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Significant similarities between statements submitted by different applicants in different proceedings can be considered by an Immigration Judge in making an adverse credibility determination.  Matter of R-K-K-, 26 I&N Dec. 658 (BIA 2015).  

From an immigration law practitioner’s point of view, it is sad, but true. 

The Immigration Judge, however, will need to follow procedural guidelines in order to rely on inter-proceeding similarity to make an adverse credibility finding.  Specifically, the Immigration Judge must give the applicant meaningful notice of the similarities and a reasonable opportunity to explain them prior to making a credibility determination that must be based on the totality of the circumstances.  Matter of R-K-K-, 26 I&N Dec. 658 (BIA 2015).

In Matter of R-K-K-, the respondent’s application contained similar language to describe events that were almost identical to those claimed by his brother (who had been granted asylum about four years earlier).  In particular, the respondent’s asylum declaration contained the same spelling and grammatical errors and spacing irregularities as his brother’s statement.  In addition, the brother had used plural pronouns in his statement to describe incidents experienced with his wife; and the respondent used the same plural pronouns in identical language to describe similar incidents he claimed to have experienced alone.

The Immigration Judge gave the respondent an opportunity to explain the similarities and granted a three month continuance for the respondent to obtain evidence, including evidence from the transcriber involved in the respondent’s asylum declaration.

Ultimately, in Matter of R-K-K-, the BIA upheld the Immigration Judge’s adverse credibility finding and denial of his asylum claim and dismissed the respondent’s appeal.

On July 12, 2021, the Fifth Circuit Court of Appeal published a decision granting a stay based on failure of an Immigration Judge to properly take the procedural steps required by the BIA in Matter of R-K-K-.  See Daljinder Singh v. Merrick Garland (5^th Cir. July 12, 2021) No. 19-60937.

In Daljinder Singh v. Merrick Garland the Petitioner had applied for asylum and protection under the Convention Against Torture, claiming that he feared persecution and torture in India.

The presiding Immigration Judge had denied his application, finding the Petitioner not credible based on inter-proceeding similarity, and the Board of Immigration Appeals (“BIA”) had dismissed the Petitioner’s appeal.  

The Petitioner filed a petition for review and moved for a stay of removal.

According to the Fifth Circuit Court of Appeal:

• The Immigration Judge did not compare the Petitioner's asylum claim to other specific applications; instead, orally describing an amalgam of applications that she had previously seen.
• Unlike the Immigration Judge in Matter of R-K-K-, the Immigration Judge who presided in the Petitioner’s immigration proceedings did not identify “a substantial number of instances where the same or remarkably similar language is used to describe the same kind of incident or encounter.” As a result, the Petitioner could not meaningfully compare the language and narratives, produce evidence to explain the similarities, or draw attention to important distinctions.
• The Immigration Judge described several purported similarities that she did not raise at all during the Petitioner’s asylum hearing.  Consequently, the Petitioner’s counsel received no notice of these similarities prior to the Immigration Judge’s decision.
• The Immigration Judge presented the Petitioner’s counsel with a sketch of the allegedly similar asylum applications and gave counsel a few seconds to respond.  Furthermore, counsel was not given any opportunity to gather evidence to further respond to the Immigration Judge’s concerns.
• Ultimately, the Immigration Judge did not consider the totality of the evidence in making an adverse credibility finding.

See Daljinder Singh v. Merrick Garland, at pp. 7-11 (5th Cir. July 12, 2021) No. 19-60937.

Although there might be no immediate cure for the disappointment of being informed by an Immigration Judge of perceived inter-proceeding similarities, practitioners should, ON THE RECORD, request specific identification of all the perceived inter-proceeding similarities, including documents referenced by the Immigration Judge; and, move for adjournment to prepare a reasoned response.