Birdsong’s student, Josh Porter, has written an outstanding paper concerning “Determing the Status of Asylum Applicants through Corroborative Evidence.” Please read and it and learn from it.
Did That Really Happen?
Determining The Status of Asylum Applicants Through Corroborative Evidence
By: Joshua Porter*
Introduction and Background
The pedestal on the Statue of Liberty, located on Long Island in New York City, is enshrined, in part, with the words “Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!”[1] This promise has become the calling card for many fleeing a life of tyranny and oppression. The United States Citizen and Immigration Services, the agency that oversees lawful immigration to the United States, uses the motto “Securing America’s Promise” to signify this great hope.[2]
Part I of this paper will provide a brief history of modern refugee law and identify the issue of corroborative evidence to supplement an asylum applicant’s testimony. It will then provide background information on the requirements for asylum and what immigration judges and courts require when to obtain asylum status. Next, the paper will discuss methods the fact-finder uses to determine credibility and the standards of review courts use to review immigration decisions. Part II will discuss in depth the “corroboration rule” and federal courts reactions and applications to the rule. Next, it will discuss congressional efforts to codify the rule and the courts reactions. Finally, in Part III, the paper will conclude with a brief discussion of varying opinions within the federal courts and a projection of what is likely in the future.
Modern refugee law began shortly after World War II. The human atrocities that occurred under the Nazi regime, refugee protection became a priority for the international community. In 1951, the United Nations General Assembly created the Convention Relating to the Status of Refugees in 1951 with the intent of helping refugees created by World War II. The United States was not a member at the time.
In 1952, the United States passed the Immigration and Nationality Act of 1952.[3] The Act states: “The Attorney General shall not deport any alien . . . to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.”[4]
In 1967, the United Nations created the 1967 Protocol to update its previous policy to encompass refugees not belonging to the World War II atrocities. The protocol stated:
Considering that the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (hereinafter referred to as the Convention) covers only those persons who have become refugees as a result of events occurring before I January 1951,
Considering that new refugee situations have arisen since the Convention was adopted and that the refugees concerned may therefore not fall within the scope of the Convention,
Considering that it is desirable that equal status should be enjoyed by all refugees covered by the definition in the Convention irrespective of the dateline I January 1951[5]
The United States signed the 1967 Protocol and allied itself with the international community’s refugee policies.[6]
Even though the United States has joined the international community in protecting refugees, the problem of determining who qualifies as a refugee still exists. Before applying the law to the facts, is the issue of determining whether the facts presented are actually true. Since people’s lives hang in the balance, this can be an arduous and controversial task. Consider the following hypothetical:
A young lady, Annie Asylum lived in the State of Oppression. Her father, Doctor Dad, was a famous physician recruited by Terrible Tyrant, the head of the State of Oppression. With little ability to say no, Doctor Dad reluctantly became the physician of Terrible Tyrant. Freedom Fighters, the militia rebels with the goal of overthrowing Terrible Tyrant, threatened and finally killed Annie Asylum’s family for her father’s role in the current regime. Annie Asylum was able to escape and make her way out of the state into a refugee camp made up of those persecuted by Terrible Tyrant. While living in this refugee camp, Annie Asylum married and had two children. Her father’s alliances with Terrible Tyrant eventually became known to other members of the refugee camp. Militants killed her husband and children and tortured Annie Asylum. She fled the refugee camp and made her way to the United States of America.
A fundamental issue of credibility arises when a petitioner for asylum testifies in front of an immigration judge. The burden of proof is on the applicant for asylum to prove what she says is true.[7] In a normal case, an applicant will have little, if any, corroborative evidence to help prove her case. As demonstrated in the above hypothetical, victims of persecution are often forced to flee quickly, lacking the opportunity to collect evidence that could prove her story. Oppressive regimes often censor newspapers and media, making any evidence of their conduct unobtainable in the outside world. Additionally, it is not often that an eye-witness will be available to testify on behalf of a petitioner. Certainly the persecutor is not going to present himself in front of an immigration judge to corroborate the petitioner’s testimony. To make matters even more difficult, applicants oftentimes do not speak English. It is difficult, if not sometimes impossible, to determine the credibility of testimony through a translator.
When should a person petitioning for asylum be required to present evidence to substantiate and support her testimony? When should an immigration judge be required to rely solely on the testimony of the petitioner? Remarkably, this fundamental issue is not settled law. The federal courts have struggled to come up with a cohesive rule and court splits have emerged in applying the Board of Immigration Appeals interpretations of regulations.
A. What is Asylum?
Asylum and withholding of removal are two separate remedies that can be raised on the same set of facts. The main distinction is that asylum is a completely discretionary remedy, whereas withholding of removal is not.[8] Before even reaching the issue of corroborative evidence, the issue of the requirements of establishing asylum eligibility must be discussed. In order to be eligible for asylum, a petitioner must be a “refugee.”[9] A refugee is defined by statute as:
[A]ny person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . . The term “refugee” does not include any person who ordered, incited, a ssisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion. . . . [A] person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.[10]
As stated in the statute, to be a refugee the applicant must show that she has been subjected to past persecution that would continue if returned, or has a “well-founded” fear of persecution if she returned to her home state.[11] To be eligible, the persecution must be on account of the categories defined by the statute.
An example of a court interpreting and applying the statute can be found in the in the Third Circuit’s opinion in Chang v. INS.[12] The Court found a “well-founded” fear of persecution on the basis of political opinion. Chang was a middle aged Chinese citizen who was employed for a state-owned Chinese company.[13] He led a delegation team to the United States on business.[14] While in the United States, he grew suspicious that members of his delegation team may decide not to return to China, contrary to Chinese law. It was also against the law for Chang to not report this information to Chinese authorities.[15] Chang, however, did not report it because he feared the consequences for the delegates if he did report them.[16] Through other sources, the Chinese government learned of the delegates plan to not return to the United States. Chang learned that he was in danger for not reporting the delegates.[17] Facing termination of his job, imprisonment, and fearing for his family, Chang applied for Asylum in the United States.[18]
The Immigration Judge and BIA denied Chang’s petition for asylum. The Third Circuit disagreed, reversed and granted Chang’s asylum.[19] The Court reasoned that Chang would be persecuted for political opinion stating, “Chang defied the Chinese government’s orders because he disagreed with the government’s treatment of those who might defect.”[20] Chang did not state that he was a dissident of the Chinese government but the evidence presented would “compel[ ] a reasonable fact finder to conclude that Chang has “manifested” opposition to the Chinese government. His actions in defying the orders of the Chinese government because he disagreed with how they would treat those suspected of trying to defect did exactly that.”[21]
The Second Circuit reached this same conclusion in Sovich v. Esperdy.[22] It reasoned that an intent to punish those who depart illegally, as disloyal to their state, is politically motivated and such a statute on its face establishes that motive.[23]
Once “refugee” status is determined, the United States may grant asylum to an alien applicant physically present in the United States.[24]
As observed, applying the statute to specific cases can be a daunting and troublesome task. This becomes even more difficult an application when you take into consideration the need to determine credibility and the unsettled law of requiring corroborative evidence from an applicant.
B. Determining Credibility
The credibility of an asylum applicant is determined by the finder of fact through various methods.[25] The first is through the demeanor of the applicant. Hearing officers and immigration judges will assess the nonverbal behavior of an applicant.[26] These include gazing, smiling, postural shifts, speech hesitations, speech errors, speech rate, delays before responding to an inquiry, length of the response, amount of irrelevant information verbalized, voice pitch, and fidgeting behavior.[27] The applicant’s demeanor can certainly help an immigration judge determine whether the applicant is fabricating a story. However, judging demeanor is limited due to different behavioral cues found in various cultures and the possibility that the applicant has been psychologically injured due to past trauma.[28]
The next way credibility is determined is through the testimonial consistency of the applicant.[29] Discrepancies in testimonial will be scrutinized to determine whether the applicant was lying or a mere mistake was made. As an example, in Saballo-Cortez v. I.N.S., the court found inconsistencies between the sworn facts in the petitioner’s asylum application and those in his testimony.[30] This led the immigration judge to a finding that the petitioner was not credible.[31] Since the immigration judge, like a trial judge, was in the best position to judge the credibility of the testimony, the findings of the fact finder on testimonial inconsistencies is accorded deferential weight if the record could support that finding.[32]
Last is assessing the amount of specific factual testimony. Testimony that provides specific details of persecution is more likely to be found credible.[33] Common sense says that the more specific facts are given on a consistent basis, the more likely the testimony is true. However, finders of fact should be wary to draw an inference from a lack of specific factual details. As one author puts it,
“An applicant’s inability to recount specific details, however, may be caused by something other than fabrication. If an applicant is suffering from [post traumatic stress disorder], his memory of the persecution may be impaired. Among the varied reactions that are associated with [the disorder] . . . [many] experience a loss of memory and confusion, a psychological defense mechanism which lessens their stress responses. By not remembering specific details, the applicant delays acceptance of the trauma and the negative emotions associated with the memory of the event.”[34]
Determining credibility can be a difficult task in normal circumstances. It is even more challenging in the asylum process because of the possibility of language and cultural boundaries, lack of corroborative evidence, and possible psychological trauma that the applicant endured. Fact finders have to be cognizant of these problems when weighing demeanor, testimonial consistency, and specific factual testimony.
C. Standard of Review
The Board of Immigration Appeals is an administrative body that is given nationwide jurisdiction in final administrative decisions in reviewing and interpreting immigration law.[35] Its standards of review are like those of other appellate administrative bodies.[36] The Board is allowed to consider the facts presented in the record from the trial immigration review and able to draw different inferences and conclusions from the immigration judge presiding over the original trial.[37] The Board usually issues its opinion based on the “paper record.” This includes the original trial transcript and other paperwork filed by the petitioner, petitioner’s attorneys, and the government. Upon review, the Board may choose to issue a separate opinion and supplant the Immigration Judge’s opinion. If it does so, this opinion becomes the basis for review on an appeal of judicial review. It may also choose to leave the Immigration Judge’s opinion the same or merely supplement it with additional information or analysis. If it chooses to do this, the original opinion becomes the basis for judiciary review. This can become an important distinction for federal appellate courts. For example, let us assume that an immigration judge makes the determination that an applicant is not credible and the Board specifically supplants that finding with a finding of that an applicant was credible. The federal court could simply treat any contradictory statements by the applicant on the record as simple mistakes and would not permit them to serve as a basis for requiring corroborative evidence. However, if the Board chose to let the finding of not credible stand, the federal court would likely treat any contradictory evidence as more than a simple mistake.
II. The Corroboration Rule
The Board of Immigration Appeals defined the circumstances under which testimony must be corroborated in In re S-M-J-, 21.[38] The alien was brought to the United States in 1991 and granted parole until 1992. After that, she filed an application for asylum and was granted a hearing. She testified during her asylum hearing that she was living in Zaire with her uncle, the Liberian ambassador to Zaire, when the Liberian government was overthrown in 1989.[39] She stated that in 1990 she watched the national news and witnessed her previous home in Liberia destroyed, indicating that her father’s house was singled out and burned.[40] She testified her father was the governor of a specific tribe in Liberia and that she would be harmed because of her family’s relationship with that tribe if she were to return to Liberia.[41] The applicant did not offer any evidence to support her testimony.
Since the burden of proof for an asylum claim is on the applicant, the Board recognized that the only available evidence is oftentimes the alien’s own testimony.[42] The BIA stated that testimony alone “can suffice where the testimony is believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the basis of the alien’s alleged fear.”[43] This rule is buttressed by regulation that “[t]he testimony of the applicant, if credible in light of general conditions in the applicant’s country of nationality or last habitual residence, may be sufficient to sustain the burden of proof without corroboration.”[44] The BIA reasoned that implicit in the regulation is the assumption that there will be some general background information in which to measure the applicant’s assertions.[45] Therefore, general background information concerning the country of origin must be included in the claim for asylum.[46]
The BIA distinguished between claims that rely on general country conditions and claims that are based on particular experiences of persecution. The BIA concluded that general country conditions were always necessary as part of an applicant for asylum’s burden of proof. In addition, the BIA ruled that the applicant should provide documentary support for specific claims easily subject to verification when it is reasonable to expect such documentation.[47] These include place of birth, news media reports of persecution, evidence of publicly held office, and medical records.[48] Further, the BIA said that it was the alien’s burden of providing the information or an adequate explanation on why the requested corroborating evidence was not produced.[49] Both general country conditions and evidence to support a particular claim may be required even where the alien’s testimony is found to be credible.[50] Finally, the BIA said that the Immigration Judge also has a role in preserving the record by making sure that evidence is introduced into the record.[51]
In the case in front of the BIA, the Board found that the applicant did not meet its burden of proof because the Immigration Judge had no background information in which to judge the merits of the claim.[52] The Board ruled that it did not have to find her “not credible” before requiring corroborative testimony.[53]
A. Federal Courts Reaction
Federal Courts have diverged in their implementation of the Board’s corroboration rule. The Second Circuit endorsed the Board’s interpretation in Diallo v. INS stating: “While consistent, detailed, and credible testimony may be sufficient to carry the alien’s burden, evidence corroborating his story, or an explanation for its absence, may be required where it would reasonably be expected.”[54] The Court did, however, find that testimony alone may be sufficient if the testimony is found to be credible.[55]
The Second Circuit confirmed this stance again in Guan Shan Liao v. United States Dept. of Justice.[56] The applicant in that case was a Chinese citizen who claimed he suffered past persecution because of his resistance to China’s “one child” population control program.[57] The Court found that the applicant claim that he or his wife would face sterilization or detention were uncorroborated.[58] For example, the applicant did not corroborate why his wife, a fifty-one year old who already had children in the 1970’s would be targeted by the sterilization program.[59] In sum, the application for asylum asserted conclusions without building the case.
The Third Circuit heard the issue of whether credible applicants can sometimes be required to present corroborate evidence to meet their burden of proof in the case Abdulai v. Ashcroft.[60] Abdulai was a Nigerian citizen who flew into JFK airport in 1998 without a valid entry visa and the INS commenced proceedings against him.[61] Abdulai sought asylum based on political persecution.[62] The Court held that Abdulai could indeed be required to present corroborative evidence to supplement his testimony, even though he testified credibly.[63]
The Ninth Circuit, however, has rejected the Board’s interpretation of 8 C.F.R. § 208.13(a).[64] The Court “does not require corroborative evidence . . . from applicants for asylum and withholding of deportation who have testified credibly . . . .”[65] Instead, the Ninth Circuit has followed precedent from three lines of cases that have come out of that circuit.
The first line of cases involves the difficulty for applicants to prove specific threats of persecution. “[We] recognize[ ] the serious difficulty with which asylum applicants are faced in their attempts to prove persecution, and ha[ve] adjusted the evidentiary requirements accordingly.”[66]
The second line of cases “emphasizes that not only specific threats but also other facts that serve as the basis for an asylum or withholding claim can be shown by credible testimony alone if corroborative evidence is ‘unavailable.’”[67]
The third line of cases establishes “that when an alien credibly testifies to certain facts, those facts are deemed true, and the question remaining to be answered becomes whether these facts, and their reasonable inferences, satisfy the elements of the claim for relief. No further corroboration is required.”[68]
In 2004, the Seventh Circuit decided Gontcharova v. Ashcroft.[69] The case involved two applicants for asylum, a mother and daughter. The husband (and father to the daughter) was a tax collector who discovered evidence of widespread governmental corruption.[70] After attempting to whistle blow, the husband was involuntarily committed to a mental hospital on allegations he was a schizophrenic. He was allegedly murdered some time later.[71] At both the trial level hearing and the Board of Immigration Appeals, the applications were denied because they had failed to meet their burden of proof and “should have provided more specific documentation in order to specifically corroborate their claim to prosecution.”[72] The Seventh Circuit vacated and remanded, implementing a three-pronged rule for requiring corroborative evidence. First, an explicit finding of credibility must be made on the record.[73] Second, an explanation must be given of why it is reasonable to expect additional corroborative evidence.[74] Finally, if the applicant’s explanation for not producing such corroborative evidence is not adequate, the record must indicate why.[75] In doing so, the Court did not reject the Board’s interpretation, but recognized that other interpretations are possible.[76] The Court was less concerned with the Board’s interpretation as a general rule and more concerned with an Immigration Judge’s application. This explains why the Court required the record to indicate what the Immigration Judge was basing its ruling on.
B. Congress Steps In: The Real ID Act of 2005
In 2005, Congress codified the Board of Immigration Appeals interpretation of the corroboration rule from In re S-M-J- in the Real ID ACT.[77] Under the act, an applicant is allowed to testify without corroborative evidence if the testimony is “credible, . . . persuasive, and refer[s] to specific facts sufficient to demonstrate that the applicant is a refugee.”[78] However, it states: “Where 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.”[79] This makes clear that the Ninth Circuit’s holding in Ladha, where a credible applicant cannot be required to provide corroborative evidence, is no longer the law. Further missing from the Act is a reasonableness requirement on part of the Government, like that found in the Seventh Circuit’s Gontcharova case. Under that requirement, an adjudicator would have to act reasonable, subject to reversal, and explain its rationale on the record.[80]
C. The Most Recent Application: Rapheal v. Mukasey
In July 2008, the Seventh Circuit issued its opinion in Rapheal v. Mukasey,[81] Colcer Rapheal, a native of Liberia, illegally entered the United States of America.[82] She did so with false identification in the name of Ashley Amber Manning. After the authorities got in contact with the real Ashley Manning, Rapheal admitted to the fabrication, which resulted in removal proceedings.[83] Rapheal applied for asylum, withholding of removal, and relief under the Convention Against Torture.[84] She claimed her father was a well-known doctor for former Liberian President Charles Taylor and was active in his Liberian Regime.[85] She testified that Liberian rebels blamed her father for his use of “voodoo to trick and charm” Liberians. Ultimately, her family was murdered by the militants and she was seriously injured by the rebels, forcing her to flee Liberia to a refugee camp in Nigeria.[86] While in Nigeria, she claimed she was raped and her thumb was cut off so that she could feel the pain Liberian President Taylor caused the Nigerian people. Her husband and two children were also murdered in Nigeria.[87]
The Immigration Judge found that Rapheal was not credible because of contradictory statements regarding her name, finding that her name and identity went to the heart of her claim that she was persecuted because of her father’s affiliations.[88] The Immigration Judge found that Rapheal did not provide any corroborative evidence that could prove her story true.[89] She was ordered removed and her asylum petition was denied. On appeal, the Board of Immigration Appeals found that Rapheal did not meet her burden of proving asylum because she did not provide corroborative evidence to prove her case.[90] She took the case to the federal appellate court.
On appeal, Rapheal argued that Gontcharova v. Ashcroft was controlling. She claimed that the Board could not require her to provide corroborative evidence without making an explicit credibility finding and the Government failed to follow the three-pronged rule.[91] The Court responded by concluding that the Real ID Act codified the Board’s corroboration rule, effectively overturning Gontcharova.[92]
Remarkably, the Court still seemed unwilling to let Gontcharova go. The Court held that the Board still needed to make a credibility finding in this case because of the conflicting documents on the record.[93] The Court found that the Board did not properly consider whether Rapheal was credible, considering the conflicting evidence, and needed to do that before ruling on the need for corroborative evidence. Procedurally, it was not enough for the Immigration Judge to determine credibility.[94]
The Court stated, “The Board bypassed the credibility finding, while presenting the conflicting facts as if she were not credible. The credibility finding was inextricably intertwined with the IJ’s ruling on the need for corroborative evidence. Accordingly, before relying on disputed evidence [that contradicted Rapheal’s testimony in the hearing], the Board needed to determine whether Rapheal was credible.”[95]
The Court reasoned that had the Board found that the Immigration Judge was wrong for disputing certain testimony or, in other words, had the BIA found Rapheal credible, that would mean the evidence was only contradictory because of mistakes and it would be improper to use that evidence as a basis for requiring corroborating evidence.[96]
Rapheal next argued that the Board erred because the expectation of presenting corroborating evidence in this circumstance was unreasonable.[97] She claimed that it would be impossible to provide evidence of her father’s relationship with Charles Taylor because she fled Liberia for her life and did not have time to accumulate newspaper articles and that these items would not even be available due to the turmoil in Liberia. Further, even if she could, it was not possible while being detained in the United States.[98] The Court conceded that Rapheal would not be able to accumulate evidence while fleeing from her life. However, the Court found that Rapheal’s claim must fail because she did not even attempt to obtain corroborative evidence.[99] Rapheal had the burden of proof and needed to at least show that she attempted to obtain the required evidence.[100] Further, a defense of lack of notice will not prevail because the Real ID Act clearly states that corroborative evidence may be required.[101]
The Court remanded the case back to the Board so that a determination of credibility could be made.[102]
III. Conclusion
Even after Congress codified the corroboration rule in the Real ID Act of 2005, many questions regarding the corroborating testimony still remains. The most glaring uncertainty involves the Ninth Circuit’s decision in Ladha. It stands as the only circuit that has unambiguously declared the Board’s interpretation as wrong.
The Ninth Circuit has not directly addressed the question of whether its rationale and line of cases are still controlling.[103] The same year that Congress passed the Real ID Act, the Ninth Circuit acknowledged the Real ID Act in Bhasin v. Gonzales and stated the following in a footnote: “We recognize that the REAL ID Act recently amended [the INS regulations] to allow the trier of fact to require corroborating evidence.”[104]
Perhaps more noteworthy is the Seventh Circuit’s reasoning in Rapheal. The Court suggested that the Ninth Circuit’s decision in Ladha was no longer good law and explicitly said that its own Gontcharova decision was no longer controlling.[105] Even after doing so, the Court still required a specific finding of credibility before corroborative evidence could be required. As mentioned previously, the Real ID Act did not establish a reasonableness requirement on part of the adjudicator. The Seventh Circuit, however, still required one even after the passing of the Real ID Act. In other words, like under the rule in Gontcharova, the Court required the record to indicate the rationale for requiring corroborative evidence.
The Ninth Circuit will have to eventually make an explicit ruling under the Real ID Act. As indicated in Bhasin’s dicta, the Court is not likely to ignore the Act. The Rapheal case leaves the pro-asylum optimist with hope that the corroboration rule, as codified in the Real ID Act of 2005, will not sound the death knell to the pro-asylum’s Ninth Circuit position. The more centrist approach, held by the Seventh Circuit, can be used to protect both the interests of honest asylum-seekers and the interests of government to prevent fraud on the system. By requiring a finding of credibility on the record, it preserves the interests of all parties involved and allows appellate courts to make a more informed decision. Further, it provides accountability on the part of Government, who has the responsibility of making the discretionary decisions of asylum that conform to congressional intent, policies, and international obligations.
* Juris Doctorate Candidate 2009, Barry University Dwayne O. Andreas School of Law, Orlando, FL; B.A.
2004, James Madison University, Harrisonburg, VA.
[1] New Statue of Liberty, https://www.freedaily.com/cartoons/000606statuecartoon.html.
[2] The United States Citizen and Immigration Services, https://www.uscis.gov/.
[3] The Immigration and Nationality Act, 66 Stat. 163 (1952) (current version at 8 U.S.C. § 1101 (2008)).
[4] 8 U.S.C. § 1253 (h)(1) (2008).
[5] Office of the High Commissioner for Human Rights, https://www.unhchr.ch/html/menu3/b/o_p_ref.htm.
[6] For a more in depth discussion of the United States refugee policy, See Marisa Silenzi Cianciarulo Terrorism and Asylum Seekers: Why the Real ID Act is a False Promise, 43 Harv. J. on Legis. 101 (2006).
[7] 8 C.F.R. § 208.13 (a) (2008).
[8] The United States Supreme Court noted in both Immigration and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421, 427 (1987) and Immigration and Naturalization Service v. Stevic, 467 U.S. 407, 423 that the Attorney General had complete discretion to grant asylum even if an applicant met the definition of refugee. However, the remedy of asylum can be a broader remedy. The Attorney General may grant asylum status to an otherwise removable alien when the status. Further, asylum allows the alien to remain in the United States where the withholding of removal only prevents the alien from being deported back to the persecuting state.
[9] I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987) (stating that eligibility for asylum depends entirely on the Attorney General’s determination that an alien is a “refugee,” as defined in 8 U.S.C. § 1101(a)(42)(A)).
[10] 8 U.S.C. § 1101(a)(42)(A) (2006).
[11] 8 C.F.R. § 208.13(b) (2008).
[12] Chang v. INS, 119 F.3d 1055 (3d Cir. 1997). See also Immigration and Naturalization Service v. Stevic, 467 U.S. 407 (1984) (holding an alien must establish a clear probability of persecution to avoid deportation).
[13] Id. at 1057.
[14] Id. at 1058.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Chang, 119 F.3d at 1067.
[20] Id. at 1061.
[21] Id. at 1062.
[22] Sovich v. Esperdy, 319 F.2d 21 (2nd Cir. 1963).
[23] Id. See also Osorio v. INS, 18 F.3d 1017, 1029 (2nd Cir.1994) (reasoning that not stating affiliation to a political party does not exclude a resistance to a political philosophy or another political party).
[24] 8 C.F.R. § 208.13 (b) (2008).
[25] For a more in depth look at credibility findings see generally Neal, Pfeiffer, Credibility Findings in INS Asylum Adjudications: A Realistic Assessment, 23 Tex. Int’l L.J. 139 (1988).
[26] Id. at 143.
[27] Id.
[28] Id. at 146.
[29] Id.
[30] Saballo-Cortez v. INS, 761 F.2d 1259, 1263 (8th Cir. 1985).
[31] Id. at 1262.
[32] Id.
[33] Pfieffer, supra note 26, at 148.
[34] Id. at 148-49.
[35] Board of Immigration Appeals, https://www.usdoj.gov/eoir/biainfo.htm.
[36] 8 C.F.R. § 1003.1(d)(3)(ii) (2008) (“The Board may review questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges de novo”).
[37] 8 C.F.R. § 1003.1(d)(3)(i) (2008) (“The Board will not engage in de novo review of findings of fact determined by an immigration judge. Facts determined by the immigration judge, including findings as to the credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous”).
[38] In re S-M-J-, 21 I. & N. Dec. 722, 1997 WL 80984 (BIA 1997).
[39] Id. at 723.
[40] Id.
[41] Id.
[42] Id. at 724.
[43] Id. See also Matter of Mogharrabi, 19 I&N Dec. 439, 446 (BIA 1987).
[44] 8 C.F.R. § 208.13(a) (2008) (emphasis added).
[45] In re S-M-J-, 21 I. & N. Dec. at 724.
[46] Id.
[47] Id. at 725.
[48] Id.
[49] Id.
[50] Id. at 731.
[51] Id. at 726-27.
[52] Id. at 730. The Board reversed its decision on other grounds.
[53] Id.
[54] Diallo v. INS, 232 F.3d 279, 285 (2nd Cir.2000).
[55] Id.
[56] Guan Shan Liao v. United States Dept. of Justice, 293 F. 3d 61 (2nd Cir. 2002).
[57] Id. at 71.
[58] Id.
[59] Id.
[60] Abdulai v. Ashcroft, 239 F.3d 542 (3rd Cir.2001).
[61] Id. at 545.
[62] Id.
[63] Id. at 554 – CITE THAT REVERSED ON OTHER GROUNDS. see also Kayembe v. Ashcroft, 334 F.3d 231 (3d Cir.2003) BRIEF THIS CASE IF NEED MORE SPACE
[64] Ladha v. INS, 215 F.3d 889 (9th Cir.2000).
[65] Id. at 899.
[66] Id. (quoting Cordon-Garcia v. INS, 204 F.3d 985, 992-93 (9th Cir.2000)). See, e.g., Lopez-Reyes v. INS, 79 F.3d 908, 912 (9th Cir.1996) (holding an applicant’s testimony, if credible and not refuted, is sufficient to establish a fact); Artiga Turcios v. INS, 829 F.2d 720, 723 (9th Cir.1987) (holding an alien’s own testimony regarding specific threats can establish a clear probability of persecution without corroborative evidence).
[67] Id. at 900. See, e.g., Castillo v. INS, 951 F.2d 1117, 1121 (9th Cir.1991) (holding that testimony alone is enough if corroborative evidence is not available); Limsico v. U.S. INS, 951 F.2d 210, 212 (9th Cir.1991). (stating that credible, persuasive, and specific testimony is enough to establish a well-founded fear if corroborating evidence is unavailable).
[68] Id. See, e.g., Khourassany v. INS, 208 F.3d 1096, 1100 (9th Cir.2000) (holding applicant’s testimony is to deemed true when the Board of Immigration Appeals did not disturb an Immigration Judge’s findings of positive credibility); Yazitchian v. INS, 207 F.3d 1164, 1168 (9th Cir.2000) (reasoning that the finding of credible testimony at the trial level hearing must be deemed true since the Board of Immigration Appeals did not make a contrary finding).
[69] Gontcharova v. Ashcroft 384 F.3d 873 (7th Cir. 2004).
[70] Id. at 874.
[71] Id.
[72] Id. at 875-76.
[73] Id. at 877.
[74] Id.
[75] Id.
[76] Id. 876-87.
[77] Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, Pub. L. No. 109-13, Div. B, 119 Stat. 231, 302-23 (2005) [Real ID Act]. The Real ID Act is a comprehensive piece of legislation that encompasses more than asylum law.
[78] Real ID Act, Pub. L. No. 109-13, Div. B, § 101(a)(3)(B)(ii), 119 Stat. 231, 303 (2005).
[79] Id.
[80] Gontcharova v. Ashcroft 384 F.3d 873, 877 (7th Cir. 2004).
[81] Rapheal v. Mukasey, 533 F.3d 521 (7th Cir. 2008).
[82] Id. at 524.
[83] Id.
[84] Id. This paper deals with the asylum claim although much of the requirements overlap.
[85] Id.
[86] Id.
[87] Id. at 524.
[88] Rapheal, 533 F.3d at 525.
[89] Id.
[90] Id.
[91] Id. at 527.
[92] Id. at 528.
[93] Id.
[94] Id. This is because of the standard of review for the Board discussed, supra note 37. Since the Board chose to supplant the Immigration Judge’s opinion, the Court held it needed to independently include an analysis of credibility.
[95] Id.
[96] Rapheal, 533 F.3d at 529.
[97] Id.
[98] Id.
[99] Id.
[100] Id. The evidence presented could be evidence of why she could not obtain information.
[101] Id. at 530.
[102] Id. at 534
[103] Bhasin v. Gonzales, 423 F.3d 977, 987 n5, (9th Cir. 2005).
[104] Id.
[105] Rapheal, 533 F.3d at 527.