Interim Decision #3121 

MATTER OF FEFE 

In Exclusion Pi oceedings 

A-28556£62 

Decided by Board August 1, 1989 

(1) An applicant for asylum cannot meet his b irden of proof unless he testifies under 

oath regarding his application; and, therefc,re, an immigration judge should not 

proceed to adjudicate a written application for asylum if no oral testimony has been 

offered in support of that application. 

(2) At a minimum, the regulations require that an asylum applicant take the stand, be 

placed under oath, and be questioned as to whether the information in his written 

application is complete and correct; the exams nation of an applicant will ordinarily be 

this brief only where the parties have stipult. led that the applicant's oral testimony 

would be consistent with his written application and that his testimony would be 

believably presented. 

EXCLUDABLE: Act of 1952—Sec. 212(a)(19) [8 U.S.C. § 1182(a)(19)]—Fraud or 

willful misrepresentation of a material fact 

Sec. 212(a)(20) [8 U.S.C. § 1182(a)(20)]—No valid 

immigrant visa 

ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE: 

Candace L. Jean, Esquire John R. Frenkel 

7103 S.W. 102 Avenue General Attorney 

Miami, Florida 33173 

BY: Milhollan, Chairman; Dunne, Morris, N acca, and Heilman, Board Members 

In a decision dated February 17 1989, the immigration judge 

denied the applicant's requests fa asylum and withholding of 

deportation pursuant to sections 2080 ) and 243(h) of the Immigration 

and Nationality Act, 8 U.S.C. §§ 112.58(a) and 1253(h) (1982), and 

ordered that the applicant be exclude +1 and deported from the United 

States. The applicant appealed. Tim record will be remanded for 

further proceedings. 

The applicant is a 24-year-old n Aive and citizen of Haiti. He 

arrived in the United States on November 5, 1988. The Immigration 

and Naturalization Service then i iitiated exclusion proceedings 

against the applicant by issuing a Nc ,ice to Applicant for Admission 

Detained for Hearing before Immigr don Judge (Form 1-122) which 

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Interim Decision 03121 

alleged that the applicant was inadmissible to the United States 

pursuant to sections 212(a)(19) and (20) of the Act, 8 U.S.C. 

§§ I 182(a)(19) and (20) (1982). 

At his exclusion hearing, the applicant did not contest his excludability, but he requested asylum. He completed a Request for Asylum in 

the United States (Form 1-589), including a two-page, typewritten 

addendum providing details concerning his fear of persecution in 

Haiti, which was forwarded to the Department of State Bureau of 

Human Rights and Humanitarian Affairs for an advisory opinion. See 

8 C.F.R. § 236.3(a)(1) (1988). 

The applicant appeared with counsel for the hearing on the merits 

of his 'asylum application. Applicant's counsel stated that because "the 

1-589 [is] such an extensive story in itself, we'll just rest on that." The 

Service attorney also declined to ask the applicant any questions 

concerning his written asylum request, stating that he was "not going 

to cros examine." In a closing statement, the Service attorney raised 

various 'questions regarding the nature of the information provided in 

the app icant's affidavit. The immigration judge then entered his 

decision denying the applicant's requests for asylum and withholding 

of depo tion. In his decision, the immigration judge reviewed the 

applicanit's written testimony but described his statements as "selfserving. The immigration judge also noted that the applicant had 

offered b.o corroboration for his Form 1-589, and he stated that "[w]e 

don't know whether his story is true or not." 

On appeal, the applicant contends that the immigration judge erred 

in denying his applications for asylum and withholding of deportation.' We find that the record should be remanded because the 

immigration judge has not complied with the regulations concerning 

asylum hearings. 

The regulations regarding the procedure for adjudication of asylum 

applications provide at 8 C.F.R. § 208.6 (1988) that an "applicant 

shall be examined in person by an immigration officer or judge prior to 

the adjudication of the asylum application." The regulations further 

provide at 8 C.F.R. § 236.3(a)(2) (1988) that when an applicant 

requests asylum in exclusion proceedings, he "shall be examined under 

oath on his application and may present evidence on his behalf." See 

also 8 C.F.R. § 242.17(c) (1988). In Matter of Balibundi, 19 I&N Dec. 

606 (BIA 1988), we held that in light of the requirement that an 

asylum applicant must be examined under oath, an immigration judge 

1 The applicant's current counsel also contends that the applicant received ineffective 

assistance of counsel at his exclusion hearing. Because the record will be remanded for a 

hearing de novo, we need not adckess this argument. 

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should not adjudicate an asylum application where an applicant fails 

to appear for a hearing. 

At a minimum, we find that the regulations require that an 

applicant for asylum and withholding take the stand, be placed under 

oath, and be questioned as to whether the information in the written 

application is complete and correct. We would not anticipate that the 

examination would stop at this point unless the parties stipulate that 

the applicant's testimony would be entirely consistent with the written 

materials and that the oral statement would be believably presented. 

In the ordinary course, however, we consider the full examination of 

an applicant to be an essential aspect of the asylum adjudication 

process for reasons related to fairness to the parties and to the integrity 

of the asylum process itself. We note that there are often significant 

differences (either discrepancies or meaningful omissions) between the 

written and oral statements in an asylum application; these differences 

cannot be ascertained unless an applicant is subjected to direct 

examination. Moreover, if an applicant is not fully examined under 

oath there would seldom be a means of detecting those unfortunate 

instances in which an asylum claim is fabricated. On the other hand, 

there are cases where an alien establishes eligibility for asylum by 

means of his oral testimony when such eligibility would not have been 

established by the documents alone. 

We stated in Matter of Mogharrabi, 19 I&N Dec. 439, at 445 (BIA 

1987), that an alien can demonstrate eligibility for asylum where .his 

"testimony is believable, consistent, and sufficiently detailed to 

provide a plausible and coherent account of the basis for his fear." It is 

difficult for an alien to satisfy this standard unless he presents 

testimony at his hearing which is consistent with and corroborates any 

previous written statements in his Form 1-589. See Office of the 

United Nations High Commissioner for Refugees, Handbook on 

Procedures and Criteria for Determining Refugee Status Under the 

1951 Convention and the 1967 Protocol Relating to the Status of 

Refugees para. 199-200 at 47-48 (Geneva, 1979). Accordingly, in cases 

such as the instant one, where the alien's counsel seeks to "rest" his 

case on a completed Form 1-589 and the parties have not entered into 

a stipulation regarding the contents of the Form 1-589, the immigration judge should inform counsel that an alien cannot meet his burden 

of proof unless he testifies under oath regarding his application. The 

immigration judge in some cases, for example where an alien is not 

represented, may wish to question the alien concerning the completed 

Form 1-589. The immigration judge should not, however, proceed to 

adjudicate a written application for asylum if no oral testimony has 

been offered in support of that application. See Matter of Balibundi, 

supra. 

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Interim Decision #3121 

Because the immigration judge here did adjudicate the respondent's 

asylum application based solely on written statements in the Form I589, and because this is not a case where there is agreement that the 

applicant's written statement is believable and that the applicant could 

have presented oral testimony consistent with that statement, the 

record will be remanded to the immigration judge for further 

proceedings in light of this opinion. 

ORDER; The record is remanded to the immigration judge for 

further proceedings consistent with the foregoing opinion and the 

entry of a new decision. 

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