Ilunga v. Holder
An immigration judge can deny a request for asylum if the government proves, by a preponderance of evidence, that the applicant is not eligible, because his application was fraudulent, pursuant to 8 Code of Federal Regulations §1208.24(a)(1). In 2001, the petitioner, a citizen of the Democratic Republic of the Congo, applied for asylum, withholding of removal and relief under the Convention Against Torture. Hartford Immigration Judge Philip Verrillo found that the petitioner allegedly misrepresented that: 1.) he had not previously been denied asylum, although his 1997 application had been denied; 2.) he lived in the Democratic Republic of Congo between 1994 and 2000, although he claimed in a 1999 hearing that he was in the U.S. between 1996 and 1999; 3.) he was not previously the subject of removal proceedings; 4.) he has not previously entered the U.S.; and 5.) he has not previously used other names, although he allegedly used false names when he attempted to enter. Immigration Judge Verillo denied the application. The Board of Immigration Appeals affirmed. The petitioner appealed and claimed that he was eligible for relief, because ethnic Tutsis have been subject to persecution. When an immigration judge finds that an applicant's allegation of past persecution is not credible, the applicant can prevail, if "the factual predicate of the applicant's claim of future persecution is independent of the testimony that the IJ found not to be credible," pursuant to Paul v. Gonzales, a 2006 decision of the 2nd Circuit. Because the petitioner did not provide any objective evidence that he qualifies as an ethnic Tutsi, he could not prove he possessed a credible fear that he would be persecuted. The petitioner also did not prove that treatment of Tutsis has worsened since his first asylum application was denied. Evidence in the record indicated that the government signed a ceasefire with Tutsi rebels. The petitioner was not eligible to file a successive asylum application, pursuant to 8 United States Code §1158(a)(2)(C) and (D). The 2nd Circuit denied the petition for review. Justin Conlon represented the petitioner. Tony West, Daniel Goldman and Eric Marsteller represented the government.