Fifth Circuit Remands Asylum Denial to Cameroonian Nurse

The Fifth Circuit has remanded an asylum claim for a Cameroonian nurse, finding that the agency’s analysis of past persecution was insufficient, its analysis of nexus was incorrect, and its lack of corroboration finding was contradicted by the record. “Aben was arrested and detained three times; held in unlawful captivity for a total of six days; slapped, kicked, and knocked in the head; beaten with a belt and a stick; suffered several lacerations, blisters, sores, and bruises; threatened with death while held at gunpoint; and told he would be killed if he did not run fast enough to escape. The BIA’s determination must be vacated because it fails to account for the credible death threats that Aben received.”

“The BIA stated that the actions taken against Aben were not politically motivated but instead were taken due to his occupation as a nurse. However, the BIA failed to address the fact that Aben testified that the military imputed a political opinion to him because military members chastised him for treating ‘separatist fighters,’ and told Aben ‘you [Anglos] think you can fight the government. We will kill you one by one.’ He also testified that as he was being taken from his uncle’s home, he was told, ‘[Y]ou think you can fight us.’ Aben did not claim that the military was targeting him because he was a nurse. Rather he argues that he was perceived to be assisting separatists and later accused of fighting against the government. The BIA does not address this evidence.“

“The BIA and IJ faulted Aben for not documenting his injuries with pictures or medical records. But Aben stated that the Cameroonian authorities seized his cellphone and that he was afraid to use one because of what the authorities would do if they found documentation. He also stated that he avoided hospitals because of fear. Accordingly, the two means of documenting his injuries that the IJ faulted Aben for not using appear unavailable to him based on the record.”

The full text of Aben v. Holder can be found here:

https://www.ca5.uscourts.gov/opinions/pub/20/20-60937-CV0.pdf

Second Circuit Rules on Standard of Review for Corroboration Determinations

The Second Circuit has determined that the Board of Immigration Appeals reviews de novo an Immigration Judge’s determination that an applicant should provide corroborating evidence because it is not a factual finding. However, the subsequent determination as to whether an applicant does not have the evidence and cannot reasonably obtain the evidence is a factual finding that the BIA reviews only for clear error.

The full text of Pinel-Gomez v. Garland can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/528f9e9b-e56e-4402-b02c-11f5e4641530/1/doc/19-3124_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/528f9e9b-e56e-4402-b02c-11f5e4641530/1/hilite/

First Circuit Requires that Asylum Applicant be Given Opportunity to Explain Lack of Corroboration

The First Circuit has held that when an asylum applicant is found not credible due to a lack of corroborating evidence, she must given the opportunity to explain the absence of the corroboration. “Absent some statement by the IJ or the BIA indicating that Ixcuna-Garcia would not be credible even if she had proffered the necessary corroborating evidence, we can have no confidence that the IJ or the BIA would have come to the same credibility determination had Ixcuna-Garcia been provided an opportunity to either produce the required corroboration or explain why she reasonably could not.”

The full text of Ixcuna-Garcia v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/17-1867P-01A.pdf

Fourth Circuit Addresses Corroborating Evidence Requirements

The Fourth Circuit has deferred to the Board of Immigration Appeals’ determination that the INA does not require an IJ to give a non-citizen seeking relief from removal advance notice of specific corroborating evidence necessary to establish his claim or grant an automatic continuance to allow him to obtain such evidence. However, the Court affirmed that statute requires the agency to determine whether the corroborating evidence was reasonably available.

The full text of Wambura v. Barr can be found here:
https://www.ca4.uscourts.gov/Opinions/191360.P.pdf

Sixth Circuit Addresses Corroborating Evidence and Nexus for Withholding of Removal

The Sixth Circuit has overturned a negative corroborating evidence determination in a withholding of removal case because the applicant was not given the opportunity to explain the absence of the corroborating evidence. The court further determined that an affidavit from the applicant’s sister was not reasonably available because she lived a 30-60 minute walk from a telephone that she had to pay to use, and the applicant accordingly only spoke with her about once per year. An affidavit was from the applicant’s mother was also unavailable because she still lived with the persecutor and because she could not write. Finally, the court determined that a withholding of removal applicant need only show that a protected ground is “a reason,” not “one central reason,” for the harm he suffered or fears suffering.

The full text of Guzman Vazquez v. Barr can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0155p-06.pdf

Third Circuit Remands for Application of Particularly Serious Crime Standard; Opportunity to Submit Corroborating Evidence

The Third Circuit has remanded a case in which the agency determined a fraud conviction resulting in losses to the victims in excess of $1,000,000 was a particularly serious crime without considering whether the elements of the offense bring the conviction within the ambit of a particularly serious crime. The court also determined that the Immigration Judge had not specified what corroborating evidence she believed was missing, nor given the applicant a chance to obtain that evidence. This error also required remand.

The full text of Luziga v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/172444p.pdf

Ninth Circuit Construes Corroboration Requirements

The Ninth Circuit has determined that a general advisement that corroborating evidence is required is sufficient to comply with the requirements of Ren v. Holder.  "Where, as here, an IJ gives notice that an asylum-seeker’s testimony will not be sufficient and gives the petitioner adequate time to gather corroborating evidence, and the petitioner then provides no meaningful corroboration or an explanation for its absence, the IJ may deny the application for asylum. Importantly, Liu knew that corroboration was necessary, but failed to present meaningful corroboration for his factual contentions. Liu’s failure to provide corroborating evidence was not a consequence of a lack of specificity in the notice given by the IJ."

The full text of Liu v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/01/12-74077.pdf

Second Circuit Clarifies Corroboration Rules for Asylum Applicants

The Second Circuit has deferred to the Board of Immigration Appeals' decision in Matter of L-A-C-, finding that the REAL ID Act does not require the IJ to identify the specific evidence necessary to meet the applicant's burden of proof and to provide an automatic continuance for the applicant to obtain that evidence prior to rendering a decision on the application.  In so doing, the Court rejected the Ninth Circuit's decision in Ren v. Holder.

The full text of Wei v. Sessions can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/1a95e4b2-5e1d-41f3-a46d-83b0ed08bff0/3/doc/15-2342_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/1a95e4b2-5e1d-41f3-a46d-83b0ed08bff0/3/hilite/

Ninth Circuit Addresses Corroborating Evidence Requirements

The Ninth Circuit has determined that a Court need not provide an asylum applicant with notice of the corroborating evidence necessary to support his case and the opportunity to obtain that evidence if the applicant's testimony was not credible.  The Court distinguished its decision in Ren v. Holder, which crafted this "notice and opportunity" requirement for applicants who had provided credible testimony.  

The full text of Wang v. Sessions can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/03/14-72469.pdf

Ninth Circuit Addresses the Need for Corroborating Evidence

The Ninth Circuit has affirmed its prior case law that an applicant for asylum must be given notice of corroborating evidence required by the Immigration Judge and provided the opportunity to provide that evidence or explain its absence.  In the instant case, the Government questioned the applicant why his brother did not testify to corroborate his story.  The court closed the evidentiary record at the end of the hearing, without providing the applicant with the opportunity to present his brother's testimony once he was notified that it was required.  Similarly, the judge determined that the corroborating documents submitted were insufficiently specific, but did not provide the applicant with the opportunity to present letters with more specific details.  The court remanded the case.

The full text of Bhattarai v. Lynch can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/30/12-74062.pdf

Second Circuit Limits the Applicability of the REAL ID Act

The Second Circuit determined that the REAL ID Act, by its terms, applies only to applications for relief.  Thus, the Board of Immigration Appeals erred by applying the standards of the Act to a contested removability determination.  This is a great decision for attorneys to reference when litigation so-called Quilantan cases, where there is an assertion that the non-citizen was admitted to the United States, but there may not be any documentary evidence to support the assertion.  

The full text of Ahmed v. Lynch can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/89caf325-4154-40e2-96f2-eebb31168c44/4/doc/14-1396_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/89caf325-4154-40e2-96f2-eebb31168c44/4/hilite/

Seventh Circuit Denies Asylum Application Because Petitioner did not Submit Sufficient Corroborating Documentation

In a published decision, the Seventh Circuit affirmed the denial of asylum to an applicant who provided credible testimony, but who failed to provide sufficient corroborating documentation of the harm he suffered in Mongolia and the reasons he did not apply for asylum in several other countries that he traveled to.  This decision reinforces that the REAL ID Act permits, but does not require, an Immigration Judge to grant an asylum application when the applicant provides credible testimony, but does not provide reasonably available corroborating documentation.

The full text of Darinchuluun v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D10-08/C:14-2212:J:Ripple:aut:T:fnOp:N:1636163:S:0

Sixth Circuit Rules that Courts Need not Provide Asylum Applicants with Advance Notice of Evidence Required

The Sixth Circuit determined that the Immigration and Nationality Act does not require an Immigration Judge to advise an asylum applicant of the corroborating evidence he needs to submit to support his claim.  In so doing, the Sixth Circuit agreed with a similar ruling issued by the Seventh Circuit, but disagreed with the Ninth Circuit's stance on the issue.

The full text of Gaye v. Lynch can be found here: http://www.ca6.uscourts.gov/opinions.pdf/15a0115p-06.pdf