Singh v. Eric H. Holder Jr.

• Decision Date: 17 June 2011
• Docket Number: No. 08–70434.,08–70434.
• Citation: 649 F.3d 1161,11 Cal. Daily Op. Serv. 7414,2011 Daily Journal D.A.R. 8921
• Parties: Nirmal SINGH, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

649 F.3d 1161

11 Cal. Daily Op. Serv. 7414

2011 Daily Journal D.A.R. 8921

Nirmal SINGH, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 08–70434.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 15, 2010.Filed June 17, 2011.

Hilary Han, Dobrin & Han, PC, Seattle, WA, argued the cause for the petitioner and filed a brief; Bart Klein, Law Offices of Bart Klein, Seattle, WA, was on the brief. Taranjeet Kaur Buttar, Buttar & Cantor, LLP, Tukwila, WA, also filed a brief; Patrick Cantor, Buttar & Cantor, LLP, Tukwila, WA, was on the brief.John W. Blakeley, Senior Litigation Counsel, Office of Immigration Litigation, U.S. Department of Justice, Washington, District of Columbia, argued the case for the respondent and filed a brief; Donald E. Keener, Deputy Director, Office of Immigration Litigation, U.S. Department of Justice, Washington, District of Columbia; and Tony West, Assistant Attorney General, Civil Division, U.S. Department of Justice, were on the brief. Rebecca Ariel Hoffberg, U.S. Department of Justice, Washington, District of Columbia, also filed a brief; 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.Charles Roth, National Immigrant Justice Center, Chicago, IL, filed a brief on behalf of the National Immigrant Justice Center as amicus curiae in support of the petitioner.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A099–330–446.Before: ALEX KOZINSKI, Chief Judge, DIARMUID F. O'SCANNLAIN, SUSAN P. GRABER, M. MARGARET McKEOWN, RAYMOND C. FISHER, RONALD M. GOULD, RICHARD A. PAEZ, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, CONSUELO M. CALLAHAN, and CARLOS T. BEA, Circuit Judges.Opinion by Judge McKEOWN; Dissent by Judge O'SCANNLAIN.

OPINION

McKEOWN, Circuit Judge:

Applicants for asylum must show by clear and convincing evidence that they filed their applications within one year after arrival in the United States, absent changed or extraordinary circumstances. See 8 U.S.C. § 1158(a)(2)(B).¹ The heart of petitioner Nirmal Singh's argument on appeal is that his credible testimony does not require corroboration to establish “by clear and convincing evidence” that his asylum application was timely. See id. Nonetheless, the Board of Immigration Appeals (“BIA”) decided that Singh could be required to “provide evidence that corroborates otherwise credible testimony,” citing 8 U.S.C. § 1158(b)(1)(B)(ii), a completely different statutory provision that governs proof of an applicant's status as a refugee.² We agreed to rehear this case en banc to clarify whether the BIA erred in imposing the corroboration provision found in § 1158(b)(1)(B)(ii) on Singh's showing of timely filing under § 1158(a)(2)(B).³ Basic principles of statutory construction lead us to conclude that the BIA improperly imported the corroboration requirement of § 1158(b)(1)(B)(ii) (governing demonstration of refugee status ) into § 1158(a)(2)(B) (requiring applications to be timely filed). ⁴

Section 1158(b)(1)(B)(ii) applies to the merits of an asylum claim, not to the one-year filing deadline for asylum applications. The one-year provision is governed by § 1158(a)(2)(B), which is silent on the issue of corroboration. It may seem harmless to gloss over the language of the statute, but doing so would do a disservice to our charge to interpret the statute as written.

Further, the corroboration requirement is not without consequence. This burden is not illusory, as the one-year bar determination is not reviewable absent a legal or constitutional question. See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). In keeping with the Supreme Court's mandate to look to “the language of the statute itself,” Ransom v. FIA Card Servs., N.A., –––U.S. ––––, 131 S.Ct. 716, 723, 178 L.Ed.2d 603 (2011), we grant the petition and remand the matter to the BIA.⁵

I. Background

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 he took the officer's advice and shortly after fled to Canada. Singh asserts that he arrived in Canada, using a false passport, on October 10, 2004. He says he stayed there for approximately ten days before entering the United States without inspection on or about October 20, 2004. In the fall of 2005, Singh filed for asylum.⁶

At his hearing before the IJ, Singh conceded his removability and sought asylum. The IJ rejected Singh's request for asylum as untimely filed. Although the IJ made no adverse credibility finding, he 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. 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 BIA, which invoked the corroboration provision of § 1158(b)(1)(B)(ii) and concluded that Singh's application was time-barred because he failed to provide corroboration of his date of entry. According to the BIA, “[a]lthough the respondent has claimed on appeal that his credible testimony should have been sufficient to meet his burden of proving his date of entry, the statute 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.’ ” (quoting § 1158(b)(1)(B)(ii)). Singh timely petitioned this court for review.

II. Jurisdiction to review the legal question presented.

We first consider whether we have jurisdiction to review the BIA's timeliness determination. Subject to certain exceptions, an individual's application for asylum will be considered only if the applicant “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.” 8 U.S.C. § 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 [§ 1158(a)(2) ].” Read together, these provisions appear to deprive this court of jurisdiction over determinations that an individual failed to file his application within one year of entering this country. See Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.2001).

Despite this jurisdictional limitation, “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.”). Singh claims that, because his testimony was deemed credible, the agency committed a legal error by requiring corroboration. 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 proved Singh's date of entry, we have jurisdiction to review Singh's challenge.

III. The one–year filing deadline under § 1158(b)(1)(B)(ii) does not include a statutory corroboration requirement.

We now turn to whether an immigration judge may require an asylum applicant to corroborate credible testimony that he complied with the one-year filing deadline. The BIA has not addressed this issue in a precedential decision. We therefore analyze the statute de novo, and begin with the statutory text.

Section 1158, entitled “Asylum,” is divided into two subsections: (a) addresses the “Authority to apply for asylum,” and (b) governs the “Conditions for granting asylum.” The first provision, subsection (a), regulates whether an applicant can even get out of the starting gate to apply for asylum. An applicant who does not pass the threshold tests under (a) never gets to (b).

The one-year filing deadline for asylum applications is found in § 1158(a)(2)(B), which precludes applicants from applying for asylum unless they demonstrate by clear and convincing evidence ⁷ that they filed “within 1 year after the date of [their] arrival in the United States.” Subsection (a) also includes other requirements, such as physical presence or arrival in the United States, id. § 1158(a)(1), and the absence of disqualifying factors such as a safe third country to which the individual may be removed, id. § 1158(a)(2)(A), or a previously denied asylum application, id. § 1158(a)(2)(C). None of the threshold requirements found in § 1158(a) references corroboration or documentary evidence.

Congress imposed the one-year filing deadline for asylum applicants as part of the Illegal Immigration Reform and Illegal Immigrant Responsibility Act of 1996. Pub.L. No. 104–208, § 604(a), 110 Stat. 3009–691. Congress later made additional revisions to asylum law through the REAL ID Act of 2005, but the Act did not amend § 1158(a)(2)(B)—the petitioner's burden to demonstrate compliance with the one-year deadline—or add a corroboration provision...