On February 14, 2009, I posted a column on Aden v. Holder in which the Ninth Circuit Court of Appeals denied the appeal of the denial of an asylum case for a Somali, Hassan Aden, because of his failure to present evidence requested by the immigration judge. The judge requested corroboration regarding the existence of the clan Mr. Aden asserted he belonged to and Mr. Aden’s membership in it. Mr. Aden presented some evidence, letters from three people from Minneapolis, Minnesota, the largest Somali community in the United States. The immigration judge was unsatisfied with this evidence because none of the three writers claimed to know Hassan Aden and no ethnological or other country evidence from scholarly sources was produced to show that the clan existed. The immigration judge denied asylum and the Board of Immigration Appeals agreed with the denial. In Aden, the Ninth Circuit concluded, based on the REAL ID Act, that credible testimony alone was not enough to prevail in an asylum case if corroborating evidence was requested and not presented. The court quoted the REAL ID ACT where 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. The court interpreted the requirement thusly, “Congress has installed a bias toward corroboration in the statute to provide greater reliability.” The Aden court, after quite thoroughly explaining all the reasons why a poor Somali asylum seeker would not be able to get evidence from “violently disorderly” Somalia or hire expert ethnologists to assist him, concluded that the immigration judge and the BIA could disregard his evidence. In my February 14, 2009, posting I discussed in some detail why rejecting the evidence was wrong.
As happens a lot, the opinion in Aden is representative of a faction in the Ninth Circuit; a faction that is opposed to the practice of second-guessing the determinations of the BIA in asylum cases. A few years ago I published an article on this subject. The arguments the faction make in support of its position are based on a principled application of the standard of review of asylum decisions found in the immigration act at INA § 242(b)(4)(B), “The administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” As a partisan of those opposed to second guessing, Chief Judge Alex Kozinski, put it in a 2004 case:
The question in this case is, in the immortal words of Humpty Dumpty, which is to be the master–that’s all. When it comes to the granting of asylum, Congress has said the BIA is the master. The statute provides it, the other courts of appeals recognize it and the Supreme Court keeps reminding us of it. But to no avail. Maybe there’s something in the water out here, but our court seems bent on denying the BIA the deference a reviewing court owes an administrative agency. Instead, my colleagues prefer to tinker–to do the job of the Immigration Judge and the BIA, rather than their own.
I personally cannot help but believe that the real objection to reviewing asylum cases is that many judges do not want to spend their time plodding through thousands of fact-specific asylum cases that ordinarily affect just a few people (the asylum seeker and perhaps his or her family), when they would prefer to spend their time and energy on more substantial legal and constitutional questions. Why would an appellate court judge want to spend hours and hours thinking about Hassan Aden when he can think about the meaning of an election law, the war on terrorism, or the first amendment? [See a retraction of this observation.]
After the attack in Aden by those favoring deference and their use of the REAL ID to foreclose meaningful judicial review, one would expect there would be a counter-attack. It came swiftly in a March 26, 2010, case, Chawla v. Holder.
There is an initial curious thing about the case. The court does not indicate whether the REAL ID applies to it. The court goes out of its way to conceal the date that Mr. Chawla applied for asylum and the date of the hearing. For cases commenced on or after May 11, 2005, the REAL ID applies. A little delving and one learns that the case was decided by an immigration judge in 2004 (the agency number is in the decision), so the REAL ID does not apply. However, the panel in Chawla does not indicate this. Instead of writing something like, “this lengthy decision is pre-REAL ID so its holdings are not relevant in the post-REAL ID world,” it hides the ball on the date the case commenced so holdings in the case appear relevant for post REAL ID cases. This is a problem in the case because any rule that is pro-alien in the case can be read as irrelevant to a case commenced after May 10, 2005. Nonetheless, the Chawla court, perhaps with the best case available to it after Aden, makes its rebuttal to the super-high burden Aden puts on aliens.
In Chawla, a Sikh sought asylum based on incidents of persecution he endured in India. The immigration judge denied relief, articulating six reasons for finding Mr. Chawla not credible. The BIA agreed with the immigration judge, and in fact articulated a seventh reason why Mr. Chawla was not credible. The court of appeals painstakingly went through all seven reasons and concluded that none of the reasons articulated by the IJ or BIA, considered either separately or in combination, provide a legitimate basis to question Mr. Chawla’s credibility. Interesting is that in Aden, the court did not explore what Mr. Aden’s explanations were for problems with the evidence, while in Chawla the court stressed that an immigration judge must consider an alien’s explanation for inconsistencies. One can imagine that during the Aden trial he was asked why he presented no ethnological reports about Somalia or why a letter writer spelled Mr. Aden’s name the way he did, or why he dids not know people in the United States – all problems the immigration judge noted in the case. Yet the court does not take his explanations into account. If Mr. Aden’s counsel or the government’s counsel did not ask to explain the inconsistencies, the immigration judge had to.
Another interesting thing about Chawla is that it is similar to Aden in that the case hinges not on contradictions in testimony, but on issues regarding documentary evidence – letters and newspaper articles in Chawla and letters in Aden. Both also discuss unavailable evidence. While failure to provide evidence from Somalia, a place more anarchical than simply disorderly, as the Aden court characterized it, doomed him, the Chawla court accepted that some evidence was not available. The missing document in Chawla was a “charge sheet.” The court wrote, “Here, however, the charge sheet was not easily available to Chawla because it was in India and under the control of a third party, the ITDC (India Tourism Development Corporation). Further, because the charge sheet was not easily available, Chawla’s failure to provide that corroborating evidence does not support the adverse credibility finding.” The Chawla case thus stands for the proposition that when an alien presents evidence or testimony that a document is not available, his case is not doomed. In Aden, to the contrary, problems with obtaining evidence will doom an asylum seeker even when it is quite obvious that the document is not available if the immigration judge decides that he should have gotten it and the BIA agrees because the Ninth Circuit will not second guess the immigration judge. In essence then, in Aden, an alien is doomed the moment he draws an immigration judge who resists granting asylum while under Chawla the alien can at least hope for a remedy in the court of appeals.
The Chawla court does give away that it is a pre-REAL ID case because it makes findings that Mr. Chawla is credible and these findings are determinative in the case. After the REAL ID, credibility is not determinative for not only must an alien be credible, but persuasive, and refer to specific facts, and mut also provide corroborative evidence if requested unless it is not reasonably obtainable. INA § 208(b)(1)(B).
Those sympathetic to those making asylum claims and concerned about the burdens placed on asylum seekers imposed by the REAL ID and Aden, can only hope that a panel of judges that takes seriously the need to review immigration judge and BIA decisions in asylum cases (and is sympathetic to asylum seekers) will soon get before it a case rich in questionable rulings on corroborating documentary evidence and provide a more-powerful counterpunch to Aden. Until then, we are better off with Chawla than with nothing. Posted on March 28, 2010.