FEFE

Interim Decision #3121




                             MATTER OF FEFE
                            In Exclusion Pi oceedings
                                     A 28556£62
                                       -




                      Decided by Board August 1, 1989

(1) An applicant for asylum cannot meet his b irden of proof unless he testifies under
  oath regarding his application; and, therefc,re, an immigration judge should not
  proceed to adjudicate a written application for asylum if no oral testimony has been
  offered in support of that application.
(2) At a minimum, the regulations require that an asylum applicant take the stand, be
  placed under oath, and be questioned as to whether the information in his written
  application is complete and correct; the exams nation of an applicant will ordinarily be
  this brief only where the parties have stipult. led that the applicant's oral testimony
  would be consistent with his written application and that his testimony would be
  believably presented.
EXCLUDABLE: Act of 1952—Sec. 212(a)(19) [

(a)(19)]—Fraud or
                                  willful misrepresentation of a material fact
                                Sec. 212(a)(20) [

(a)(20)]—No valid
                                  immigrant visa
ON BEHALF OF APPLICANT:                               ON BEHALF OF SERVICE:
  Candace L. Jean, Esquire                             John R. Frenkel
  

 Avenue                                  General Attorney
  Miami, Florida 33173

BY: Milhollan, Chairman; Dunne, Morris, N acca, and Heilman, Board Members


   In a decision dated February 17 1989, the immigration judge
denied the applicant's requests fa asylum and withholding of
deportation pursuant to sections 2080 ) and 243(h) of the Immigration
and Nationality Act, 

(a) and 1253(h) (1982), and
ordered that the applicant be exclude +1 and deported from the United
States. The applicant appealed. Tim record will be remanded for
further proceedings.
   The applicant is a 24-year-old n Aive and citizen of Haiti. He
arrived in the United States on November 5, 1988. The Immigration
and Naturalization Service then i iitiated exclusion proceedings
against the applicant by issuing a Nc ,ice to Applicant for Admission
Detained for Hearing before Immigr don Judge (Form 1-122) which

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alleged that the applicant was inadmissible to the United States
pursuant to sections 212(a)(19) and (20) of the Act, 8 U.S.C.
§§ I 182(a)(19) and (20) (1982).
   At his exclusion hearing, the applicant did not contest his excludability, but he requested asylum. He completed a Request for Asylum in
the United States (Form 1-589), including a two-page, typewritten
addendum providing details concerning his fear of persecution in
Haiti, which was forwarded to the Department of State Bureau of
Human Rights and Humanitarian Affairs for an advisory opinion. See

(a)(1) (1988).
   The applicant appeared with counsel for the hearing on the merits
of his 'asylum application. Applicant's counsel stated that because "the
1-589 [is] such an extensive story in itself, we'll just rest on that." The
Service attorney also declined to ask the applicant any questions
concerning his written asylum request, stating that he was "not going
to cros examine." In a closing statement, the Service attorney raised
various 'questions regarding the nature of the information provided in
the app icant's affidavit. The immigration judge then entered his
decision denying the applicant's requests for asylum and withholding
of depo tion. In his decision, the immigration judge reviewed the
applicanit's written testimony but described his statements as "selfserving. The immigration judge also noted that the applicant had
offered b.o corroboration for his Form 1-589, and he stated that "[w]e
don't know whether his story is true or not."
   On appeal, the applicant contends that the immigration judge erred
in denying his applications for asylum and withholding of deportation.' We find that the record should be remanded because the
immigration judge has not complied with the regulations concerning
asylum hearings.
   The regulations regarding the procedure for adjudication of asylum
applications provide at 

 (1988) that an "applicant
shall be examined in person by an immigration officer or judge prior to
the adjudication of the asylum application." The regulations further
provide at 

(a)(2) (1988) that when an applicant
requests asylum in exclusion proceedings, he "shall be examined under
oath on his application and may present evidence on his behalf." See
also 

(c) (1988). In Matter of Balibundi, 

 (BIA 1988), we held that in light of the requirement that an
asylum applicant must be examined under oath, an immigration judge

  1 The applicant's current counsel also contends that the applicant received ineffective
assistance of counsel at his exclusion hearing. Because the record will be remanded for a
hearing de novo, we need not adckess this argument.

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Interim Decision #3121

should not adjudicate an asylum application where an applicant fails
to appear for a hearing.
   At a minimum, we find that the regulations require that an
applicant for asylum and withholding take the stand, be placed under
oath, and be questioned as to whether the information in the written
application is complete and correct. We would not anticipate that the
examination would stop at this point unless the parties stipulate that
the applicant's testimony would be entirely consistent with the written
materials and that the oral statement would be believably presented.
   In the ordinary course, however, we consider the full examination of
an applicant to be an essential aspect of the asylum adjudication
process for reasons related to fairness to the parties and to the integrity
of the asylum process itself. We note that there are often significant
differences (either discrepancies or meaningful omissions) between the
written and oral statements in an asylum application; these differences
cannot be ascertained unless an applicant is subjected to direct
examination. Moreover, if an applicant is not fully examined under
oath there would seldom be a means of detecting those unfortunate
instances in which an asylum claim is fabricated. On the other hand,
there are cases where an alien establishes eligibility for asylum by
means of his oral testimony when such eligibility would not have been
established by the documents alone.
   We stated in Matter of Mogharrabi, 

 (BIA
1987), that an alien can demonstrate eligibility for asylum where .his
"testimony is believable, consistent, and sufficiently detailed to
provide a plausible and coherent account of the basis for his fear." It is
difficult for an alien to satisfy this standard unless he presents
testimony at his hearing which is consistent with and corroborates any
previous written statements in his Form 1-589. See Office of the
United Nations High Commissioner for Refugees, Handbook on
Procedures and Criteria for Determining Refugee Status Under the
1951 Convention and the 1967 Protocol Relating to the Status of
Refugees para. 199-200 at 47-48 (Geneva, 1979). Accordingly, in cases
such as the instant one, where the alien's counsel seeks to "rest" his
case on a completed Form 1-589 and the parties have not entered into
a stipulation regarding the contents of the Form 1-589, the immigration judge should inform counsel that an alien cannot meet his burden
of proof unless he testifies under oath regarding his application. The
immigration judge in some cases, for example where an alien is not
represented, may wish to question the alien concerning the completed
Form 1-589. The immigration judge should not, however, proceed to
adjudicate a written application for asylum if no oral testimony has
been offered in support of that application. See Matter of Balibundi,
supra.
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  Because the immigration judge here did adjudicate the respondent's
asylum application based solely on written statements in the Form I-
589, and because this is not a case where there is agreement that the
applicant's written statement is believable and that the applicant could
have presented oral testimony consistent with that statement, the
record will be remanded to the immigration judge for further
proceedings in light of this opinion.
  ORDER;          The record is remanded to the immigration judge for
further proceedings consistent with the foregoing opinion and the
entry of a new decision.




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