Administrative Decisions Under Immigration and Nationality
Laws of the United States

IN RE S-B-, 24 I&N Dec. 42 (BIA 2006) Interim Decision
Number 3545 In re S-B-, Respondent. Board of Immigration
Appeals Executive Office for Immigration Review U.S.
Department of Justice Decided November 2, 2006.

(1) The provisions regarding credibility determinations
enacted in section 101(a)(3) of the REAL ID Act of 2005,
Div. B of Pub.L. No. 109-13, 119 Stat. 231, 303 (effective
May 11, 2005) (to be codified at section 208(b)(1)(B)(iii)
of the Immigration and Nationality Act, 8 U.S.C. §
1158(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 Pub.L. No.
109-13, 119 Stat. 231 (enacted May 11, 2005) (“REAL ID
Act”). The REAL ID Act amended section 208(b)(1) of the
Immigration and Nationality Act, 8 U.S.C. §
1158(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 Page 43 section
208(b)(1)(B)(iii) of the Act, 8 U.S.C. §
1158(b)(1)(B)(iii)).[fn1] 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.[fn2] 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 8 C.F.R. §§ 1208.4(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.” 8 C.F.R. § 1208.14(c)(1) (2006). The
respondent’s application for asylum contains a Page 44
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.[fn3] 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. 8 C.F.R. §§
1208.7(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, Page 45 Pub.L. No. 104-132, §
421(b), 110 Stat. 1214, 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.[fn4]

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.[fn5]
Page 46

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, 388
F.3d 924, 926 (6th Cir. 2004); see also, e.g., Chen v.
Gonzales, 447 F.3d 468, 472 (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, 355 F.3d 615, 623
(6th Cir. 2004) (quoting Shah v. INS, 220 F.3d 1062, 1068
(9th Cir. 2000)); see also Chen v. Gonzales, supra, at 472;
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.

[fn1] 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.

[fn2] 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), 2005 WL 1025891.

[fn3] The functions of the Immigration and Naturalization
Service were transferred to the DHS pursuant to the
Homeland Security Act of 2002, Pub.L. No. 107-296, 116
Stat. 2135, effective March 1, 2003. See Matter of D-J-, 23
I&N Dec. 572, 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.

[fn4] In Matter of B-, 20 I&N Dec. 427, 429 (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. 8 C.F.R. §
208.14(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. 8 C.F.R.
§ 208.18(b) (1991).

[fn5] 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.