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Matter of M-S- (A.G. 2019)

Decided December 12, 2019
This is an anti-immigrant decision that makes it more likely that an immigrant’s application for asylum or other form of relief from removal before the Immigration Court will be denied for a perceived inconsistency.

It has always been the case that an adverse credibility determination should not be based on inconsistencies that take the immigrant by surprise.  This is true even though the immigration judge is obviously not required to adopt the immigrant’s explanation for any inconsistency.

The issue presented by this case is one of fairness –  specifically how clear it must be to the immigrant that he or she must explain inconsistencies before being denied.  In this case on appeal, the immigrant attempted to argue that the immigration judge herself must point out any inconsistency to the immigrant and provide the immigrant with an opportunity to explain the inconsistency.  However, the Board of Immigration Appeals disagreed.

An Immigration Judge may ask the applicant to respond to a perceived inconsistency, but that is not the only way to bring it to his attention. The Government may give the applicant an opportunity to respond through cross-examination. The applicant’s representative may also decide to elicit testimony on direct examination, or on redirect to clarify inconsistencies that are brought out during the hearing, particularly if they are not obvious or apparent. See, e.g., Martinez v. Holder, 734 F.3d 105, 112 (1st Cir. 2013) (noting that the applicant, who was represented by counsel, had “many missed opportunities” for clarification of his testimony). Although an Immigration Judge is not required to ask about obvious inconsistencies, there is nothing that precludes him or her from doing so for the sake of clarity and completeness of the record.

Therefore, under a broad reading of this decision, if the scope of the cross examination loosely touches on an inconsistency in the immigrant’s testimony, the immigrant can be caught off guard and removed for a perceived inconsistency that he or she was unaware needed explanation.