Interim Decision #2111

MATTER OF WONG

In Deportation Proceedings
A-15999391
Decided by Board December 15, 1971
(1) A motion to suppress evidence as illegally obtained must be supported
by specific and detailed statements based on personal knowledge and must
set forth a prima facie case of illegality, enumerating the evidence alleged
to have been illegally obtained. [Cf. Matter of Tang, Interim Decision No.
2080]
(2) Where alienage has been established in deportation proceedings by evidence in possession of the Service before the alien's arrest, the burden is
upon the alien under section 291 of the Immigration and Nationality Act
to establish the nature of his entry or be presumed to be in the United
States in violation of law.
CHARGE :

Order : Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251(a) (2) ]—Nonimmigrant crewman—remained longer.
ON BEHALF OF RESPONDENT:
Peter Zimmerman, Esquire
100 State Street
Boston, Massachusetts 02109

ON BEHALF OF SERVICE:

Irving A. Appleman
Appellate Trial Attorney

Respondent appeals from the special inquiry officer's order requiring his deportation. The appeal will be dismissed; voluntary
departure will be granted.
The Service claims respondent was admitted as a nonimmigrant crewman on or about July 7, 1968, that he was authorized
to remain for not longer than 29 days, and that he remained
without authority. Respondent refused to testify on the claim of
privilege, although he admitted that he had not received permission to stay in the United States (pp. 9-10).
The special inquiry officer found the charge supported primarily on the basis of the information contained in a crewman's landing permit which shows the admission of Ka Wong, a native and
national of China on July 7, 1968 at New York City (Ex. 4). The
820

Interim Decision #2111
special inquiry officer found, in light of respondent's refusal to
admit or deny the permit related to him or to give any testimony
concerning the manner of his entry, that the permit was clear,
unequivocal and convincing evidence that respondent was deportable as charged. A Hong Kong Identity Card and a Hong Kong
Seaman's Identification Book were also introduced in evidence.
They bear photographs which the special inquiry officer stated
were a good likeness of respondent. These documents show that
the person to whom they were issued is a Chinese national (pp.
7-9). The special inquiry officer held they were cumulative evidence of respondent's alienage and deportability (p. 3, special inquiry officer's opinion).
Counsel contends the permit was improperly admitted in evidence because it, as well as the other documents, was taken from
respondent after an illegal arrest, search and seizure. This claim
of illegality is the subject of a motion submitted to the special inquiry officer to suppress evidence and of verbal objections to the
admission of Service evidence.
The motion to suppress requests that all admissions by respondent and "all property taken on or about January 19, 1971"
from respondent by Service officers be suppressed. The grounds
for the motion are that the property was taken without warrant
and without legal justification because there was no probable
cause "for believing the existence of the grounds on which the arrest was made" and because respondent was not advised of his
constitutional rights. The motion consists of hearsay statements
by counsel. The statements are general and conclusory. The property taken is not specified. The Service officers are not named. It
is not sworn and is unsupported. 1
On appeal, counsel contends that the special inquiry officer
should have held a hearing to determine the validity of the motion to suppress. He contends that the unsupported motion casts
upon the Service the burden of establishing that its evidence is
free of taint. Counsel has submitted a memorandum of law in
support of the motion.
We dismissed a similar contention in Matter of Tang, Interim
Decision No. 2080 (BIA, 1971). We held there that the Service is
not called upon to justify the manner in which it obtained its eviI We do not mean to indicate that the issue can be raised only by the
sworn statement of the respondent. See Jackson v. United States, 351 F.2d
821 (D.C. Cir., 1965). See also Simmons v. United States, 390 U.S. 377, 393
(1968) (defendant's testimony in support of motion to suppress not usable
against him at trial on issue of guilt).

821

Interim Decision #2111
dence unless a respondent presented some competent evidence in
support of his claim that tainted evidence had been used against
him. After carefully considering counsel's contention, we find no
reason to change our position. The cases hold that a mere demand
for a suppression hearing is not enough to cause one to be held.
Statements in a motion for suppression must be specific and detailed. They should not be general, conclusory or based on conjecture. They must be based on personal knowledge. The must set
forth a prima facie case. The articles to be suppressed must be
enumerated, Nardone v. United States, 308 U.S. 338 (1939);
United States v. Allison, 414 F.2d 407 (9 Cir., 1969); United
States v. Gillette, 383 F.2d 843, 848-849 (2 Cir., 1967 ; Cohen v.
United States, 378 F.2d 751, 760 (9 Cir., 1967), cert. denied 389
U.S. 897; Hardin v. United States, 324 F.2d 553 (5 Cir., 1963) ;
O'Neal v. United States, 222 F.2d 411 (D.C. Cir., 1955); Wilson
v. United States, 218 F.2d 754 (10 Cir., 1955); United States v.
Goble, 218 F.2d 754 (S.D. N.Y., 1930); United States v. Roth,
285 F. Supp. 364, 366 (S.D. N.Y., 1968) ; United States v. Halsey,
257 F. Supp. 1002, 1005 (S.D. N.Y., 1966); United States v. Stonehill, 254 F. Supp. 1003 (S.D. N.Y. 1966); United States v. Casanova, 213 F. Supp. 654 (S.D. N.Y., 1963). Here, the motion to
suppress falls far short of meeting the requirements we have set
forth.
Counsel cites State v. Elkins, 422 P.2d 250 (Ore., 1966). The
case is inapposite. It deals with the burden of proof at a hearing
on a motion to suppress. There was no discussion of what constitutes a proper motion—the issue before us.
To limit the issues, we shall rely upon evidence which was in
the Service's possession before respondent was arrested—the
identity card and identification book. We shall also rely on respondent's admission at the deportation proceeding that he does
not have permission to remain in the United States. The documents are in the nature of passports. They must be surrendered
to the custody of the master of the vessel before the crewman can
be given landing privileges. The master must submit these documents to the Service when a seaman has failed to comply with
the conditions of his admission. Such documents are competent
evidence in deportation, proceedings to establish alienage and deportability. These documents establish respondent is an alien
(Matter of Cheung, Interim Decision No. 2106, A15 171 770
(BIA, November 30, 1971) ).
Since alienage is established, the burden is upon respondent to
establish the nature of his entry or be presumed to be in the
822

Interim Decision #2111
United States unlawfully (section 291 of the Act, 8 U.S.C. 1361). 2
Hehasfildtocrybuen.Mv,hasifctdmitted that he does not have permission to remain in the United
States. Deportability is established (Ah Chiu Pang v. INS, 368
F.2d 637 (3 Cir., 1966), cert. denied 386 U.S. 1037; Ex parte
Andal, 118 F. Supp. 949 (S.D. N.Y., 1953), aff'd sub nom. U.S. ex
rel. Panes v. Shaughnessy, 210 F.2d 472 (2 Cir., 1954) )
The special inquiry officer denied voluntary departure. After
careful examination of the record, we conclude that a brief period
within which to depart voluntarily is permissible. We shall grant
respondent 30 days to depart voluntarily.
ORDER: The outstanding order of deportation is withdrawn
and the alien is permitted to depart from the United States voluntarily without expense to the Government, to any country of
his choice, within such period of time, in any event not less than
30 days, and under such conditions as the officer-in-charge of the
District deems appropriate.
Further order: If the alien does not depart from the United
States in accordance with the foregoing, the order of deportation
is reinstated and shall be executed.
.3

2 We have no authority to consider counsel's contention that section 291 of
the Act is unconstitutional (Matter of L—, 4 I. & N. Dec. 556 (BIA, 1951)).
3 We have not made use of the landing permit. We have taken no unfavorable inference from respondent's claim of privilege, nor from his failure to
testify concerning the relation of the landing permit to himself. (The special
inquiry officer honored respondent's claim of privilege. It was, therefore,
error for the special inquiry officer to draw an unfavorable inference from
respondent's refusal to testify concerning the relation of the landing permit
to himself. See Valeros v. INS, 387 F.2d 921 (7 Cir., 1967). This does not
mean that under such circumstances, a special inquiry officer cannot take
cognizance of the fact that the Service's evidence is not contradicted.)

823


Interim Decision #2105

MATTER OF GODFREY
In Deportation Proceedings
A-12793739
Decided by Board November 29, 1971
(1) Where no foundation was laid for such questioning, cross-examination
concerning alleged improper Service methods of investigation was properly
restricted by the special inquiry officer during the alien's deportation hearing.
(2) Unsubstantiated allegations of official misconduct should not be urged
on appeal to the Board-of Immigration Appeals in deportation proceedings
but should be substantiated by specification under oath in support of a
motion to reopen the proceedings.

CHARGE:
Order:

Act

of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable at time of entry—no labor certification.

The special inquiry officer found the respondent deportable as
charged in his order of February 12, 1971. He denied voluntary
departure as a matter of administrative discretion. From his
order the respondent appeals. Her appeal will be dismissed.
The record relates to a 40-year-old female, native and citizen of
Jamaica, B.W.I., who entered the United States on or about June
21, 1966 as a special immigrant granted exemption from the
labor certification requirement of section 212(a) (14) by virtue of
her marriage to a United States citizen. The special inquiry
)fficer found that the marriage was entered into solely for the
purpose of evading the labor certification requirement and that
;he respondent, therefore, was not exempt from the provisions of
;ection 212 (a) (14) . The special inquiry officer, therefore, found
ler deportable as charged. We agree and uphold the special
nquiry officer's decision that deportability has been shown with
.vidence that is clear, convincing and unequivocal.
The Government's case against the respondent was based
ntirely upon her prehearing sworn statement in which she

790

1

Interim Decision #2105
admitted that there had been a sham marriage. She attempted to
repudiate this statement during the hearing before the special
inquiry officer, claiming that it had been involuntary and was
obtained in violation of her right to counsel. The investigator
who took the statement testified at great length and related how
the statement had been voluntarily given, and that the respondent
had been fully advised as to her right to counsel. The record indicates that the respondent has a knowledge of the English language. Her statement (Ex. 2) contains a warning as to her
rights, and a waiver, which she signed. The special inquiry
officer, who considered the many inconsistencies in her story, conchided that her claim that the statement was taken by force and
by means of threats to her personal liberty was totally unworthy
of belief. We note that the special inquiry officer heard the evidence and was in the best position to observe the demeanor of the
witnesses and assess their credibility. After a careful review of
the record, we conclude that there was no error and that the
determination of the special inquiry officer to receive the statement in evidence was correct.
Counsel for respondent at oral argument had initially participated in the hearing before the special inquiry officer but was
replaced by another lawyer from the same firm during a portion
of the proceedings. The part he missed included the testimony of
the Service investigator. Present counsel contends that the sole
issue on appeal is whether the Service investigator advised the
respondent of her right to counsel before he took her prehearing
statement. Counsel sought to have the respondent testify anew at
oral argument as to the circumstances under which the statement
in question was taken.
We did not permit her to testify at oral argument for two reasons. First, this Board is not equipped to receive oral testimony.
Second, we ordinarily confine our review to a consideration of the
record alone, although in exceptional cases we do receive and consider additional affidavits or other documents not previously
available.'
During the proceedings before the special inquiry officer
respondent's previous counsel attempted to impeach the testimony
1 In Matter of SS. Captain Demosthenes, Interim Decision No. 1995 (BIA,
1969), we considered new material which came into being subsequent to the
date of the special inquiry officer's decision, since the authenticity of the information was not in question and because we desired to avoid unnecessary
delay by disposing, in a timely fashion, of all aspects of a multi-faceted
case. See also Bovinas v. Savoretti, 146 F. Supp. 274 (S.D. Fla., 1956).

791

Interim Decision #2105
of the Service investigator by cross-examining him with respect
to promotions he had earned while in Government service from
1957 to 1971. When asked by the special inquiry officer whether
he was insinuating that the investigator had received a promotion
by reason of his actions in the respondent's case, counsel
answered in the negative (Tr. p. 50). Counsel was evidently
trying to impeach the investigator's testimony by showing the
existence of certain factual propositions, the truth of which he
wished to establish solely on the basis of the answers he sought to
elicit from the witness on cross-examination. These propositions
apparently were the following: (1) unacceptable methods of
investigation are prevalent in the Service, (2) the investigator
had received rapid advancement, (3) therefore, he must have
completed a large number of investigations, and (4) he could only
have done so by using such unacceptable methods of investigation.
The special inquiry officer sustained the trial attorney's objection to the relevancy of such questioning. As he said, "I think
your insinuation is without foundation . . . an insult to the Immigration and Naturalization Service and an insult to honesty in
government." We agree and approve the determination of the
special inquiry officer to restrict cross-examination in this way.
As the special inquiry officer stated, there was no foundation laid
for such questioning. In addition, we accept the rule that the trier
of fact may limit cross-examination by questions which assume
facts not in evidence, Skogen v. Dow Chemical Company, 375
F.2d 692 (8 Cir., 1967). Also, cross-examination generally should
be limited to matters embraced in the examination in chief,
Young Ah Chor v. Dulles, 270 F.2d 338 (9 Cir., 1959). Finally, an
irrelevant question with an opprobrious innuendo should not be
asked a witness on cross-examination, Martin v. Texas Employers' Ins. Ass'n. 193 F.2d 645 (5 Cir., 1952).
At oral argument the respondent's present counsel renewed the
objection to the admission of her prehearing sworn statement.
Even though the respondent was not permitted to testify at oral
argument, as we mentioned above, her counsel made the following
argument: "I know it from my own knowledge, they intimidate
witnesses, they do illegal searches and seizures . . . they do not
advise the alien of their rights to have an attorney." Counsel was,
in effect, trying to pursue the line of inquiry which the previous
counsel had been prevented from going into by the special inquiry
officer's restriction of cross-examination. In addition, counsel
referred to what he characterized as "a clique of Negro investigaPI A 0

Interim Decision #2105
tors at the New York Office whom I have now called the Black
Gestapo."
With these remarks counsel went beyond a mere attempt to
impeach the testimony of one Service investigator in connection
with one case, but he impugned the integrity of a. large number
of public servants. The charges leveled by counsel against the
Service remind us of Matter of Geronimo, Interim Decision No.
2077 (BIA, 1971), wherein we said the following in connection
with unsubstantiated allegations of misconduct appearing in the
notice of appeal : "Grave charges such as these . . . based on matters outside the administrative record, should not be casually
asserted in an unsworn allegation if they are seriously urged. The
facts should be specified under oath, subject to the penalties of
perjury. If not seriously urged, such charges should not be
asserted at all." Just as we strongly disapproved of similar reckless charges in Matter of Geronimo, supra, we feel we must criticize counsel in the present case for making his blanket allegation
of official misconduct at oral argument. If counsel believes the
order before us on appeal is the product of official misconduct, he
should be prepared to substantiate his claim by specifications
under oath in support of a motion to reopen the proceedings.
The special inquiry officer denied the respondent voluntary
departure as a matter of administrative discretion. We believe
this determination also was sound. Hence, the appeal will be dismissed and the following order will be entered.
ORDER: The appeal is dismissed.

793


Interim Decision #2306

MATTER OF

HOEFFLJN

In Visa Petition Proceedings
A-19762445
Decided by Board July 24, 1974
Where petitioner, in an uncontested hearing in a Michigan circuit court, obtained a decree
of validity of his marriage to beneficiary in Michigan in 1971 following a Mexican "mai:
order" divorce dissolving his prior marriage, and the Attorney General of the State of
Michigan advised that the marriage should not be recognized as valid in the absence of
further proof of the jurisdiction of the court to enter the decree in question, petitioner's
marriage to beneficiary is not recognized as valid for the purpose of conferring second
preference classification on her as his spouse. (Matter of Kwan, 11 I. & N. Dec. 205, and
Matter of Allison, 12 I. & N. Dec. 835, distinguished.]
ON BEHALF OF SERVICE:

ON BEHALF OF PETITIONER:

David L. Milhollan
Appellate Trial Attorney

J. C. Bruno, Esquire
2050 Guardian Building
. Detroit, Michigan 48226

The lawful permanent resident petitioner applied for preference
status for the beneficiary as his spouse under section 203(a)(2) of the
Immigration and Nationality Act. In a decision dated June 25, 1971, the
district director denied the petition on the ground that a prior marriage
of the petitioner had never been legally terminated. The petitioner has
appealed from that decision. The appeal will be dismissed.
The petitioner and the beneficiary were married in Detroit, Michigan
on January 2, 1971. The petitioner has admitted that he was married
previously and that the divorce allegedly dissolving that prior marriage
was of the "Mexican mail order" variety, with neither party being
present or domiciled in Mexico.
Generally, the validity of a marriage is governed by the law of the
place where the marriage was celebrated. Matter of P , 4 I. & N. Dec.
610 (BIA 1952; Atty. Gen. 1952); Matter of Levine, 13 I. & N. Dec. 244
(BIA 1969). Therefore, the petitioner's present marriage is valid only if
he was free to marry under Michigan law.
We have previously held that Mexican mail order divorces are not
recognized in Michigan. Matter of Norton, 12 I. & N. Dec. 490 (BIA
1967). A letter in the record from the Attorney General of Michigan,
—

dated October 15, 1971, indicates that there has been no change in the

Michigan law. Consequently, the petitioner's marriage to the ben31

Interim Decision #2306
eficiary is not valid under Michigan law. We conclude that the district
director's denial of the petition was correct.
While this appeal was pending, the petitioner instituted an action in a
Michigan circuit court for the affirmance of his present marriage, naming the beneficiary as the defendant. The action was brought under
Section 25.84 of the Michigan Statutes Annotated, which states:
When the validity of any marriage shall be denied or doubted by either of the parties,
the other party may file a bill or petition in the manner aforesaid, for affirming the
marriage; and upon due proof of the validity thereof, it shall be declared by a decree or
sentence of tt.e court; and such decree, unless reversed on appeal, shall be conclusive
upon all persons concerned.

A hearing was held before the court pursuant to the petitioner's
motion for summary judgment. This proceeding was not adversary in
nature. The petitioner's first wife was not made a party to or given
notice of the action. Counsel appeared on behalf of the petitioner and
asked him a few questions concerning his present marriage. The gist of
the petitioner's testimony was that he had presented his Mexican divorce decree to the clerk of the court at the time he applied for a
marriage license and that the clerk of the court had accepted it. No
questions were asked regarding the jurisdiction of the Mexican court to
render the divorce decree, and no specific mention was made of its mail
order nature. The beneficiary's only statement on the record, in response to an inquiry by the judge, was that she wished to remain
married to the petitioner.
The court rendered an order dated July 12, 4971, decreeing that the
petitioner and the beneficiary were legally married on January 2, 1971,
and that their marriage was valid.
That judgment was submitted to the district director, who in turn
submitted it to the Attorney General of Michigan. In a letter dated
October 15, 1971, the Attorney General advised the district director not
to recognize the petitioner's present marriage as valid "unless and until

you are presented with further documentation concerning the jurisdiction of the Circuit Court for the County of Bay to entertain whatever
petition was made to that court."
The judgment, the Attorney General's letter, and a transcript of the
proceedings in the circuit court have been made a part of this record. In
addition, counsel has submitted a copy of the pleadings in the circuit
court action.
Normally, we would remand the record to the district director for him
to enter a decision based on the new evidence. However, the question
presented is ;purely a legal one; all of the pertinent evidence is before us,
and we have heard extensive oral argument on the issue of what effect
should be given to the Michigan court decree. Consequently, there is no
need to remand the case to the district director.
32

Interim Decision #2306
The petitioner could have obtained a valid Michigan divorce and
remarried the beneficiary. He instead attempted to achieve the same
result by a different procedure. It appears that the State of Michigan
does not give recognition to such an attempt to circumvent her own
laws.
The Michigan trial court decree is certainly entitled to no more effect
in the present proceedings than it would be given in the State of
Michigan. In his letter advising the district director not to recognize the
decree, dated October 15, 1971, the Attorney General of Michigan
stated that "it is the view of this office that no finding of validity for the
previous divorce can be considered legally effective unless the court was
fully advised with respect to the circumstances and took cognizance of
the fact that it was a mail order decree with neither party present."
It appears that the State of Michigan does not consider the trial court
decree to be determinative of the validity of the petitioner's prior
divorce. There is no legal theory which compels us to give a state court
decree more effect than it would have in the rendering state.
Matter of Kwan., 11 I. & N. Dec. 205 (BIA 1965), and Matter of
Allison, 12 I. & N. Dec. 835 (BIA 1968), are distinguishable from the
present situation. in neither of those cases was it evident that the
decree would not be recognized in the rendering state.
We conclude that the petitioner has not terminated his prior marriage
in accordance with the law of Michigan Consequently, his present
marriage to the beneficiary is not valid under the law of Michigan. The
appeal will be dismissed. If the petitioner secures a valid Michigan
divorce from his first wife and remarries the beneficiary, he may submit
a new petition in her behalf.
ORDER: The appeal wfil be dismissed.
Warren R. Torrington, Member, Concurring:

Among the federal court cases cited in the dissenting opinion are
Zeldman v. Celebrezze, 252 F. Supp. 167 (E.D. N.Y. 1965); Collins v.

Celebrezze, 250 F. Supp. 37 (S.D. N.Y., 1966), and -Gr:zy v. Richardson,
474 F.2d 1370, 1373 (C.A. 6, 1973). In those cases, the courts interpreted the effect of state court decrees entered in contested domestic
relations cases. Thus, those decisions do not govern the present entirely
different factual situation, namely, the absence of any true contest, with
which we are concerned.
The state court cases cited in the dissenting opinion (Bair v. Bair, 91
Idaho 30, 415 P.2d 673 (1966); Presbrey v. Presbrey, 6 App. Div. 2d 477,
480, 179 N.Y.S. 2d 788, 792 (1958), aff'd 8 N.Y.2d 797, 168 N.E.2d 135
(1960) and Jackson City Bank & Truet Co. v. Fredrick, 271 Mich. 52R,
260 N.W. 908, 909 (1935)), do not appear to be relevant either. The

33

Interim Decision #2306
Idaho case held that a decedent's brothers and sisters who sought a
declaration • that they were his heirs at law had no standing to attack the
validity of a divorce decree which the widow had secured prior to her
marriage to the decedent. The New York case dealt with the res
judicata erect of a judgment of separation which incorporated the
terms of the separation agreement_ The Michigan case dealt with an
action brought by an administrator of an estate to set aside conveyances, and discussed the possibility of an error that a divorce court
might previously have made in the exercise of its undoubted jurisdiction.
I concur in the decision of the majority.
Maurice A. RTherts, Chairman, Dissenting:

I respectfully dissent. I agree with the majority insofar as they have
concluded that the presentation by the petitioner of an in absentia
Mexican divorce decree is insufficient to establish the termination of his
prior marriage under the law of Michigan. Matter of Norton, 12 I. & N.
Dee. 490 (BIA 1967). However, I do not agree with the majority's
conclusion that a Michigan state court decree affirming the petitioner's
present marriage to the beneficiary has no effect in these proceedings.
Section 25.84 of the Michigan Statutes Annotated has been set forth
in the majority opinion. It states that when the validity of a marriage is
in doubt a party may "file a bill or petition in the manner aforesaid, for
affirming the marriage. . . ." "In the manner aforesaid," must refer to
the previous section, Michigan Statutes Annotated section 25.83, which
states that a bill or petition may be filed "in the circuit court of the
county where the parties, or one of them, reside. . . ."
There is no question but that the parties were domiciled in Michigan
and resided in Bay County, and they also appeared in person before the
court. The Bay County Circuit Court had jurisdiction both over the
parties and over their marital status.
Section 25.84 states that the decree of the court, unless reversed on
appeal, "shall be conclusive upon all persons concerned." 1 It is a general principle of law that an adjudication of marital status rendered by a
' "When there is a want of jurisdiction over the parties, or the subject-matter, no

matter what formalities may have been taken by the trial court, the action thereof is void
because of its want of jurisdiction, and consequently its proceedings may be questioned
collaterally as well as directly. . . . But in cases where the court has undoubted jurisdiction of the subject-matter, and of the parties, the action of the trial court, though
involving an erroneous exercise of jurisdiction, which might be taken advantage of by
direct appeal, or by direct attack, yet the judgment or decree is not void though it might
be set aside for the irregular or erroneous exercise of jurisdiction if appealed from. It may
not be called in (peal= collaterally." Juukbon. City Bunk & Truat Co. v. F, atria, 271
Mich. 538, 260 N.W. 908, 909 (1935).

34

Interim Decision #2306
court which has actual jurisdiction is conclusive on all persons with
respect to the existence of that status, unless that adjudication is subsequently reversed on appeal or otherwise set aside pursuant to law.

Restatement of Judgments, section 74 and comments (1942); Restatement (Second) of Judgments, section 74 and comments (Tent. Draft No.
1, 1072); see e.g., Bair v. Bair, 91 Idaho 20, 415 P.2d 673 (1966);
Presbrey v. Presbrey, 6 App. Div. 2d 477, 480, 179 N.Y.S.2d 788, 792
(1958), aff'd 8 N.Y.2d 797, 168 N.E.2d 135 (1960); cf. Williams v. North,
Card-btu., 325 U.S. 287 (1942); 'Williams v. North Carolina, 325 U.S.
226, 232 (1945). See also Headen v. Pope and Talbot, Inc., 252 F.2d 739,
744 (C. A. 3, 1958), in which it was held that an adjudication under a
South Carolina statute nearly identical to Michigan Statutes Annotated
section 25.84 was conclusive upon the world, 'even in a subsequent action
on a different subject matter.
Several federal courts have recognized a state court decree declaring
marital status as determinative when that status was brought into
question in the course of a federal administrative proceeding under the

Social Security Act. Zeldman v. Celebrezze, 252 F.Supp. 167 (E.D.
N.Y., 1965); Collins v. Celebrezze, 250 F.Supp. 37 (S.D. N.Y., 1966).
Even federal courts which have held that the Government cannot be
absolutely bound by a state trial court decree rendered in an action to
which the Government was not a party have noted that special deference should be given to state court decrees in the area of domestic

relations, since the states have traditionally been the sole arbiters of
rights in that area. Gray v. Richardson, 474 F.2d 1370, 1373 (CA. 6,

1973); Collins v. Celebrezze, supra. 2
This is not the first time that the issue of the effect of a state court
decree affirming a marriage has been before the Board. In Matter of
Ktvan, 11 I. & N. Dec. 205 (BIA 1965), the Board was faced with a
decree under the very same Michigan statute. In that case we noted our
concern both with. the propriety of the procedure sanctioned by the
Michigan statute and with the problem posed by the in rem effect of an
adjudication of status. We concluded that the wisest administrative

policy would be to accept the decree of the Michigan court as proof of a
valid marriage under Michigan law. We applied a similar policy in
Matter of Allison, 12 I. & N. Dec. 835 (BIA 1968), in which we accepted
an adjudication from a court of the state of the petitioner's domicile
2 Collins v. Celebrezze, supra, dealt with a Social Security claim based on a state court
decree that the parties had entered into a common law marriage. The court stated: "If, as
here, the state courts have decided the issue the Secretary [of H.E.W.] cannot summarily
disregard that adjudication and proceed to re-decide de novo the issue of status. He cannot
ignore what the state courts already determined on the spurious ground that he was not a
party to the proceeding." 250 F. Supp. 37, at 41.

35

Interim Decision #2306
declaring that it recognized and considered valid the petitioner's Mexican divorce decree.
I wish to make it clear that nothing I have said is intended in any way
to diminish the Service's unquestionable authority to attack a marriage
which is entered into for the purpose of evading the immigration laws. It
is well established that a sham marriage is entitled to no effect under
the immigration laws, regardless of its validity under the applicable
domestic law. Matter of Garnero,.14 I. & N. Dec. 674 (BIA 1974); Matter
of Kitsalis, 11 I. & N. Dec. 613 (BIA 1966); Matter of M—, 8 I. & N.
Dec. 217 (BIA 1958). However, in the present case there is no suggestion whatsoever that the marriage in question was entered into to evade
the immigration laws.
The petitioner has presented the judgment of a Michigan state court

of competent jurisdiction affirming his present marriage to the beneficiary. I k elieve that the matter should end there. In the absence of
evidence that this judgment has been reversed on appeal or otherwise
set aside according to the law, I would accept it as determinative of the
petitioner's marital status under Michigan law. Consequently, I would
grant the petition.
Louisa Wilson, Member, Dissenting:

I concur in the dissent of the Chairman. I believe the judgment of the
Michigan court is determinative of the petitioner's marital status, and
should be accepted in the present case. I would approve the petition.

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Matter of Y-I-M-, Applicant
Decided December 12, 2019
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An Immigration Judge may rely on inconsistencies to support an adverse credibility
finding as long as either the Immigration Judge, the applicant, or the Department of
Homeland Security has identified the discrepancies and the applicant has been given an
opportunity to explain them during the hearing.
(2) An Immigration Judge may, but is not required to, personally identify an obvious
inconsistency where it is reasonable to assume that the applicant was aware of it and
had an opportunity to offer an explanation before the Immigration Judge relied on it.
FOR APPLICANT: Allison N. Grosz, Esquire, Brooklyn, New York
BEFORE: Board Panel: MALPHRUS, Acting Chairman; CREPPY, Board Member; and
BAIRD, Temporary Board Member.
BAIRD, Temporary Board Member:

In a decision dated February 11, 2019, an Immigration Judge denied the
applicant’s applications for asylum and withholding of removal under
sections 208(b)(1)(A) and 241(b)(3)(A) of the Immigration and Nationality
Act, 8 U.S.C. §§ 1158(b)(1)(A) and 1231(b)(3)(A) (2012), and his request
for protection under the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, adopted and opened for
signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at
197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for
the United States Apr. 18, 1988) (“Convention Against Torture”). The
applicant has appealed from that decision. The applicant’s request for oral
argument is denied and his appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The applicant is a native and citizen of Ukraine who was admitted to the
United States on October 8, 2014, under the Visa Waiver Program. He
sought asylum within a year of his arrival. The Department of Homeland
Security (“DHS”) placed him in asylum-only proceedings with the issuance
of a Notice of Referral to Immigration Judge (Form I-863) on June 28, 2018.
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In a hearing before the Immigration Judge, the applicant testified that he
refused to serve in the Ukrainian military because of his religious beliefs as
a member of the Russian Orthodox Christian Church. He claimed that he
fears he will be persecuted on account of his religion and for being perceived
as a military deserter.
The applicant testified that he was initially called into military service in
2007 and 2008. Upon his request, he was allowed to engage in alternative
military service in communications. He stated that he was not required to
partake in weapons training and was discharged as a private soldier without
a rank after 1 year.
He further testified that he was recalled for military duty in August 2014
and again requested alternative service based on his religious views. As a
result, military officers called him a deserter and beat him on two occasions.
The applicant stated that the beating left him with post-contusion pneumonia,
bruises to his chest, and internal bleeding, for which he received medical
care. A day after beginning treatment, he traveled to Hungary, where he
obtained a fraudulent passport. He returned to Ukraine the next day for more
medical treatment. In September 2014, he filed a complaint against the
officers but was then attacked and beaten on his way home.
The Immigration Judge denied the applicant’s claim, finding that he was
not credible, primarily because of inconsistencies in the record. The
applicant challenges the adverse credibility determination, arguing that the
Immigration Judge erred by not personally identifying the inconsistencies
and giving him an opportunity to respond. He further argues that the DHS’s
questioning about the inconsistencies on cross-examination was insufficient
to correct that error. We disagree and conclude that there is no clear error
in either the Immigration Judge’s consideration of the inconsistencies or his
adverse credibility finding.

II. ANALYSIS
This case addresses whether, if inconsistencies in the record are obvious
or have previously been identified by the applicant or the DHS, an
Immigration Judge is personally required to specify the discrepancies and
solicit an explanation from the applicant prior to relying on them to make an
adverse credibility finding.1
1

We review findings of fact, including credibility determinations, under the “clearly
erroneous” standard. 8 C.F.R. § 1003.1(d)(3)(i) (2019); see also Wu Lin v. Lynch, 813 F.3d
122, 126–27 (2d Cir. 2016) (discussing the meaning of “clear error” review); Matter of
A-B-, 27 I&N Dec. 316, 341 (A.G. 2018) (stating that an Immigration Judge’s factual
findings in a credibility determination should be afforded “even greater deference” (citation

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Under section 208(b)(1)(B)(iii) of the Act, an Immigration Judge may
base a credibility finding on, among other factors, “the inherent plausibility
of the applicant’s or witness’s account, the consistency between the
applicant’s or witness’s written and oral statements . . . , the internal
consistency of each such statement, the consistency of such statements with
other evidence of record . . . , and any inaccuracies or falsehoods in such
statements.” Thus, consideration of inconsistencies, whether occurring in
testimony or between testimony and other evidence, is a fundamental
component of an adverse credibility determination. See Hong Fei Gao
v. Sessions, 891 F.3d 67, 77–79 (2d Cir. 2018); Dayo v. Holder, 687 F.3d
653, 657 (5th Cir. 2012). An inconsistency need not go to the heart of the
claim, and “an [Immigration Judge] may rely on any inconsistency or
omission in making an adverse credibility determination as long as the
‘totality of the circumstances’ establishes that an asylum applicant is not
credible.” Hong Fei Gao, 891 F.3d. at 77 (quoting Xiu Xia Lin v. Mukasey,
534 F.3d 162, 167 (2d Cir. 2008) (per curiam)).
We have held that an adverse credibility determination should not be
based on inconsistencies that take an alien by surprise. See, e.g., Matter of
B-Y-, 25 I&N Dec. 236, 242 (BIA 2010). The circuit courts have agreed.
See, e.g., Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011) (stating that
“an [Immigration Judge] cannot base an adverse credibility determination on
a contradiction that the alien could reconcile if given a chance to do so”).
The United States Court of Appeals for the Second Circuit, in whose
jurisdiction this case arises, has explained that an applicant should have a
meaningful opportunity to respond to an inconsistency that is not apparent
before it is considered as part of an adverse credibility determination. Ming
Shi Xue v. BIA, 439 F.3d 111, 121 (2d Cir. 2006) (“[W]here the perceived
incongruities in an asylum applicant’s testimony are not plainly obvious, an
[Immigration Judge] cannot rely on them to support an adverse credibility
ruling without first identifying the alleged inconsistencies for the applicant
and giving the applicant an opportunity to address them.”). This helps
prevent an Immigration Judge from “prematurely decid[ing] that testimony
is inconsistent when, in fact, the purported discrepancies readily admit of
explanations which the [Immigration Judge] would find valid.” Id. at 122.
It is also well established that an Immigration Judge is not required to
adopt an applicant’s explanation for an inconsistency if there are other
permissible views of the evidence based on the record. See Matter of D-R-,
omitted)). Whether an Immigration Judge is personally required to identify and solicit an
explanation for perceived inconsistencies is a question of law, which we review de novo.
8 C.F.R. § 1003.1(d)(3)(ii); see also Ming Shi Xue v. BIA, 439 F.3d 111, 119 (2d Cir. 2006)
(discussing the Immigration Judge’s duty to solicit an explanation for inconsistencies,
which the court indicated is a “question of law” (citation omitted)).

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25 I&N Dec. 445, 455 (BIA 2011) (citing Anderson v. City of Bessemer City,
N.C., 470 U.S. 564, 574 (1985) (“Where there are two permissible views of
the evidence, the factfinder’s choice between them cannot be clearly
erroneous.”)), remanded on other grounds, Radojkovic v. Holder, 599
F. App’x 646, 648 (9th Cir. 2015); see also Kegeh v. Sessions, 865 F.3d 990,
996 (8th Cir. 2017) (“[E]ven where an applicant’s explanations are plausible,
an agency is not required to accept the explanations if an alternative
explanation is reasonable.” (citation omitted)); Lianhua Jiang v. Holder, 754
F.3d 733, 740 (9th Cir. 2014) (“If the [Immigration Judge] reasonably rejects
the alien’s explanation . . . , the [Immigration Judge] may properly rely on
the inconsistency as support for an adverse credibility determination.”
(citations omitted)); Weng v. Holder, 593 F.3d 66, 72 (1st Cir. 2010) (“Even
if the explanation for an inconsistency is on its face reasonable and
consistent, that does not mean the explanation is true or that the [Immigration
Judge] must accept it.”); Dankam v. Gonzales, 495 F.3d 113, 122 (4th Cir.
2007) (permitting the Immigration Judge to reject the alien’s plausible
explanation for inconsistencies); Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 336 n.17 (2d Cir. 2006) (“[W]e do not require . . . that an
[Immigration Judge] expressly parse or refute on the record each and every
one of a petitioner’s purported explanations for testimonial inconsistencies
or evidentiary gaps.”); Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d
Cir. 2006) (stating that an applicant “must do more than offer a plausible
explanation for his inconsistent statements to secure relief” (citation
omitted)); Shkabari v. Gonzales, 427 F.3d 324, 330 (6th Cir. 2005) (stating
that an alien’s plausible explanation for an inconsistency will not overcome
an adverse credibility finding if the Immigration Judge’s contrary
interpretation of the inconsistency is not unreasonable).
Any inconsistencies that an Immigration Judge relies upon must be
“tethered to the evidentiary record.” Gurung v. Barr, 929 F.3d 56, 61 (2d
Cir. 2019) (citation omitted). If the Immigration Judge does not find a
proffered explanation for an inconsistency persuasive, he or she should state
the reasons why on the record to allow for proper appellate review. But the
Immigration Judge “need not engage in ‘robotic incantations’ to make clear
that he has considered and rejected a petitioner’s proffered explanation.”
Ming Shi Xue, 439 F.3d at 124 n.15 (citation omitted) (internal quotation
mark omitted).
An applicant may be put on notice of inconsistencies in different ways,
depending on the circumstances. When an inconsistency is obvious or
apparent, it is not necessary to bring it to an applicant’s attention. See Majidi
v. Gonzales, 430 F.3d 77, 81 (2d Cir. 2005). In such a case, “it can properly
be assumed that the asylum applicant and his counsel are aware of [the
inconsistencies],” and it is “the applicant’s responsibility to proffer, with
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or without prompting, an explanation for what appears on its face to be
a clear contradiction.” Ming Shi Xue, 439 F.3d at 121. Because the alien
carries the burden of proof for relief under section 208(b)(1)(B) of the Act,
it is incumbent upon him to directly raise and clarify information that is
obviously inconsistent. An obvious inconsistency is one that is “sufficiently
conspicuous . . . as to be self-evident.” Id. at 114.
For example, where an alien’s application stated that his home was
ransacked by the opposition party while he was away, but he testified he was
beaten by party members when he was at home, the Immigration Judge was
not required to bring this obvious inconsistency to his attention. Majidi, 430
F.3d at 81 (discussing the alien’s “dramatically different” accounts of an
alleged incident). Cf. Ming Shi Xue, 439 F.3d at 114 (discussing an
inconsistency that is not obvious); Zhi Wei Pang v. Bureau of Citizenship
and Immig. Servs., 448 F.3d 102, 109–10 (2d Cir. 2006) (same).
According to the applicant, an Immigration Judge must personally
identify inconsistencies and give the alien a specific opportunity to explain
them. We do not agree. Where an inconsistency is not obvious, the key
consideration is whether it is reasonable to assume that the applicant was
aware of it and had an opportunity to offer an explanation before the
Immigration Judge relied on it.
An Immigration Judge may ask the applicant to respond to a perceived
inconsistency, but that is not the only way to bring it to his attention. The
Government may give the applicant an opportunity to respond through
cross-examination. The applicant’s representative may also decide to elicit
testimony on direct examination, or on redirect to clarify inconsistencies that
are brought out during the hearing, particularly if they are not obvious or
apparent. See, e.g., Martinez v. Holder, 734 F.3d 105, 112 (1st Cir. 2013)
(noting that the applicant, who was represented by counsel, had “many
missed opportunities” for clarification of his testimony). Although an
Immigration Judge is not required to ask about obvious inconsistencies, there
is nothing that precludes him or her from doing so for the sake of clarity and
completeness of the record.
The applicant relies on certain passages in Ming Shi Xue, 439 F.3d at 127,
where the Second Circuit makes reference to an Immigration Judge bringing
a perceived discrepancy to the alien’s attention. However, that decision held
that the adverse credibility finding was inadequate because the Immigration
Judge or the DHS “should have brought [the inconsistency] to the alien’s
attention to ensure that [he] had an opportunity to explain.” Id. As the court
stated, “Where an [Immigration Judge] identifies problems with an alien’s
testimony during the hearing itself, [he] should, before rendering his
decision, ask about the perceived inconsistency if the government has not

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brought it to the applicant’s attention during cross-examination.” Id. at 125
n.19 (emphasis added).
We also recognize that the Ninth Circuit has held that an “[Immigration
Judge] should give fair notice of inconsistencies in testimony or points on
which the [Immigration Judge] thinks the witness is not being responsive.”
Garcia v. Holder, 749 F.3d 785, 790 (9th Cir. 2014). However, the court has
also stated that “the opportunity to explain may be provided through
cross-examination by the government, or even direct examination by the
alien’s own attorney, not just through a colloquy between the alien and the
[Immigration Judge].” Rizk, 629 F.3d at 1088 (citations omitted).
Importantly, “[an Immigration Judge’s] responsibility to identify, in
advance of judgment, perceived inconsistencies[] is not tantamount to a duty
to assist the counseled asylum applicant in putting forward an affirmative
asylum claim in the first place.” Ming Shi Xue, 439 F.3d at 125 n.18.
Immigration proceedings “are adversarial in nature [and] are designed to
provide the parties with an opportunity to develop the record by presenting
evidence and testimony before an Immigration Judge, who makes the
necessary factual findings and legal conclusions based on the claims
presented.” Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189, 190–91 (BIA
2018).
It is the applicant’s burden to establish his persecution claim. Section
208(b)(1)(B)(iii) of the Act; see also section 240(c)(4)(A)(i) of the Act,
8 U.S.C. § 1229a(c)(4)(A)(i) (2012) (providing that an alien bears the burden
to establish eligibility for relief from removal); Almeida v. Holder, 588 F.3d
778, 790 (2d Cir. 2009) (same). Whether the opportunity to respond to
inconsistencies comes as a result of questions asked by the Immigration
Judge or through direct or cross-examination by the parties is not dispositive.
We conclude that when inconsistencies in the record are obvious or have
previously been identified by the applicant or the DHS, an Immigration
Judge is not personally required to specify the discrepancies and solicit an
explanation from the applicant prior to relying on them in making an adverse
credibility finding. See Zhi Wei Pang, 448 F.3d at 110 (“This requirement
[to provide the alien with the opportunity to explain a perceived discrepancy]
does not mean that the [Immigration Judge] must duplicate the questions of
the government when the government has already noted testimonial flaws on
cross-examination.”).
There is no clear error in the Immigration Judge’s adverse credibility
finding.2 The Immigration Judge gave specific and cogent reasons for his
2

The Immigration Judge found that the testimony of the applicant’s expert witness should
be given minimal weight, primarily because the claims in his testimony and written report
relating to the Ukrainian military, including his statement that the military decided to stop

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adverse credibility determination, which included examples of significant
internal inconsistencies in the applicant’s testimony, inconsistencies and
omissions between his testimony and the documentary evidence he
submitted, and the implausibility of his testimony.
See section
208(b)(1)(B)(iii) of the Act; Matter of J-Y-C-, 24 I&N Dec. 260, 266 (BIA
2007) (holding that the Immigration Judge properly considered the totality
of the circumstances in finding that the applicant lacked credibility based on
his demeanor, implausible testimony, lack of corroboration, and inconsistent
statements).
The Immigration Judge found the applicant’s testimony to be internally
inconsistent and inconsistent with the documents he presented. 3 For
instance, the applicant testified that he had received an alternative service
accommodation in 2007 and 2008, and he ended his service with no rank, or
a rank equivalent to a private. But his military identification showed that he
had been promoted to “senior soldier” during that time. When the DHS
attorney asked him to explain this inconsistency, the applicant stated he was
unaware of the rank change. The Immigration Judge properly relied on this
as an inconsistency between the applicant’s testimony and his documentary
evidence. See Xiu Xia Lin, 534 F.3d at 167. The applicant does not directly
address this significant discrepancy on appeal.
The applicant also testified that after he was injured in August 2014, he
obtained medical treatment in an outpatient clinic for 2 months, but he
changed his testimony on cross-examination to state that he had only been
treated for 5 weeks, ending in September 2014. The applicant’s medical
document states that the applicant was treated until October 3, 2014. When
the DHS attorney asked him to explain this inconsistency, the applicant
testified that this was the length of time recommended for treatment, but he
ended treatment early.
The applicant attempts to explain this discrepancy on appeal by stating
that the doctor occasionally came to his home to treat him during the time
period covered by the medical document. However, this differs from the
explanation the applicant proffered to the Immigration Judge. Because our
appellate review is limited to the record below, we do not consider
explanations for inconsistencies offered for the first time on appeal. See
Matter of F-P-R-, 24 I&N Dec. 681, 682 n.1 (BIA 2008). Given these
providing for alternative military service, were not supported by citations to any authority.
The applicant has not challenged this determination on appeal, and we consider the issue
to be waived. See Matter of R-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012).
3
The applicant complains that the Immigration Judge did not cite to his testimony. The
Immigration Judge issued a detailed written decision that made specific references to the
applicant’s testimony and the evidentiary record. He could not cite to a transcript because
a transcript is only generated after an appeal is filed.

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discrepancies in the record, we conclude that the Immigration Judge properly
gave the applicant’s medical document minimal weight. See Xiao Ji Chen,
471 F.3d at 342 (stating that the weight to be accorded to documentary
evidence lies largely within the Immigration Judge’s discretion).
The Immigration Judge found that the applicant’s credibility was further
undermined by the fact that his written statement failed to mention his travel
to Hungary, which allegedly occurred only a day or two after he suffered
extensive injuries. He also did not testify on direct examination that he went
to Hungary to obtain a false passport, which he only acknowledged on
cross-examination by the DHS. The applicant’s explanation for the absence
of this information was vague. Although he suggested that his prior attorney
may have been to blame for the omission, the statement was resubmitted with
his current attorney, and the applicant had reviewed it. Additionally, the
applicant provided no explanation for how an Interpol warrant was issued
against him.
The Immigration Judge properly relied on these implausible aspects of
the applicant’s claim as support for the adverse credibility finding. See
section 208(b)(1)(B)(iii) of the Act; Santashbekov v. Lynch, 834 F.3d 836,
839 (7th Cir. 2016) (“Immigration authorities may discredit testimony for
lack of ‘inherent plausibility.’” (citation omitted)); Yan v. Mukasey, 509 F.3d
63, 66 (2d Cir. 2007) (per curiam) (stating that “in assessing the credibility
of an asylum applicant’s testimony, an [Immigration Judge] is entitled to
consider whether the applicant’s story is inherently implausible”).
The applicant argues that, assuming there are inconsistencies in the
record, they are minor and not relevant to his claim of persecution. We
disagree. The Immigration Judge observed that the applicant could not
explain his prior military history, which was central to his claim; his trip to
Hungary to secure the passport he used to enter the United States; or his
medical claims, which were key to his claim of past harm. These are not
“trivial differences in word choices alone.” Gurung, 929 F.3d at 61. In any
case, even minor inconsistencies may be considered as part of an adverse
credibility determination under the totality of the circumstances. See Hong
Fei Gao, 891 F.3d. at 77.
The Immigration Judge also found that the applicant did not provide
sufficient corroborating evidence to overcome his lack of credibility. See
section 208(b)(1)(B)(ii) of the Act; Matter of L-A-C-, 26 I&N Dec. 516,
518–19 (BIA 2015) (stating that “regardless of whether an applicant is
deemed credible, he has the burden to corroborate the material elements of
the claim where the evidence is reasonably obtainable”); see also Biao Yang
v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The Immigration Judge
determined that the applicant did not provide reasonable documentation of
his claimed church attendance in Ukraine, his prior grant of an alternative
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service accommodation, or his filing of a complaint alleging that he was
beaten by military officers. The applicant was given an opportunity to
explain the lack of corroboration, but the Immigration Judge did not find his
explanations to be persuasive. See Matter of L-A-C-, 26 I&N Dec. at 521–22.
The Immigration Judge’s adverse credibility finding is not clearly
erroneous under the standards set forth in section 208(b)(1)(B)(iii) of the Act.
Since the finding related to both the applicant’s claims of past persecution
and fear of future harm, his testimony was not sufficient to establish
eligibility for relief, and he has not otherwise met his burden to prove
eligibility for asylum or withholding of removal. See Matter of M-S-, 21 I&N
Dec. 125, 129 (BIA 1995) (“A persecution claim which lacks veracity cannot
satisfy the burdens of proof and persuasion necessary to establish eligibility
for asylum and withholding relief.”); 8 C.F.R. §§ 1208.13(a), 1208.16(b)
(2019).
The Immigration Judge also properly concluded that the applicant’s
incredible testimony was insufficient to establish his eligibility for protection
under the Convention Against Torture. See Hong Fei Gao, 891 F.3d at
76 (“Where the same factual predicate underlies a petitioner’s claims for
asylum, withholding of removal, and protection under the [Convention
Against Torture], an adverse credibility determination forecloses all three
forms of relief.” (citing Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir.
2006))). We agree with the Immigration Judge that the applicant provided
insufficient corroborating evidence to independently meet this high burden
of proof and that he therefore has not established his eligibility for protection
under the Convention Against Torture. Accordingly, the applicant’s appeal
will be dismissed.
ORDER: The appeal is dismissed.

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Interim Decision #3984

Matter of BAY AREA LEGAL SERVICES, INC., Applicant
Request for Accreditation
Decided May 22, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Office of the Director
(1) The Assistant Director for Policy has the discretion to extend the deadline for a request
for reconsideration made pursuant to 8 C.F.R. § 1292.13(e), but not for a request for
reconsideration made pursuant to 8 C.F.R. § 1292.16(f) or § 1292.17(d). The 30-day
deadline for a request for reconsideration in 8 C.F.R. § 1292.13(e), § 1292.16(f), and
§ 1292.17(d) is otherwise mandatory and not subject to equitable tolling.
(2) A request for reconsideration made pursuant to 8 C.F.R. § 1292.13(e), § 1292.16(f), or
§ 1292.17(d) must demonstrate an error of fact or law in the previous decision.
(3) The standard of review for administrative reviews conducted under 8 C.F.R. § 1292.18
is de novo.
(4) Unless overruled by subsequent precedent or superseded by statute, regulation, or
binding federal court decision, prior precedent decisions of the Board of Immigration
Appeals remain binding in recognition and accreditation proceedings after January 18,
2017, including consideration of requests for reconsideration pursuant to 8 C.F.R.
§§ 1292.13(e), 1292.16(f), or 1292.17(d) and administrative reviews conducted under
8 C.F.R. § 1292.18.
(5) In addition to establishing the requirements for partial accreditation, an organization
seeking full accreditation for an individual pursuant to 8 C.F.R. § 1292.12(a)(6) must
establish that the individual possesses “skills essential for effective litigation.” Such
skills include, at a minimum, “the ability to advocate a client's position at a hearing
before an Immigration Judge by presenting documentary evidence and questioning
witnesses, to present oral arguments before the Board, and to prepare motions and briefs
for consideration by an Immigration Judge and/or [the] Board.” Matter of EAC, Inc.,
24 I&N Dec. 556 (BIA 2008), followed.
McHENRY, Director:

The Office of Policy, through the Office of Legal Access Programs
(OLAP), currently administers the Executive Office for Immigration
Review’s (EOIR’s) recognition and accreditation program (R&A Program).
On October 16, 2019, OLAP approved the application of Bay Area Legal
Services, Inc. (Applicant) for recognition under 8 C.F.R. § 1292.11. It also
approved a request to extend recognition of the Applicant’s principal office
to various extension offices under 8 C.F.R. § 1292.15.
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Applicant also submitted a request for full accreditation for Carlos
Betancourt under 8 C.F.R. § 1292.12. On October 16, 2019, OLAP
disapproved the request for full accreditation for Mr. Betancourt but
approved the application for partial accreditation for him. On December 16,
2019, OLAP received a request for reconsideration of the disapproval of
the application for full accreditation for Mr. Betancourt pursuant to
8 C.F.R. § 1292.13(e). On February 19, 2020, OLAP denied the request for
reconsideration.
On February 21, 2020, I provided notification to Applicant that I would
review the denial of the reconsideration request on my own initiative
pursuant to 8 C.F.R. § 1292.18(a)(2). In that notification, I further specified
the following issues to be reviewed:
(1) Is the 30-day deadline for a request for reconsideration in 8 C.F.R.
§ 1292.13(e) (and in § 1292.16(f) and § 1292.17(d)) subject to equitable tolling? If
so, what circumstances may warrant such tolling?
(2) What is the appropriate legal standard for evaluating a request for
reconsideration pursuant to 8 C.F.R. § 1292.13(e) (or § 1292.16(f) or § 1292.17(d))?
(3) What is the appropriate standard of review for an administrative review
conducted under 8 C.F.R. § 1292.18?
(4) Are prior precedent decisions of the Board of Immigration Appeals (the Board)
in recognition and accreditation (R&A) cases binding on consideration of requests
for reconsideration pursuant to 8 C.F.R. §§ 1292.13(e), 1292.16(f), or 1292.17(d)
and on administrative reviews conducted under 8 C.F.R. § 1292.18?

Pursuant to 8 C.F.R. § 1292.18(b), I also notified Applicant that it could
submit additional filings, including a brief, on these issues and that it could
submit any additional evidence related to the denial of the request for
reconsideration. Any additional filings by Applicant were due by March 13,
2020. I further invited interested members of the public to file amicus curiae
briefs on the aforementioned issues. 1
1

As further discussed herein, the regulatory transfer of responsibility for the R&A
Program from the Board to OLAP in 2017 left open a number of questions related to R&A
proceedings, including whether appearances by amicus curiae are permissible in such
proceedings. When the Board oversaw responsibility for the R&A Program, its regulation
allowing for appearances by amicus curiae on a case-by-case basis allowed for such
appearances in R&A cases. 8 C.F.R. § 1292.1(d). After the transfer, however, the
regulations governing the R&A Program do not expressly allow for appearances by
amicus curiae in proceedings adjudicating applications under that program. See id.
§§ 1292.11-1292.20. Although EOIR policy is clear that amicus curiae may not engage in
legal advocacy on behalf of an individual in open court, Policy Memorandum 20-05, Legal

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Applicant did not file any additional materials or a brief. One
organization filed an amicus curiae brief.
For the reasons set forth below, I affirm OLAP’s denial of the request for
reconsideration. 2

I. BACKGROUND
“The purpose of the [R&A Program] is to provide competent and
affordable immigration legal services to persons of limited means through
reputable nonprofit organizations.”
Matter of St. Francis Cabrini
Immigration Law Center, 26 I&N Dec. 445, 446 (BIA 2014). Through the
R&A Program, EOIR permits qualified non-attorneys to represent aliens
before the Department of Homeland Security (DHS), the immigration courts,
and the Board of Immigration Appeals (the Board). Organizations
recognized by EOIR may “provide representation through accredited
representatives who appear on behalf of clients before the Immigration
Courts, the Board, and DHS, or DHS alone.” 8 C.F.R. § 1292.11(a). EOIR
“may approve accreditation of an eligible individual as a representative
of a recognized organization for either full or partial accreditation.” Id.
§ 1292.12(a). “An individual who receives full accreditation may represent
clients before the Immigration Courts, the Board, and DHS. An individual
who receives partial accreditation may represent clients only before DHS.”
Id. An organization applying for accreditation for an individual must specify
whether it seeks partial or full accreditation for that individual. Id. In addition
to the requirements for partial accreditation, id. §§ 1292.12(a)(1)-(6), an
organization seeking full accreditation “must establish that the individual
also possesses skills essential for effective litigation.” Id. § 1292.12(a)(6).

Advocacy by Non-Representatives in Immigration Court (Nov. 21, 2019) (PM 20-05), an
administrative review under 8 C.F.R. § 1292.18 presents a different situation. Cf. Yip
v. Pagano, 606 F. Supp. 1566, 1568 (D.N.J. 1985), aff’d, 782 F.2d 1033 (3d Cir.), cert.
denied, 476 U.S. 1141 (1986) (“At the trial level, where issues of fact as well as law
predominate, the aid of amicus curiae may be less appropriate than at the appellate level
where such participation has become standard procedure.”); Sierra Club v. FEMA, 2007
WL 3472851, *1 (S.D. Tex. Nov. 14, 2007) (“An amicus may be useful at the appellate
level but not in the district court.”). As there is no indication that the transfer of oversight
of the R&A Program through the 2016 rulemaking was intended to prohibit amicus curiae
briefing at the review stage of R&A proceedings—as analogous to the Board’s appellate
authority—I find that the Director has the authority in an administrative review conducted
under 8 C.F.R. § 1292.18 to invite briefing from amicus curiae on a case-by-case basis if
the public interest will be served.
2
Pursuant to 8 C.F.R. § 1292.18(d), I also direct that this decision be published as
precedent.

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The Department of Justice has maintained a formal R&A Program
since at least the mid-1970s. See Representation and Appearance Before
Immigration and Naturalization Appeals, 40 Fed. Reg. 23,271 (May 29,
1975). Until 2017, oversight of the Service and Board of Immigration R&A
Program within EOIR lay with the Board, and the Board occasionally
published decisions in R&A proceedings to provide guidance for those
seeking recognition or accreditation. See, e.g., Matter of American Paralegal
Academy, Inc., 19 I&N Dec. 386 (BIA 1986) (interpreting the phrase
“nominal charges” for purposes of recognition under then-8 C.F.R.
§ 292.2(a)).
In 2015, EOIR proposed several changes to the R&A Program, including
the transfer of responsibility for it from the Board to OLAP. See Recognition
of Organizations and Accreditation of Non-Attorney Representatives,
80 Fed. Reg. 59,514 (Oct. 1, 2015). The rule effectuating those changes was
finalized on December 19, 2016, and became effective on January 18, 2017.
See Recognition of Organizations and Accreditation of Non-Attorney
Representatives, 81 Fed. Reg. 92,346 (Dec. 19, 2016). The final rule
contained multiple changes from the proposed rule, including the addition of
a reconsideration process and a process for further administrative review
by the Director. Id. at 92,357. Pursuant to the final rule, disapprovals of
recognition or accreditation requests, disapprovals of requests for renewal of
recognition or accreditation, and terminations of recognition or accreditation
on particular bases are each subject to one request for reconsideration filed by
an applicant within 30 days of the relevant decision. 8 C.F.R. §§ 1292.13(e),
1292.16(f), and 1292.17(d). 3 The Director has discretionary authority to
review a denial of a request for reconsideration in these three circumstances.
Id. § 1292.18(a). 4
As discussed further below, the changes brought about by that rule raised
several procedural questions that were unanswered by the rule itself. Some
of those questions have been addressed through subsequent rulemakings.
3

The regulations do not provide for an organization’s ability to request reconsideration
when its request to extend recognition to any office or location where the organization
offers services is denied. See 8 C.F.R. § 1292.15.
4
As discussed, infra, the Assistant Director for Policy may, as a matter of discretion,
extend the 30-day deadline for a reconsideration request of the disapproval of a recognition
or accreditation request, but not the deadline for reconsideration requests of disapprovals
of requests for renewal of recognition or accreditation or of terminations of recognition or
accreditation on particular bases. Otherwise, the three 30-day deadlines contain nearly
identical regulatory language, serve identical functions, and are subject to the same form
of administrative review. Accordingly, I find no reason to interpret the three provisions
differently—i.e., 8 C.F.R. §§ 1292.13(e), 1292.16(f), and 1292.17(d)—or to distinguish the
standards applicable to all of them, except as noted herein.

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See, e.g., Board of Immigration Appeals: Affirmance Without Opinion,
Referral for Panel Review, and Publication of Decisions as Precedents,
84 Fed. Reg. 31,463, 31,469 (July 2, 2019) (adding language to 8 C.F.R.
§ 1292.18 to make clear that decisions in R&A proceedings may still be
designated as precedential and that R&A cases may still be referred to the
Attorney General for review even after the transfer of responsibility for the
R&A Program from the Board to OLAP). 5 Other questions remain open,
particularly involving the reconsideration and administrative review
processes added in the final rule. As Applicant’s case presents several of
these questions, the instant adjudication provides an appropriate opportunity
to fill in some of the gaps left by the 2016 rulemaking and to provide
guidance for future adjudications in R&A proceedings.

II. ISSUES
Applicant’s request for reconsideration was subject to a 30-day deadline
and appears to have been untimely filed. Therefore, the first question raised
is whether there is any basis to extend that deadline and to consider
Applicant’s request notwithstanding its untimeliness. Additionally, although
OLAP denied the request as untimely, it denied the request on the merits in
the alternative. Consequently, Applicant’s case also raises the question of
what such a request must demonstrate in order to warrant consideration on
its merits. As OLAP’s decision was subject to administrative review, the
case further presents the question of what standard should govern such
reviews. Finally, the merits of Applicant’s request appear to be controlled
by a prior Board precedent. Thus, the question of the continued applicability
of that precedent is also at issue in Applicant’s case. Each of these issues is
addressed in turn below.
A. Untimely Requests for Reconsideration under
8 C.F.R. § 1292.13(e), § 1292.16(f), or § 1292.17(d)
A request for reconsideration pursuant to 8 C.F.R. §§ 1292.13(e),
1292.16(f), or 1292.17(d) must be filed within 30 days of the relevant
decision. The Assistant Director for Policy or the Director of OLAP as her
delegate may, as a matter of discretion, extend the deadline for a request for
reconsideration of the disapproval of a recognition or accreditation request.
5

In 2019, OLAP and responsibility for the R&A Program were transferred within EOIR
from the Office of the Director to the Office of Policy through the promulgation of an
interim final rule. See Organization of the Executive Office for Immigration Review, 84
Fed. Reg. 44,537 (Aug. 26, 2019). As a change in internal agency organization, the 2019
interim final rule did not address any standards for these procedures in the R&A Program.

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See 8 C.F.R. § 1292.13(a) (“The Assistant Director for Policy (or the
Assistant Director for Policy’s delegate) may, in the exercise of discretion,
extend the deadlines provided in this section [i.e., 8 C.F.R. § 1292.13].”). No
similar regulatory authority exists, however, for reconsideration requests for
disapprovals of requests for renewal of recognition or accreditation or for
terminations of recognition or accreditation on particular bases. 6 See id.
§§ 1292.16, 1292.17.
The 30-day filing deadline for a request for reconsideration appears to be
a traditional claim-processing rule, one that “promote[s] the orderly progress
of litigation by requiring that the parties take certain procedural steps at
certain specified times.” Henderson v. Shinseki, 562 U.S. 428, 435 (2011).
Indeed, filing deadlines are “quintessential claim-processing rules.” Id.
Some claim-processing rules may be subject to equitable tolling, which
tolls, or pauses, a relevant deadline for a person (or entity) who has diligently
pursued his rights but nevertheless failed to file something timely due to an
extraordinary circumstance; however, not all claim-processing rules are
subject to equitable tolling. Compare Nutraceutical Corp. v. Lambert, 139
S. Ct. 710, 714 (2019) (Fed. R. Civ. P. 23(f) is a claim-processing rule but is
not amenable to equitable tolling), and Eberhart v. United States, 546 U.S.
12, 19 (2005) (Fed. R. Crim. P. 33 is a claim-processing rule, but inflexible),
with Attipoe v. Barr, 945 F.3d 76, 77 (2d Cir. 2019) (the Board’s 30-day
deadline for filing an appeal is a claim-processing rule that is subject to
equitable tolling); see also Huerta v. Gonzales, 443 F.3d 753, 756 (10th Cir.
2006) (the Board’s 30-day deadline for filing an appeal is a claim-processing
rule but is nevertheless mandatory); Liadov v. Mukasey, 518 F.3d 1003, 1008
n.4 (8th Cir. 2008) (agreeing with Huerta that the Board’s filing deadline is
nonjurisdictional but nevertheless mandatory). The understanding of filing
deadlines as nonjurisdictional claim-processing rules is also not dispositive
as to whether those deadlines are subject to extension for any reason, such as
equitable tolling, because filing-deadline claim-processing rules may be
enforced as mandatory. See Gonzalez v. Thaler, 565 U.S. 134, 146 (2012)
(“But calling a rule nonjurisdictional does not mean that it is not mandatory
. . . .”); cf. Kontrick v. Ryan, 540 U.S. 443, 456 (2004) (noting that a filing
deadline categorized as a nonjurisdictional claim processing rule may
nevertheless be “inflexible” or “unalterable”).
The 30-day filing deadline is purely a creature of regulation, as there is
no statutory requirement for reconsideration in R&A proceedings. Thus,
there is no evidence of any statutory intent to provide authority to extend that
6

The Assistant Director for Policy or her delegate does have the authority to extend the
deadline for filing a renewal request or to accept an untimely-filed renewal request, 8 C.F.R.
§ 1292.16(b)(3), but that authority does not extend to requests for reconsideration of the
disapproval of renewal requests.

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deadline. See Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014) (“Because
the doctrine effectively extends an otherwise discrete limitations period
set by Congress, whether equitable tolling is available is fundamentally a
question of statutory intent.”). The regulation itself also provides no
authority for an equitable deadline extension and no authority for an
extension at all, except as provided in 8 C.F.R. § 1292.13(a) for a request
for reconsideration of the disapproval of a recognition or accreditation
request. There is also no presumption that equitable tolling should apply
to reconsideration requests in R&A proceedings. See Sebelius v. Auburn
Regional Medical Center, 568 U.S. 145, 158 (2013) (“We have never applied
[a rebuttable presumption that equitable tolling applies to suits against
the United States] to an agency’s internal appeal deadline . . . .”). Finally,
equitable tolling is a remedy founded in equity, and EOIR does not possess
inherent, non-statutory, free-floating equitable authority. See, e.g., Matter of
Hernandez-Puente, 20 I&N Dec. 335 (1991) (the Board and immigration
judges are without authority to apply equitable estoppel against now-DHS to
preclude it from taking a lawful course of action it is authorized to take by
statute or regulation).
Consequently, in the absence of any statutory, regulatory, or equitable
authority, there is no basis to apply equitable tolling to filing deadlines in
R&A proceedings. Accordingly, although the Assistant Director for Policy
may, as a matter of discretion, extend the deadline for a request for
reconsideration of the disapproval of a recognition or accreditation
request pursuant to 8 C.F.R. § 1292.13(a), the deadline for a request for
reconsideration is otherwise mandatory. No other regulation authorizes an
extension of the 30-day deadline in 8 C.F.R. §§ 1292.13(e), 1292.16(f), or
1292.17(d), and equitable tolling cannot be invoked to extend the deadline.
B. Requests for Reconsideration Pursuant to
8 C.F.R. § 1292.13(e), § 1292.16(f), or § 1292.17(d)
The regulations are silent on what, if anything, an applicant
must demonstrate on a request for reconsideration under either 8 C.F.R.
§ 1292.13(e), § 1292.16(f), or § 1292.17(d). The rule establishing the
availability of reconsideration requests, however, noted that the procedures
were designed to allow affected organizations an opportunity to “point to an
error in the determination.” 81 Fed. Reg. at 92,357. 7
7

Somewhat confusingly, the final rule implies that deficiencies leading to an adverse
determination by OLAP could also be corrected through a request for reconsideration,
81 Fed. Reg. at 92,357 (“Nevertheless, the Department realizes that adverse determinations
are likely to occur and that organizations may have the ability to correct any deficiencies

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Although the specific label “request [or motion] for reconsideration” is not
used in all types of adjudications, many adjudicatory systems have some
mechanism for the reassessment of a prior decision by the same decisionmaker, though there may be limits on the types of decisions subject to
reconsideration and the amount of time in which such a request must be filed.
Many, if not most, of these mechanisms employ some variation of a basic
standard—identification of an error of fact or law in the prior decision. For
example, a motion to reconsider a Board or an immigration judge decision
requires the specification of an error of fact or law. 8 C.F.R. §§ 1003.2(b)(1),
1003.23(b)(2); Matter of O-S-G-, 24 I&N Dec. 56, 56-57 (BIA 2006).
Other administrative agencies utilize a similar standard. See, e.g., 38 C.F.R.
§ 20.1001(a) (reconsideration of a decision by the Board of Veterans Appeals
may be accorded upon allegation of obvious error of fact or law). Various
types of reconsideration procedures in federal court proceedings also utilize
a similar standard, though the procedural names and specific formulations
vary. Cf. Fed. R. App. P. 40(a)(2) (“[A petition for panel rehearing] must
state with particularity each point of law or fact that the petitioner believes
the court has overlooked or misapprehended . . . .”); Above the Belt, Inc.
v. Mel Bohannon Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983) (“The
motion to reconsider would be appropriate where, for example, the Court has
patently misunderstood a party, or has made a decision outside the
adversarial issues presented to the Court by the parties, or has made an error
not of reasoning but of apprehension.”).
Consistent with the language and apparent intent of the 2016 rulemaking,
there is no indication that the reconsideration procedure established in
8 C.F.R. § 1292.13(e), § 1292.16(f), or § 1292.17(d) was intended to deviate
from the well-established standard that such requests must point to an error
in the underlying determination, such as an error of fact or law, nor is there
any basis to conclude that the reconsideration procedure was intended to be
subject to some other novel, unstated adjudicatory parameter. Accordingly,
I hold that a request for reconsideration under 8 C.F.R. § 1292.13(e),
that led to the adverse determination or otherwise point to an error in the determination.”),
even though the rule already contained other procedures designed to address any such
deficiencies, id. (“The final rule adopts the provisions of the proposed rule that afford an
applicant an opportunity to be heard before the issuance of a determination on an initial or
renewal application for recognition and accreditation or a determination on administrative
termination based on deficiencies regarding the requirements for recognition or
accreditation or reporting, recordkeeping, and posting.”). Moreover, most, if not all,
purported deficiencies to be corrected would be identified by “point[ing] to an error in the
determination.” Id. Accordingly, the language in the rulemaking does not set out an
additional standard for a request for reconsideration beyond pointing out an error in the
prior determination, which includes an error of either fact or law (or both).

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§ 1292.16(f), or § 1292.17(d) must point to an error of fact or law (or both)
in the underlying determination in order to be grantable.
C. The Standard of Review for an Administrative Review
Conducted Under 8 C.F.R. § 1292.18
The possibility of administrative review by the Director was added to the
final rule in response to “concerns that OLAP would be the sole
decision-maker regarding recognition and accreditation and that another
entity should be able to review OLAP’s decisions.” 81 Fed. Reg. at 92,357.
The rulemaking did not offer a standard for such review, however. 8
A request for administrative review may allege “factual or legal errors,”
indicating that administrative review encompasses both factual and legal
determinations. 8 C.F.R. § 1292.18(a)(1). Consequently, the standard of
review should be appropriate for both types of determinations.
There is no universal standard for administrative reviews in agency
proceedings, and assessing similar administrative immigration-related
adjudications shows a mix of approaches to reviewing factual and legal
determinations. For example, the Board reviews factual findings by
immigration judges for clear error and reviews questions of law, discretion,
and judgment de novo. 8 C.F.R. §§ 1003.1(d)(3)(i), (ii). For appeals from
DHS proceedings, however, the Board reviews all issues de novo. Id.
§ 1003.1(d)(3)(iii). In conducting an administrative review of an ALJ’s
decision in certain proceedings under 8.U.S.C. § 1324a or 1324c, see
28 C.F.R. § 68.54, the CAHO reviews all issues de novo. Maka v. INS,
904 F.2d 1351, 1356 (9th Cir. 1990); United States v. Crescent City
Meat Company, Inc., 11 OCAHO no. 1217, 7 (CAHO 2014). The DHS
Administrative Appeals Office (AAO) reviews cases de novo, including
questions of law, policy, fact, and discretion. Matter of Simeio Solutions,
LLC, 26 I&N Dec. 542 n.1 (AAO 2015); see also Agency Information
Collection Activities; Revision of a Currently Approved Collection: Notice
8

The rule appears modeled, in part, on the rule for Chief Administrative Hearing Officer
(CAHO) review of an administrative law judge’s (ALJ’s) decision in certain immigrationrelated proceedings under 8 U.S.C. §§ 1324a and 1324c. See 28 C.F.R. § 68.54. Both
rules provide for discretionary administrative review within 10 days of the relevant
decision, allow for the reviewer to conduct a review on his or her own initiative, and require
the reviewer to state the issues to be reviewed for a self-initiated review. Compare id.
§ 68.54(a) with 8 C.F.R. § 1292.18(a). As discussed, infra, the CAHO reviews an ALJ’s
decision in proceedings under 8 U.S.C. §§ 1324a and 1324c de novo, though there is a
statutory basis for applying that standard. See 5 U.S.C. § 557(b). Nevertheless, to the
extent that the provisions of CAHO review under 28 C.F.R. § 68.54 may inform Director
review under 8 C.F.R. § 1292.18, those provisions support a de novo standard of review.

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of Appeal or Motion, 84 Fed. Reg. 66,924, 66,926 (Dec. 6, 2019) (“The AAO
may review questions of law, policy, fact, and discretion de novo.”). 9
Adjudications in R&A proceedings are largely, if not entirely, based on
paper filings or other documentary evidence. See, e.g., 8 C.F.R. 1292.13(a).
Thus, both factual and legal determinations are based on the documents
presented. Notably, although the Board distinguishes standards of review for
questions of fact and questions of law in appeals from immigration judge
decisions, which usually follow a hearing, it retains one standard of review
for both questions of law and questions of fact in appeals from DHS
proceedings, which are largely based on papers and interviews. Compare
id. §§ 1003.1(d)(3)(i), (ii), with id. § 1003.1(d)(3)(iii); see also Board of
Immigration Appeals: Procedural Reforms to Improve Case Management,
67 Fed. Reg. 54,878, 54,891 (Aug. 26, 2002) (“The comments on de novo
review have raised an issue of the scope of review of factual determinations
by officers of the [DHS] in decisions under review by the Board. Review of
decisions by the district director and other [DHS] officers do not have the
benefit of a full record of proceedings or, except in rare cases, a transcript of
hearings before an independent adjudicating officer. Rather these decisions
are made on applications and interviews, and other information available
to the Service. In light of this difference, the Department has clarified the
language of the final rule to retain de novo review of Service officer decisions
. . . .”). Document-based adjudications by the AAO also use one standard of
review for both questions of law and questions of fact. Matter of Simeio
Solutions, 26 I&N Dec. 542, 542 n.1.
In R&A proceedings, the administrative review of a denial of
reconsideration is much closer to Board review of a DHS decision or an AAO
review due to the document-based nature of the underlying record than
it is to Board review of an immigration judge decision. 10 Moreover, the
regulations do not indicate any deference owed to the Assistant Director for
Policy or her delegate regarding her reconsideration decision during an
administrative review, and that lack of deference is consistent with a de novo
standard of review. Similarly, the ability of the Director to request additional
information on review, 8 C.F.R. § 1292.18(b), also suggests a de novo
standard is appropriate. Cf. Conetta v. Nat’l Hair Care Ctrs., Inc., 236 F.3d
67, 74 (1st Cir. 2001) (“Accordingly, when the district court reviewed the
magistrate judge's order setting aside entry of default and default judgment,
9

The AAO has recently proposed changing its standard of review for questions of
discretion to an abuse of discretion. Fed. Reg. at 66,926.
10
To be sure, CAHO review of an ALJ’s decision is, arguably, analogous to Board review
of an immigration judge’s decision. Nevertheless, administrative review by the CAHO
also points to the conclusion that review under 8 C.F.R. § 1292.18 is de novo. See supra,
note 8.

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it was clearly entitled to take evidence and make a de novo assessment as to
the latter.”). Overall, the balance of persuasive authority tips in favor of
applying a de novo standard to administrative reviews of denials of
reconsideration requests in R&A proceedings. Consequently, I hold that
administrative reviews of reconsideration denials conducted under 8 C.F.R.
§ 1292.18 should utilize a de novo standard of review.
D. Precedent Decisions of the Board in R&A Proceedings
The Board issued at least eleven precedential decisions in R&A
proceedings between 1986 and 2014. The transfer of responsibility for the
R&A Program from the Board to OLAP in 2017 left the applicability of those
Board precedents to future R&A proceedings unclear because existing
regulatory language on Board precedents points in two different directions.
On one hand, “decisions of the Board . . . are binding on all officers
and employees of DHS or immigration judges in the administration of
the immigration laws of the United States.” 8 C.F.R. § 1003.1(g)(1). As
adjudicators in R&A proceedings are neither officers or employees of DHS
nor immigration judges, this provision implies that Board precedents are not
binding on adjudicators in R&A proceedings. On the other hand, Board
precedents “serve as precedents in all proceedings involving the same issue
or issues” unless modified or overruled by the Board or the Attorney General.
Id. § 1003.1(g)(2). This provision is not limited to a specific type of
proceeding—e.g., removal proceedings—and suggests that Board precedents
do remain binding in R&A proceedings.
The question of the continued value or applicability of Board precedent
in R&A proceedings appears to have been overlooked in the crafting of the
2016 rulemaking, but there is no indication that the transfer of oversight of
the R&A Program was intended to abrogate all existing Board precedents.
To the contrary, many Board precedents were intended to be incorporated
into the revised R&A Program regulations. See, e.g., 80 Fed. Reg. at 59,520
(“The intent of the proposed rule is to follow the Board’s precedential
decisions in Matter of EAC, Inc., 24 I&N Dec. 563 (BIA 2008), and Matter
of Central California Legal Services, Inc., 26 I&N Dec. 105 (BIA 2013),
which specified the knowledge and experience sufficient to warrant
accreditation.” (footnotes omitted)). Although a rulemaking may certainly
supersede a prior adjudication to the contrary and the 2016 rulemaking does
incorporate some prior Board precedents into the regulations in part 1292,
that rulemaking does not contain any blanket disavowal of the continuing
viability of all prior Board precedents in R&A proceedings. In the absence
of a clear and unmistakable repudiation of prior Board precedents in R&A
proceedings in the 2016 rulemaking, particularly since such precedents have
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provided useful guidance to organizations and the R&A Program for nearly
35 years, I hold that relevant Board precedents, unless overruled or
superseded, continue to serve as precedents in R&A proceedings involving
similar issues, consistent with 8 C.F.R. § 1003.1(g)(2). In other words,
unless overruled by subsequent precedent or superseded by statute,
regulation, or binding federal court decision, prior precedent decisions of the
Board in R&A proceedings remain precedential and binding in R&A
proceedings conducted after January 18, 2017, including consideration of
requests for reconsideration pursuant to 8 C.F.R. §§ 1292.13(e), 1292.16(f),
or 1292.17(d) and administrative reviews conducted under 8 C.F.R.
§ 1292.18.

III. APPLICANT’S CASE
As discussed supra, Applicant’s request for reconsideration to OLAP
must point to an error of either fact or law, and I review OLAP’s
reconsideration denial de novo.
Applicant did not identify an error of fact in its reconsideration
request. Rather, it tacitly asserted an error of law, namely that the
evidence of Mr. Betancourt’s experience demonstrated “skills essential
for effective litigation,” which warranted his full accreditation under
8 C.F.R. § 1292.13(a)(6). Thus, Applicant’s request for reconsideration
did sufficiently allege an error of law. Nevertheless, it was appropriately
denied by OLAP as both untimely and meritless.
Applicant submitted a request for full accreditation for Mr. Betancourt
under 8 C.F.R. § 1292.12. On October 16, 2019, OLAP disapproved the
request for full accreditation for Mr. Betancourt but approved the application
for partial accreditation for him. On December 16, 2019, OLAP received
a request for reconsideration of that disapproval pursuant to 8 C.F.R.
§ 1292.13(e). On February 19, 2020, OLAP denied the request for
reconsideration.
OLAP first denied the request for reconsideration as untimely because it
was filed more than 30 days after the disapproval of the application for full
accreditation. OLAP did not extend the deadline for filing such a request
pursuant to 8 C.F.R. § 1292.13(a), and as discussed, supra, the deadline in
8 C.F.R. § 1292.13(e) is not subject to equitable tolling. Therefore, there is
no basis for an extension of that deadline. Moreover, Applicant has not
disputed that its request for reconsideration was untimely, nor has it
requested any extension or waiver of that deadline. Accordingly, I agree with
OLAP and affirm its decision that Applicant’s request for reconsideration
should be denied because it was untimely.

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OLAP also denied Applicant’s request for reconsideration on the merits.
In doing so, it noted the record contained no evidence that Mr. Betancourt
had assisted on any recent cases before EOIR or had any recent training,
education, or experience related to trial and appellate advocacy. OLAP Dec.
at 1 (“There is no indication in the record that Mr. Betancourt has assisted on
any recent cases pending before EOIR or that he has any recent training,
education, or experience related to trial and appellate advocacy.”). Full
accreditation requires evidence that an individual “possesses skills essential
for effective litigation.” 8 C.F.R. § 1292.12(a)(6). These skills include “the
ability to advocate a client’s position at a hearing before an Immigration
Judge by presenting documentary evidence and questioning witnesses, to
present oral arguments before the Board, and to prepare motions and briefs
for consideration by an Immigration Judge and/or [the] Board.” Matter of
EAC, Inc., 24 I&N Dec. 556, 560 n.1 (BIA 2008). “Consequently, evidence
of advocacy skills, as well as evidence of a broad knowledge of immigration
law, should be presented where full accreditation is sought.” Id.
Applicant submitted twelve documents in its initial application
specifically purporting to demonstrate that Mr. Betancourt possesses skills
essential for effective litigation, and it re-submitted them with its request for
reconsideration. These documents reflect briefs or motions prepared by Mr.
Betancourt between 2002 and 2016 when he served as an accredited
representative for different recognized organizations. 11
The Board’s decision in Matter of EAC identifies at least three skills to
be demonstrated in order to obtain full accreditation: “the ability to advocate
a client’s position at a hearing before an Immigration Judge by presenting
documentary evidence and questioning witnesses, to present oral arguments
before the Board, and to prepare motions and briefs for consideration by an
Immigration Judge and/or [the] Board.” 12 Id. Although the record contains
evidence that Mr. Betancourt has prepared motions and briefs for
consideration by an immigration judge, 13 it is largely devoid of evidence of
11

The Board had previously granted accreditation to Mr. Betancourt from 1981 to 1984,
2000 to 2003, 2005 to 2013, and 2014 to 2017 in connection with his work for four separate
recognized organizations.
12
The Board’s use of “including” to introduce this list of examples of these skills indicates
that the list is non-exhaustive. See Fed. Land Bank of St. Paul v. Bismarck Lumber Co.,
314 U.S. 95, 100 (1941) (“. . . the term ‘including’ is not one of all-embracing definition,
but connotes simply an illustrative application of the general principle.”).
13
Of the twelve documents submitted, two were prepared for U.S. Citizenship and
Immigration Services rather than an immigration judge, and many of the others are
unsigned or lack indicia showing that they were filed with the Board or an immigration
court. Nevertheless, the record as a whole contains sufficient evidence that Mr. Betancourt
has prepared motions and briefs for consideration by EOIR adjudicators.

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Cite as 27 I&N Dec. 837 (DIR 2020)

Interim Decision #3984

his oral advocacy or oral case presentation skills before adjudicators, which
are skills “essential for effective litigation,” and it is completely devoid of
evidence of any recent training or experience that would demonstrate such
skills. Cf. Matter of Central California Legal Services, Inc., 26 I&N Dec.
105 (BIA 2013) (stating that recent completion of a training course may be
evidence of broad knowledge of immigration law and candidates for renewal
of accreditation should have updated training reflecting that they have kept
current in the law). At most, the record reflects that Mr. Betancourt may
have argued an asylum case before an immigration judge in 2016 or early
2017, though the extent of his advocacy in that case based on the record is
ambiguous. 14 Nevertheless, it is clear that Mr. Betancourt has not “assisted
on any recent cases pending before EOIR or that he has any recent training,
education, or experience related to trial and appellate advocacy.” OLAP
Dec. at 1. Accordingly, upon a de novo review of the record, I agree with
OLAP that Applicant did not put forth sufficient evidence to demonstrate that
Mr. Betancourt possesses “skills effective for essential litigation” warranting
full accreditation. Thus, even if Applicant’s request for reconsideration were
timely, it would have been appropriately subject to denial on the merits.
ORDER: The denial of the request for reconsideration is affirmed.

14

The documentation submitted shows that Mr. Betancourt filed a memorandum of law
in support of a respondent’s asylum application in May 2016 and that the application
was apparently granted by an immigration judge approximately eight months later. The
record contains no assertion, however, that Mr. Betancourt presented evidence, questioned
witnesses, or otherwise represented the respondent at any hearing on that application.

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