the Grigoryans, who are 

protected by the Fifth Amendment.9

It cannot be seriously disputed that the Grigoryans were 

prejudiced by the ROI’s admission and consideration. The 

ROI was the only evidence DHS introduced to support its 

fraud allegations, and the BIA accorded it “considerable 

weight.” Indeed, the government conceded at oral argument 

that without admission of the ROI, fraud was not established 

by a preponderance of the evidence. Based on the ROI’s 

9 Angov is also distinguishable because the petitioner in that case 

bore the burden of proof at the hearing. 788 F.3d at 903. As a result, 

DHS sought to admit the letter in question “solely to rebut or impeach 

petitioner’s case.” Id. We acknowledged that the letter “lack[ed] certain 

indicia of reliability,” but in light of the burden allocation and pursuant 

to “our ‘extremely deferential’ review” of adverse credibility 

determinations, we concluded in Angov that admission of the letter did 

not constitute grounds to disturb the agency’s denial of asylum. Id. 

at 902–03 (quoting Wang v. INS, 352 F.3d 1250, 1257 (9th Cir. 2003)). 

Here, by contrast, the government bore the burden of proving the 

grounds for terminating the Grigoryans’ asylum status by a 

preponderance of the evidence. Urooj, 734 F.3d at 1078 (citing 8 C.F.R. 

§ 1208.24(f)). DHS indeed sought to introduce the ROI to meet this 

heavy burden, not merely for impeachment purposes as it did in Angov.
18 GRIGORYAN V. BARR

findings, the IJ terminated not only Petitioner’s asylum 

status, but also that of his wife and children. In turn, the IJ 

found the Grigoryans removable and ordered them deported 

after they had built their lives in the United States for nearly 

fourteen years. We thus have no difficulty concluding that 

the IJ’s admission of, and reliance on, the ROI was 

substantially prejudicial. See Cruz Rendon, 603 F.3d 

at 1111.

The IJ’s error was compounded by the fact that Petitioner 

had previously testified before the same IJ in 2010. Because 

USCIS incorrectly terminated the Grigoryans’ asylum status 

without congressional authority in 2005, Petitioner was 

improperly forced to re-apply for asylum and to testify in 

support of his claim. Therefore, at the 2010 hearings, 

Petitioner was erroneously assigned the burden of proof and 

the government sought to introduce the ROI to impeach him. 

The IJ’s reliance on the ROI thus resulted in a series of 

improper adverse credibility findings against Petitioner.

The IJ then infused the 2015 termination proceedings 

with the testimony improperly obtained from Petitioner in 

2010. Instead of conducting a new hearing in 2015, and 

forcing the government to prove first and foremost that 

termination of asylum was warranted notwithstanding what 

transpired in 2010, the IJ instead referred back to her adverse 

credibility findings from the 2010 hearings. As a result, the 

IJ effectively conflated the findings from two proceedings 

with different burden allocations. The sequence and manner 

in which the IJ entered her findings further prejudiced the 

Grigoryans. See Colmenar, 210 F.3d at 973 (“We do not 

enjoy second-guessing the way Immigration Judges run their

courtrooms. But when a petitioner has so clearly been 

denied a full and fair hearing, we have no choice. . . . This is 

consistent with our role as judges, and the values of our 
GRIGORYAN V. BARR 19

Constitution demand no less.”); see also Urooj, 734 F.3d 

at 1079 (noting that it is an error to “improperly conflate[] 

impeachment evidence with substantive evidence”).

It is also worth noting that DHS bears the initial burden 

of proving, by a preponderance of the evidence, “fraud in 

[Petitioner]’s application such that he . . . was not eligible for 

asylum at the time it was granted.” 8 C.F.R. §§ 208.24(a)(1), 

1208.24(a)(1); see Matter of P-S-H-, 26 I. & N. Dec. at 337 

(“[A]lthough the Immigration Judge summarily concluded 

that this fraud was such that the respondent was not eligible 

for asylum at the time it was granted, she did not adequately 

consider whether the respondent was eligible for asylum in 

2003 but for the fraud in his application.”). In other words, 

DHS must not only show that certain documents submitted 

with Petitioner’s original application for asylum were 

fraudulent. The government’s burden here is much higher: 

It must show that Petitioner would not have been granted 

asylum in 2001 but for the fraudulent documents. Matter of 

P-S-H-, 26 I. & N. at 337. If, and only if, the government 

meets this heavy burden, does the burden shift to the 

Grigoryans to prove they are entitled to relief from 

deportation.10

10 We decline to decide at this juncture whether DHS must show that 

Petitioner knew the documents were fraudulent. A serious question is 

raised, however, whether the government can establish “fraud” in the 

application without establishing that Petitioner knew the documents 

were fraudulent. Compare Matter of P-S-H-, 26 I. & N. Dec. at 336 

(“[W]e conclude that the regulations do not require the DHS to establish, 

for purposes of showing that there was fraud in [petitioner’s] asylum 

application, that the [petitioner] knew of the fraud.”), with Ntangsi v. 

Gonzales, 475 F.3d 1007, 1012 (8th Cir. 2007) (“[T]he government 

cannot meet its burden of proving fraud unless it can show that the 

petitioner knows the statement or document is fraudulent at the time she 
20 GRIGORYAN V. BARR

IV.

Because we find that admission of, and reliance on, the 

ROI was improper and the ROI is the only purported 

evidence of fraud in Petitioner’s application, we grant the 

petition, vacate the BIA’s decision and the IJ’s order of 

removal, and remand the case to the BIA to conduct further 

proceedings consistent with this opinion. In any new 

hearing, the government must first prove asylum termination 

is warranted by a preponderance of the evidence. If the 

Grigoryans’ asylum status is properly terminated, the agency 

must then conduct a hearing to allow the Grigoryans an 

opportunity to seek asylum and other relief from deportation. 

On remand, the government must afford the Grigoryans a 

full and fair opportunity to challenge the ROI.

PETITION FOR REVIEW GRANTED, VACATED, 

AND REMANDED WITH INSTRUCTIONS. The 

government shall bear the costs on appeal.

presents such evidence[.]”); see also Yeimane-Berhe v. Ashcroft, 

393 F.3d 907, 911 (9th Cir. 2004) (holding that fraudulent documents 

without knowledge are insufficient to deny asylum); In re Tijam, 22 I. & 

N. Dec. 408, 424 (BIA 1998) (“Fraud requires that the respondent know 

the falsity of his or her statement[.]”); Matter of G-R-, 7 I. & N. Dec. 

508, 510 (BIA 1957) (interpreting “fraud” to mean a “false 

representation or concealment of a material fact, made with knowledge

of its falsity and with intent to deceive the other party” (emphasis 

added)).