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Ahmed v. Lynch

United States Court of Appeals, Second Circuit

October 19, 2015

KHALED ABDO ALI AHMED, Petitioner,
v.
LORETTA E. LYNCH, United States Attorney General, Respondent

Argued September 3, 2015

As Corrected December 15, 2015.

Petitioner seeks review of a decision of the Board of Immigration Appeals, which affirmed decisions of an Immigration Judge that found Petitioner removable and denied Petitioner's application for a waiver of inadmissibility. The agency determined that the government had demonstrated Petitioner's removability by clear and convincing evidence because Petitioner, who was admitted to the United States as an unmarried son of a United States citizen, was married at the time of his admission. Because the Board of Immigration Appeals failed to consider Petitioner's marriage certificate, which stated that he first married five years after his admission, we GRANT the petition, VACATE the order, and REMAND to the Board of Immigration Appeals with instructions to evaluate the authenticity of that marriage certificate. We further conclude that the Board of Immigration Appeals erred when it applied the standards for determining credibility articulated in the REAL ID Act to assess Petitioner's testimony concerning his removability. On remand, the Board of Immigration Appeals is instructed to articulate the standard it applies when assessing the credibility of an individual who testifies on matters concerning removability.

Petition for review GRANTED; VACATED and REMANDED.

JOSHUA E. BARDAVID, New York, N.Y., for Petitioner.

VIRGINIA LUM, Attorney, Office of Immigration Litigation, Civil Division (Benjamin C. Mizer, Principal Assistant Attorney General, Nancy E. Friedman, Senior Litigation Counsel, on the brief), United States Department of Justice, Washington, D.C., for Respondent.

Before: KATZMANN, Chief Judge, HALL and LOHIER, Circuit Judges.

OPINION

Page 238

Hall, Circuit Judge

Petitioner Khaled Abdo Ali Ahmed seeks review of an April 29, 2014 decision of the Board of Immigration Appeals (" BIA" ), which affirmed January 30, 2012 and March 21, 2012 decisions of an Immigration Judge (" IJ" ) that found Ahmed removable for procuring admission through fraud and denied Ahmed's request for a waiver of inadmissibility under Immigration and Nationality Act (" INA" ) § 237(a)(1)(H), 8 U.S.C. § 1227(a)(1)(H). The agency determined that the government had demonstrated Ahmed's removability by clear and convincing evidence because Ahmed, who was admitted to the United States as an unmarried son of a United States citizen, was married at the time of his admission. Both Ahmed and the government submitted marriage certificates reflecting different marriage dates. Because the BIA failed to consider Ahmed's certificate, which stated that he first married five years after his admission, we GRANT the petition, VACATE the BIA's order, and REMAND to the BIA with instructions to evaluate the authenticity of that marriage certificate. We further conclude that the BIA erred when it applied the standards for determining credibility articulated in the REAL ID Act to assess Ahmed's testimony concerning his removability. On remand, the BIA is instructed to articulate the standard it applies when assessing the credibility of an individual who testifies on matters concerning removability in a contested removal proceeding.

BACKGROUND

Petitioner Khaled Abdo Ali Ahmed is a native and citizen of Yemen; he was admitted to the United States in 1989 as an unmarried son of a U.S. citizen. In 2009, Ahmed was placed in removal proceedings through service of a Notice to Appear. The Notice to Appear alleged that Ahmed was married at the time of his admission to the United States and charged him with removability under INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A), as an alien who (1) procured admission by fraud or the misrepresentation of a material fact, INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), and (2) entered the United States without a valid visa, INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I).

Ahmed subsequently appeared before an IJ and contested his removability. The government offered, as evidence of Ahmed's removability, a certificate stating that Ahmed was married in 1988--one year prior to his admission to the United States. The 1988 marriage certificate was issued by " The religious Court in the city of Ibb," contained an illegible signature, bore a ...


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