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Media Alerts - Slyusar v. Eric H. Holder, Jr. - Sixth Circuit
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March 3, 2014
  Slyusar v. Eric H. Holder, Jr. - Sixth Circuit
Headline: Sixth Circuit denies relief to asylum-seeker, finding that the REAL ID Act has the practical effect of foreclosing stays of removal to asylum-seekers who have received adverse credibility determinations.

Areas of Law: Immigration; Asylum; REAL ID Act of 2005

Issue Presented: Whether the REAL ID Act of 2005 permits adjudication of petitions for asylum, withholding of removal, and other relief from removal after an adverse credibility determination.

Brief Summary: After receiving notices to appear from the Department of Homeland Security in 2005, Petitioner and her minor children requested asylum, withholding of removal, and protection under the Convention Against Torture. In 2011, an immigration judge denied all relief based on an adverse credibility determination and other secondary adverse findings. Petitioner unsuccessfully appealed to the Board of Immigration Appeals. The Sixth Circuit denied the petition for review and motion for a stay of removal, holding that (1) inconsistencies in Petitioner's testimony were a sufficient basis for a determination of adverse credibility and (2) under the REAL ID Act, an adverse credibility determination is dispositive, foreclosing applications for asylum, the withholding of removal, or other relief from removal.

Extended Summary: In 2003, Petitioner entered the United States under an alias with a Russian passport. After marrying a United States citizen, she and her two minor children applied for adjustment of status. In 2005, their applications for adjustment of status were denied, and Petitioner filed applications for asylum.

While awaiting disposition of the applications, the Department of Homeland Security issued notices to appear that requested removal and alleged that Petitioner and her children had entered the United States without inspection. Petitioner then requested asylum, withholding of removal, and protection under the Convention Against Torture. In 2011, an immigration judge denied all of Petitioner's relief because of her inconsistent testimony. The judge found that Petitioner failed to timely apply for asylum and failed to show extraordinary circumstances warranting the delay. But the judge found that even if Petitioner's application had been timely, it would have been denied because her testimony was not credible. Further, the judge found that Petitioner failed to prove her eligibility for asylum and for withholding of removal and that the adverse credibility determination barred relief under the Convention Against Torture. In 2012, the Board of Immigration Appeals dismissed Petitioner's appeal, finding no error and agreeing that Petitioner's testimony was inconsistent and not credible. Petitioner then sought relief in the Sixth Circuit.

The Sixth Circuit explained that the REAL ID Act of 2005 applies to applications for asylum, withholding of removal, or other relief from removal filed on or after May 11, 2005. Before the REAL ID Act, immigration judges assessing an applicant's credibility were allowed to consider only inconsistencies that went to the heart of an applicant's claim. But under the REAL ID Act, judges are allowed to consider any inconsistencies or falsehoods in an applicant's statements - and any other relevant factor - without regard to its relationship to the heart of an applicant's claim.

Applying the REAL ID Act, the Sixth Circuit found that Petitioner had not provided sufficient evidence to reverse the immigration judge's adverse credibility determination. The court found that adverse credibility determinations are conclusive unless a reasonable adjudicator would be compelled to reach a contrary conclusion. But the fact that the court could conceivably make a contrary conclusion is not enough to justify reversal of the immigration judge's decision. The immigration judge's findings of numerous inconsistencies between Petitioner's testimony and the information provided to the Department of Homeland Security were enough, under the Act, to foreclose relief.

The Sixth Circuit found that, although Petitioner had not been given the opportunity to demonstrate the strength of her case on its merits, the immigration judge's adverse credibility determination under the Act was dispositive. As applied, the Act forecloses stays of removal to asylum-seekers who have received adverse credibility determinations by constructively preventing them from proving eligibility for that relief. Yet the Sixth Circuit, quoting a Ninth Circuit opinion, was careful to caution that "[a]lthough the REAL ID Act expands the bases on which an [immigration judge] may rest an adverse credibility determination, it does not give a blank check to the [judge] enabling him or her to insulate an adverse credibility determination from our review of the reasonableness of that determination."

Panel: Judges Keith, Guy, and Gibbons

Date of Issued Opinion: January 30, 2014

Docket Number: 13-3071

Decided: Petition for Review of an Order from the Board of Immigration Appeals

Counsel: ARGUED: Troy A. Murphy, MURPHY LAW OFFICES, Avon, Ohio, for Petitioners. Claire L. Workman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. On BRIEF: Troy A. Murphy, MURPHY LAW OFFICES, Avon, Ohio, for Petitioners. Kathryn M. McKinney, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/14a0021p-06.pdf

Case Alert Author: Minyon Bolton

Author of Opinion: Judge Keith

Case Alert Circuit Supervisor: Professor Barbara Kalinowski

Edited: 03/14/2014 at 01:30 PM by Mark Cooney

    Posted By: Mark Cooney @ 03/03/2014 03:25 PM     6th Circuit  

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