The BIA’s analysis of the respondent’s asylum claim was incomplete. The BIA failed to address the respondent’s claim of past persecution based on imputed political opinion—that is, the persecution that his mother and other family members suffered for their resistance to China’s coercive population-control policy. Even though the respondent’s mother’s forcible sterilization does not automatically entitle him to a finding of past persecution, it may in combination with other evidence show that his family’s resistance to China’s population control policy has been imputed to him. The BIA also failed to consider the cumulative significance of the hardships visited upon the respondent and his family—and the future hardships he would face if returned—when evaluating the respondent’s fear of future persecution. This court therefore grants the petition for review and remand to the BIA for further proceedings.
Where the BIA conducts its own analysis rather than supplementing or adopting the decision of the IJ, this court reviews the BIA’s decision. The BIA’s legal conclusions are reviewed de novo. This court will uphold the BIA’s factual findings so long as they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Under this deferential standard of review, reversal is warranted only if the evidence compels a different result; this court will not overturn the BIA’s findings simply because this court might have decided the case differently. On the other hand, remand may be warranted when the BIA overlooks key aspects of an asylum-seeker’s claim and might reach a different conclusion after a more complete evaluation of the record.
The Attorney General has discretion to grant an alien asylum under the Immigration and Nationality Act if the alien qualifies as a refugee. A refugee is a person who is unwilling or unable to return to his native country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. A showing of past persecution will trigger a rebuttable presumption that the alien has a well-founded fear of future persecution. Even if an alien cannot show he has been subject to past persecution, he may nevertheless be eligible for asylum if he has a well-founded fear of future persecution. This requires the alien to show that his fear of persecution is both subjectively genuine and objectively reasonable. To prevail under this standard, the alien must present specific, detailed facts showing a good reason to fear that he will be singled out for persecution.
The statute at 8 U.S.C. § 1101(a)(42)(B) creates four classes of refugees: (1) those who have been forced to have an abortion or who have been involuntarily sterilized; (2) those who have been persecuted for failing or refusing a coerced abortion or sterilization or for other resistance to a coercive population control program; (3) those who have a well-founded fear that they will be forced to have an abortion or be sterilized; and (4) those who have a well-founded fear that they will be persecuted for failing or refusing such procedures or for resisting a coercive population control program. The Attorney General has concluded in Matter of J-S-, 24 I. & N. Dec. 520 (AG 2008) that only those who have themselves been forced to have an abortion or have been involuntarily sterilized fall into the first class of refugees. In Matter of J-S-, it was held that an asylum-seeker whose spouse has suffered a forced abortion or sterilization is not per se eligible for asylum. Rather, the applicant must show that he or she personally suffered or will suffer persecution for resisting a coercive population-control program. Accordingly, under Matter of J-S-, evidence that the applicant’s spouse was forced to abort a pregnancy or undergo involuntary sterilization is relevant to the applicant’s claim but does not alone establish eligibility; the applicant must also present evidence of his or her own past persecution or reasonable fear of future persecution.
The Attorney General’s interpretation of 8 U.S.C. § 1101(a)(42)(B) in Matter of J-S-, 24 I. & N. Dec. 520 (AG 2008) is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and the rationale applies with equal force to the claim of an asylum-seeker like the respondent whose parent has been forced to have an abortion or undergo sterilization.
The respondent does not fall into the first category of refugees created by 8 U.S.C. § 1101(a)(42)(B), therefore, under the rationale of Matter of J-S-, the respondent is not automatically eligible for asylum on the basis that his mother was sterilized against her will. Nor does the respondent fall into the second class of refugees as he has not “failed or refused” to be sterilized and has not otherwise “resisted” China’s one-child policy. He may, however, fall within the third and fourth classes of refugees under 8 U.S.C. § 1101(a)(42)(B)—those who have a well-founded fear of involuntary sterilization (forced abortion obviously is not at issue in the instant case as the respondent is a male), or those who fear persecution for refusing sterilization or otherwise resisting a coercive population-control program.
Where the respondent has consistently argued that he fears he will be involuntarily sterilized and otherwise persecuted because of his and his family’s violation of China’s one child policy, his claim is based partly on a theory of imputed political opinion. The BIA’s rejection of this argument on the basis of a perceived lack of circuit precedent to support it is an error of law. It is well established in the Seventh Circuit that an alien may base a persecution claim on imputed political opinion. Under this theory the alien is asserting that his persecutors have mistreated or will mistreat him because they attribute someone else’s—often a family member’s—political beliefs to him. To prevail on this sort of claim, the alien must show that (1) his persecutors attributed the political opinion of another to him, and (2) the attributed opinion motivated or will motivate the persecution.
The Second and Ninth Circuits have recognized that an asylum claim alleging persecution for resistance to a coercive population-control program under 8 U.S.C. § 1101(a)(42)(B) may be partially based on imputed political opinion—more specifically, such a claim may rely in part on a parent’s persecution for resisting a coercive population-control program. This is a specific application of the more general imputed political-opinion theory—already established in the Seventh Circuit—and this court will therefore follow the lead of these circuits in recognizing it in the instant case.
The respondent has submitted specific and detailed evidence tending to show that he and his family have been uniquely targeted by the population control committee in their village based on their persistent resistance to China’s one-child policy. He submitted evidence that his family spent many years hiding from population-control authorities in their village; his mother lost a child in utero when she fell trying to escape population-control authorities; his mother was forcibly sterilized after his birth; his aunt suffered a forcible abortion and was thereafter involuntarily sterilized; his parents had to give away one of his sisters because they could not afford her; and his family was subjected to significant economic hardship as a result of their extreme resistance to China’s one-child policy.
Where the BIA summarily rejected the imputed political-opinion basis of the respondent’s claim without analysis, having erroneously concluded that “current caselaw” in this circuit did not support it, and where the concept of persecution based on imputed political opinion has actually long been recognized in this circuit, and the respondent’s claim falls comfortably within this theory of relief, remand is in order to give the BIA the first opportunity to pass judgment on a claim it previously ignored. The BIA should consider the totality of the circumstances to determine whether harm suffered by family members in combination with other factors may constitute past persecution of the applicant, even if government authorities neither directly harmed the applicant nor harmed the family member in order to target the applicant.
There is another reason to return this case to the BIA: the respondent also presented evidence that as a member of the hei haizi—a child ineligible for registration on the hukou because he was born in violation of China’s population control program—he has been and will continue to be deprived of many fundamental rights and governmental benefits. Many of the hardships the respondent suffered as a hei haizi and will continue to face if returned to China are economic in nature. Because of his unlawful birth, the respondent and his family were subjected to severe financial deprivation; this took the form of enormous fines—at his birth and thereafter to allow him to attend school—as well as the denial of the land and food allotment permitted to lawfully born children. His father testified via affidavit that as a result of these fines, the family—already very poor—often went hungry. The respondent submitted evidence that as an unregistered person, he is denied access to government-provided higher education, health care (except that which can obtained at high cost on the black market), and many forms of employment. Where the BIA did not evaluate the cumulative significance of these hardships when evaluating Chen’s claim of past persecution (on political-opinion grounds or based on his membership in a particular social group), and where the BIA did not properly account for this evidence in evaluating the reasonableness of his fear of future persecution, its treatment of this claim, too, was incomplete.
It is well established that persecution can take the form of economic deprivation as well as physical mistreatment; a claim of persecution based on economic deprivation generally requires a showing of a deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life. This does not mean, however, that the alien must establish a total deprivation of livelihood on account of his protected status. Considered in the aggregate, the economic hardships imposed as a penalty for violation of China’s population control policy may, in appropriate cases, constitute persecution.
Beyond economic deprivations, the respondent has presented evidence that as a hei haizi he is deprived of other fundamental rights as well: He cannot acquire property or move freely about the country, and may be denied the right to marry and have children. This court has often emphasized the importance of evaluating the “cumulative significance” of multiple claimed hardships in evaluating asylum claims. Where the BIA dismissed the respondent’s claim of persecution based on his status as a hei haizi by reference to a solitary piece of evidence—the fact that the respondent was able to obtain a passport and therefore “was given the right to travel by the Chinese government,” and where the BIA ignored much of the respondent’s evidence and never addressed his argument about the combined effect of the economic and noneconomic deprivations he and his family have suffered and that he contends he will continue to suffer if returned to China, its treatment of the claim is woefully inadequate.
This court does not conclude that the record compels a conclusion that the respondent suffered past persecution or has an objectively reasonable fear of future persecution based on imputed political opinion or membership in his family or the hei haizi, or both. Because the BIA’s analysis flowed from a misapprehension of the state of this circuit’s caselaw and was otherwise incomplete, these are matters for the BIA to address on remand, in light of the principles we have explained here and based on the totality of the evidence. Accordingly, this court grants the petition for review, vacates the decision of the BIA, and remands for further proceedings consistent with this opinion.
Showing posts with label asylum. Show all posts
Showing posts with label asylum. Show all posts
Thursday, May 13, 2010
Thursday, February 18, 2010
Marynenka v. Holder, No. 07-1792 (4th Cir. Jan. 25, 2010).
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.
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.
Friday, December 18, 2009
Aden v. Holder, No. 08-71168 (9th Cir. Dec. 18, 2009).
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.
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.
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