Aden v. Holder

• Decision Date: 18 December 2009
• Docket Number: No. 08-71168.,08-71168.
• Citation: 589 F.3d 1040
• Parties: Abdirisaq Hassan ADEN, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

589 F.3d 1040

Abdirisaq Hassan ADEN, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 08-71168.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2009.

Filed December 18, 2009.

Victoria Diaz, Ruben Aranda, Linda Imonode, and Mark Sorokin, law students from the University of Arizona College of Law, supervised by Willie M. Jordan-Curtis, Assistant Dean for Student Affairs and Associate Dean for Student Affairs, University of Arizona College of Law, Tucson, AZ, for the petitioner.

Gregory G. Katsas, Stephen J. Flynn, Mark C. Walters, Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A088-515-143.

Before: ANDREW J. KLEINFELD, CARLOS T. BEA and SANDRA S. IKUTA, Circuit Judges.

KLEINFELD, Circuit Judge:

We address corroboration in this asylum case under the REAL ID Act.

Facts

Abdirisaq Hassan Aden entered the United States from Mexico at the San Ysidro, California, port of entry. He conceded removability and, with the help of counsel, applied for asylum. He presented himself as a Somalian from a minority clan who feared persecution from the two dominant clans.

His account of Somalian life is horrific. He testified that he is from the Bilisyar (or Biliser) subclan of the Wardey clan, though he also stated that the name of his clan was Wardey-Ali or Madaheweyne. In 2003, when Hassan was fourteen, Hawiye men invaded the family home, and while he hid under the bed, they raped one of his sisters and abducted a woman who was visiting. The Hawiye men got Hassan Aden out from under the bed, pointed a gun at him and threatened to kill him, and beat him with a metal pole. Another time, Hawiye men accused him of spying for the Darod clan and beat him into unconsciousness. The Hawiye beat him again at a Hawiye militia checkpoint when he could not come up with a sufficient bribe.

Three of Hassan Aden's brothers (he had ten siblings and seven half-siblings) were killed, one by a bomb, one accused by Hawiye men of spying for the Darod, one at a Hawiye militia checkpoint. Hassan Aden and his father decided that he should leave Somalia, though Hassan Aden's family and also his wife remain there. His father sold eight of his fifteen cows and paid $4,180 to a Hawiye smuggler who got him out of Mogadishu to Dubai, then Mexico, where he came across the U.S. border.

The Immigration Judge was skeptical of Hassan Aden's account. He doubted that Hassan Aden was the impoverished illiterate from a mud hut that he testified he was because photographs found in Hassan Aden's possession showed him looking affluent in clothes that would go fine in America, and one showed him with a book with English on the cover, in which Hassan Aden testified that he wrote accounts when he traveled to the village to sell the family's produce. (Hassan Aden explained that his father wrote the words, he could read but not write words, and he wrote only numbers.) Hassan Aden also testified that he learned English by watching movies on video cassette, which added to the IJ's suspicion that Hassan Aden's family was not poor as he claimed.

The IJ doubted that Hassan Aden was as bereft of English as he said for another reason, that he sometimes answered the questions before the translator translated them. Importantly, as relates to Hassan Aden's asylum claim, the IJ was skeptical of Hassan Aden's story that he hid but was found, and that all the men in his family ran away leaving the women to the Hawiye.

Most centrally, the IJ doubted that there was such a clan as the Bilisyar or Wardey, because none of the country materials produced by either side mentioned either name, and he doubted that Hassan Aden was a member of the claimed clan. Hassan Aden's claim for asylum was that he was persecuted on account of being a member of the Bilisyar subclan of the Wardey clan. Because of his doubts, the IJ continued the hearing and requested that Hassan Aden produce corroboration regarding existence of the clan and Hassan Aden's membership in it. At the resumed hearing, Hassan Aden produced three things that he said he had obtained by calling the Somali community in San Diego, which in turn contacted the Somali community in Minneapolis. All three are unsworn documents from Minneapolis labeled "affidavit," one saying that Abdirisaq "Hussein Adan" was a member of the Wardaa clan, the other two saying that they had personal knowledge of the Wardey-Ali clan and the Bilisyar subclan, because they had lived in the Lower Juba region near Goobweyo (where Hassan Aden had testified he was from). The IJ remained unsatisfied, because none of the three writers claimed to know Hassan Aden and no anthropological or other country evidence from scholarly sources was produced to show that the Bilisyar or Wardey clans actually existed.

The IJ denied Hassan Aden's application for asylum and withholding of removal under the Convention Against Torture. The IJ specifically declined to make any adverse credibility determination, but held that Hassan Aden's failure to produce adequate corroboration for his statements of clan membership undermined his application for asylum.

Hassan Aden appealed to the Board of Immigration Appeals, arguing that the IJ erred in denying his application because he gave "ample testimony" regarding his wellfounded fears of persecution in Somalia, and that his testimony and other documentation were sufficient to demonstrate his eligibility for asylum. He argued that the IJ had no basis on which to doubt his credibility, contending that flaws in translation contributed to the IJ's perception of inconsistencies in his testimony.

The BIA wrote its own decision, and did not adopt the IJ's decision. The BIA held that there was no clear error in the IJ's findings of fact, "including his assessment of the respondent's claim to his identity as a member of a minority clan in Somalia." The BIA wrote that "[w]hile the respondent presented voluminous evidence regarding the clan structure of Somalia, he failed to provide any credible corroborating evidence, such as scholarly sources, ethnological studies, or witnesses, showing the existence of the alleged Bilisyar and/or Wardey-Ali clans in Somalia." The BIA found "no error in the Immigration Judge's decision to give little weight to the affidavits ... where the affidavits were in fact inconsistent with each other." Regarding Hassan Aden's claim of prejudicial translation error, the BIA said that he "failed to cite to any alleged errors in translation and/or explained how they would have affected the outcome of his proceedings."

Analysis

Because the BIA wrote its own decision and did not adopt the IJ's decision. we review the BIA decision only, not the IJ's decision.¹

I. Requirement of Corroboration.

The main issue in this case is corroboration. Hassan Aden's claim for asylum is that he was persecuted on account of being a member of the Bilisyar subclan of the Wardey clan. He offered his testimony as proof. The BIA did not find that Hassan Aden was not credible, nor did it find that he was. It concluded that he had not borne his burden of proof because he had failed to provide sufficient corroboration. The IJ recessed and continued his hearing so that he could provide corroboration, so there is no issue whether he should have been given notice of his need for it and time to provide it. He provided three "affidavits." An affidavit is a sworn declaration,² and the three documents were not sworn, so though labeled affidavits, they are properly characterized as letters. The BIA wanted something more, such as "scholarly sources, ethnological studies, or witnesses."

We have a line of circuit authority for the proposition that corroboration cannot be required from an applicant who testifies credibly. In Ladha v. INS, we "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."³ 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."⁴ Kataria stated that "we must accept an applicant's testimony as true in the absence of an explicit adverse credibility finding."⁵

Congress abrogated these holdings in the REAL ID Act of 2005.⁶ 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"⁷:

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.⁸

Thus the law on corroboration is different now from what it was when we decided Kataria and Ladha. 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...