To establish eligibility for the discretionary grant of asylum under the Immigration and Nationality Act, the applicant has the burden of showing either that she was subjected to past persecution or that she has a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Fear of future persecution contains a subjective and an objective component. The subjective component is satisfied by presenting candid, credible, and sincere testimony demonstrating a genuine fear of persecution. The objective element requires the asylum applicant to show, with specific, concrete facts, that a reasonable person in like circumstances would fear persecution. If the applicant establishes past persecution, a rebuttable presumption of a well-founded fear of persecution is also established.
To qualify for withholding of removal, the applicant must establish that if she is removed, there is a clear probability that her life or freedom would be threatened because of her race, religion, nationality, membership in a particular social group, or political opinion. An applicant who has failed to establish the less stringent well-founded fear standard of proof required for asylum relief is necessarily also unable to establish an entitlement to withholding of removal.
To be eligible for protection under CAT, the applicant must show that it is more likely than not that he or she would be tortured if removed to the proposed country of removal. The likelihood of torture, however, need not be tied to a protected ground under CAT.
This court reviews the BIA’s administrative findings of fact under the substantial evidence rule, and this court is obliged to treat them as conclusive unless the evidence before the BIA was such that any reasonable adjudicator would have been compelled to conclude to the contrary. This court reviews legal issues de novo. The agency decision that an alien is not eligible for asylum is conclusive unless manifestly contrary to the law and an abuse of discretion. When the BIA adopts the IJ’s decision and includes its own reasons for affirming, this court reviews both decisions.
In considering the petition for review, this court presume that the petitioner testified credibly because neither the IJ nor the BIA made an express adverse credibility determination, and because both the IJ and the BIA rested their decisions on the lack of persuasive corroborating evidence.
An applicant’s credible testimony, standing alone, may be sufficient to sustain her burden of proof without corroboration. However, even for credible testimony, corroboration may be required when it is reasonable to expect such proof and there is no reasonable explanation for its absence. An IJ may not rely on speculation, conjecture, or an otherwise unsupported personal opinion to discredit an applicant’s testimony or her corroborating evidence.
Where the document bears a rectangular seal or stamp that reads "Gomel City Clinic No.
10," and where the document describes in detail the results of a physician’s examination that confirm a brutal rape and notes the date and time of the examination, the IJ had no basis, other than conjecture, for rejecting the document on the ground that it was not written on printed letterhead, particularly when the government offered no reason for the IJ to doubt the legitimacy of the document. The IJ therefore committed legal error in discrediting the medical record showing that on November 4, 2002, the petitioner was treated for sexual assault at a clinic in Gomel.
With respect to the chain of custody, the rules of evidence do not apply strictly in administrative adjudications of immigration cases, and where the IJ offered no other valid reason to doubt the authenticity of the document, the IJ’s rejection of the medical record on the basis that the petitioner failed to establish a chain of custody is therefore a legal error.
Waiting overnight to seek medical attention after a traumatic sexual assault is not implausible; if anything, it is understandable. Even in the United States, when the perpetrator of a rape is a stranger, the crime is not reported to police 54 percent of the time. In addition, of the victims who do not report their rapes to police, only 17 percent seek medical attention. The IJ’s conclusion that the petitioner would not have waited a few hours to seek medical care appears to be based on conjecture or unsupported personal opinion. Therefore, the IJ committed legal error and his offered reasons for discrediting the petitioner’s corroborating evidence are unsupportable as a matter of law.
There is no general rule that evidence offered in corroboration requires independent corroboration. The IJ committed legal error when she discounted the corroborating evidence from a member of the Gomel branch of Zubr since 2001. Where the witness’s statement established that the petitioner was an active Zubr member, and where it confirmed that the witness participated with the petitioner in the July 27, 2002, demonstration in Minsk and saw her being arrested by police officers and taken to their vehicle, the IJ’s rejection of the statement on the basis that there is absolutely no way for her to corroborate the information is a legal error.
The Zubr member’s statement therefore could not be discredited on the ground that it automatically required corroboration.
When the petitioner’s testimony is taken as credible, this court cannot uphold the IJ’s decision based on the stated rationale that she failed to provide persuasive corroborating evidence, where the IJ used legally unsupportable reasons to reject the corroborating medical record that confirms the petitioner’s rape. The IJ also committed legal error in rejecting the Zubr member’s statement under what the IJ appeared to regard as a general rule that corroborating evidence requires further corroboration. In short, the IJ’s reasoning renders her decision manifestly contrary to the law and an abuse of discretion. This court recognizes, of course, that this court’s role is not to weigh the evidence and determine which of the competing views is more compelling. The better course is to vacate the BIA decision and remand the case to that body with instructions that the case be returned to the IJ. The IJ will reconsider the petitioner’s application in light of this opinion. The petition for review is granted. This court vacates the BIA’s decision denying the petitioner’s application for asylum, withholding of removal, and relief under CAT. The case is remanded to the BIA, which will, in turn, remand it to the IJ for reconsideration of the petitioner’s application in light of this opinion.
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