Ninth Circuit panel creates an intra-circuit split in Oshodi v. Holder

Sunday, January 29th, 2012
By: Jonathan MontagJ.D.

On January 26, 2012, the Ninth Circuit filed a decision, Oshodi v. Holder, which seems to have reversed another Ninth Circuit case, Ren v. Holder, filed on August 19, 2011.   

The issue in the case was corroboration of testimony in an asylum, withholding, and Convention Against Torture case. These are cases where people ask to stay in the United States because they are afraid to go home – either because they fear persecution on account of their race, religion, political beliefs, nationality, or social group (asylum and withholding), or they fear being tortured by the government or with the acquiescence of the government.

From what information is available, the decision and the oral argument, Oshodi is a hard case. It is a hard case because the asylum claim was based on very old events, from the late 1960’s and early 1980’s, Mr. Oshodi was detained at the time of his hearing and his attorney came aboard a day before the hearing.

In what seemed like a hasty hearing – apparently Mr. Oshodi’s attorney was allowed to ask ten questions – the immigration judge denied the case for two reasons, inconsistencies and the absence of corroboration. There were inconsistencies that make this case a hard one – Mr. Oshodi had a lot of aliases, there was confusion about whether he said his father or grandfather was politically active, how many brothers he had, and who actually owned property Mr. Oshodi said was seized by the government persecuting him.

The other reason for denial was the absence of corroboration.  The Oshodi court wrote, “The IJ also observed that Oshodi’s brother was sitting in court during the entire proceeding and failed to testify or submit an affidavit to corroborate Oshodi’s claims.” On appeal, Mr. Oshodi argued that the immigration judge failed to provide Mr. Oshodi notice that he needed to corroborate his testimony. The Oshodi court held, “… the IJ provided Oshodi adequate notice.Oshodi was advised: Put down all the reasons in detail, that you claimed to have been harmed, your fear of harm, the circumstances of it on the application. If you have corroborative evidence of your claim, I do strongly recommend that you submit it, especially under recent changes of the law and especially since you never previously applied. I’m letting you know that corroborative evidence is recommended. Do you understand it?”

The requirement for corroboration for cases after May 11, 2005, after the passage of the REAL ID,  is found at INA 208(b)(1)(B)(ii), which states:

The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant’s burden, the trier of fact may weigh the credible testimony along with other evidence of record. 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 big issue in this case is the sentence “Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided….”  and more specifically the clause, “where the trier of fact determines that the applicant should provide evidence.” The issue is timing. Does the clause mean that first the immigration judge must hear the testimony and then decide which portions need corroboration, or can a general warning in advance of the hearing that corroboration is necessary cover it? The Oshodi court seems to be saying that a general warning in advance of the hearing covers it. “Be on time, wear proper attire, turn off cell phones, bring no food or drink, bring no cameras, bring corroboration.”  I say “seems,” because before articulating this rule and resolving the issue, the court wrote, “We need not resolve this issue here.”

The problem is that the Oshodi court was not the first to speak on the issue. In Ren v. Holder, last August, another panel addressed this issue. The Oshodi court acknowledged the decision in a footnote, what may become known as the notorious footnote 4:

Our recent decision in Ren v. Holder, purports to hold that the REAL ID Act requires that “an IJ must provide an applicant with notice and an opportunity to either produce the evidence or explain why it is unavailable before ruling that the applicant has failed in his obligation to provide corroborative evidence and therefore failed to meet his burden of proof.” However, as that issue was not “presented for  review” to the Ren panel, the quoted passage is dicta and need not be considered here.

This is what the Ren court held  – after a lengthy grammatical analysis of the statute:

Therefore, the IJ must undertake the following sequential analysis. To begin, the IJ must determine whether an applicant’s credible testimony alone meets the applicant’s burden of proof. If it does, no corroborative evidence is necessary. If a credible applicant has not yet met his burden of proof, then the IJ may require corroborative evidence. If corroboration is needed, however, the IJ must give the applicant notice of the corroboration that is required and an opportunity either to produce the requisite corroborative evidence or to explain why that evidence is not reasonably available.

If one was to play the SAT game, “What is the best title for this story,” about Ren v. Holder, I believe the best answer would be “Asylum applicants must be advised of the need for corroboration and be given the opportunity to present it after they testify.”

Just why the Oshodi court considers this is dicta is not clear. The Ren court did not even preface its holding with, “We need not resolve this issue here.”  In Ren, the court addressed two issues – credibility and corroboration. It made minced meat of all the immigration judge’s adverse credibility findings. However, it found that the alien was put on notice of the need to gather corroborative evidence and was given five months to get it. He failed to get it and this was reason-enough to deny the asylum application. The need for corroboration and having the opportunity to gather it was the central issue in the case rather than dicta.

Mr. Oshodi was represented by Holland and Knight – pro bono – as his lawyer pointed out at oral argument. (He learned that pro bono is not Latin for “Be easy on me.”) It seems this intra-circuit split is going to have to be resolved en banc. According to Ren, the Seventh Circuit, in Abraham v. Holder,   disagreed with its holding, though the Oshodi court did not cite it.  That means Holland and Knight may also have to deal with a circuit split in the Supreme Court proving that no good deed goes unpunished. Posted January 29, 2012.


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