BIA HOLDS IMMIGRATION JUDGE CAN USE SIGNIFICANT SIMILARITIES BETWEEN CLAIMS FILED IN SEPARATE PROCEEDINGS TO MAKE AN ADVERSE CREDIBILITY DETERMINATION IF A THREE-PART FRAMEWORK IS FOLLOWED.
On September 8, 2015, the Board of Immigration on Appeals (BIA or Board) upheld the adverse credibility determination of an Immigration Judge (IJ) where the “form, substance, and tone” of a respondent’s asylum application and associated declaration were virtually identical to a claim previously filed by respondent’s brother in a separate proceeding. With the I-589 governed by the REAL ID Act of 2005, the BIA found that in such circumstances, the IJ should use a commonsense approach to determine credibility when relying on “inter-proceeding similarities”. Thus, to preserve the fairness of the proceeding, the Board adopted a three-part framework for the IJ to use: First, he or she must give the respondent meaningful notice of the inter-proceedings similarities considered significant; second, the IJ must give the applicant a reasonable opportunity to explain such similarities; and, finally, the judge should consider the totality of the circumstances in determining whether respondent is credible and persuasive. As the IJ had done this but found that the similarities between the brothers’ claims indicated they were not created independently of one another, the adverse credibility finding was upheld and the appeal dismissed. Matter of R-K-K-, 26 I&N Dec. 658 (BIA 2015).
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