S-S

Interim Decision #3257

Interim Decision #3257

In re S-S-, Applicant

Decided November 8, 1995

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) In order to fully and fairly review a decision of an Asylum Office Director in asylum pro-

ceedings, the Board of Immigration Appeals must have before it the primary evidentiary

matters relied upon by the initial adjudicator.

(2) When the credibility of an applicant for asylum and withholding of deportation is placed in

issue because of alleged statements made at the asylum interview, at a minimum, the record

of the interview must contain a meaningful, clear, and reliable summary of the statements

made by the applicant. In the alternative, a record of the interview might be preserved in a

handwritten account of the specific questions asked of the applicant and his specific

responses or through transcription of an electronic recording.

FOR APPLICANT: Robert A. Perkins, Esquire, Chicago, Illinois

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Edward Weiss, General

Attorney

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA,

HEILMAN, HOLMES, HURWITZ, VILLAGELIU, COLE, ROSENBERG, MATHON, and

GUENDELSBERGER, Board Members

HURWITZ, Board Member:

In a decision dated May 23, 1995, the director, Newark Asylum Office,

denied the stowaway applicant’s requests for asylum and withholding of

deportation pursuant to sections 208 and 243(h) of the Immigration and

Nationality Act, 8 U.S.C. §§ 1158 and 1253(h) (1994). The applicant has

appealed. The record will be remanded to the director. The applicant’s

request for oral argument before the Board is denied.

I. BACKGROUND

This case was last before us on June 16, 1994, at which time we affirmed a

decision of the acting assistant commissioner of the Immigration and Natu-

ralization Service’s Office of Refugees, Asylum, and Parole, dated May 9,

1994, which denied the applicant’s original requests for asylum and with-

holding of deportation. The case was thereafter reopened upon motion by the

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Service and remanded for de novo proceedings. The director’s decision of

May 23, 1995, and this appeal followed. We are called upon to review the

director’s findings concerning the applicant’s credibility and, in so doing, to

assess the adequacy of the record as presently constituted.

II. ISSUE

What constitutes an adequate record for appellate review of the director’s

decision in a case involving an alien stowaway who applies for asylum and

withholding of deportation where credibility is at issue?

III. THE LAW

An applicant for asylum or withholding of deportation bears the eviden-

tiary burdens of proof and persuasion in connection with any application

under section 208 or 243(h) of the Act. Matter of Acosta, 19 I&N Dec. 211

(BIA 1985), modified on other grounds, Matter of Mogharrabi, 19 I&N Dec.

439 (BIA 1987). To be eligible for asylum under section 208 of the Act, an

alien must show either past persecution or a well-founded fear of future per-

secution in a particular country on account of race, religion, nationality,

membership in a particular social group, or political opinion. An applicant

for asylum has established a well-founded fear if a reasonable person in his

circumstances would fear persecution on account of one of the grounds enu-

merated in the statute. Matter of Mogharrabi, supra; see also Matter of Chen,

20 I&N Dec. 16 (BIA 1989) (relating to past persecution); 8 C.F.R.

§ 208.13(b)(2) (1995) (defining well-founded fear of persecution as requir-

ing “reasonable possibility” of actual persecution). The burden of proof

required to establish eligibility for asylum is lower than the clear probability

standard of eligibility required for withholding of deportation. See INS v.

Stevic, 467 U.S. 407 (1984); see also INS v. Cardoza-Fonseca, 480 U.S. 421

(1987).

IV. THE DIRECTOR’S DECISION

In determining that the applicant had not established his persecution

claim, the director expressed reservations with respect to the applicant’s

credibility. The director based his adverse credibility finding in large part on

discrepant information provided by the applicant in his first interview with an

asylum officer which was conducted on April 26, 1994, and his second inter-

view, which was conducted on November 4, 1994. The director further noted

that information provided in each of these interviews was inconsistent with

information provided by the applicant on his Request for Asylum in the

United States (Form I-589).

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V. THE APPLICANT’S CREDIBILITY AND THE

ADEQUACY OF THE RECORD

On appeal, the applicant argues, inter alia, that the director erred in using

the information from the first interview in making an adverse credibility find-

ing. Counsel for the applicant submits that the first interview was flawed,

and the record of it inadequate, due to faulty translation and lack of

transcription.

As noted earlier, the burden is upon the applicant for asylum to establish

the basis for his claim. A persecution claim which lacks veracity cannot sat-

isfy the burden of proof and persuasion necessary to demonstrate eligibility

for asylum and withholding relief. See generally Matter of Mogharrabi,

supra, at 445 (BIA 1987); 8 C.F.R. §§ 208.13(a), 208.16(b) (1995). In this

case, the credibility of the applicant is at issue and crucial to the resolution of

this appeal. We have concluded that the present record provides an inade-

quate basis for assessing the adverse credibility finding made by the director.

The director’s notice of intent to deny dated January 12, 1995, contained

an account of what transpired at the applicant’s interviews with the asylum

officer. The applicant disputes the facts reflected in that notice. The record

also contains notes that apparently were made contemporaneously with each

of the applicant’s interviews on April 26, 1994, and on November 4, 1994.

However, these notes are obviously the informal, personal notations of the

asylum officer that were never intended to be a formal summary of the inter-

view. They are randomly organized, cryptic to all but the note-taker, and par-

tially illegible. Consequently, they are of little value in evaluating the

applicant’s credibility. We are asked to consider comparatively the informa-

tion provided by the applicant in these interviews and to assess the appli-

cant’s veracity, but we find the records of the interviews inadequate for

appellate review. Consequently, we are unable to enter a decision in this case

on the basis of the record as now constituted.

In order to fully and fairly review a decision entered in a case, this Board

must have before it the primary evidentiary matters relied upon by the initial

adjudicator. For example, in the adjudication of appeals taken in deportation

proceedings, the record will normally contain a verbatim transcript of the

proceedings below.1

When, as in these asylum proceedings, the applicant’s credibility is placed

in issue because of alleged statements made at the asylum interview, our

1 An exception to this rule occurs where it appears that an appeal may be summarily

dismissed under 8 C.F.R. § 3.1(d)(1-a)(1995). In that instance, either party may request that the

Immigration Judge forward the case to the Board without a transcript. Thereafter, if the

Immigration Judge determines that a transcript is necessary for the proper adjudication of the

appeal, he may direct that a transcript be included. This decision may not be appealed. Matter

of Torre, 19 I&N Dec. 18 (BIA 1984), modifying in part Matter of Gamboa, 14 I&N Dec. 244

(BIA 1972).

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review requires a reliable record of what transpired at that interview. This

record might be preserved in a hand-written account of the specific questions

asked of the applicant and his specific responses to those questions. Such

question and answer statements could be signed by the applicant as an accu-

rate summary of the interview. Alternatively, a suitable record could be pro-

duced through transcription of an electronic recording of the asylum

interview. At a minimum, the record must contain a meaningful, clear, and

reliable summary of the statements made by the applicant at the interview.

The Board needs to know what transpired in the proceedings before the asy-

lum officer before we can evaluate questions with respect to credibility aris-

ing from the interview. Only then can we determine whether the notice of

intent to deny accurately and thoroughly informed the applicant of all

adverse considerations which serve as the basis for the intended denial. See 8

C.F.R. § 208.14(b)(3) (1995); see also 8 C.F.R. § 103.2(b)(16) (1995); cf.

Matter of Arias, 19 I&N Dec. 568 (BIA 1988). This record will also be indis-

pensable to the applicant in preparing his rebuttal to the notice of intent to

deny, and in making his arguments on appeal.

As the present record provides an inadequate basis for determining credi-

bility and therefore fairly adjudicating the applicant’s persecution claim, the

record will be remanded to the director for whatever further action is required

to address the concerns discussed herein.

ORDER: The record is remanded to the Asylum Office director

for further proceedings consistent with the foregoing opinion and the entry of

a new decision.

Board Member Lauri S. Filppu did not participate in the decision in this

case.

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