S-B

Cite as 

 (BIA 2006)                                 Interim Decision #3545




                              In re S-B-, Respondent
                             Decided November 2, 2006
                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

(1) The provisions regarding credibility determinations enacted in section 101(a)(3) of the
   REAL ID Act of 2005, Div. B of 

 Stat. 231, 303 (effective May
   11, 2005) (to be codified at section 208(b)(1)(B)(iii) of the Immigration and Nationality
   Act, 

(b)(1)(B)(iii)), only apply to applications for asylum, withholding,
   and other relief from removal that were initially filed on or after May 11, 2005, whether
   with an asylum officer or an Immigration Judge.

(2) Where the respondent filed his applications for relief with an asylum officer prior to
   the May 11, 2005, effective date of section 208(b)(1)(B)(iii) of the Act, but renewed his
   applications in removal proceedings before an Immigration Judge subsequent to that date,
   the provisions of section 208(b)(1)(B)(iii) were not applicable to credibility
   determinations made in adjudicating his applications.
FOR RESPONDENT: Ted Sofer, Esquire, New York, New York
BEFORE: Board Panel: HURWITZ, Acting Vice Chairman; MILLER, and GRANT,
        Board Members.
GRANT, Board Member:

   In a decision dated June 16, 2005, an Immigration Judge found the
respondent removable and denied his applications for relief based on his claim
of persecution. The respondent has appealed from that decision. The appeal
will be sustained and the record will be remanded to the Immigration Judge
for further proceedings.
   The Immigration Judge denied the respondent’s applications for relief
based on an adverse credibility finding, relying on the new provisions
regarding credibility determinations enacted in the REAL ID Act of 2005,
Div. B of 

 Stat. 231 (enacted May 11, 2005) (“REAL
ID Act”). The REAL ID Act amended section 208(b)(1) of the Immigration
and Nationality Act, 

(b)(1) (2000), by adding a paragraph that
specifies the factors to be considered by the trier of fact in making a credibility
determination. REAL ID Act, § 101(a)(3), 119 Stat. at 303 (to be codified at




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section 208(b)(1)(B)(iii) of the Act, 

(b)(1)(B)(iii)).1 The
REAL ID Act provides that its framework for assessing credibility shall “take
effect on the date of the enactment of this division [May 11, 2005] and shall
apply to applications for asylum, withholding, or other relief from removal
made on or after such date.” REAL ID Act, § 101(h)(2), 119 Stat. at 305.
   This case presents the question whether the REAL ID Act is applicable to
the respondent’s applications for relief. That determination depends on
whether the effective date provision for section 208(b)(1)(B)(iii) of the Act
refers to the date an application is initially filed with an asylum officer of the
Department of Homeland Security (“DHS”), or the date it is subsequently
filed with the Immigration Court.2 We find that the effective date provision
refers to the date the asylum application is initially filed, whether the filing is
with an asylum officer or an Immigration Judge.
   Prior to being placed in removal proceedings, the respondent filed an
asylum application in July 2004 with the DHS. See 

(a)-(b)
(2006) (providing that aliens not yet in exclusion, deportation, or removal
proceedings may file an application for asylum with the service center
servicing the asylum office with jurisdiction over the place of the applicant’s
residence). After considering the respondent’s application, an asylum officer
placed the respondent in removal proceedings by filing a Notice to Appear
(Form I-862) in September 2004. Under current regulations, if an asylum
officer does not grant the application for asylum, the DHS must “refer the
application to an immigration judge, together with the appropriate charging
document, for adjudication in removal proceedings.”                    

(c)(1) (2006). The respondent’s application for asylum contains a
1
    Section 208(b)(1)(B)(iii) of the Act provides as follows:

             Considering the totality of the circumstances, and all relevant factors, a trier of
          fact may base a credibility determination on the demeanor, candor, or
          responsiveness of the applicant or witness, the inherent plausibility of the
          applicant’s or witness’s account, the consistency between the applicant’s or
          witness’s written and oral statements (whenever made and whether or not under
          oath, and considering the circumstances under which the statements were made),
          the internal consistency of each such statement, the consistency of such statements
          with other evidence of record (including the reports of the Department of State on
          country conditions), and any inaccuracies or falsehoods in such statements, without
          regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the
          applicant’s claim, or any other relevant factor. There is no presumption of
          credibility, however, if no adverse credibility determination is explicitly made, the
          applicant or witness shall have a rebuttable presumption of credibility on appeal.

2
   The Joint Conference report for the REAL ID Act equates the term “made” in the
section 101(h)(2) effective date provision with the term “filed.” See Conference Report on
H.R. 1268, 151 Cong. Rec. H2813, H2871 (daily ed. May 3, 2005) (statement of Rep.
Lewis), 

.

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July 19, 2004, time-stamp reflecting filing with the DHS asylum office and a
June 16, 2005, time-stamp reflecting the date the Immigration Judge accepted
the respondent’s asylum application for filing in Immigration Court.
   Since 2003, responsibility for adjudicating asylum claims has been shared
by the Department of Homeland Security and the Attorney General.3 The
REAL ID Act reflects this dual system by providing that the Secretary of
Homeland Security or the Attorney General may grant asylum to an alien who
has applied for asylum in accordance with the requirements and procedures
established by the DHS or the Attorney General. Section 208(b)(1)(A) of the
Act.
   Since 1996, Congress has limited asylum eligibility, with certain
exceptions, to an alien who establishes that “the application has been filed
within 1 year after the date of the alien’s arrival in the United States.” Section
208(a)(2)(B) of the Act. This deadline may be met by filing an affirmative
application with the asylum office within 1 year of arrival. Such an
application may be renewed or refiled in removal proceedings before an
Immigration Judge after the 1-year filing deadline has passed. In the context
of the 1-year filing deadline, therefore, the general reference to the date the
application is filed refers to the date the application is initially filed, whether
with an asylum office or with an Immigration Judge. If an asylum application
has been filed within 1 year of arrival with an asylum officer, the 1-year
deadline does not apply to the date of filing a referred application with an
Immigration Judge in removal proceedings.
   Similarly, the statute affords employment authorization180 days “after the
date of filing of the application for asylum.” Section 208(d)(2) of the Act.
The employment authorization clock continues to run in a case in which an
application is first filed with an asylum officer and then referred to an
Immigration Judge for consideration in removal proceedings. 

(b)-(c) (2006). Therefore, this reference to the “filing of the
application for asylum” also refers to the date an asylum application is initially
filed with an asylum officer or with an Immigration Judge.
   As with the 1-year filing deadline and the employment authorization clock,
the effective date provision at issue in this case refers generally to the date an
application is made. Had Congress intended the statutory credibility provision
to apply to applications filed prior to the effective date but then referred for
filing with an Immigration Judge after the effective date, it could have so
specified. See, e.g., Antiterrorism and Effective Death Penalty Act of 1996,

3
  The functions of the Immigration and Naturalization Service were transferred to the DHS
pursuant to the Homeland Security Act of 2002, 

 Stat. 2135,
effective March 1, 2003. See Matter of D-J-, 

, 573 n.1 (A.G. 2003). Prior
to the reorganization, the Service adjudicated affirmative applications for asylum, and the
Executive Office for Immigration Review adjudicated applications for asylum filed during
the course of exclusion, deportation, or removal proceedings.

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(b), 

, 1270 (effective Apr. 24, 1996)
(providing that certain amendments “shall take effect on the date of the
enactment of this Act and apply to asylum determinations made on or after
such date”).
   We find that the general reference to the date an application is filed in the
effective date provision at issue refers to the date an application for asylum is
initially filed, whether before an asylum officer or before an Immigration
Judge. In this case, the application for asylum was initially filed with an
asylum officer prior to the effective date of the REAL ID Act. Therefore the
standards for determining credibility in the existing case law, to the extent that
they differ from the provisions of section 208(b)(1)(B)(iii) of the Act, should
be applied in adjudicating the respondent’s applications for relief.4
   The Immigration Judge based his adverse credibility finding in this case on
four factors, two of which involved events tangential to the respondent’s
claim to mistreatment in Guinea, his country of origin. One of these was the
discrepancy between the respondent’s statement that he arrived at JFK airport
and his witness’s statement that he arrived at the Newark airport. A second
purported discrepancy was found between the respondent’s account of arrests
in Guinea-Bissau, a country in which he resided after leaving Guinea, and the
Department of State’s account of favorable treatment of refugees in
Guinea-Bissau.5


4
   In Matter of B-, 

 (BIA 1991), we held that a final regulation
applicable to “all applications for asylum or withholding that are filed on or after October
1, 1990” applied to an affirmative asylum application filed with the Immigration and
Naturalization Service in 1980 and later filed with the Immigration Court in April 1991. In
light of the sweeping changes to immigration law and procedure since Matter of B- was
decided, we do not find that its reasoning controls the outcome of the issue now before us.
Most importantly, the statutory references to the date an asylum application is filed in the
1-year filing deadline and in the employment authorization provisions of current law were
not a part of asylum law at the time Matter of B- was decided. Moreover, under current
practice, if an alien is placed in removal proceedings after a DHS asylum officer considers
an application for asylum, the asylum officer refers the application to the Immigration Judge
along with the Notice to Appear in removal proceedings. 

(c)(1). At the
time Matter of B- was decided, an application for asylum or withholding of deportation that
was denied by an asylum officer could be renewed before an Immigration Judge in exclusion
or deportation proceedings, but was not referred to an Immigration Judge. 

(b) (1991).
5
   A third factor the Immigration Judge relied on was the respondent’s omission of any
“reference to the death of his father” in the asylum application, which he found significant
given the respondent’s testimony that his father had been imprisoned and killed on account
of political activities. In his asylum application, however, the respondent checked a box
indicating that his father was “deceased,” with the explanatory note, “in jail.” The fourth
factor relied on by the Immigration Judge was that the respondent did not provide
sufficiently cogent testimony regarding the political process in Guinea.

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   In making his credibility assessment in this case, the Immigration Judge
explicitly relied on the REAL ID Act, stating that he could give consideration
to inconsistencies and omissions, “whether or not they go to the heart of the
claim.” However, under the law of the United States Court of Appeals for the
Sixth Circuit, the controlling jurisdiction in this case, an Immigration Judge’s
adverse credibility determination “must be based on issues that go to the heart
of the applicant’s claim.” Sylla v. INS, 

 (6th Cir. 2004); see
also, e.g., Chen v. Gonzales, 

 (6th Cir. 2006). Additionally,
the Sixth Circuit has held that “[i]f discrepancies ‘cannot be viewed as
attempts by the applicant to enhance his claims of persecution, they have no
bearing on credibility.’” Daneshvar v. Ashcroft, 

 (6th Cir.
2004) (quoting Shah v. INS, 

 (9th Cir. 2000)); see also
Chen v. 

; Sylla v. INS, supra, at 926.
   As the standards articulated by the Sixth Circuit differ in significant
respects from the REAL ID Act credibility provisions when applied to the
credibility determination in this case, we will remand the record for an
analysis of the respondent’s credibility under controlling law of the Sixth
Circuit and our precedent decisions.
   ORDER: The respondent’s appeal is sustained.
   FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with this decision and for the entry of a new
decision.




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