Diallo v. Immigration & Naturalization Serv.
| Decision Date | 06 June 2000 |
| Docket Number | Docket No. 98-4131 |
| Citation | 232 F.3d 279 |
| Parties | (2nd Cir. 2000) MOUSSA DIALLO, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. August Term 1999 Argued: |
| Court | U.S. Court of Appeals — Second Circuit |
MICHAEL DION (Ogden N. Lewis, on the brief), Davis Polk & Wardwell, New York, NY for Petitioner,
DIOGENES P. KEKATOS, Assistant United States Attorney (Mary Jo White, United States Attorney, James A. O'Brien III, Special Assistant United States Attorney, Gideon A. Schor, Assistant United States Attorney, on the brief), Southern District of New York, New York, NY for Respondent.
STEVEN J. KOLLEENY (Jennifer A. Ferrante, Eleanor Acer, of counsel, on the brief) for Amicus Curiae The Lawyers Committee for Human Rights.
Before: WALKER, Chief Judge, MESKILL, Circuit Judge, and HADEN,* District Judge.
Moussa Diallo petitions for review of the March 13, 1998 order of the Board of Immigration Appeals ("BIA") dismissing his appeal from the denial by an immigration judge ("IJ") of his applications for asylum in the United States and withholding of deportation to Mauritania.1 Specifically Diallo argues that the BIA erred by requiring him to corroborate his allegedly credible testimony with specific documentary support and then determining, based on his failure to provide this corroboration, that he had failed to meet his burden of proof. In opposition, respondent Immigration and Naturalization Service ("INS") contends that the BIA applied the proper standard in assessing Diallo's claims and that substantial evidence supports the BIA's ultimate decision to deny his applications.
For the reasons that follow, we conclude that the BIA has articulated an appropriate standard concerning corroboration in asylum and withholding of deportation cases but that it erred in several fundamental ways in applying that standard to the facts of this case. Therefore, we grant the petition for review, vacate the BIA's order, and remand with specific guidance as to how the BIA should approach questions of credibility and corroboration to avoid repeating these errors on remand here and in subsequent cases.
In February 1994, Diallo illegally entered the United States. In October 1995, he applied for asylum and withholding of deportation under former sections 208 and 243(h) of the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1158(a) (amended 1996), 1253(h) (repealed 1996),2 based on his past persecution and fear of future race-based persecution in his native country of Mauritania. In December 1995, the INS charged Diallo with unlawful entry without inspection and referred him to the immigration courts for a hearing.
At his June 1996 deportation hearing, Diallo put before the IJ materials from various sources, including the State Department. According to these materials, the white-dominated government of Mauritania engaged in massive human rights abuses against its black citizens between 1989 and 1992. The government expelled about 70,000 blacks from the country -- claiming in many cases that they were Senegalese -- and forced many of them into refugee camps in neighboring Senegal. Frequently, the deportations were preceded by destruction of proof of citizenship and expropriation of property, and often accompanied by mass arrests, torture, and executions.
In addition to introducing the above materials in support of his applications, Diallo testified at the hearing. He described the conditions in Mauritania and his own experience in considerable detail. Specifically, he testified that he lived with his wife, parents, and siblings in Nouadhibou until June 1990, when several soldiers came to their home, tore up their identity papers, and forced the other members of his family to cross the nearby river into Senegal. Diallo alone was taken to a nearby village within Mauritania, where he was held prisoner along with other blacks and "half-blacks." During this time, Diallo was repeatedly beaten and tortured and was required to perform forced labor. In December 1991, Diallo was taken halfway across the Senegal River by boat where he was thrown into the water and ordered to swim to the other side. A Senegalese fisherman rescued him and took him to the Senegalese shore. Diallo then walked to the United Nations refugee camp in Horefode, Senegal, where he was reunited with his family members and wife and remained until November 1993. After hearing reports that Senegal was sending refugees back to Mauritania, Diallo moved to Dakar, Senegal's capital, where he stayed for a short time earning money before traveling to the United States by boat.
On July 24, 1996, the IJ denied Diallo's applications. She found that, despite providing substantial independent evidence about the persecution of black Mauritanians during the period that he claimed persecution, Diallo had failed to meet his burden of proof because he did not produce adequate documentary corroboration of his testimony. According to the IJ, his "inability or unwillingness to provide supporting documentation . . . seriously undermine[s] the plausibility of his account, particularly since he has not offered . . . specific, credible detail about the circumstances" of his detention in Mauritania or residence at the refugee camp.3
The BIA affirmed the IJ's decision and dismissed Diallo's appeal. See In re M-D-, Int. Dec. No. 3339, 1998 BIA LEXIS 5 (Mar. 13, 1998). The BIA articulated the applicable standard that is critical to this case: while an applicant's credible testimony alone may be sufficient to meet his burden, "where it is reasonable to expect corroborating evidence for certain alleged facts pertaining to the specifics of an applicant's claim, such evidence should be provided or an explanation should be given as to why such information was not presented." Id. at *7 (internal quotation marks, citations, and alterations omitted). Applying this standard, the BIA concluded that Diallo had failed to meet his burden of proof because of "the conspicuous lack of documentary evidence supporting the specifics of [his] testimony." Id. at *8. According to the BIA, it was reasonable to expect Diallo to corroborate certain elements of his story -- i.e., facts that were "reasonably subject to verification" -- and he failed to produce any such specific corroborating evidence. See id. at *8-10.
Two members of the BIA dissented in separate opinions. According to Chairman Schmidt, Diallo's testimony alone was enough to meet his burden of proof because it was "believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the basis of [his] alleged fear" of persecution. Id. at *12-13 (Schmidt, dissenting) (internal quotation marks omitted). Board Member Rosenberg agreed that it was unreasonable to expect documentary corroboration under these circumstances and argued that, in any event, the majority erroneously ignored Diallo's reasonable explanations for its absence. See id. at *36-38 (Rosenberg, dissenting). This appeal followed.
Diallo applied both for asylum and for withholding of deportation, each of which implicates a different burden of proof. In order to demonstrate eligibility for asylum, Diallo must show that he has suffered past persecution or has a well founded fear of future persecution on the basis of race. See Abankwah v. INS, 185 F.3d 18, 22 (2d Cir. 1999); 8 C.F.R. § 208.13(a). An alien's fear may be well-founded even if there is only a slight, though discernible, chance of persecution. See INS v. Cardoza-Fonesca, 480 U.S. 421, 431 (1987). Once an applicant demonstrates eligibility for asylum, however, "the decision whether to grant a particular application is still within the discretion of the Attorney General." Abankwah, 185 F.3d at 22.
Demonstrating eligibility for withholding of deportation requires carrying a higher burden: Diallo must establish a clear probability that his "'life or freedom would be threatened in [a] country on account of'" his race. Id. (quoting 8 U.S.C. § 1253(h)(1) (1994)) (alteration in original). However, if the applicant shows that he or she suffered "persecution in the past such that his or her life or freedom was threatened," then it is presumed that his or her life or freedom would be threatened upon return "unless a preponderance of the evidence establishes that conditions in the country have changed to such an extent that it is no longer more likely than not that the applicant would be so persecuted there." 8 C.F.R. § 208.16(b)(2). Once the required showing is made, no discretion lies with the Attorney General; the application for withholding of deportation must be granted. See Abankwah, 185 F.3d at 22.
The BIA concluded that Diallo had failed to sustain his burden of proof with respect to either of his applications, mainly because he had presented neither specific corroborative evidence nor an adequate explanation for the absence of such evidence in addition to his detailed testimony about his experiences and general documentary evidence about conditions in his native country. We believe that the BIA employed the proper standard for evaluating whether Diallo had met his burden of proof but erred in several fundamental respects in applying that standard in this case. Below, we discuss our reasons for accepting the BIA's corroboration standard, detail the flaws in the BIA's application of that standard, and point out what we believe to be the correct approach to questions of credibility and corroboration in this context.
In its decision, the BIA articulated the following standard concerning the need for...
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