Urooj v. Holder, No. 09-70628 (9th Cir. 2013)
Annotate this CasePetitioners, a married couple from Pakistan, sought review of the BIA's dismissal of their appeal from a final order of removal under section 237(a)(1)(B) of the Immigration and Nationality Act (INA), 8 U.S.C. 1227(a)(1)(B), because they remained in the United States for longer than permitted. The order also held that the wife was removeable for misrepresenting a material fact, and declared that the wife had filed a frivolous asylum application. Where, as here, the sole witness refused to answer questions, DHS could not satisfy its burden in the absence of any substantive evidence based solely upon the adverse inference drawn from silence. Therefore, the court concluded that DHS did not meet its burden of establishing the grounds for termination of asylum by a preponderance of the evidence. Accordingly, the court did not reach the merits of petitioners' remaining arguments. The court granted the petition for review.
Court Description: Immigration. The panel granted a petition for review of the Board of Immigration Appeals’ decision terminating petitioners’ asylum status. The panel held that the Board erred by relying on impeachment evidence only in concluding that the Department of Homeland Security had established grounds for termination of asylum by a preponderance of the evidence. The panel explained that DHS could not meet its burden in this case through rebuttal documents submitted in conjunction with the adverse inference drawn from petitioner Sumaira Urooj’s refusal to answer questions at the hearing. Dissenting, Judge Bybee would deny the petition because the IJ based his decision not only on an adverse inference drawn from Urooj’s refusal to testify, but also on her sworn statement admitting to concocting a false story to support the asylum application. Judge Bybee wrote that even if the Board erred by improperly applying its own precedent, the proper procedure would be to remand to the Board for an explanation and further proceedings.
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