In re L-A-C

• Decision Date: 19 March 2015
• Docket Number: Interim Decision #3828
• Citation: 26 I&N Dec. 516
• Parties: Matter of L-A-C-, Applicant
• Court: U.S. DOJ Board of Immigration Appeals

26 I&N Dec. 516

Matter of L-A-C-, Applicant

Interim Decision #3828

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

March 19, 2015

(1) Where an Immigration Judge finds that an applicant for asylum or withholding of removal has not provided reasonably available corroborating evidence to establish his claim, the Immigration Judge should first consider the applicant's explanations for the absence of such evidence and, if a continuance is requested, determine whether there is good cause to continue the proceedings for the applicant to obtain the evidence.

(2) Although an Immigration Judge should consider an applicant's explanation for the absence of corroborating evidence, section 208(b)(1)(B)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(ii) (2012), does not require the Immigration Judge 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.

FOR RESPONDENT: Rebekah B. Rodriguez, Esquire, Houston, Texas

FOR THE DEPARTMENT OF HOMELAND SECURITY: Alex D. Perez, Assistant Chief Counsel

BEFORE: Board Panel: MALPHRUS, MULLANE, and CREPPY, Board Members.

MALPHRUS, Board Member:

In a decision dated October 28, 2013, an Immigration Judge denied the applicant's applications for withholding of removal pursuant to section 241(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(A) (2012), and protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988) ("Convention Against Torture"). The applicant has appealed from that decision. The applicant has also submitted additional evidence on appeal, which we construe as a motion to remand. The appeal will be dismissed and the motion will be denied.

I. FACTUAL AND PROCEDURAL HISTORY

The applicant is a native and citizen of Guatemala who entered the United States without authorization in 2004. On February 19, 2008, an Immigration Judge ordered the applicant removed to Guatemala. The applicant reentered the United States in 2008, and in 2012, he was removed upon reinstatement of the original removal order. He returned to the United States again shortly thereafter. In 2013, the Department of Homeland Security ("DHS") initiated these withholding-only proceedings against the applicant.

Before the Immigration Judge, the applicant filed an application for withholding of removal pursuant to section 241(b)(3)(A) of the Act and protection under the Convention Against Torture, claiming that he was persecuted in Guatemala on account of his political opinion. The Immigration Judge denied both applications, finding that the applicant was not credible. She further found that, even assuming he was credible, the applicant's testimony was insufficient to meet his burden of proof and that he did not provide sufficient corroborating evidence to establish his eligibility for the requested relief.

On appeal, the applicant argues that the Immigration Judge's adverse credibility finding is clearly erroneous and that she erred in denying his applications. Citing Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011), he contends that section 208(b)(1)(B)(ii) of the Act, 8 U.S.C. § 1158(b)(1)(B)(ii) (2012), requires an Immigration Judge to inform an applicant for asylum or withholding of removal during a merits hearing what specific corroborating evidence is required to meet his burden of proof and to grant a continuance to obtain such evidence. The applicant also asserts that he presented sufficient evidence to demonstrate his eligibility for withholding of removal and protection under the Convention Against Torture.

II. ISSUE

The primary issue in this case is whether an Immigration Judge is required to identify the specific corroborating evidence necessary to meet an applicant's burden to establish a claim for asylum or withholding of removal and to provide an automatic continuance for the applicant to obtain the evidence for presentation at a future hearing.

III. ANALYSIS

A. Burden of Proof and Corroboration

Pursuant to section 208(b)(1)(B)(i) of the Act, the burden of proof is on an applicant for asylum to establish that he or she is a refugee within the meaning of section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (2012). Section 241(b)(3)(C) of the Act provides that an applicant for withholding of removal bears the burden of establishing that his life or freedom would be threatened in the country of removal on account of his race, religion, nationality, membership in a particular social group, or political opinion. With both applications, "[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." Section 208(b)(1)(B)(ii) of the Act (incorporated by reference in section 241(b)(3)(C)). However, "[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.

"Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case." Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). Issues regarding whether the language is plain and unambiguous are "determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Id. at 341. Where the statutory language is unclear, we consider legislative history to help discern congressional intent. See, e.g., Matter of Avila-Perez, 24 I&N Dec. 78, 83 (BIA 2007).

Although section 208(b)(1)(B)(ii) of the Act clearly states that an Immigration Judge may require the submission of corroborating evidence even where an applicant's testimony is credible, it is ambiguous with regard to what steps must be taken when the applicant has not provided such evidence. Because the statutory language regarding the procedural requirements for submitting corroborating evidence is not plain, we look to the context of the statute as a whole and the legislative history for guidance.

Section 208(b)(1)(B)(ii) of the Act was enacted by section 101(a)(3) of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 302, 303 ("REAL ID Act"). The legislative history of the REAL ID Act makes clear that section 208(b)(1)(B)(ii) was enacted in an effort to "bring clarity and consistency to evidentiary determinations by codifyingstandards for . . . determining when corroborating evidence may be required." H.R. Rep. No. 109-72, at 165 (2005) (Conf. Rep.), as reprinted in 2005 U.S.C.C.A.N. 240, 290-91, 2005 WL 1848528 at *165. It specifically states that the standards concerning corroboration that Congress intended to codify were those set forth by the Board in Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997). Id. at 166 ("Congress anticipates that the standards in Matter of S-M-J-, including the [Board's] conclusions on situations where corroborating evidence is or is not required, will guide the [Board] and the courts in interpreting this clause.").

In Matter of S-M-J-, we held that an applicant has the burden to establish his claim, even when credible, and that 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 presented.¹ Where credible testimony alone is determined to be insufficient, an applicant for asylum or withholding of removal bears the burden to provide reasonably available supporting evidence for material facts that are central to his claim and are easily subject to verification. Matter of S-M-J-, 21 I&N Dec. at 725. If the evidence is unavailable, the Immigration Judge must afford the applicant an opportunity to explain its unavailability and ensure that the explanation is included in the record. Id. at 724. We cautioned that the absence of corroborating evidence could lead to a finding that the applicant did not meet his burden of proof. Id. at 725-26. In other words, regardless of whether an applicant is deemed credible, he has the burden to corroborate the material elements of the claim where the evidence is reasonably obtainable, without advance notice from the Immigration Judge.

The REAL ID Act codified the requirements outlined in Matter of S-M-J-, making it clear that an applicant who seeks asylum or withholding of removal has the burden of demonstrating eligibility for such relief, which may require the submission of corroborative evidence. Sections 208(b)(1)(B)(ii), 241(b)(3)(C) of the Act; 8 C.F.R. §§ 1208.13(a), 1208.16(b) (2014); see also Rapheal v. Mukasey, 533 F.3d 521, 530 (7th Cir. 2008) ("[T]he REAL ID Act clearly states that corroborative evidence may be required, placing immigrants on notice of the consequences forfailing to provide corroborative evidence."). See generally Aden v. Holder, 589 F.3d 1040, 1045 (9th Cir. 2009) (explaining that "Congress has installed a bias toward corroboration in the statute to provide greater reliability" and in doing so "made asylum litigation a little more like other litigation"). Moreover, the instructions for the Application for Asylum and Withholding of Removal (Form I-589) provide additional notice to an applicant that he "must submit reasonably available corroborative evidence" relating to both general country conditions and the specific facts upon which the claim...