Cite as 26 I&N Dec. 375 (BIA 2014) Interim Decision #3810
375
Matter of C-C-I-, Respondent
Decided August 22, 2014
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Reopening of removal proceedings for a de novo hearing to consider termination of
an alien’s deferral of removal pursuant to 8 C.F.R. § 1208.17(d)(1) (2014), is
warranted where the Government presents evidence that was not considered at the
previous hearing if it is relevant to the possibility that the alien will be tortured in the
country to which removal has been deferred.
(2) The doctrine of collateral estoppel does not prevent an Immigration Judge from
reevaluating an alien’s credibility in light of additional evidence presented at a hearing
under 8 C.F.R. § 1208.17(d)(3).
FOR RESPONDENT: Robert A. Schmoll, Esquire, Atlanta, Georgia
FOR DEPARTMENT OF HOMELAND SECURITY: Renae M. Hansell, Senior
Attorney
BEFORE: Board Panel: PAULEY, MALPHRUS, and GREER, Board Members.
GREER, Board Member:
This decision provides guidance on the regulatory process for
terminating the deferral of an alien’s removal granted pursuant to the
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, adopted and opened for signature Dec. 10, 1984,
G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.
A/RES/39/708 (1984) (entered into force June 26, 1987; for the United
States Apr. 18, 1988) (“Convention Against Torture”). We first address the
evidentiary threshold for reopening proceedings to consider whether the
deferral of removal should be terminated pursuant to 8 C.F.R. § 1208.17(d)
(2014). We also consider the appropriate scope of a hearing on the
termination of deferral of removal. In particular, we assess the applicability
of the doctrine of collateral estoppel to the grant of deferral of removal in
the subsequent termination hearing under 8 C.F.R. § 1208.17(d)(3). Cite as 26 I&N Dec. 375 (BIA 2014) Interim Decision #3810
376
I. FACTUAL AND PROCEDURAL HISTORY
The respondent entered the United States as a nonimmigrant student in
1982. He subsequently adjusted his status to that of lawful permanent
resident in 1983. Proceedings were initiated against the respondent in 1998
with the issuance of a notice to appear, which alleged that he had been
convicted of two crimes involving moral turpitude and an aggravated
felony.
In a decision dated June 28, 1999, an Immigration Judge sustained the
charges of deportability based on the respondent’s convictions and ordered
him removed to Nigeria. It was not disputed that, because of his
convictions, the respondent was only eligible to apply for deferral of
removal. The Immigration Judge granted the respondent’s application for
deferral of removal, which the Government appealed. The Board dismissed
the appeal on December 10, 2002.
On February 20, 2003, the Immigration Judge granted the Government’s
motion for a hearing to consider whether the respondent’s deferral of
removal should be terminated pursuant to 8 C.F.R. § 1208.17(d). The
motion was based on a report dated June 5, 2000, from the Consular
Anti-Fraud Unit of the United States Embassy in Lagos, Nigeria, and
a March 22, 2000, New York Times article pertaining to country conditions
in Nigeria. The Government argued this evidence established that the
respondent’s claim was fraudulent and he could no longer show it is more
likely than not that he will be tortured in Nigeria.
The respondent was ordered removed in absentia after he did not appear
for a number of scheduled hearings. The in absentia removal order was
later rescinded, and the removal proceedings were reopened on May 2,
2011. Following the de novo hearing in 2012, at which the respondent
testified regarding his application for deferral of removal, the Immigration
Judge terminated the deferral of the respondent’s removal to Nigeria on
February 14, 2013. In her decision, the Immigration Judge rejected the
respondent’s argument that the proceedings should not have been reopened,
concluding that the evidence submitted in support of the motion to
terminate deferral of removal met the standard required to reopen
proceedings. She therefore determined that it was appropriate to conduct
the de novo hearing on the respondent’s application for deferral of removal
pursuant to 8 C.F.R. § 1208.17(d)(3).
The Immigration Judge found that the respondent was not credible. Her
adverse credibility finding was based primarily on inconsistencies about
fundamental facts between the respondent’s 1999 and 2012 testimony. The
Immigration Judge determined that his claim was not supported by
sufficient corroborative evidence to overcome the lack of credible Cite as 26 I&N Dec. 375 (BIA 2014) Interim Decision #3810
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testimony. Consequently, the Immigration Judge terminated the deferral of
the respondent’s removal to Nigeria.
The Immigration Judge also found the respondent ineligible for a waiver
of inadmissibility under former section 212(c) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(c) (1994). She determined that the
respondent was ineligible for the waiver because he was no longer a lawful
permanent resident as a result of the June 28, 1999, final administrative
order of removal and for other procedural reasons. The respondent has
appealed from the Immigration Judge’s decision.
II. ISSUES
On appeal the respondent argues that the Government’s motion for
a de novo hearing to consider terminating the deferral of his removal should
not have been granted as a matter of law. He contends that the evidence
submitted in support of the motion does not meet the evidentiary threshold
contemplated in 8 C.F.R. § 1208.17(d)(1). The respondent also argues that
the Immigration Judge impermissibly relitigated the factual findings made
in the prior Immigration Judge’s June 28, 1999, decision, asserting that
the doctrine of collateral estoppel forecloses the Immigration Judge from
making new factual findings regarding the respondent’s credibility and the
likelihood of his prospective torture in Nigeria. In addition, the respondent
claims that the Immigration Judge made clearly erroneous factual findings
regarding his credibility and his inability to establish that it is more likely
than not that he will be tortured in Nigeria. Finally, the respondent
contends that he is eligible for a waiver of inadmissibility under former
section 212(c) of the Act.
We must first determine whether the Government’s motion for a hearing
to consider termination of the deferral of the respondent’s removal was
supported by sufficient evidence “relevant to the possibility” that the
respondent would be tortured in Nigeria, as required for reopening by
8 C.F.R. § 1208.17(d)(1). We must then decide whether it was appropriate
under 8 C.F.R. § 1208.17(d)(3) for the Immigration Judge to make new
findings of fact, including a new adverse credibility finding that is at odds
with the prior Immigration Judge’s credibility determination.
III. TERMINATION OF DEFERRAL OF REMOVAL
Termination of deferral of removal at the initiation of the Department of
Homeland Security (“DHS”) involves two steps. First, the DHS must file
a motion supported by evidence that was not presented at the previous
hearing and that is relevant to the possibility that the alien would be Cite as 26 I&N Dec. 375 (BIA 2014) Interim Decision #3810
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tortured. 8 C.F.R. § 1208.17(d)(1). Second, if the motion is granted, the
Immigration Judge must conduct a de novo hearing to consider whether the
deferral of the alien’s removal may be terminated. This requires an analysis
to determine whether the alien can again establish that it is more likely than
not that he will be tortured in the country to which his removal has been
deferred. 8 C.F.R. § 1208.17(d)(3).
A. Motion To Consider Termination of Deferral of Removal
The regulation governing the first step of the process provides as
follows:
At any time while deferral of removal is in effect, the INS District Counsel for
the District with jurisdiction over an alien whose removal has been deferred under
paragraph (a) of this section may file a motion with the Immigration Court . . . to
schedule a hearing to consider whether deferral of removal should be terminated.
The Service motion shall be granted if it is accompanied by evidence that is
relevant to the possibility that the alien would be tortured in the country to which
removal has been deferred and that was not presented at the previous hearing.
The Service motion shall not be subject to the requirements for reopening in §§ 3.2
and 3.23 of this chapter.
8 C.F.R. § 1208.17(d)(1) (emphasis added).
1
Thus, under the regulation,
evidence “relevant to the possibility” that the alien would be tortured in the
country to which removal has been ordered is sufficient to schedule
a hearing to consider termination of deferral of removal.2
The evidence
may have been previously available as long as it was not presented and
considered at the hearing where deferral of removal was granted.
See Khouzam v. Att’y Gen. of U.S., 549 F.3d 235, 240 n.3 (3d Cir. 2008)
(recognizing that the ordinary requirements for a motion to reopen do not

1 The references in the regulation to the former “INS District Counsel” and to “§§ 3.2
and 3.23 of this chapter” are remnants from the unified regulatory regime that preceded
the creation of the DHS and the bifurcation of title 8 of the Code of Federal Regulations
into the DHS regulations in chapter I and the Department of Justice regulations in chapter
V. See Aliens and Nationality; Homeland Security; Reorganization of Regulations,
68 Fed. Reg. 9824, 9824 (Feb. 28, 2003) (Supplementary Information).
2 As the Supplementary Information accompanying the regulation states, the purpose
of this provision is to “provide for a streamlined termination process for deferral of
removal,” “so that deferral can be terminated quickly and efficiently when appropriate.”
Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478, 8481−82
(Feb. 19, 1999) (Supplementary Information). Deferral of removal was designed to be
more limited, less permanent, and more easily terminated than withholding of removal
under section 241(b)(3)(B) of the Act. Id. at 8480.Cite as 26 I&N Dec. 375 (BIA 2014) Interim Decision #3810
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apply to motions to terminate deferral of removal); cf. 8 C.F.R.
§§ 1003.2(c)(1), 1003.23(b)(3) (2014) (providing the general requirements
for the reopening of proceedings).3
The respondent argues that the Immigration Judge erred by
“automatically” granting the motion for a hearing to consider whether his
deferral of removal should be terminated. He contends that the evidence
submitted in support of the motion was insufficient to meet the threshold
for a de novo hearing on the deferral of his removal. In other words, the
respondent claims that the DHS’s evidence is not “relevant to the
possibility” that he would be tortured in Nigeria. We disagree.
The prior Immigration Judge credited the respondent’s testimony that
his father was jailed in 1984 and publicly hanged in 1986 without judicial
process, that his mother was jailed in 1987 and hanged in 1997 without
judicial process, and that his brother was also hanged with his mother
without judicial process. The Immigration Judge also credited the
respondent’s testimony that he voluntarily returned to Nigeria in 1995 to
attend the funeral of his uncle, a political activist who was also hanged as
a result of his political affiliation with the Ogoni tribe.
As corroboration for his testimony, the respondent submitted a “Medical
Certificate of Cause of Death” from the University of Port Harcourt
Teaching Hospital in Nigeria for each of his parents. The death certificate
for the respondent’s father reflects that he died on August 20, 1986, and his
mother’s death certificate reflects that she died on January 11, 1997.
The June 5, 2000, report from the Consular Anti-Fraud Unit of the
United States Embassy in Lagos, Nigeria, which relates to the respondent’s
application for deferral, contradicts his claim. The report first states that
the respondent “does not have any reason to fear returning to Nigeria”
because “the current democratically-elected government has no interest in
continuing the violent policies of the previous Abacha dictatorship towards
the Ogoni people.” The consular report also states that the “death
certificate documents submitted in support of [the respondent’s] application
are fraudulent.” As the report explains, “According to the Nigerian lawyers
consulted, in Nigeria, when a person is executed for a Capital Offense, the

3 A motion to terminate “will not be subject to the normal motion to reopen requirement
that the moving party seek to offer evidence that was previously unavailable (i.e., could
not have been discovered and presented at the previous hearing) and that establishes
a prima facie case for termination” but will instead “be granted and a termination hearing
will be scheduled on an expedited basis if the Service meets a lower threshold, which
requires only that the evidence was not considered at the previous hearing and is
relevant to the possibility that the alien would be tortured in the country of removal.”
64 Fed. Reg. at 8482 (Supplementary Information) (second emphasis added).Cite as 26 I&N Dec. 375 (BIA 2014) Interim Decision #3810
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body belongs to the Federal Government, therefore there is no way that
the [respondent] could have gotten copies of ‘death certificates’ of his
‘hanged relatives’ from a private hospital source to submit as part of his
application.”
A New York Times article was appended to the consular report.
Norimitsu Onishi, Not for a Nigerian Hero the Peace of the Grave, N.Y.
Times, March 22, 2000, available at http://www.nytimes.com/2000/03/22
/world/not-for-a-nigerian-hero-the-peace-of-the-grave.html. That article
indicates that although the activist the respondent claimed was his uncle
was executed in 1995, he never had a funeral or public burial, as the
respondent testified. Rather, the article states that the Nigerian Government
“dumped his body in an unmarked, common grave” and “kept its exact
location a secret.” The article further reports that the “newly elected
president . . . immediately gave [the victim’s] family permission to exhume
the body for a proper funeral.” As of the date of the article’s publication,
the remains were “still in the unmarked grave, intermingled with those of
eight other Ogoni men who were also hanged.”
The evidence in the consular report and the New York Times article
contradicts the respondent’s account of both his alleged uncle’s burial and
his parents’ death certificates. This evidence “was not presented at the
previous hearing” on June 28, 1999, and it is “relevant to the possibility”
that the respondent would be tortured in Nigeria, as required by 8 C.F.R.
§ 1208.17(d)(1).
4
The respondent argues that the consular report “is not competent
evidence” because it contains hearsay within hearsay and the DHS did not
make the author of the consular report available for examination in these
proceedings.
5
However, when considering whether the evidence is
sufficient to warrant a de novo hearing on termination of deferral of
removal, the inquiry is whether the evidence is “relevant to the possibility”
that the respondent would be tortured in the country of removal, not the
document’s ultimate admissibility.
6
As explained above, this evidence

4 Evidence is “relevant” if it is “[l]ogically connected and tend[s] to prove or disprove
a matter in issue [or] to persuade people of the probability or possibility of some alleged
fact.” Black’s Law Dictionary 1316 (8th ed. 2004); see also Fed. R. Evid. 401(a) (stating
that evidence is relevant “if it has any tendency to make a fact more or less probable than
it would be without the evidence”).
5 The respondent argues further that additional evidence submitted by the DHS at the
hearing regarding the country conditions in Nigeria “focuses on issues that are, at best,
ancillary” to the conditions in Nigeria. However, this evidence was not submitted in
support of the motion, and the Immigration Judge did not rely on it in granting the motion.
6
In any case, we conclude below that the document was, in fact, admissible because it
is probative and its use was not fundamentally unfair. See infra p. 384.Cite as 26 I&N Dec. 375 (BIA 2014) Interim Decision #3810
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clearly meets the relevance standard. Accordingly, we conclude that the
DHS met the evidentiary threshold for a de novo hearing pursuant to
8 C.F.R. § 1208.17(d)(1).
B. De Novo Hearing
If the Immigration Judge grants the Government’s motion to schedule
a hearing to consider whether deferral of removal should be terminated, the
regulations require the following:
The immigration judge shall conduct a hearing and make a de novo determination,
based on the record of proceeding and initial application in addition to any new
evidence submitted by the Service or the alien, as to whether the alien is more
likely than not to be tortured in the country to which removal has been deferred.
This determination shall be made under the standards for eligibility set out in
§ 1208.16(c). The burden is on the alien to establish that it is more likely than not
that he or she would be tortured in the country to which removal has been deferred.
8 C.F.R. § 1208.17(d)(3).7

At the termination hearing, the Immigration Judge found, as a factual
matter, that the respondent did not establish that it is more likely than not
that he will be tortured in Nigeria. See 8 C.F.R. §§ 1208.16(c)(2)–(3),
1208.17(a) (2013); see also Zhou Hua Zhu v. U.S. Att’y Gen., 703 F.3d
1303, 1311−12 (11th Cir. 2013). This finding was based on the
respondent’s lack of credibility and his inability to meet the applicable
burden of proof with corroborative documentary evidence alone. See
generally Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th Cir. 2006)
(“An IJ’s denial of asylum relief, however, can be supported solely by an
adverse credibility determination, especially if the alien fails to produce
corroborating evidence.”).
We find no clear error in the Immigration Judge’s adverse credibility
finding. See Matter of R-S-H-, 23 I&N Dec. 629, 637 (BIA 2003); 8 C.F.R.
§ 1003.1(d)(3)(i) (2014). Because the respondent’s application was filed
before May 11, 2005, his credibility is evaluated under the standards in

7 According to 8 C.F.R. § 1208.17(d)(2), prior to holding the termination hearing,
[t]he Immigration Court shall provide notice to the alien and the Service of the
time, place, and date of the termination hearing. Such notice shall inform the alien
that the alien may supplement the information in his or her initial application for
[deferral] of removal under the Convention Against Torture and shall provide that
the alien must submit any such supplemental information within 10 calendar days
of service of such notice (or 13 calendar days if service of such notice was by mail).Cite as 26 I&N Dec. 375 (BIA 2014) Interim Decision #3810
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effect prior to the effective date of the REAL ID Act of 2005, Division B of
Pub. L. No. 109-13, 119 Stat. 302. See generally Matter of S-B-, 24 I&N
Dec. 42 (BIA 2006). Significant, material inconsistencies between the
respondent’s 1999 and 2012 testimony are apparent on the record. Nreka
v. U.S. Att’y Gen., 408 F.3d 1361, 1369 (11th Cir. 2005).
The Immigration Judge based the adverse credibility finding in part on
the respondent’s inability to credibly establish his identity or his nationality
as Nigerian or Gambian. See 8 C.F.R. § 1208.16(c)(2) (providing that the
applicant has the burden of proving eligibility for protection under the
Convention Against Torture); see also Matter of O-D-, 21 I&N Dec. 1079,
1081 (BIA 1998) (stating that it is the alien’s burden to establish his
identity as a citizen and national of the country from which he seeks refuge).
The Immigration Judge noted that the respondent testified in 2012 that he is
Gambian, but in 1999 he testified that he is Nigerian. Although the
respondent testified that he did not learn that he was born in the Gambia
until 2002, he also stated that when he came to the United States as early as
1982, he knew that he could not obtain a legal Nigerian passport or birth
certificate. He also acknowledged using a Nigerian passport that was not
his when he traveled from the United States to England in 2002 (for
a purpose other than to escape persecution). The Immigration Judge noted
that the respondent is “without any properly issued identifying document”
to establish his identity.
In addition to his discrepant testimony regarding his nationality, the
respondent testified in 1999 that his religion is “Muslim” and that the
United Nations has “a refugee camp for almost every Muslim, every Ogoni
person . . . because they couldn’t go home.” However, when asked on
January 11, 2012, if he could safely live anywhere in Nigeria, the
respondent testified that he is a Christian. The respondent has not given
any explanation for this discrepancy. See Matter of A-S-, 21 I&N Dec.
1106, 1110 (BIA 1998).
Furthermore, the respondent gave conflicting testimony about the deaths
of his immediate family members in Nigeria. Originally, he testified that
one brother was hanged with his mother in 1997 at the Bori military prison
in Nigeria. But at the termination hearing in 2012, the respondent testified
that a brother with a different name was killed in 1998 at an airport in
Nigeria after that brother was granted asylum in South Africa. When asked
if any of his brothers other than the one killed at the airport are deceased,
the respondent answered, “No.” The respondent provided no convincing
explanation for this contradictory testimony on appeal.
The Immigration Judge also noted inconsistencies between the
respondent’s account of the 1995 funeral and burial of the activist he
claimed was his uncle and the international media coverage stating that theCite as 26 I&N Dec. 375 (BIA 2014) Interim Decision #3810
383
body was dumped in an unmarked mass grave, the location of which the
Nigerian Government kept secret. The news articles describe the
continuing efforts of the victim’s family to recover his remains and conduct
a proper burial. Given that a symbolic burial held in 2000 was covered by
the international news media and drew tens of thousands of attendees, the
Immigration Judge found it implausible that there would be no news
coverage of or references to the alleged 1995 funeral. Although given the
opportunity to do so, the respondent was not able to explain the discrepancy
between his testimony and the news articles describing the treatment of the
remains. See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1256 (11th Cir. 2006).
The Immigration Judge gave other valid reasons for the adverse
credibility finding, including the respondent’s demeanor and evasive
testimony at his merits hearing in 2012, his criminal history involving
fraudulent conduct, and his claimed membership in the Movement for the
Actualization of the Sovereign State of Biafra (“MASSOB”), which the
Immigration Judge found implausible in light of his contradictory
testimony regarding the current state of Nigerian politics. In view of these
significant inconsistencies and the other reasons identified by the
Immigration Judge, we discern no clear error in her adverse credibility
determination. See Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th
Cir. 2005).
Additionally, some of the respondent’s corroborating evidence further
undermines his credibility, rather than supporting his claim. The
respondent’s testimony was inconsistent with that of one of his witnesses
with regard to aspects of MASSOB’s basic operations. Moreover, the
respondent testified in 2012 that a brother was killed in 1998 at the
Nigerian airport, but a 2011 declaration from another brother stated that the
other brother in question “currently” had asylum status in South Africa.
Although the respondent submitted a second 2012 declaration from his
brother that conforms to his testimony, the Immigration Judge did not err
in according the declarations diminished weight given this significant
discrepancy.
The remainder of the respondent’s corroborating evidence is insufficient
to establish his claim in light of his lack of credibility. The respondent
submitted the testimony and report of a doctor regarding scars on his back.
Although the Immigration Judge found this evidence credible, she noted
that it did not establish how or when the respondent sustained his injuries.
Furthermore, with respect to the death certificates of the respondent’s
parents, the Immigration Judge found significant the respondent’s
testimony that he did not personally obtain them and did not know how his
attorney obtained them. Cite as 26 I&N Dec. 375 (BIA 2014) Interim Decision #3810
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Finally, at the 2012 hearing, the respondent presented a copy of
a warrant he alleged was for his arrest and the testimony of a friend he
claimed gave it to him. The Immigration Judge noted the discrepancy
between the spelling of the name on the warrant and the name that the
respondent gave her in court. Because the respondent did not provide any
government-issued identifying documents, the Immigration Judge could not
verify the correct spelling of his name. Moreover, given the respondent’s
lack of credibility, it was appropriate for the Immigration Judge to not
credit the testimony regarding this warrant. See Mohammed v. U.S. Att’y
Gen., 547 F.3d 1340, 1347 (11th Cir. 2008) (stating that although the
Immigration Judge was obligated to consider the alien’s documentary
evidence, he was “under no obligation to credit it or assign it decisive
weight”).
The respondent argues that the June 5, 2000, consular report submitted
by the DHS with its motion to remand, which states that the respondent’s
parent’s death certificates were fraudulent, is “not competent evidence”
because it contains multiple levels of hearsay. However, hearsay evidence
is admissible in removal proceedings where, as here, it is probative and its
use is not fundamentally unfair. See, e.g., Matter of D-R-, 25 I&N Dec.
445, 458, 460−61 (BIA 2011). The respondent had notice of the report and
an opportunity to rebut it. Cf. Alexandrov v. Gonzales, 442 F.3d 395, 407
(6th Cir. 2006) (finding that the alien did not have adequate notice of the
contents of a consular report); Ezeagwuna v. Ashcroft, 325 F.3d 396, 406
(3d Cir. 2003) (same). Moreover, the Immigration Judge based the adverse
credibility finding on other factors cited above. Under these circumstances,
we conclude that the Immigration Judge did not err in admitting the report.
See Lyashchynska v. U.S. Att’y Gen., 676 F.3d 962, 971 (11th Cir. 2012)
(upholding the Immigration Judge’s reliance on a Department of State
investigation where the asylum applicant “did not overcome the
presumption of regularity afforded to government investigations”); see also
Angov v. Holder, 736 F.3d 1263, 1276−77 (9th Cir. 2013) (rejecting the
argument that a consular letter, which is “the unified work product of
a U.S. government agency carrying out governmental responsibilities” and
therefore “clothed with a presumption of regularity,” must contain
a “multitude of additional details” about the investigator and investigation
to be admissible).
Given his lack of credible testimony and corroborating evidence, the
respondent has not established that it is more likely than not that he will be
tortured in Nigeria by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official
capacity. See 8 C.F.R. § 1208.18(a)(1) (2014). Therefore, the respondent
did not establish eligibility for protection under the Convention Against Cite as 26 I&N Dec. 375 (BIA 2014) Interim Decision #3810
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Torture, and the Immigration Judge properly terminated the deferral of his
removal. See 8 C.F.R. §§ 1208.16(d)(2), 1208.17(a); Matter of J-F-F-,
23 I&N Dec. 912 (A.G. 2006).
C. Collateral Estoppel Doctrine
With respect to the adverse credibility finding, the respondent observes
on appeal that “nearly half” of the inconsistencies identified in support of
the adverse credibility finding arose as a result of his 2012 testimony. The
respondent does not dispute that he testified inconsistently in 2012 with
the testimony that he previously provided. Rather, he argues that the
Immigration Judge is collaterally estopped from comparing the testimony
that he gave at the 2012 merits hearing with his previous testimony in 1999.
In the respondent’s view, the doctrine of collateral estoppel should apply to
prevent the reevaluation of his 1999 testimony and relitigation of any issue
covered in the prior Immigration Judge’s decision granting deferral of
removal.
The respondent’s collateral estoppel argument would negate the purpose
of 8 C.F.R. § 1208.17(d), which allows for termination of deferral of
removal where evidence relevant to the possibility that the alien would be
tortured in the country of removal was not considered at the previous
hearing. There is relevant evidence in this case that contradicts the
first Immigration Judge’s credibility finding, which was previously
determined without its benefit. The regulation specifically provides for the
Immigration Judge to consider the original application in light of additional
evidence. 8 C.F.R. § 1208.17(d)(3) (stating that the Immigration Judge
“shall make a de novo determination, based on the record of proceeding and
initial application in addition to any new evidence” regarding the likelihood
that the alien will be tortured in the country of removal).
Deferral of removal is not intended to provide permanent relief from
removal. Rather, it is a temporary form of protection that accords the
recipient no lawful immigration status and prevents the alien’s refoulement
only until removal is possible. See Ali v. Mukasey, 529 F.3d 478, 489
(2d Cir. 2008) (recognizing that a grant of deferral of removal is
a temporary form of protection); 64 Fed. Reg. at 8480 (Supplementary
Information) (stating that deferral is not a permanent form of protection
and may be terminated if it becomes possible to remove the alien). The
regulations provide that the alien’s removal “shall be deferred until
such time as the deferral is terminated under this section.” 8 C.F.R.
§ 1208.17(b)(1).
The respondent relies on Oyeniran v. Holder, 672 F.3d 800 (9th Cir.
2012), as support for the proposition that the DHS is collaterally estopped Cite as 26 I&N Dec. 375 (BIA 2014) Interim Decision #3810
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from relitigating the issues that were decided in the Immigration Judge’s
1999 decision. In Oyeniran, the alien was granted deferral of removal to
Nigeria based on his testimony and that of an expert witness and on
documentary evidence, including police reports and newspaper articles.
When the Government sought to terminate the grant of deferral of removal,
it did not present evidence that contradicted the prior evidence. Rather, the
Immigration Judge determined that the alien was not credible based on
essentially the same evidence, because the alien and the expert witness
“both ratified their prior testimony.” Id. at 805.
The United States Court of Appeals for the Ninth Circuit reversed,
holding that the DHS was “conclusively barred from re-litigating” the
salient findings made in support of the initial grant of the alien’s application
for deferral of removal. Id. at 806. However, that case is distinguishable
because the DHS did not present relevant evidence to contradict the
previously provided evidence; nor did the alien provide fundamentally
inconsistent testimony.
Furthermore, in Ali v. Mukasey, 529 F.3d at 478, the Second Circuit
addressed the relevance of collateral estoppel in this context, and its
interpretation is consistent with our view. The court recognized that
deferral of removal is not a permanent form of protection, stating that the
regulatory framework clearly contemplates that “the merits of the alien’s
[Convention Against Torture] claim may be revisited.” Id. at 489.
Accordingly, we find no merit to the respondent’s arguments regarding
collateral estoppel.
IV. SECTION 212(c) WAIVER
Finally, the respondent argues that he is eligible to apply for a waiver of
inadmissibility under former section 212(c) of the Act because he would
have been eligible for such relief when he was convicted of mail fraud on
January 17, 1992, and of unauthorized use of an access device on
January 17, 1997.
The Immigration Judge concluded that the respondent was not eligible
for section 212(c) relief primarily because she found that he had lost his
lawful permanent resident status when a final administrative order of
removal was entered against him on June 28, 1999. See 8 C.F.R.
§ 1212.3(f)(1)−(2) (2013) (stating that an application for relief under
former section 212(c) shall be denied if the alien has not been lawfully
admitted for permanent residence for at least 7 years prior to the filing of
the application). Under 8 C.F.R. § 1001.1(p) (2014), an alien’s permanent
resident status terminates upon the entry of a final order of removal.
However, notwithstanding those provisions, “a motion to reopen Cite as 26 I&N Dec. 375 (BIA 2014) Interim Decision #3810
387
proceedings for consideration or further consideration of an application for
relief under section 212(c) of the Act . . . may be granted if the alien
demonstrates that he or she was statutorily eligible for such relief prior to
the entry of the administratively final order of deportation.” 8 C.F.R.
§ 1003.2(c)(1). Accordingly, the relevant inquiry is whether the respondent
was eligible for relief under former section 212(c) at the time of his final
order of removal.
Given the recent evolution in jurisprudence regarding the availability of
section 212(c) relief, we find it appropriate to remand the record for the
Immigration Judge to consider the respondent’s eligibility for a waiver.
See, e.g., Judulang v. Holder, 132 S. Ct. 476 (2011) (eliminating the
comparable grounds approach for determining whether an alien is
eligible for a waiver under former section 212(c)); Matter of Abdelghany,
26 I&N Dec. 254, 272 (BIA 2014) (providing new guidance regarding the
availability of section 212(c) relief). Specifically, the Immigration Judge
should make factual findings, including the dates of the respondent’s
offense, plea, and conviction. In this regard, she should also analyze the
issues related to retroactivity and reliance that are necessary to make this
determination in the first instance. See Centurion v. Holder, 755 F.3d 115
(2d Cir. 2014) (regarding retroactivity); Oguejiofor v. Att’y Gen. of U.S.,
277 F.3d 1305, 1310 n.6 (11th Cir. 2002) (same); 8 C.F.R. § 1212.3(f)(4)
(“An application for relief under former section 212(c) shall be denied if . . .
[t]he alien has been charged and found to be deportable or removable on
the basis of a crime that is an aggravated felony, as defined in section
101(a)(43) of the Act (as in effect at the time the application for section
212(c) relief is adjudicated) . . . .”). Accordingly, the record will be
remanded to the Immigration Judge for further proceedings.
ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of
a new decision.