Singh v. Holder, 041910 FED9, 08-70434

Docket Nº:08-70434
Opinion Judge:O'Scannlain Judge;
Party Name:Nirmal Singh, Petitioner, v. Eric H. Holder Jr., Attorney General, Respondent.
Attorney:Taranjeet Kaur Buttar, Buttar & Cantor, LLP, Tukwila, Washington, argued the cause for the petitioner. Patrick Cantor, Buttar & Cantor, LLP, Tukwila, Washington, was on the brief. Rebecca Ariel Hoffberg, U.S. Department of Justice, Washington, District of Columbia, argued the cause for the respon...
Judge Panel:Before: Diarmuid F. O'Scannlain, Andrew J. Kleinfeld and Marsha S. Berzon, Circuit Judges. BERZON, J., dissenting:
Case Date:April 19, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Nirmal Singh, Petitioner,

v.

Eric H. Holder Jr., Attorney General, Respondent.

No. 08-70434

United States Court of Appeals, Ninth Circuit

April 19, 2010

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A099-330-446

Argued and Submitted July 8, 2009-Seattle, Washington

COUNSEL

Taranjeet Kaur Buttar, Buttar & Cantor, LLP, Tukwila, Washington, argued the cause for the petitioner. Patrick Cantor, Buttar & Cantor, LLP, Tukwila, Washington, was on the brief.

Rebecca Ariel Hoffberg, U.S. Department of Justice, Washington, District of Columbia, argued the cause for the responi dent. Gregory Katsas, Assistant Attorney General, Civil Division, U.S. Department of Justice, Washington, District of Columbia; William C. Peachey, Assistant Director, Office of Immigration Litigation, U.S. Department of Justice, Washington, District of Columbia; and Mona Maria Yousif, Civil Division, U.S. Department of Justice, Washington, District of Columbia, were on the brief.

Before: Diarmuid F. O'Scannlain, Andrew J. Kleinfeld and Marsha S. Berzon, Circuit Judges.

OPINION

O'Scannlain Judge;

We must decide whether an immigration judge properly required corroborating evidence from an otherwise credible witness in an asylum hearing.

I

A

Nirmal Singh is an Indian citizen and former resident of that nation's Punjab state. Singh maintains that as a result of his political activities and affiliation, he was arrested and tortured on four occasions. According to Singh, after his fourth confrontation with authorities, a police officer told him: "If you want to save your life, leave India." Singh claims that shortly thereafter, he took the officer's advice and fled to Canada. Singh asserts that he arrived in Canada, using a false passport, on October 10, 2004. He says he stayed there for ten days before entering the United States without inspection on October 20, 2004. In the fall of 2005, Singh filed for asylum.1

B

On January 18, 2006, Singh was issued a Notice to Appear. At his hearing before an Immigration Judge ("IJ"), Singh conceded his removability and sought asylum, withholding of removal, and protection under the Convention Against Torture.

The IJ rejected Singh's request for asylum as untimely filed. Though he made no adverse credibility finding, the IJ found Singh's testimony insufficient to establish his last date of entry into the United States "by clear and convincing evidence." In so ruling, the IJ noted that Singh had provided no documentation corroborating his claim that he entered this country on October 20, 2004.2 Without an established date of entry, Singh could not prove that he filed his application "within 1 year after the date of [his] arrival in the United States." 8 U.S.C. § 1158(a)(2)(B).

Singh appealed to the Board of Immigration Appeals ("BIA"), which likewise concluded that his application was time-barred because he had failed to establish his date of entry. Quoting the text of 8 U.S.C. § 1158(b)(1)(B)(ii), the BIA explained that such section "specifically provides that, in determining whether an asylum applicant has met his burden of proof, the trier of fact may require an applicant to 'provide evidence that corroborates otherwise credible testimony.' " Ultimately, the BIA held that Singh's failure to provide such evidence was fatal to his application.

Singh timely petitioned this court for review.

II

We only address the timeliness of Singh's application in this opinion.3 Singh contends that for various reasons, the BIA improperly concluded that he failed to meet the one-year deadline. The government counters by asserting that this court has no jurisdiction to review the BIA's time-bar ruling, and, in the alternative, that Singh's application was properly found to be untimely.

A

We must first assess whether we have jurisdiction to review the BIA's timeliness determination. "Any alien who is physically present in the United States . . . irrespective of such alien's status, may apply for asylum . . . ." 8 U.S.C. § 1158(a)(1). However, an alien can only avail himself of this provision if he "demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien's arrival in the United States." Id. § 1158(a)(2)(B). Section 1158(a)(3) states that "[n]o court shall have jurisdiction to review any determination of the Attorney General under [section 1158(a)(2)(B)]." Read together, these provisions appear to deprive this court of jurisdiction over determinations that an alien failed to file his application within one year of entering this country. See Hakeem v. INS, 273 F.3d 812, 815 (9th Cir. 2001) ("Thus, under section 1158(a)(3), we lack jurisdiction to review the IJ's determination that [the applicant] failed to file his asylum application within one year of his arrival in the United States.").

Nonetheless, "the Real ID Act of 2005 restores [our] jurisdiction over 'constitutional claims or questions of law.' " Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007) (per curiam) (quoting Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir. 2005)); see also 8 U.S.C. § 1252(a)(2)(D) ("Nothing in . . . any other provision of this chapter . . . which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section."). Legal questions include questions of statutory construction and "questions involving the application of statutes or regulations to undisputed facts, sometimes referred to as mixed questions of fact and law." Ramadan, 479 F.3d at 650. Thus, to secure jurisdiction, we must determine whether Singh has raised a question of statutory construction or a question involving the application of a provision of law to "undisputed facts."

Singh's argument is legal, not factual. He claims that because his testimony was deemed credible, the agency committed a legal error by requiring corroboration. In his view, credible testimony is necessarily sufficient to meet the clear and convincing standard, and corroboration cannot be required. Because this is a legal argument about how to construe 8 U.S.C. § 1158(b)(1)(B)(ii), and not a factual argument about whether the evidence in his case proved his date of entry, we have jurisdiction to review it.4

B

Singh claims that the IJ had no authority to require corroborating evidence from a credible witness. If the IJ does possess such authority, we must then determine if it was properly exercised in this case.

1

In the past, "[i]t [was] well established in this circuit that the BIA may not require independent corroborative evidence from an asylum applicant who testifies credibly in support of his application." Kataria v. INS, 232 F.3d 1107, 1113 (9th Cir. 2000); see also, e.g., Singh v. Gonzales, 491 F.3d 1019, 1025 (9th Cir. 2007) (same); Kaur v. Ashcroft, 379 F.3d 876, 889-90 (9th Cir. 2004) (same); Ladha v. INS, 215 F.3d 889, 901 (9th Cir. 2000) ("[A]n alien's testimony, if unrefuted and credible, direct and specific, is sufficient to establish the facts testified without the need for any corroboration."), overruled on other grounds by Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc).

With respect to asylum applications filed after May 11, 2005,5 however, this is no longer true. As we have previously held in Aden v. Holder, "Congress abrogated these holdings in the REAL ID Act of 2005." 589 F.3d 1040, 1044 (9th Cir. 2009). It is still true that credible testimony can, in some circumstances, sustain the applicant's burden of proof. See 8 U.S.C. § 1158(b)(1)(B)(ii) ("[T]he testimony of the 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."). But the Act further provides that '[w]here 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." Id. Thus, credible testimony may be sufficient to satisfy the applicant's burden of proof, but the Act also enables the trier of fact to require something more. Uncorroborated testimony is sufficient only if "(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." Aden, 589 F.3d at 1044. To the extent our prior decisions hold to the contrary, they are superseded by the REAL ID Act. Id.

Thus, in the case at hand, Singh is correct that insofar as the IJ made no adverse credibility finding, we must credit him as truthful. See Kataria, 232 F.3d at 1113. We need not accept all facts to which he testifies as true, however. Aden, 589 F.3d at 1045. After the REAL ID Act, "the IJ may, in determining whether it satisfies the applicant's burden of proof, 'weigh the credible testimony along with other evidence of record.' " Id. at 1044 (quoting 8 U.S.C. § 1158(b)(1)(B)(ii)). "Congress has installed a bias toward corroboration in the statute to provide greater reliability." Id. at 1045. Thus, we must conclude that the IJ possessed the authority to require corroborating evidence.

2

Our conclusion that the IJ may require corroborating evidence despite credible testimony does not end the matter, however...

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