This Time, Too Critical for an Asylum Case

This Time, Too Critical for an Asylum Case

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January 16, 2015


In Yongguo Lai v. Holder, 776 F.3d 1098, Ninth Circuit Court of Appeals in California issued a reversal in favor of the respondent, a Chinese asylum applicant. On August 25, the decision on this asylum case was officially filed and published. Therefore, Board of Immigration Appeals’ denial of withholding of removal, asylum and protection under Convention Against Torture (CAT) are to be granted according to the opinion.

The appellant is a Christian from China, who fled to the United States seeking asylum, after being detained in public security bureau’s station for ten days.

Immigration judge found Mr. Lai’s testimony not credible, when assistant chief counsel (government’s attorney representing the Department of Homeland Security) solicited novel information, though related and supplemental, during cross examination.

Prior to the hearing, Mr. Lai did not update the content of his asylum application, concerning his knowledge of another church member’s six-months-long jail time, and his wife’s arrest two days before the hearing. Thus, theses two relevant facts were introduced during the hearing. Both Board of Immigration Appeals (common known as BIA) and the immigration judge found the omission adverse. This very omission these information became the basis of government’s adverse determination of his credibility and asylum application.

On appeal, the Circuit Court reversed the decision of both BIA and the Immigration Judge. The reasoning is simple– sometimes, new information come piece by piece. Even though precedents supported discretionary finding of Immigration Judges to deny based on the introduction of novel information, that precedent does not apply. Mr. Lai only introduced novel information, which are supplemental and relevant to extant claims, after cross examination.

Another reason was that Mr. Lai acted i truthful manner– after all, the immigration only asked whether his answer in the asylum application were truthful and correct, not whether the application was complete.

Lastly, there was insufficient explanation of the reasoning to justify this rather discretionary denial for this case.

The moral of the story is to update the asylum application in time. As much as appellate courts reason in a manner which my favor the applicant, such a risk may be unnecessary, as this case shows. Fortunately, Mr. Lai introduced only supplemental information in cross examination. Tolerating forgetfulness and risking the outcome of an asylum hearing, is at best an undesirable yet possible reality, preferably to be avoided at any time.


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Richard Herman is a nationally-known immigration attorney with 20+ years of experience representing families and businesses in all aspects of immigration law. Richard was voted for inclusion in the 2015 edition of The Best Lawyers in America© and listed in Super Lawyers© for ten consecutive years, Richard is the founder of the Herman Legal Group, an immigration law firm serving clients in over 12 languages from offices in Cleveland, Columbus and Detroit, whose attorneys have represented diverse clientele, from Fortune 500 companies to undocumented workers, from technology entrepreneurs to NFL teams. He is the co-author of the acclaimed book, Immigrant, Inc. ---Why Immigrant Entrepreneurs Are Driving the New Economy (John Wiley & Sons, 2009). Richard has appeared FOX News (The O’Reilly Factor), ABC News 20/20, National Public Radio, and has appeared in the New York Times, USA Today, BusinessWeek, Forbes, Inc., PC World, Computerworld, CIO, TechCrunch and InformationWeek.

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