R-D-D-K-, AXXX XXX 728 (BIA Sept. 1, 2015)

8/20/2019 R-D-D-K-, AXXX XXX 728 (BIA Sept. 1, 2015)

1/3

Mann, George Peter

George P Mann Assoc., P.C.

33505 W

4

Mile Rd., Suite 20

Farmington Hills, Ml 48331

U.S. epartment o Justice

Executive Office for Immigration Review

Board o mmigration Appeals

Office o he Clerk

5107 Leesburg Pike Suite 2000

Falls Church Virginia 22041

DHS/ICE Office

of

Chief Counsel - DET

333 Mt. Elliott St., Rm. 204

Detroit, Ml 48207

Date of this notice: 9/1/2015

Enclosed is a copy of the Board s decision and order in the above-referenced case.

Enclosure

Panel Members:

Wendtland Linda S.

Pauley Roger

Cole Patricia A

Sincerely,

bOYl.JU._ { 1/v L)

Donna Carr

hief

Clerk

l.l inl\11

Userteam: Docket

Cite as: R-D-D-K-, AXXX XXX 728 (BIA Sept. 1, 2015)

For more unpublished BIA decisions, visitwww.irac.net/unpublished/index/

g

g

p p


2/3

I•

\

U.S.

epartment o Justice

Executive Office for Immigration Review

Decision

of

the Board oflmmigration Appeals

Falls Church, Virginia 22041

File:

~ 7 8

Detroit, MI

IN REMOVAL PROCEEDINGS

APPEAL AND MOTION

ON BEHALF

OF

RESPONDENT: George Peter Mann, Esquire

ON BEHALF

OF

DHS:

CHARGE:

MarkJebson

Senior Attorney

Notice: Sec. 237(a)(l)(B), I NAct [8 U.S.C.

§

1227(a)(l)(B)] -

In the United States in violation

of

law

Date:

APPLICATION: Asylum; withholding

of

removal; Convention Against Torture

SEP -

2 15

The respondent, a native and citizen

of

Mali, appeals from the Immigration Judge's April

16

2013, decision denying her applications for asylum and withholding of removal under sections

208(a) and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(a) and

1231(b)(3), and protection pursuant to the Convention Against Torture (CAT). During the

pendency

of

the appeal, the respondent filed a motion to hold case in abeyance or in the

alternative for administrative closure. The appeal will

be sustained, the motion will be denied as

moot, and the record will be remanded for required background and security checks.

We review findings of fact, including the determination of credibility, made by the

Immigration Judge under a clearly erroneous standard. See 8 C.F.R. § 1003.l(d)(3)(i); Matter

o R-S-H- 23

I&N Dec. 629 (BIA 2003);

Matter o S-H- 23

I&N Dec. 462 (BIA 2002). We

review all other issues, including whether the parties have met the relevant burden

of

proof, and

issues of discretion, under a de novo standard. See 8 C.F.R. § 1003.l(d)(3)(ii).

The Immigration Judge determined that the respondent was not credible (I.J. at 21-25).

Further, the Immigration Judge found that the respondent did not meet her burden

of

proof for

asylum as she did not demonstrate that her proposed social group, women who have been

subjected to FGM in Mali and who have expressed an opinion about this practice, condemning it,

and who have thus suffered persecution and have a well-founded fear of future persecution as

a result of such stigmatization, constitutes a particular social group (I.J. at 26-28). Also, the

Immigration Judge determined that the respondent did not show that she suffered persecution on

account of a protected ground (I.J. at 28). Moreover, the Immigration Judge found that the

respondent did not establish a well-founded fear

of

future persecution in Mali (I.J. at 29-35).

Additionally, the Immigration Judge found that the respondent did not meet her burden

of

proof

for withholding

of

removal and CAT protection (I.J. at 35-36).Cite as: R-D-D-K-, AXXX XXX 728 (BIA Sept. 1, 2015)

g

g

p p


3/3

•\

~ 8

We find that the Immigration Judge's adverse credibility finding is clearly erroneous.

Considering the totality o

the circumstances under section 208(b

1

)(B)(iii)

o

the Act,

8 U.S.C. § l 158(b)(l)(B)(iii), we find that the discrepancies noted by the Inunigration Judge

would not be sufficient, without more, to render the respondent's overall testimony incredible, or

to support the Inunigration Judge's adverse credibility finding in this case.

See Hachem

v

Holder

656 F.3d 430, 434 (6th Cir. 2011) (stating that under the REAL ID Act standard,

credibility determinations are based on the totality

o

circumstances and take into account all

relevant factors, citing the specific factors stated in section 208(b)(l)(B)(iii)). Accordingly, we

find the respondent to be credible.

Further, based on the respondent's credible testimony, we find that she established past

persecution on account

o

a protected ground. The respondent testified that she was forced by

her family members to undergo FGM when she was 6 years old (Tr. at 40-47, 145). She testified

that since the FGM, she has experienced numerous ailments because

o

the FGM (Tr. at 48, 144,

178). The Inunigration Judge did not find the respondent's claim

o

past FGM incredible

(I.J. at 26 n.13).

See Matter

o

A-T-

24 l&N Dec. 617 (A.G. 2008);

see also Dieng

v

Holder

698 F.3d 866 (6th Cir. 2012) (Female genital mutilation involves the infliction

o

grave harm

constituting persecution on account

o

membership in a particular social group that can form the

basis

o

a successful claim for asylum);

Matter

o

A-T-

25 I&N Dec. 4 (BIA 2009).

Having demonstrated past persecution, the respondent is presumed to have a well-founded

fear o future persecution. 8 C.F.R. § 1208.13(b)(l). The DHS bears the burden o rebutting that

presumption.

See Matter

o

A-T- supra; see also

8 C.F.R. § 1208.13(b). The DHS did not

sustain its burden. Therefore, we will reverse the Inunigration Judge's denial o asylum and find

the respondent eligible for asylum and deserving

o

such relief in the exercise

o

discretion.

Finally, in light

o

our resolution in this matter, we deem the respondent's motion to hold

case in abeyance or for administrative closure to be moot. The motion states that it is in the

alternative, to be adjudicated only

i

the appeal otherwise would be dismissed. Consequently,

our sustaining

o

the appeal effectively moots the motion.

Accordingly, the following orders will be entered.

ORDER: The appeal is sustained and the Inunigration Judge's denial

o

asylum is reversed.

FURTHER ORDER: The respondent's motion to hold case in abeyance or in the alternative

for administrative closure is denied as moot.

FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.l(d)(6), the record is remanded to the

Inunigration Judge for the purpose

o

allowing the DHS the opportunity to complete or update

identity, law enforcement, or security investigations or examinations, and further proceedings,

i

neOOMW,,

focili, ~ ~ ~ ; ;~ . · [ 0 0 3 .4 7 f u .

FOR THE BOARD

2

Cite as: R-D-D-K-, AXXX XXX 728 (BIA Sept. 1, 2015)

g

g

p p

Documents

R-D-D-K-, AXXX XXX 728 (BIA Sept. 1, 2015)