Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Tuesday, February 4, 2014

6th Circuit on credibility determination, stays of removal

Slyusar v. Holder, No. 13-3071 (6th Cir. Jan. 30, 2014) (published).

In this published decision, the Sixth Circuit addressed several issues relating to an asylum claim.

First, the court upheld an adverse credibility determination in an asylum and withholding of removal claim from Ukraine. The discrepancies included employment history, date of entry, possession of a Ukrainian passport at entry, prior marriages, and attempts to file an asylum claim. Although these do not necessarily go to the heart of the claim, they were sufficient to support the adverse credibility finding under the REAL ID Act.

Second, the court denied a motion for stay of removal. While the motion became moot upon the denial of the petition for review, the court addressed the 4 factors for a stay. The court found there would be irreparable harm (second prong). Addressing the third prong (harm to government) and fourth prong (public interest), the court noted these merge in immigration cases and stated that the public has an interest in not wrongfully removing a noncitizen, especially to a country where she will be harmed.

However, when the petition for review involves an adverse credibility determination, the court seemed to suggest that the noncitizen can never meet the first prong, a substantial likelihood of success, because the court cannot review the merits of the asylum claim if the BIA's decision rested solely on the credibility determination. "In effect, the REAL ID Act forecloses stays of removal to asylum-seekers who have received adverse credibility determinations by constructively preventing them from proving eligibility for such relief." This is quite troubling for future litigants seeking to avoid removal to the country of persecution.

In closing, the court cautioned agency adjudicators from making adverse credibility determinations that rest on issues unrelated to the heart of the claim because of hurdles those applicants face on review and the possibility that this would punish applicants for their trauma.

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