Because the BIA wrote its own decision and did not adopt the IJ’s decision, this court reviews the BIA decision only, not the IJ’s decision.
This court has a line of circuit authority for the proposition that corroboration cannot be required from an applicant who testifies credibly. In Ladha v. INS, this court reaffirmed that an alien’s testimony, if unrefuted and credible, direct and specific, is sufficient to establish the facts testified without the need for any corroboration. Kataria v. INS relied on Ladha in stating that the BIA may not require independent corroborative evidence from an asylum applicant who testifies credibly in support of his application. Kataria stated that this court must accept an applicant’s testimony as true in the absence of an explicit adverse credibility finding. However, Congress abrogated these holdings in the REAL ID Act of 2005. The statute says that the applicant’s credible testimony “may” be sufficient without corroboration, but the trier of fact may require corroboration (unless not reasonably obtainable) even for otherwise credible testimony.
The REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 231 (2005), codified at 8 U.S.C. § 1158(b)(1)(B)(ii), states that the testimony of an applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant’s burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.
The statutory phrase “may be sufficient to sustain the applicant’s burden without corroboration” implies that the testimony also may not be sufficient. The phrase “but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee” means that there are three prerequisites before uncorroborated testimony may be considered sufficient: (1) the applicant’s testimony is credible; (2) the applicant’s testimony is persuasive; and (3) the applicant’s testimony refers to facts sufficient to demonstrate refugee status. Credible testimony is not by itself enough. Otherwise the other two requirements would be mere surplusage.
The statute additionally restricts the effect of apparently credible testimony by specifying that the IJ need not accept such testimony as true. The statute provides that the IJ may, in determining whether it satisfies the applicant’s burden of proof, weigh the credible testimony along with other evidence of record.
The last sentence of the provision deals with inherent difficulty in providing corroborating evidence from a foreign country, especially if, as is often the case, the country is in turmoil and the applicant is from a disfavored group or the corroboration would have to be from his persecutors. Corroborating evidence “must” be provided where the trier of fact determines that it should be, unless the applicant does not have the evidence and cannot reasonably obtain the evidence. This means that an applicant cannot be turned down solely because he fails to provide evidence corroborating his testimony, where he does not have and cannot reasonably obtain the corroboration. But it also means that he can be turned down for failing to provide corroboration where he does have it or could reasonably obtain it.
Congress has thus swept away our doctrine that when an alien credibly testifies to certain facts, those facts are deemed true. Apparently honest people may not always be telling the truth, apparently dishonest people may be telling the absolute truth, and truthful people may be honestly mistaken or relying on unreliable evidence or inference themselves.
Congress has installed a bias toward corroboration in the statute to provide greater reliability. This is not very different from other litigation.
The petitioner’s argument that the BIA merely assumes that there may be scholarly sources that mention the Wardey clan and the Bilisyar subclan if they exist is correct, but a little slippery. If there were such scholarly materials, then they would corroborate the petitioner, but if there are not, then it would be impossible to prove that the clan and subclan exist. The BIA’s statement invites the objection that the half day hearings by impecunious petitioners typical of asylum cases should not be burdened with expensive expert witnesses testifying about their searches of the academic literature and their opinions about it. Fortunately the BIA did not require such academic or expert testimony or documentation. It merely suggested it as a possibility, along with “witnesses.”
The three unsworn letters were given “little weight” by the BIA because the letters were “inconsistent” and the writers did not know the petitioner. The BIA’s explanation is vulnerable to criticism. After all, someone from the Lower Juba region may know very well that the clan and subclan exist, which was the point, without having any acquaintance with the petitioner or his family. But one of the letters does indeed say that the petitioner is a member of the “Wardaa” clan, something the writer could not know without some foundation in knowledge of petitioner, a knowledge neither claimed nor consistent with misspelling two of petitioner’s three names.
Considering that the country report, and not only petitioner’s testimony, establishes that Somalia is a violently disorderly place with no established state, inability to obtain documentation from Somalia might be quite credible, had the petitioner testified (he did not) that he wrote or emailed his family but the system of communication did not work and he had no idea whether his communications or theirs got through. A reasonable finder of fact might deem sufficient for corroboration the two identical letters saying that the writers had resided in the Lower Juba region, and the Wardey-Ali clan and Bilisyar subclan were minorities who lived there. Our standard of review, though, does not enable us to substitute our judgment about the persuasiveness of this corroboration for the BIA’s. This court is required to accept administrative findings of fact unless any reasonable administrator would be compelled to conclude to the contrary. This standard also applies to the IJ’s determinations with respect to the availability of corroborating evidence. Even if this court might conclude to the contrary regarding sufficiency of corroboration, this court cannot say that any reasonable adjudicator would be compelled to conclude to the contrary. The highly deferential standard of review compels this court to let stand the BIA’s determination that the petitioner’s corroboration was insufficient. Though the three letters support the conclusion that the petitioner’s claimed clan and subclan exist, the law is that to reverse the BIA finding this court must find that the evidence not only supports that conclusion, but compels it. The question is close, but in light of the other evidence in the record casting doubt on the petitioner’s story, this court cannot say that the letters “compel” that conclusion.
The petitioner’s contention that that he was denied due process of law because his credibility was thrown into doubt by erroneous translation is without merits. To establish a due process violation, a petitioner must show that defects in translation prejudiced the outcome of the hearing. Even if the translator said “jungle” but the petitioner did not describe his area as “jungle,” there was no prejudice if it was irrelevant. Where the petitioner said he had never attended school but the translator presented it as though he had said he had no education, and where the discrepancy was cleared up by further questioning, the petitioner has not demonstrated any prejudice from the claimed translation errors. Difficulties arise in communication between people who do not speak each others’ languages, but where the IJ noted that the petitioner responded to several questions before they were translated indicating that he was not entirely reliant on the translator, the petitioner has not demonstrated any prejudice from the claimed translation errors.
Where a petitioner merely mentioned in his brief to the BIA that he was requesting reversal of the IJ’s denial of relief under the Convention Against Torture (CAT), but failed to brief that topic at any length, this court held that this mention in the brief was sufficient to put the BIA on notice that the petitioner was challenging the IJ’s CAT determination, and gave the agency an opportunity to pass on this issue. Accordingly, the petitioner adequately exhausted his claim before the BIA, and this court has jurisdiction to address that claim on appeal.
To be eligible for withholding of removal based on the Convention Against Torture, the petitioner must prove that he is more likely than not going to be tortured if sent back to Somalia. Torture must be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. This court cannot say on the record before us that a reasonable adjudicator would be compelled to find, contrary to that of the IJ below, that the petitioner established these facts. This court thus affirms the denial of relief under the Convention Against Torture. The petition for review is therefore denied.
No comments:
Post a Comment