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Court Considers Need for Corroborating Evidence from Credible Witness

Singh v. Holder, Case No. 08-70434 (C.A. 9, Apr. 19, 2010)

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

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.

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. 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.
 

 

Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: Civil Procedure
 
Circuit Court Judge(s)
Marsha Berzon
Andrew Kleinfeld
Diarmuid O'Scannlain

 
Petitioner Lawyer(s) Petitioner Law Firm(s)
Taranjeet Buttar Buttar & Cantor LLP
Patrick Cantor Buttar & Cantor LLP

 
Respondent Lawyer(s) Respondent Law Firm(s)
Rebecca Ariel Hoffberg United States Department of Justice
Ronald E. LeFevre United States Department of Justice
William Charles Peachey United States Department of Justice
M. Jocelyn Lopez Wright United States Department of Justice
Mona Maria Yousif United States Department of Justice

 

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understanding of the latent ambiguities that alleviates the con- we must first assess whether we have jurisdiction to review to his or her claim and easily subject to verification . . . . the that an applicant has failed to meet [his] burden of proof.' " faulted after the fact for not having provided corroboration. torture and the specific places at which the torture took place, the names port for the conclusion that an ij must make a determination on the record to any portion of singh's testimony, singh is afforded a "rebuttable pre- "should attach documents evidencing the general conditions in the country must do the same, even after real id. see 590 f.3d 1034, 1042 (9th cir. rather, the sequential analysis would be a procedural protec- "whether the agency's [interpretation] is based on a permissi- nor are we bound to defer to matter of j--y--c--'s more he stayed for thirty days before leaving india. applicant is a refugee."). but the act further provides that marmolejo-campos v. holder, 558 f.3d 903, 908 (9th cir. this issue was raised at the asylum office, and they explain the absence of specific corroborating evidence, suggesting that he 1019, 1025 (9th cir. 2007) (same); kaur v. ashcroft, 379 f.3d will receive, and issue their [sic] own document. ij's credibility determination in this way, and accordingly reject this inter- evidence that corroborates otherwise credible testi- rebecca ariel hoffberg, u.s. department of justice, wash- roborating documents were reasonably available to singh.14 documentation corroborating his claim that he entered this vide documentary support for material facts which are central holder, 590 f.3d at 1047, which it is as compared with our earlier stan- arrival in the united states, 8 u.s.c. 1158(a)(2)(b), an tolo corp. v. fla. gulf coast bldg. & constr. trades council, requirements applicable to asylum and withholding of removal and estha court did not explain why it proceeded in this fashion, but it appar- s--m--j--, 21 i. & n. dec. 722 (bia 1997). see maj. op. at legal provision. see azanor v. ashcroft, 364 f.3d 1013, 1021 deference based on chevron, u.s.a., inc. v. natural speaks to the future, seen from the perspective of the time the inc., 129 s. ct. 1498, 1505 (2009). resources defense council, inc., 467 u.s. 837 (1984), can be documentary corroboration of an applicant's particu- roborates" the testimony. (emphasis added.) the statute does also found that you had not proven when you entered corroboration, congress intended to codify the bia's corrob- never told was needed. board of immigration appeals campos-sanchez v. i.n.s., 164 f.3d 448 (9th cir. 1999), like abovian close of evidence that the letter singh introduced, which did 2006) (vacating and remanding a post-real id act case burden of proof. as a result, it held, an applicant could be id. tory provision. alternatively, i would remand with instruc- our circuit interpreted this provision in aden v. holder, analysis in which an ij must engage. it is not as clear in codifies the [corroboration] rule . . . ."). respondent. error. whether the applicant has met the applicant's burden, him." maj. op. at 5742. but the ij's surrounding comments 67 fed. reg. 54,902 (aug. 26, 2002) (codified at 8 c.f.r. gration litigation more like other litigation, where parties with taranjeet kaur buttar, buttar & cantor, llp, tukwila, wash- for the petitioner the fact for which he would require corrobo- to require corroborating evidence without making such a argued and submitted we thus consider "whether congress has directly spoken to ship."); cf. 8 u.s.c. 1252(b)(4) ("no court shall reverse a cir. 2006). applying this "tool for choosing between compet- satisfied the applicant's burden of proof. in determining whether of constitutional avoidance do not apply, there is simply no credibility determination in support of shrestha's conclusion that an ij acts as the catchall provision for non-persecution related eligibility abdulai only states that when handing down its opinion, the bia must 5 of arrival. accordingly, it is eminently "reasonable to expect" claim. i have no grievance with the ij's initial decision to look so 1229a(c)(4)(b) is the provision actually here applica- from a reliable source, of persecution of persons in and given the chance to explain why it is not available if it is vention against torture is addressed in a memorandum disposition filed within a year after his arrival. the alternative which raises serious constitutional doubts," berzon, j., dissenting: without inspection, as singh's circumstances illustrate. as such j--y--c-- is a purely substantive interpretation of immigration litigation, u.s. department of justice, washing- why not. it is far from obvious that any further corroboration the precise question at issue." chevron, 467 u.s. at 842. "if introduced as corroboration for the one-year filing require- nor did the ij give singh an opportunity to explain why he buttar & cantor, llp, tukwila, washington, was on the court of appeals in accordance with this section."). legal although singh himself raises no constitutional arguments, the dissent singh initially claimed to have a letter corroborating his date of entry. immigration and nationality act fall under this rubric. id. at the statutory language then continues in this vein, requir- i would remand to the bia for application of the correct didn't consider them at all." id. but, as it turns out, the bia's that a reasonable trier of fact is compelled to conclude that ther. "common sense establishes that it is escape and flight, not roboration for his claim before the ij, nor do we have a tran- and not on broad generalizations concerning legislative intent. roborating documentation can be the final straw. the bia to his contention, "[t]here is nothing in the nature of [singh's] shows"). the letter was also consistent with singh's detailed petitioner, no. 08-70434 for us meaningfully to review whether additional corroborat- as notice in the context of singh's detailed application,10 ii. immigration reform and immigrant responsibility act of this case because the ij told singh's counsel "to bring what- 1158(b)(1)(b)(ii). it does not address any procedural ques- aden, 589 f.3d at 1044-45. ijs are not to place unreasonable could be fatal to [the applicant's] case." (internal quotation evidence was reasonably obtainable at the time of the initial hearing, the ject to verification" and "eminently reasonable to expect." states."). 5733singh v. holder tion 1101(a)(42)(a)."1 as a result, if an ij decides to require corroboration and finds that such 8 not credible and also "noted that the respondent failed to pro- (quoting in re s-m-j-, 21 i. & n. dec. at 725-26). as this "is precisely where the burden falls with regard to the availability of addi- the applicant's testimony is credible, is persuasive, corroboration, but only if the applicant satisfies the trier of enough." aden, 589 f.3d at 1044. to the extent our prior possibility that an ij would deprive an alien of due process if that nation's punjab state. singh maintains that as a result of a requirement is an "applicable eligibility requirement[ ]" for the absence of corroborating evidence, s--m--j-- states that "reasonably obtain it." the "cannot reasonably obtain it" 6 williams v. babbitt, 115 f.3d 657, 662 (9th cir. 1997). to some degree corroborate singh's testimony, was insuffi- ative upon the applicant to provide further corroboration to f.3d 1118, 1125 (9th cir. 2004) (quoting edward j. debar- 8 error the bia's review of an ij's factual determinations. see board of this statement was immediately preceded by a reference to the "one states." 8 u.s.c. 1158(a)(2)(b). thus, we have no way of determining why the ij thought cor- the board of immigration appeals ("bia") properly inter- ute were ambiguous, we would only need to determine those requirements are necessarily implicit in the sequence set meet [his] burden of proof' "--applicants are well advised to mulate paper as they move, such as receipts from gas stations, iii. limits or eliminates judicial review, shall be construed as pre- 5734 singh v. holder dence. as a result, even to the limited extent that of locations where singh sought medical treatment, and several attempts the government asserts that we lack jurisdiction because singh's date (ii) sustaining burden respectfully dissent. tions underlying his claim for relief. see id. thus, while the applicant of what kind of additional evidence is necessary. their arrival, they are unlikely to know american asylum law is appropriate, and if not, have your client bring whatever docu- ing that if the ij determines that the applicant "should" pro- have arrived in the united states was september 2004, after and so is not at odds with my analysis of the statutory lan- b. marsha s. berzon, circuit judges. for the court, as well as the agency, must give effect to the sufficiently well to hoard receipts so they can later prove their permit court-imposed, across-the-board rules of this kind. but campos-sanchez, 164 f.3d at shortly thereafter, he took the officer's advice and fled to question of statutory construction or a question involving the "backward looking" formulation. and again, the "must be submit information or documentation in support of the appli- able."13 "must be provided" is conditional on the ij's determination we have also specifically indicated that a demand for of singh's trek across the border was available: someone who which " `can lead to a finding that an applicant has failed to the language of 1158(b)(1)(b)(ii) provides in full: 2 deadline. the government counters by asserting that this court the union vice-president, for example, we would lum law would have no reason to keep receipts of purchases month. in [sic] indian consulate has a web site, which indicates threshold determination and, apparently, to do so with only smugglers, who, again, are unlikely to provide receipts or be oration standards" contained in in re s-m-j-. in re j-y-c-, 24 satisfy the applicant's burden of proof, but the act also why he was unable to corroborate such a basic fact. contrary remand to the ij to provide singh with an indication of the mine[ ] that the applicant should provide evidence that cor- notice, and they can be issued on the grounds for evidence such (emphasis added). time-barred because he had failed to establish his date of edicts, this per se rule cannot stand. it would have the effect request a continuance once he is on notice that a certain type accept all facts to which he testifies as true, however. aden, on january 18, 2006, singh was issued a notice to appear. whether 1158(b)(1)(b)(ii) required "notice of [an appli- khan, 541 f.3d at 58. as we discussed above, various "differ- july 8, 2009--seattle, washington maj. op. at 5741-42 (internal quotation omitted). i very much real id changed the standards governing application for in re s-m-j-, 21 i. & n. dec. at 725; see also id. at 730 the dissent's approach, which was neither raised nor briefed by the parties, differs from but strengthens or confirms what other evidence him. he has some time before the issuance, or before the case is instead apply the canon of constitutional avoidance, which the statutory provision that the bia and majority should have applied someone else's name, and we do not have any docu- moreover, immigration court proceedings are, as a general dence from an asylum applicant who testifies credibly in sup- the bia decided the case at hand in an unpublished order. however, (emphasis added.) b. we accordingly reject the dissent's interpretation. roborating evidence of singh's entry, beyond what singh basis for denying asylum.12 i. & n. dec. at 263 (internal quotation marks, alterations, and singh claims that the ij had no authority to require corrobo- provided . . . ." (emphasis added.) again, and critically, does not have the evidence and cannot reasonably obtain the not resolve whether an ij must consider the strength of an and refers to specific facts sufficient to demonstrate that the ("further, the applicant has not provided any explanation for with other evidence of record." "where"--which in this con- 5757singh v. holder citation omitted); see also rapheal, 533 f.3d at 527 (conclud- one year from his alleged date of entry into this country (october 20, adverse credibility finding.6 541 f.3d 55, 58 (1st cir. 2008) ("where the alien's testimony dural sequence. develop the record with regard to whether corroborating evi- ed.) (defining "corroborating evidence" as "[e]vidence that 5737singh v. holder would therefore hold that the language of 1158(b)(1)(b)(ii) provide evidence that corroborates otherwise credible testi- the burden of proof ordinarily provide whatever corroboration authority to require corroborating evidence. immigration appeals: procedural reforms to improve case management, even if there are some circumstances that admit of such struction." nadarajah v. gonzales, 443 f.3d 1069, 1076 (9th cumstances, sustain the applicant's burden of proof. see 8 country on october 20, 2004.2 corroborating documents contributed to that failure. the need sustain the applicant's burden without corroboration, ij identifies the need for additional evidence, not the past. the burden. according to the dissent, section 1158(b)(1)(b)(ii) ington, argued the cause for the petitioner. patrick cantor, [their] application of the real id act as it pertains to at no time did the ij ask any questions to follow up on the guage of the provision contemplates that an ij will perform a as necessary only at an applicant's hearing, would raise seri- need for corroboration or to indicate that the letter from the (9th cir. 2005). there is no reason this constitutionally based 2000). moreover, due process requires "specific, cogent rea- nirmal singh is an indian citizen and former resident of ij's determination that [the applicant] failed to file his asylum provide such explicit and specific reasoning for an adverse mony, we reject singh's contention. required to "provide background evidence so that her claim a. has no jurisdiction to review the bia's time-bar ruling, and, country in which such person last habitually resided, and who is (9th cir. 2003) (alteration omitted). the rule that an ij must vide corroborating evidence, then "such evidence must be need to defer to these off-point bia opinions. as i recount above, in my view the language of determining whether an asylum applicant has met his burden able to him, as required by the [real id] act." id. at 265-66. future tenses, not the past tense. so the statute contemplates tisfie[d] the applicable eligibility requirements" for "relief or (b.i.a. 1997). therefore, " `an asylum applicant should pro- temple was insufficient to corroborate singh's testimony. as to providing an applicant with an opportunity to explain enables the trier of fact to require something more. uncorrob- 12 and credible, direct and specific, is sufficient to establish the homeland security], and such an approach would seem [him]." as we conclude that the ij properly demanded corrob- required. that possibility is one that the majority concedes the ij did not correctly apply 1158(b)(1)(b)(ii) to singh's date of entry. as a result, we have no basis upon which to a document that corroborated, to some extent, his date of enacting section 1158(b)(1)(b)(ii), congress has made immi- assessment contemplated by 1158(b)(1)(b)(ii). found singh's testimony insufficient to establish his last date b applicant in asylum proceedings. 8 u.s.c. 1158(b)(1)(b). morever, nei- must give the applicant an opportunity to provide that corrob- of otherwise credible testimony? or does the real id act provide it. see in re j-y-c-, 24 i. & n. dec. at 263 (quoting however, even applying 8 u.s.c. 1158(b)(1)(b)(ii) as because the bia has exercised its authority to interpret sec- the bia has held that by "adding the provisions regarding statutes."). use of the word "should" thus expresses an imper- dent as they are on ij determinations and weighing of facts, the majority also notes that "nothing prevents" an applicant from record to supply corroboration." chhay, 540 f.3d at 7 n.2. singh did nei- these standards state that "where it is reason- asylum applicant with sufficient notice that an ij may require corrobora- in re s-m-j-).8 the statute.' " marmolejo-campos, 558 f.3d at 908 (quoting [5] thus, in the case at hand, singh is correct that insofar entry, singh could not prove that he filed his application requested evidence, an opportunity to explain why he does not the body shop invoice and his medical records to corroborate the intent of congress is clear, that is the end of the matter; so that being said, take a look at the web site, if you think it nity to explain inconsistencies must now be provided by the ij. consis- should bring to be secure in his application, the opinion does his stay in nainital. see black's law dictionary 596 (8th "within 1 year after the date of [his] arrival in the united cant's] need for [corroboration] and time to provide it," as the act codified the "corroboration rule" of matter of any person who is outside any country of such person's national- of fact and law." ramadan, 479 f.3d at 650. thus, to secure alien's own credible testimony satisfies his burden of proof, correctly recognized that a lack of corroborating evidence his burden before the ij imposes further corroboration or places of accommodation. indicate whether singh introduced at his asylum interview a the context of credibility determinations). because the bia can no longer 13 in re j-y-c-, 24 i. & n. dec. at 263 (alterations in original) in re j-y-c-, 24 i. & n. dec. at 263 (citing h.r. rep. no. 109-72, at tions." 1229a(c)(4)(a). asylum is one that the bia may not require independent corroborative evi- sion. you have a document from a gurdwar before under its reading of the statute. see maj. op. at 5744 n.13.5 is belied by the statute's text, which omits any reference to which is " `easily subject to verification,' " whether by some general terms, what sort of corroboration the ij is looking for 5749singh v. holder application within one year of entering this country. see questions include questions of statutory construction and the record why this evidence is not reasonably available. see 1158(b)(1)(b)(ii) or 1229a(c)(4)(b) applies. compare 8 u.s.c. "should" provide corroboration, and the applicant then has an of past persecution. . . . it was not unreasonable for the judge just to specific facts sufficient to demonstrate that the applicant has exercised in this case. procedural requirements turn on the precise language used you want to save your life, leave india." singh claims that this case. group, or political opinion[.] review an ij's factual findings de novo, sufficient notice and an opportu- burden to prove his date of entry was proper. offers an alternative route to my reading of the provision and part of the long-standing substantive definition of who quali- ing evidence was reasonably available. [11] as singh admitted that he had no documents to cor- applicant's testimony before requiring additional corroborat- dence of record.' " id. at 1044 (quoting 8 u.s.c. 5744 singh v. holder erence regardless of whether the order under review is the precedential an ambiguous statute, i could not so conclude in the face of have sought such corroboration before the hearing. so, once the lack of information on these issues.").12 the ij did not give an alien providing credible testimony spe- in re j-y-c-, 24 i. & n. dec. 260 (b.i.a. 2007). "[w]e apply chevron def- passport, on october 10, 2004. he says he stayed there for ten (9th cir. 1984), so smugglers are hardly likely to offer a corroboration satisfactory to the ij for any fact on which they cluding review of constitutional claims or questions of law implicit in the future-oriented "should" construction is notice failing to give singh notice that his testimony required cor- in my view, the lan- meets the applicant's standard of proof. if not, an ij may tional corroborating documents may depend on whether 8 u.s.c. tion or consider the statutory language in a procedural light, dence" of singh's date of entry; "it was [his] failure to ("congress' use of a verb tense is significant in construing does the majority, i would hold that the bia did not correctly eliminates any concern about deference to the bia's case law was reasonably available to him." id. at 261. on appeal of the 3 perform this analysis in singh's case, i respectfully dissent. fied twelve dates on which important events occurred, several instances of mandates a three-step process.7 rating evidence from a credible witness. if the ij does possess instead, the bia shall reverse a determination made by a trier of fact with such an explicit determination is required for review is sup- mony, such evidence must be provided unless the 9 first, the ij must determine whether an applicant's testimony i.n.s., 58 f.3d 1425, 1430 (9th cir. 1995) (requiring the bia of entry or an explanation for this deficiency, we have no by singh's family and himself to seek refuge in other specified locations. have corroborated." 239 f.3d at 554. travel documents can be issued in as little as, i believe five days of the applicable statutory provision. the date of the alien's arrival in the united states." id. tion anyway. --c--, 24 i. & n. dec. 260 (bia 2007). see maj. op. at 5739; circumstances similar to an applicant where such evidence." id. thus, credible testimony may be sufficient to singh made the same whether or not the testimony is credible, is persuasive, and refers to spe- 1158(b)(1)(b)(ii). we see no evidence that the real id act bifurcates an 5727 orated testimony is sufficient only if "(1) the applicant's testi- lar experiences is not required unless the supporting "when agencies adopt a constitutionally troubling interpreta- subject to verification." (citation omitted)); khan v. mukasey, at a minimum, then, our prior holdings suggest a serious (b.i.a. 2007). "when reviewing an agency's interpretation of where the ij did not provide an applicant "with notice and an we conclude, however, that insofar as singh claims the agency employed already produced, was reasonably available, if he did. and the moreover, even if we were to defer to matter of before: diarmuid f. o'scannlain, andrew j. kleinfeld and expressed that concern to singh. he did not ask singh 5760 singh v. holder denial of the application, the bia did not address whether the the testimony of the applicant may be sufficient to --which, as i discuss below, is not contrary to my interpreta- secution," bolanos-hernandez v. i.n.s., 767 f.2d 1277, 1285 [6] with section 1158(b)(1)(b)(ii), congress has expressly in the latter section, congress directly incorporated the 1158(b)(1)(b)(ii) with 1158(b)(1)(b)(ii), not 1229a(c)(4)(b). see matter of question of law. relief. 2008). that used to review other factual findings. see 8 u.s.c. 1252(b)(4)(b) applicant of which portions of his application require corrobo- respect to threshold matters (such as his date of entry) under section 1158(b)(1)(b)(ii) is ambiguous. as a result, even if this stat- who applied for asylum after may 11, 2005[, the real id act] in effect it or to explain on the record why he cannot. i therefore neither matter of j--y--c-- nor matter of s--m--j-- directly trary to the intent of congress.' " oregon v. ashcroft, 368 it matter whether the applicant "can"--now--obtain the infor- sumption of credibility on appeal." 8 u.s.c. 1158(b)(1)(b)(iii). the gov- 10 year bar, 8 u.s.c. 1158(a)(1), was adopted by the illegal (9th cir. 2000); see also, e.g., singh v. gonzales, 491 f.3d concerns. dissent at 5753-54. although we have previously expressed due question of law and fact, such arguments would be persuasive. see rama- concurrently with this opinion. the majority maintains that singh had sufficient notice in evidence is generally foreseeable, most applicants will likely cannot reasonably obtain the evidence. we must decide whether an immigration judge properly proof, `weigh the credible testimony along with other evi- not reasonably obtain it." this exception follows the "must be for testimony that is central to an applicant's claim and easily to undisputed facts, sometimes referred to as mixed questions shall have jurisdiction to review any determination of the 5755singh v. holder available to testify. and, although asylum seekers may on dence." in so ruling, the ij noted that singh had provided no found in 1158(b)(1)(b)(ii), to a claim for relief under the convention 5747singh v. holder have no record of when you entered this country, and reviewing an order of removal] unless any reasonable adjudicator would 10 dictionary of modern legal usage 928 (2d ed. 1995)--the contrary to my due process-sensitive interpretation. it does applicant's date of entry is a " `material' " fact " `central' " to matter of j--y--c-- and matter of s--m--j-- did not soning with respect to why desired corroborating evidence is the due process concerns that interpretation creates. i would in august 2004 for one month, and then went to delhi, where tently with this analysis, in shrestha v. holder, this court relied on pre- 2005,5 manimbao, 329 f.3d at 661 (discussing the import of 1003.1(d)(3)(i) in a. quotes extensively from in re s-m-j-, and expresses the desire that "the raised upon a petition for review filed with an appropriate 589 f.3d 1040 (9th cir. 2009). aden left open the question require or foreclose a second hearing. explain why additional corroboration is unavailable. the port of the application, the immigration judge will determine 5764 singh v. holder 5752 singh v. holder indicated that he never sought such documents [from them]."). cant's application for relief or protection as provided by law or form of official documentation or by supporting documents of date of entry. most of them surely will not "take snapshots" ruled on other grounds by abebe v. mukasey, 554 f.3d 1203, cific facts sufficient to demonstrate that the applicant has satisfied the requirements for other forms of relief, such as relief under the convention pelled to conclude that such corroborating evidence is unavail- guage of 1158(b)(1)(b)(ii) as setting out a mandatory proce- and convincing standard, and corroboration cannot be 102). requesting a motion to reopen to provide corroboration at a later time. due process case law. that law requires a "full and fair hear- 485 u.s. 568, 575 (1988)). standards in matter of s-m-j- . . . will guide the bia and the courts in * * * * * 7 serious doubts as to the constitutionality of an alternate con- majority reaches this interpretation of the statute by assuming, receipt for their services. in some cases, asylum seekers might to require it. tions. tance in resolving the question before us. filed his asylum application within a year of entering the united states dec. at 263 (citing in re s-m-j-, 21 i. & n. dec. at 725-26); ing" evidence of singh's arrival date. but the ij never united states. just as "[p]ersecutors are hardly likely to pro- facts testified without the need for any corroboration."), over- where the immigration judge determines that the applicant of 1158(b)(1)(b)(ii) and so does not merit deference on you left india, but that does not prove when you that corroborating evidence should be provided; it therefore witness in support of the application, the immigration judge will determine of future persecution could be credible and yet fail to meet her ably be expected to provide proof of when he entered the evidence. see, e.g., sandie, 562 f.3d at 253. such requirements are in ten- dence despite credible testimony does not end the matter, dan, 479 f.3d at 650 (explaining that mixed questions of law and fact ble. as i note later, it differs in some ways that could possibly provide either the evidence "or an explanation of why she did corroborating evidence was ultimately required, nor did it dis- crosses the border illegally generates no official record of ence where there is binding agency precedent on-point (either conclude that despite the applicant's credible testimony, he on membership in a protected group. section 1229a(c)(4)(b), therefore, to conclude that . . . she could not readily have obtained some that the applicant's testimony is credible, is persuasive, and refers to spe- and (3) the applicant's testimony refers to facts sufficient to ground facts concerning his departure from india which were in light of my understanding of the statute, i conclude that may have had some notice of what evidence the ij sought and an opportu- it passed the real id act. s--m--j-- did not consider any witness in an asylum hearing. refugee status under the 1951 convention and the 1967 pro- corp., 129 s. ct. at 1505, it is entitled to deference. 305; oyekunle v. gonzales, 498 f.3d 715, 717 (7th cir. 2007) ("for aliens cir. 1998). as a result, as the bia recognized in matter of s id. we agree with the seventh circuit that "[t]his would add o'scannlain, circuit judge: required. because this is a legal argument about how to con- not tell an alien "that his credibility was questionable, or that but only if the applicant satisfies the trier of fact that such evidence must be provided unless the applicant does not have the evi- 5745singh v. holder dissent by judge berzon ("bia"), which likewise concluded that his application was this provision, like 1158(b)(1)(b)(ii), was added to the construction of the corroboration provision is not in fact dif- 725, or documentation from an unfriendly government, cf., india. sir, just listen right now. this is not a discus- in the alternative, that singh's application was properly found scores the need for notice of the need for corroboration once the ij decides dence was unavailable to him." eke v. mukasey, 512 f.3d testimony that require corroboration. in the third step, the ij this country on october 20, 2004.11 ing" in deportation proceedings. campos-sanchez v. i.n.s., to hold that a petitioner must receive additional whether or not the testimony is credible, is persuasive, and refers ceded his removability and sought asylum, withholding of nearly a month in august 2004 before leaving for delhi. 9 applicant should provide either the evidence or an explanation the applicant must comply with the applicable requirements to only after closing the record did the ij explain to singh: it will rarely be self-evident what kind of evidence would be 5939-40. under the "corroboration rule," in the majority's 1 documentation is of the type that would normally be these questions. to singh's claim, 8 u.s.c. 1229a(c)(4)(b), provides even stronger sup- whether he could provide further corroboration, suggest what orating evidence despite singh's otherwise credible testi- testimony, in which he indicated that he was arrested on the ij also based his time-bar ruling on the date stamp issue, see supra avail himself or herself of the protection of, that country because credible testimony is necessarily sufficient to meet the clear clark v. martinez, 543 u.s. 370, 381 (2005), reinforces my the agency's answer is based on a permissible construction of matter of j--y--c--, 24 i. & n. dec. 260, is certainly not notice that [an alien's] credibility is at issue would fall mitted a legal error by requiring corroboration. in his view, see also balachandran v. holder, 566 f.3d 269, 273 (1st cir. ently thought, erroneously, that 1158(b)(1)(b) and 1229a(c)(4) are 1003.1(d)(3)(i)), 54,905 (codified at 1003.3(f)); see also mendoza and refers to specific facts sufficient to demonstrate firming that he had not left india before late august or sep- corroborating evidence of his arrival in the united states. see not believe those concerns are implicated here. the statute provides an canada. singh asserts that he arrived in canada, using a false a[s] school documents, driving licenses, and so forth. frequently can be evaluated in the broader context of the conditions of 5763singh v. holder because his testimony was deemed credible, the agency com- ysis. although section 1158(b)(1)(b)(ii) provides the standard under accessible to the alien, such as through friends, rela- singh's uncorroborated testimony was insufficient to carry his ous due process concerns "by depriving [the applicant] of his immediately meet family or friends in the united states who came. still, it was singh's burden to prove, and by "clear and ity says, precludes my sequential reading of [7] our dissenting colleague contends that the ij erred by require corroboration and the opportunity to explain the absence of such about whether the evidence in his case proved his date of oration or an explanation for its absence. this interpretation i. claims is that they be "filed within 1 year" of the alien's sufficient or whether that evidence is reasonably available. on brief. roborating evidence and the ij did not indicate she expected protection from removal."3 position that an illegal entry is "easily subject to verification" alternative, any ambiguity in the statutory language must be along with other evidence of record. where the trier counsel opinion interprets the statute that does apply here. see 1996, pub. l. no. 104-208, 110 stat. 3009-546, and is not asylum claim is 876, 889-90 (9th cir. 2004) (same); ladha v. ins, 215 f.3d 1 section 1229a(c)(4)(b) provides: to be untimely. jurisdiction, we must determine whether singh has raised a these are general imprudent where the law clearly notifies aliens of the impor- at 1045. thus, we must conclude that the ij possessed the fact that the applicant's testimony is credible, is persuasive, ij in conducting this weighing is not fully persuaded by the the procedural details of the new corroboration require- an ij is required to develop the record and enunciate his rea- days before entering the united states without inspection on ity or, in the case of a person having no nationality, is outside any evaluating the testimony of the applicant or other witness in sup- plane ticket stub or border crossing record to prove when he not provide [it]." in re s-m-j-, 21 i. & n. dec. 722, 725 corroborating evidence as to her claimed party member- short[.]" mendoza manimbao v. ashcroft, 329 f.3d 655, 662 ment was insufficient or that the ij was requiring something reached applying that approach, because "[t]he balance of of removal, but did so only for determination of "whether an alien has croft, 329 f.3d 655 (9th cir. 2003), considered a petition for review filed (b) sustaining burden 2010). my disagreement with the majority centers on these ques- (providing that "administrative findings of fact are conclusive [on a court this opinion.3 general, opinion the applicant has met such burden, the immigration judge shall it might be, and, if singh had no such evidence available, ask then and there why such evidence is unavailable, rather than mentation from canada of when you arrived. you 164 f.3d 448, 450 (9th cir. 1999). as a result, to the extent nal quotation marks, alternation, and citation omitted)).6 my plain reading of 1158(b)(1)(b)(ii) would not require 908-09 (citing united states v. mead corp., 533 u.s. 218, curiam) (quoting fernandez-ruiz v. gonzales, 410 f.3d 585, rated testimony is insufficient to carry his burden. in the sec- singh v. gonzales, 403 f.3d 1081, 1086 n.2 (9th cir. 2005). under 8 u.s.c. 1229a(c)(4)(b). dissent at 5746-48. we disagree. under text is equivalent to "if" or "when," see bryan a. garner, a cant] produce additional evidence to corroborate his account to the applicant of the ij's determination. applicant does not have the evidence and cannot rea- entered the united states without inspection, so we as i discuss below, the plain language of the provision stamp on the application reads october 13, 2005. that date, however, is against torture. (in shrestha v. holder, this court applied an adverse expect general information that union members in sent's interpretation of the statute on the bia. even if the stat- created or available in the particular country and is explain why he thinks it is unavailable"); see also ghaly v. sort of corroboration required and an opportunity to provide against torture. see 590 f.3d 1034, 1047-49 (9th cir. 2010). the shr- demonstrates that the applicant does not have the evidence and marmolejo-campos v. holder, 558 f.3d 903, 909 (9th cir. estha's error in this regard does not affect this case.) can later attest to their time of arrival, but many will arrive observation should be affected by the real id act either. i b maj. op. at 5742. but the asylum officer's referral does not explanation of why [ ]he did not provide such . . . evidence." "to establish that [he] is a refugee, within the meaning of sec- 1101(a)(42) as added by the refugee act of 1980, 94 stat. tinent to singh's claim. provided" language, and is stated, again, in the present and construction if the bia's construction is different from one fect tense, which would signal that the applicant could be possible interpretation, nor even the interpretation deemed view, applicants should expect that their failure to produce 889, 901 (9th cir. 2000) ("[a]n alien's testimony, if unrefuted id. at 726. although it is clear from this and other language thus, neither the majority's interpretation of rapheal v. mukasey, 533 f.3d 521, 530 (7th cir. 2008)). 5735singh v. holder 587 (9th cir. 2005)); see also 8 u.s.c. 1252(a)(2)(d) decision to require corroborating evidence "cannot ascertain corroborating evidence is unavailable] is included in the ii however, this is no longer true. as we have previously dissent at 5748-49. in the first 421, 427-28 (1987) (discussing the definition of "refugee" in requiring notice to the alien and an opportunity to explain the singh's request for withholding of removal and relief under the con- cant's burden before requiring corroborating evidence. compare 8 u.s.c. that letter says nothing about when he entered the united states; it only united states court of appeals applicant's] testimony it would have been reasonable to expect him to nity to contest its requirement. see 24 i. & n. dec. at 265-66 ("the together, these provisions appear to deprive this court of juris- chevron, 467 u.s. at 843). identify, for purposes of judicial review, the particular "aspects of [the ported by the language of 8 u.s.c. 1252(b)(4), the applica- 1045. thus, just as a plaintiff in a car accident case provides explain why the evidence was not available.7 5738 singh v. holder asylum corroboration standard as the standard applicable to withholding rely in their application or their testimony could be grounds lish his entry within one year of applying for asylum, seeing matter to the outcome of this case from the provision the bia within a year of his arrival. 8 u.s.c. 1158(a)(2)(b). v. agency no. held in aden v. holder, "congress abrogated these holdings [1] nonetheless, "the real id act of 2005 restores [our] 233 (2001)); see also ramos-lopez v. holder, 563 f.3d 855, conditions in india, singh provided eleven documents to cor- i having no documents to corroborate his claim that he entered cally present in the united states . . . irrespective of such mony, such evidence must be provided unless the applicant tion 1158(b)(1)(b)(ii), its decision "governs if it is a reason- such authority, we must then determine if it was properly you traveled to canada on a false passport in 5751singh v. holder 5758 singh v. holder discovered or presented at the former hearing." 8 c.f.r. 1003.2(c)(1). persecution." senathirajah v. i.n.s., 157 f.3d 210, 216 (3d unable or unwilling to return to, and is unable or unwilling to among other facts alleged in singh's asylum application, singh speci- 5748 singh v. holder 5742 singh v. holder erred. see toure, 443 f.3d 310. able to expect corroborating evidence," the applicant should singh contends that he filed for asylum on october 13, 2005, within stantial leeway" to require corroboration--the absence of the ij understandably developed a concern that without controls the question whether an ij must provide notice to an compels a conclusion opposite to that of the majority. in the ble testimony and, if the applicant does not provide the and convincing" evidence burden of proof on the applicant ever, the record is devoid of any indication from singh as to his behalf . . . ." marcos v. gonzales, 410 f.3d 1112, 1118 n.6 roborate his date of entry, it was his burden to provide "an demands on an asylum applicant.9 evidence was fatal to his application. canadian border in a car, without inspection. so he has no air- ble judicial review provision, which directs that "[n]o court fault an alien after the fact for failing to provide corroboration an asylum officer's advice when refusing to grant asylum corroboration is required, an applicant will most often explain must be read to avoid this serious concern by adopting an 2009) (en banc). precedential bia decisions interpreting the tured on four occasions. according to singh, after his fourth at an initial hearing, when he advised singh's counsel "to 11 roborate the facts to which he testified and his identity, or to opportunity to present an explanation" for the absence of cor- in matter of j--y--c--, an ij found an asylum applicant ramadan v. gonzales, 479 f.3d 646, 650 (9th cir. 2007) (per ters (such as his well-founded fear of persecution) under section 165-66 (2005) (conf. rep.)). the conference report cited by the agency might well generate a particular desire to preserve souvenirs any discrepancies appeared to exist[ ] nor . . . ask[ ] [him] to ostensibly filed his asylum application, october 13, 2005, was the ij rejected singh's request for asylum as untimely any alternative ground raised before the bia, and if not, to his political activities and affiliation, he was arrested and tor- f.3d at 1044-45. we also stress that corroboration may only as we interpret section 1158(b)(1)(b)(ii). the bia has inter- 20, 2004, his application would still be untimely. matter, entirely independent of proceedings before an asylum november 14 is the date he resubmitted the application after correcting the ing that the real id act "codified" the corroboration rule of that if it is, we must grant chevron deference to the bia's conclusion that the real id act requires notice to the appli- tled to asylum relief. accordingly, the ij's conclusion that for adequate documentation was further emphasized by the ij we note that the third circuit has cited its own decision in abdulai 5761singh v. holder of corroboration, unexpected before his hearing, will be 2009) (en banc). identical. see id. at 1040. as we are not dealing with a cat claim, shr- reading of 1158(b)(1)(b)(ii) as excluding notice and oppor- we have found a due process violation where the bia did present" such material or an explanation for its absence "that of entry into the united states "by clear and convincing evi- jurisdiction over `constitutional claims or questions of law.' " for [the court] to conduct [its] review and to be assured that evidence." rapheal v. mukasey, 533 f.3d 521, 530 (7th cir. tance of corroborative evidence." id. 5730 singh v. holder at issue in singh's case. section 1158(b) addresses the manner cuss whether the ij offered the applicant an opportunity to demonstrated that the alien's life or freedom would be threatened" based denied. dence and cannot reasonably obtain the evidence.") with 8 u.s.c. may be sufficient to sustain the applicant's burden without of fact determines that the applicant should provide whatever documents in the original form that he has to court with the wrong burden of proof by requiring corroboration, he raises a "pure" expertise . . . shifts against judicial deference to agency inter- 1158(b)(1)(b)(ii) because it made clear that the real id mation unless he is to be given the chance to "obtain it"? so ture. ferent from the construction dictated by the constitutional empowered the ij to require corroborating evidence even ity purports to defer to those two cases in the event of race, religion, nationality, membership in a particular social weigh the credible testimony along with other evidence of record. as we explained above, this does not mean asylum appli- v. ashcroft, 239 f.3d 542 (3d cir. 2001) (interpreting in re s-m-j-), to diction over determinations that an alien failed to file his office of the united nations high commissioner for refu- credibility determination remains unchanged by real id. tion of his testimony even if he is credible. under section 1158(a)(3), we lack jurisdiction to review the where, as here, an ij nonetheless is not fully satisfied that the ruling, would necessitate two hearings--the first to corroborating evidence and there is no satisfactory explana- i note in the remainder of this opinion when 8 u.s.c. ultimately, the bia held that singh's failure to provide such port of his application." kataria v. ins, 232 f.3d 1107, 1113 1 would eliminate any basis for deference to the bia's statutory 11 of persecution or a well-founded fear of persecution on account an ij must provide the applicant an opportunity to explain on columbia; william c. peachey, assistant director, office of him as truthful. see kataria, 232 f.3d at 1113. we need not oration is needed. third, if no such corroboration is produced, singh appealed to the board of immigration appeals 2010) (citing castillo v. i.n.s., 951 f.2d 1117, 1121 (9th cir. 1991)). ance, which requires a statute to be construed so as to avoid that 8 u.s.c. 1229a(c)(4)(b) applies to the one-year bar determina- required corroborating evidence from an otherwise credible (1st cir. 2008) ("nothing offered by the petitioner compels us indicates that he stayed at a particular temple in india in august 2004. in any case, "the real id act clearly states that corrobo- a the ij erred by not giving singh notice that the letter singh bia is highly unlikely to grant a motion to reopen. such a reality under- a more informal variety, i.e., affidavits or letters from family, provide it. ability of corroborating evidence . . . unless the court finds . . . comply rather than faulted--retrospectively and without 1158(b)(1)(b)(ii) applies to the one-year filing requirement whether the trier of fact would be compelled to find the evi- 2009) ("[i]t was reasonable to expect [the applicant] to secure mony is credible; (2) the applicant's testimony is persuasive; j--y--c--, 24 i. & n. dec. 260, 263, 265-66 (bia 2007). no entry, we have jurisdiction to review it.4 tember 2004, thereby corroborating to some degree his arrival from which you are seeking asylum or other protection and the specific tion, it contained a defect which had to be remedied. according to singh, the letter did strengthen--and in that sense corroborate-- on the reasonable presumption that congress did not intend nirmal singh, phrase is, once again, necessarily future-oriented. why would 8 u.s.c. 1158(b)(1)(b)(i). the one- 5736 singh v. holder marmolejo-campos, 558 f.3d at 911. her country faced persecution. however, specific applicant's otherwise credible testimony cannot alone meet [3] in the past, "[i]t [was] well established in this circuit 5741singh v. holder before leaving india and "snuck across the border" into the opportunity, if he does not provide it, to explain that he then 2009). it is still true that credible testimony can, in some cir- expertise to evaluate the constitutional problems, but probably on petition for review of an order of the we think best . . . , but must limit ourselves to asking `whether not use the term "should have provided," in the present per- ments thus become critical here: may the immigration judge should the applicant fail to offer corroboration, the ij may seeking a continuance. in other cases, an applicant may rative evidence may be required, placing immigrants on holder, 563 f.3d 606, 619 (7th cir. 2009) ("[there was] no litigation and corroboration, that is foremost in the mind of an 589 f.3d at 1045. after the real id act, "the ij may, in accordingly, singh's petition for review with respect to his 5740 singh v. holder entry. quoting the text of 8 u.s.c. 1158(b)(1)(b)(ii), the duce corroborative documentary or testimonial evidence that den" and in doing so may "weigh the credible testimony along 5754 singh v. holder tion from [a] persecutor," in re s-m-j-, 21 i. & n. dec. at toure v. att'y gen. of u.s., 443 f.3d 310, 323-24 (3d cir. tion is confirmed by another statutory provision, 8 u.s.c. 1231(b)(3)(c). consistent with that date. he also introduced a document con- 3 roboration before concluding that he had failed to meet this singh contends that for various reasons, the bia entry. in addition to several documents regarding country country. they may be transported or provided lodging by the we note at the outset that we do not write on a clean slate [w]e also expect general corroborating evidence, immediate presentation of corroborating evidence, identified requirements. if--as the majority contends--the need for such with respect to the one-year bar. however, i would hold that applicable to this case unless and until the bia in a published entry.9 alien who comes to these shores fleeing detention, torture and out. but even were i to agree that the majority's alternative attorney general under [section 1158(a)(2)(b)]." read the petitioner's case received individualized attention"). that strates that the applicant does not have the evidence and cannot reasonably about the types of corroborating information that an applicant information is readily available. in the example of is not itself compelling the absence of easily obtainable cor- application of a provision of law to "undisputed facts." date of entry. in re s-m-j-, 21 i. & n. dec. at 725. choice but to conclude that the ij did not err in barring 2002 case law that required the bia to give specific reasons for an adverse bald assertion that he "could not reasonably be expected to and an opportunity to explain on the record why he could not the i-589 application, which singh completed, advised that he to "provide a comprehensible reason for its decision sufficient 7 absence of such corroborating evidence can lead to a finding decide whether such corroborating evidence is andia v. ashcroft, 359 f.3d 1181, 1184 (9th cir. 2004) (per curiam). singh's identity, not a document indicating singh's date of gees, handbook on procedures and criteria for determining the majority treats 1158(b)(1)(b)(ii) as permitting an ij by regulation or in the instructions for the application form. in particular statutory language or focus on procedural questions. the ij stated: to it. singh claims this indicates that when he first submitted the applica- ent kinds of materials might have served as corroborating evi- entry in october 2004. while not confirming the precise date, that the applicant is a refugee. in determining `[w]here the trier of fact determines that the applicant should these documents was a letter from the head of a temple in cess in which an applicant is to be given an opportunity to in this respect as well the language suggests a sequential pro- ever documents in the original form that he has to court with testimony, such evidence must be provided unless the applicant demon- however, the board of immigration appeals affirmed the ij on the pretations when a constitutional line is about to be crossed." need not produce evidence corroborating otherwise credible strue 8 u.s.c. 1158(b)(1)(b)(ii), and not a factual argument 450; see also abovian v. i.n.s., 219 f.3d 972, 978 (9th cir. notice from the ij and then an additional opportunity fies as a "refugee." see i.n.s. v. cardoza-fonseca, 480 u.s. preted and applied the appropriate corroboration provision in application, please explain why in your responses to the following ques- see shrestha v. holder, 590 f.3d 1034, 1042-43 (9th cir. dating information, and reaching a refuge from persecution ther in re s-m-j- nor abdulai contain language to that effect. the require- i respectfully dissent from the majority's conclusion that such form of relief from removal, and the one-year filing evidence here. see chukwu v. att'y gen. of u.s., 484 f.3d 4 cernible)" notation in the record. error in the immigration judge's expectation that [the appli- determine whether the ij substantively erred in requiring such ij in that case did continue the proceedings after identifying [9] turning to the case at hand, we have little difficulty decision itself or a subsequent unpublished order that relies upon it." expected to provide evidence corroborating the factual asser- a sequence in which the ij first decides whether the applicant that an ij ultimately chooses to require.11 able interpretation of the statute--not necessarily the only 1229a(c)(4)(b) ("in evaluating the testimony of the applicant or other declining to grant asylum, indicated that singh failed to estab- tion form do not provide sufficient notice of the corroboration 4 ration. id. at 1043. moreover, aden did not examine whether before the adoption of 8 c.f.r. 1003.1(d)(3)(i)(c), which limits to clear to look for corroboration from [the applicant's] wife in partic- the bia relied heavily on legislative history to reach this result. see undermined his case in the ij's eyes." eke, 512 f.3d at 381. therefore cannot be controlling in removal proceedings as a unless the court finds . . . that a reasonable trier of fact is com- 5759singh v. holder improperly concluded that he failed to meet the one-year this standard has been described as a "heightened" one, shrestha v. regarding the availability of corroborating documents, he erred regardless meet the applicant's burden once the ij identifies areas where during their journey and collect "souvenirs," maj. op. at dence to corroborate testimony when it is reasonable to expect ing evidence, or whether the ij must provide notice to the cific notice as to the kind of corroborating evidence required should have been introduced but were not and stated that the applicant notice of the specific facts for which further corrob- tion, . . . we can be confident that they not only lacked the when the applicant has provided otherwise credible testimony. bring whatever documents in the original form that he has to in which an asylum applicant can sustain his burden of proof obtain the evidence."). as the ij in singh's case made no determination applicant was or should have been given any notice of what evidence if the applicant "does not have the evidence and can- require corroborating evidence. second, the ij must give an occasion take buses or stay in public places of lodging upon nainital, india, confirming that singh stayed at the temple for court with him."10 1158(b)(1)(b)(ii) nor my own would automatically either pretation. friends, or traveling companions. id. travelers typically accu- tion for its absence. it is reasonable to expect corroboration ports rather than contradicts my conclusion. in matter of s-- statute permits an ij to give an applicant notice that his testi- have it and cannot obtain it. it relied upon its interpretation of section 1158(b)(1)(b)(ii) as detailed in without corroboration, but only if the applicant satisfies the trier of fact preted this section as codifying its preexisting corroboration tions to consider whether the ij's holding can be sustained on 1158(b)(1)(b)(ii) admits of ambiguity, granting chevron filed april 19, 2010 set for the actual merits hearing, that is going to be just about a alone and encounter only strangers on their first days in the should provide evidence that corroborates otherwise credible testimony, --m--j--, "[i]t is hardly possible for a refugee to `prove' simply listed three pieces of corroborating evidence that is, in short, fanciful. its governing statute, we follow the two-step framework moreover, singh submitted with respect to the one-year bar stitutional concerns unless that interpretation " `is plainly con- required and then another hearing after a recess to provided" future-oriented locution signals a requirement that unavailable if it is. that sequence must proceed as follows: his claim, in re j-y-c-, 24 i. & n. dec. at 263 (quoting in re sion with the fact that congress has placed the burden of proof on the requirements. see in re j-y-c-, 24 i & n dec. 260, 263 sonably obtain the evidence. corroborate his claim] was because [his relatives] were illiterate but later dent. gregory katsas, assistant attorney general, civil divi- year bar." a fuller understanding of the context is obscured by an "(indis- 1229a(c)(4)(b) and assess his credibility with respect to substantive mat- evidence that corroborates otherwise credible testimony.' " one's date of entry does not require, for example, "corrobora- remand to the bia to decide the case under the proper statu- real id act. id. an asylum officer. precedent of matter of s--m--j--, 21 i. & n. dec. 722, when cants must provide corroborating evidence to carry their bur- dard regarding the availability of corroborating evidence. the new statu- such evidence until her oral ruling). because the ij did not 12 as the ij made no adverse credibility finding, we must credit involve "the application of statutes or regulations to undisputed facts"). has failed to meet his burden of demonstrating that he is enti- 5743singh v. holder our conclusion that the ij may require corroborating evi- identical to 1158(b)(1)(b)(ii), 1229a(c)(4)(b) sets the statements, divorced from the individualized, sequential notice--for not bringing forward additional evidence he was standard for sustaining an applicant's burden that he has "sa- if the statutory provision at issue "is `silent or ambiguous,' considered entirely de novo by an ij in removal proceedings, such a procedure. as we explained in aden v. holder, by yet in response to queries from opposing without deciding, that the statute is ambiguous, and holding be compelled to conclude to the contrary"). determining whether it satisfies the applicant's burden of step, an ij must determine whether an applicant's uncorrobo- erence to the bia as to the procedural questions. moreover, 5756 singh v. holder procedure for requiring corroboration after real id, it sup- 8 c.f.r. 1208.14(c)(1), and any refusal to grant asylum is singh's testimony, by showing that the earliest singh could sons" for concern about an applicant's credibility; "boilerplate tion, requiring an ij to make a threshold determination that an my reading of the statute, the alien must be told, at least in motels, and restaurants, and often take snapshots providing which an ij assesses an asylum applicant's credibility, the dissent argues utory provision is in some respects ambiguous and principles opinion by judge o'scannlain; singh testified to a date of arrival and gave some back- decisions hold to the contrary, they are superseded by the applicant's "otherwise credible testimony," he may "deter- my conclusions regarding the new corroboration provision's demonstrate his efforts to obtain such corroboration. among absence of additional corroborating evidence. the ij therefore to the already overburdened resources of the [department of for publication ("nothing in . . . any other provision of this chapter . . . which the majority also notes that the asylum officer, when moreover, we are not at liberty simply to impose the dis- explain any such perceived discrepancies" before making an concluding that because an essential element of all asylum tunity to explain requirements is a plausible interpretation of 1158(b)(1)(b)(ii)). "congress has installed a bias toward claims that the bia's interpretation of the statute raises fifth amendment dence unavailable unless the applicant is given a chance to in addition, the dissent asks us to bifurcate another part of the ij's anal- interpreting" section 1158(b)(1)(b)(ii). see h.r. rep. no. 109-72, at 166. application within one year of his arrival in the united bia's opinion does nothing to alleviate this problem. of proof, the trier of fact may require an applicant to `provide 14 crossed out by hand, and a date of november 14, 2005, is stamped next 372, 381 (7th cir. 2008); chhay v. mukasey, 540 f.3d 1, 7 iii m--j--, the bia recognized that an applicant claiming a fear see marcos v. gonzales, 410 f.3d 1112, 1118 n.6 (9th cir. 2005), we do absence of corroboration--although, as i have explained, termin[e] whether the applicant has met the applicant's bur- they have when presenting their case in chief. 589 f.3d at testimony, such evidence must be provided unless the applicant as a preliminary matter, i do not believe that 8 u.s.c. interpret and apply it to singh's claim.4 uance to obtain the [corroborating] materials" or "mov[ing] to reopen the the trier of fact may weigh the credible testimony tocol relating to the status of refugees, 203, at 48 (1992)). statute does not use "must have been provided" or some other filed a timely application. (emphasis added.) it is therefore clear that the ij did not indicate until after the transcript did the ij make a determination that additional cor- an opportunity to explain why none is available if it is not? testimony, any corresponding need for corroborating evi- in any event, such a vague instruction cannot pass muster not. in s--m--j-- that the bia offered prescriptive guidance without an established date of clearly establishes a sequential process: first, an ij is to "de- 858-59 (9th cir. 2009) ("generally, we accord chevron defer- however, we may not supply the interpretation of the statute are central to his claim and easily subject to verification, the identity documents, are the documents the indian government interpretation of this provision, announced in matter of j--y most reasonable by the courts." entergy corp. v. riverkeeper, "questions involving the application of statutes or regulations 185, 192 (3d cir. 2007) (noting that a court reviewing an ij's that assessment as adequate to advise singh of the need for famously set forth in chevron u.s.a. inc. v. natural the bia's timeliness determination. "any alien who is physi- august 14, 2004, by the authorities in india, went to nainital in the real id act of 2005." 589 f.3d 1040, 1044 (9th cir. tion is unavailable or you are not providing this documentation with your singh timely petitioned this court for review. decide the procedural issues with respect to which the major- for denial of asylum. 5753singh v. holder the same documents that are given to the immigration court, his trary to the majority's conclusion, the relevant language 13 u.s.c. 1158(b)(1)(b)(ii) ("[t]he testimony of the applicant additional corroboration is needed. moreover, necessarily vide their victims with affidavits attesting to their acts of per- 5746 singh v. holder see united states v. wilson, 503 u.s. 329, 333 (1992) to corroborating evidence in this case, even given singh's pre- see rapheal v. mukasey, 533 f.3d 521, 530 (7th cir. 2008). finally, the statute provides an exception: the applicant that an applicant's testimony alone is not sufficient to satisfy the appli- in re s-m-j-, 21 i. & n. dec. at 725-26); see also aden, 589 nowhere in the ij's oral ruling or in the merits hearing 1158(b)(1)(b)(ii) differs from 1229a(c)(4)(b) in a way potentially per- division, u.s. department of justice, washington, district of general conclusion that congress codified the bia's earlier applies and the majority discusses. also, the recent bia pre- dence, and the reasons requested corroborating evidence is maj. op. at 5743-44, s--m--j-- clearly requires an ij to okay, mr. ketter, again, please advise your client to bring section 1101(a)(42)(a) in turn defines a "refugee" as 5731singh v. holder cient, nor did the ij give singh an opportunity to explain the 1158(a)(2)(b). section 1158(a)(3) states that "[n]o court [8] accordingly, where it is reasonable to expect an appli- confrontation with authorities, a police officer told him: "if certainly a plausible interpretation of the statute," entergy s--m--j--, to the extent that case has implications for the ments he has. . . . notice of the consequences for failing to provide corroborative could not reasonably provide other evidence corroborating his 1158(b)(1)(b)(ii) ("where the trier of fact determines that the applicant sion, u.s. department of justice, washington, district of deference to these precedential bia decisions is of no assis- a099-330-446eric h. holder jr., attorney the country. ond step, the ij must identify the portions of the applicant's 5742, as the majority naively envisions. the majority's sup- alien's status, may apply for asylum . . . ." 8 u.s.c. make plain that the ij wanted documents to corroborate convincing evidence," that he filed his asylum application in the form of a regulation or a published bia case)." (inter- ular . . . ."); sandie v. att' gen., 562 f.3d 246, 252 (3d cir. process concerns when an ij demanded corroborating evidence but did not opinion determination made by a trier of fact with respect to the avail- facts on which you are relying to support your claim. if this documenta- read in light of due process concerns, precluding chevron def- 2 her country." id. at 731. moreover, it stated: the majority fills this gap by adopting what appears to be singh stated that he had given his real passport to an agent ented with a motion to reopen was not "available and could not have been admission to this court. guarantee of a reasonable opportunity to present evidence on we note that nothing prevents an applicant from requesting "a contin- 14, 2005. thus, even if singh had established his date of entry as october as the general language of real idand the asylum applica- removal, and protection under the convention against tor- applicant's burden of proof.") with 8 u.s.c. 1158(b)(1)(b)(ii) ("the tes- 5762 singh v. holder demonstrate refugee status. credible testimony is not by itself timony of the applicant may be sufficient to sustain the applicant's burden chevron, 467 u.s. at 842-43. matter of j--y--c--, the major- counsel during his testimony before the ij, singh admitted to ington, district of columbia, argued the cause for the responi marks and citation omitted)). 2009) ("[a]n applicant for asylum must provide reliable evi- immigration and nationality act by the real id act of 2005, sumption of credibility,8 ration and an opportunity to explain the absence of such evi- now you have a document from the gurdwar in corroboration in the statute to provide greater reliability." id. every part of his case . . . ." 21 i. & n. dec. at 725 (quoting aside from his require the ij to give the applicant notice of what aspects of his testimony an applicant to provide some corroborating evidence of his hakeem v. ins, 273 f.3d 812, 815 (9th cir. 2001) ("thus, 5765singh v. holder the applicant be informed of what is required. 1229a(c)(4)(b) ("where the immigration judge determines that the 1208 (9th cir. 2009) (en banc). 5750 singh v. holder ble construction of the statute." chevron, 467 u.s. at 843. of why she did not provide it. see in re j-y-c-, 24 i. & n. dence is available and if not, why not. provide proof of when he entered the united states," how- 1158(a)(1). however, an alien can only avail himself of this sequential analysis in assessing the strength of an applicant's more. the ij also erred by not developing the record enough for the ninth circuit a per se rule that corroboration of date of entry is "easily sub- applicant "ha[d] not shown that such information was unavail- cific facts sufficient to demonstrate that the applicant is a refugee."). his damages claims, an applicant in an asylum case is now filed. though he made no adverse credibility finding, the ij pub. l. no. 109-13, 119 stat. 231. in language similar but not some further corroboration there was not "clear and convinc- ing plausible interpretations of a statutory text, [which] rest[s] tory standard of review regarding corroboration is the same, though, as 1158(b)(1)(b)(ii) is absolutely clear as to the sequential cant that the ij is requiring evidence corroborating his credi- maj. op. at 5744 n.13. however, an alien must show that evidence pres- c. credibility determination, based in part on the corroboration standard cant to provide documentary support for material facts which s-m-j-, 21 i. & n. dec. at 725-26). this is the sort of fact clear, "we are governed by the canon of constitutional avoid- came into the united states. so i do not find that you copy of the letter from nainital upon which he relied as cor- columbia, were on the brief. because the ij did not make an adverse credibility finding with respect particularly given the high, "clear avoidance approach, so the deference issue just doesn't arise. ernment has not attempted to rebut that presumption. unambiguously expressed intent of congress." id. at 842-43. corroboration from his family in canada."); krishnapillai v. applicant should provide evidence which corroborates otherwise credible provision if he "demonstrates by clear and convincing evi- the j--y--c-- opinion indicates that the applicant attempted to bia explained that such section "specifically provides that, in 2004). he submits his asylum application as proof, noting that the time should provide evidence which corroborates otherwise credible i note as well that the constitutional avoidance approach having done so, and one unfamiliar at that point with our asy- respondent first claimed that [the absence of statements from family to provide an asylum applicant with an opportunity to produce that evidence, dence that the application has been filed within 1 year after not address the procedural standards inherent in the language doubt that the real id act corroboration provisions, depen- v. i.n.s., 219 f.3d 972 (9th cir. 2000), and mendoza manimbao v. ash- script of what singh said or was told during his interview with united states . . . . [t]he bia and the ij committed error in ments of in re s-m-j- have been described above. see supra pp. 5739-42. date but not with enough specificity to prove that the date he an ij "must ensure that the applicant's explanation [for why be required where "it is reasonable to expect" such evidence. [12] without either corroborating evidence of singh's date asylum but did not affect the vitality of our fifth amendment of entry is not an "undisputed" fact. if singh's challenge involved a mixed 5732 singh v. holder mony requires corroboration, it does not require that he do so. described in section 1158(b)(1)(b) [or] 1229a(c)(4)(b) . . . "does not have it and cannot"--not "was unable to"-- instead, it is 8 u.s.c. 1229a(c)(4)(b) that applies to singh was explicitly informed by an immigration officer that [2] singh's argument is legal, not factual. he claims that cedent on which the majority relies in the alternative dealt for these reasons, i would grant singh's petition and at his hearing before an immigration judge ("ij"), singh con- 5739singh v. holder den of proof: credible testimony alone may still suffice. see reasonably available. see id. at 1045-46. 6 singh's application as untimely.13 to provide corroborative evidence before an adverse october 20, 2004. in the fall of 2005, singh filed for asylum.1 he had failed to establish his date of entry and that his lack of claims that would compel us to find that corroborating evi- that lost or stolen passports can be replaced, or the temporary record." id. at 724. thus, contrary to the majority's assertion, aden, 589 f.3d at 1044. however, as the ij maintains "sub- 2 allow the alien more time to collect such evidence. we only address the timeliness of singh's application in ton, district of columbia; and mona maria yousif, civil [4] with respect to asylum applications filed after may 11, resources defense council, inc., 467 u.s. 837 (1984)." [10] this is especially true in the case at hand, where nirmal singh came to this country by crossing the u.s.- real id act of 2005, pub. l. no. 109-13, 101(h)(2), 119 stat. 231, require some notice that the ij will require corroboration and tives, or co-workers. the ij to hold two hearings. see maj. op. at 5742-43 (quoting (9th cir. 2004). respect to the availability of corroborating evidence, as officer. an asylum officer may grant asylum but not deny it, ground that singh failed to corroborate his arrival date. in reviewing this an ij would be forced to assess an asylum applicant's credibility with 5 singh's claim that he satisfied the one-year filing requirement.2 i therefore turn directly to the language of the statute. con- singh contended that this letter corroborated his date of that the ij should have evaluated the credibility of singh's claim that he congress's intent in drafting 1158(b)(1)(b)(ii) is not quite note 1, concluding that singh's asylum application was filed on november of rendering asylum unobtainable for most people who enter however. singh contends that because he "could not reason- the broadest of notice and without inviting an opportunity to petition, "we consider only the grounds relied upon" by the bia. see such corroborating evidence is unavailable."). establishing


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