Pinel-Gomez v. Garland ( 2022 )

19-3124-ag
Pinel-Gomez v. Garland
In the
United States Court of Appeals
For the Second Circuit
August Term, 2021
No. 19-3124-ag
MAURICIO DAGOBERTO PINEL-GOMEZ, J. L. P-E.,
Petitioners,
v.
MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,
Respondent.
On Petition for Review of a Final Order of
Removal of the Board of Immigration Appeals
ARGUED: MAY 18, 2022
DECIDED: NOVEMBER 2, 2022
Before: KEARSE, JACOBS, and NARDINI, Circuit Judges.
An immigration judge (“IJ”) (Aviva L. Poczter, Immigration
Judge) denied Petitioner Mauricio Dagoberto Pinel-Gomez’s
application for asylum, withholding of removal, and protection under
the Convention Against Torture based on Pinel-Gomez’s failure to
adequately corroborate his claim with documentary evidence. The
Board of Immigration Appeals (“BIA”) affirmed. Petitioners argue
that the BIA was unduly deferential to the IJ’s determination that
corroboration was required. We hold that the BIA reviews de novo an
IJ’s determination under 8 U.S.C. § 1158(b)(1)(B)(ii) that an applicant
should provide additional evidence that corroborates otherwise
credible testimony, because that is not a finding of fact. In contrast,
the BIA reviews for clear error an IJ’s finding as to whether an
applicant does not have and cannot reasonably obtain such
corroborating evidence because that is a finding of fact. Because the
BIA properly applied these standards of review here, we DENY the
petition for review.
HAROLD A. SOLIS, Make the Road New
York, Brooklyn, NY, for Petitioners.
JOHN F. STANTON (Jessica E. Burns, on the
brief), Office of Immigration Litigation,
Civil Division, U.S. Department of Justice,
Washington, D.C. (Ethan P. Davis, Acting
Assistant Attorney General, Civil Division,
Washington, D.C., on the brief), for Merrick
B. Garland, United States Attorney General,
for Respondent.
WILLIAM J. NARDINI, Circuit Judge:
An applicant seeking asylum carries the burden of establishing
his eligibility for relief. In some instances, an immigration judge (“IJ”)
2
may determine that an applicant’s credible testimony, standing alone,
is enough to meet that burden. In others, an IJ may determine that an
applicant must provide corroborating evidence because the
applicant’s testimony, although credible, is not sufficient on its own.
Once an IJ decides that such corroborating evidence is necessary, the
applicant must provide it unless he “does not have the evidence and
cannot reasonably obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii).
The case before us concerns the standards that the Board of
Immigration Appeals (“BIA”) must apply when reviewing the IJ’s
determinations on these issues.
The Department of Justice has promulgated regulations that
govern the BIA’s jurisdiction over IJ decisions in removal and asylum
proceedings. 8 C.F.R. § 1003.1(b)(3), (9). The regulations provide that
the BIA must review an IJ’s findings of fact, including credibility
determinations, for clear error. 8 C.F.R. § 1003.1(d)(3)(i). By contrast,
the BIA reviews de novo all other issues in appeals from IJ decisions,
3
including questions of law, discretion, and judgment. Id.§ 1003.1(d)(3)(ii).
An IJ first determines whether corroborating evidence is
needed; and if corroboration is required and is not produced, the IJ
determines whether corroborating evidence was possessed by or
reasonably available to the applicant. We have not previously
decided which standard the BIA is to apply to which determination.
We conclude that the IJ’s initial determination—that an applicant
“should provide” corroborating evidence, 8 U.S.C.
§ 1158(b)(1)(B)(ii)—is not a factual finding. We therefore hold that the
BIA reviews that determination de novo. The IJ’s subsequent
determination as to whether an applicant “does not have the evidence
and cannot reasonably obtain the evidence,” id.—i.e., as to the
existence of circumstances that Section 1158 provides will excuse him
from providing corroboration—is a factual finding that the BIA
reviews only for clear error.
4
Because we conclude that the BIA here properly applied these
standards of review, we DENY the petition for review.
I. Background
Mauricio Dagoberto Pinel-Gomez and his minor son, J. L. P-E.
(together, “Petitioners”), are natives and citizens of Honduras. They
left Honduras in April 2016 and entered the United States without
inspection that May. The United States Department of Homeland
Security (“DHS”) charged Petitioners as subject to removal under
section 212(a)(6)(A)(i) of the Immigration and Nationality Act
(“INA”). 8 U.S.C. § 1182(a)(6)(A)(i). Pinel-Gomez conceded that he
was removable but applied for asylum under section 208A of the INA,
8 U.S.C. § 1158, withholding of removal under section 241(b)(3) of the
INA, 8 U.S.C. § 1231(b)(3), and withholding of removal under the
Convention Against Torture (“CAT”), U.N. Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No.
5
51, at 197, U.N. Dec. A/39/51, 1465 U.N.T.S 85. He named his son as a
derivative beneficiary. 1
Pinel-Gomez sought relief on two theories: First, he alleged
that he experienced past persecution in Honduras on account of his
political opinion—that the Mara 18 gang threatened to kill him and
his son for his refusal to pay the “tax” they demanded of residents
who lived in Pinel-Gomez’s hometown, Santa Elena. According to
Pinel-Gomez, his refusal to pay the tax was a direct challenge to the
gang’s authority, as he expressed to a Mara 18 member that Santa
Elena did not belong to the gang and that the gang had no right to his
money, which he earned working in lemon fields and used to support
his family. Second, he feared that if he returned to Honduras he
1 In addition to his derivative claims for relief, J. L. P-E. also conceded removability
and asserted independent claims for asylum, withholding of removal, and CAT relief
based on his membership in a particular social group—children of Mauricio Pinel-Gomez.
The IJ denied these claims and the BIA affirmed, concluding that the son’s claim was based
on the same factual basis, and failed for the same lack of corroborating documents, as his
father’s claim. We agree that both petitioners’ claims rise and fall on Pinel-Gomez’s failure
to supply corroborating evidence. Accordingly, we focus on Pinel-Gomez’s claims, which
are also dispositive with respect to his son.
6
would experience future persecution at the hands of Mara 18 on
account of his membership in a particular social group—Hondurans
who have reported gang activity to law enforcement. Pinel-Gomez
claimed that Mara 18 continued to threaten him on the streets of Santa
Elena on his way to or from work and, eventually, sent threatening
notes to his home. Not only would Mara 18 kill him and his son if he
did not pay the tax, but the gang would kill them if he reported their
threats to the Honduran authorities. Pinel-Gomez claimed that, on
March 30, 2016, he reported Mara 18’s threats to the justice of the
peace of criminal matters in Choluteca, Honduras. He later feared
that Mara 18 found out about his report, and that the gang would kill
him and his son if they were to return to Honduras.
Pinel-Gomez submitted three documents to corroborate his
claim for relief. First, he provided a copy of a record dated May 30,
2016, and signed by the secretary of the justice of the peace in
Choluteca, verifying the existence of a complaint filed by Pinel-
7
Gomez in March 2016 about Mara 18’s threats. Second, he submitted
a letter from his friend stating that Pinel-Gomez fled Honduras
because of threats he received from Mara 18 for his refusal to pay the
“war tax”; that upon Pinel-Gomez’s departure from Honduras, Mara
18 destroyed his home during their search for him; and that the friend
was hospitalized after he was beaten by Mara 18 members looking for
information on Pinel-Gomez’s whereabouts. Lastly, he
submitted evidence summarizing the conditions in Honduras.
At a February 12, 2018, hearing, IJ Aviva L. Poczter denied
Petitioners’ applications for asylum, withholding of removal, and
CAT relief. The IJ’s oral decision found Pinel-Gomez credible “in the
sense that his testimony was internally consistent.” But the IJ
determined that his testimony was “inconsistent with one of only two
pieces of personalized corroborating evidence directly relating to [his]
claim“—that is, the record of Pinel-Gomez’s March 2016 complaint of
threats by Mara 18. Pinel-Gomez, the IJ said, was unable to explain
8
why the report signed by the justice of the peace was dated May 30
when Pinel-Gomez had testified to receiving it on March 30. The IJ
also gave no weight to the letter from Pinel-Gomez’s friend, as it did
not specify where Pinel-Gomez and the friend lived and was
unaccompanied by any documentation of the friend’s identity.
Finally, the IJ concluded that although Pinel-Gomez had argued that
he lacked the opportunity to get necessary supporting documents,
such as proof of his address and verification of his friend’s identity,
his explanations did “not mean that the document[s were] not
reasonably available had [they] been properly requested from local
authorities.” CAR 119.
Petitioners submitted a timely appeal to the BIA. On
September 18, 2019, the BIA dismissed Petitioners’ appeal. See Matter
of Mauricio Dagoberto Pinel-Gomez, J. L. P-E., Nos. A208 991 867/866
(B.I.A. Sept. 18, 2019), aff’g Nos. A208 991 867/866 (Immigr. Ct. N.Y.C.
Feb. 12, 2018). The BIA affirmed the IJ’s determination that
9
Petitioners did not meet their burden of proof for asylum,
withholding of removal, or CAT protection given Pinel-Gomez’s
failure to provide documentary evidence to corroborate his otherwise
credible testimony. This issue was dispositive of Petitioners’ claims.
Pinel-Gomez and his son now petition for review of the
agency’s denial of their claims for relief.
II. Discussion
Petitioners raise only one argument on appeal: that the BIA
applied an unduly deferential standard of review to the IJ’s
determinations that corroborating evidence was required and that
such evidence was reasonably obtainable. We review questions of
law de novo, including whether the BIA applied the correct standard
in its review of an IJ decision. See Alvarado-Carillo v. INS, 251 F.3d 44,
49 (2d Cir. 2001) (“[W]hen the situation presented is the BIA’s
application of legal principles to undisputed facts, rather than its
underlying determination of those facts or its interpretation of its
10
governing statutes, our review of the BIA’s asylum and withholding
of deportation determinations is de novo.” (internal quotation marks
omitted)).
A. Statutory and regulatory framework
Pinel-Gomez bears the burden of proving his eligibility for
asylum, 8 U.S.C. § 1158(b)(1)(B), statutory withholding of removal, 8
U.S.C. § 1231(b)(3)(C), and CAT protection, 8 C.F.R. § 1208.16(c)(2).
“Asylum and withholding of removal are two alternative forms of
relief” under the INA that are both “available to an alien claiming that
he will be persecuted, if removed back to his native country.” Wei
Sun v. Sessions, 883 F.3d 23, 27 (2d Cir. 2018). There are, however,
salient differences between the two. Liang v. Garland, 10 F.4th 106, 112
(2d Cir. 2021). Significantly, “while withholding of removal is
automatically granted to all eligible applicants, the choice of whether
to grant asylum is ultimately left to the discretion of the Attorney
General.” Id.11
To qualify for asylum, an applicant must show that he is a
“refugee”—that is, he “is unable or unwilling to return to [his home
country] because of [past] persecution or a well-founded fear of
[future] persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8
U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i). To establish a “well-
founded fear,” an applicant must demonstrate “a subjective fear of
future persecution that is objectively reasonable.” Liang, 10 F.4th at
112. Where an alien shows that he has endured past persecution, “a
well-founded fear of future persecution is presumed, and it becomes
the government’s burden to rebut that presumption.” Id.
To qualify for withholding of removal, an applicant must show
a “clear probability of persecution, i.e., [that] it is more likely than not
that the alien would be subject to persecution.” Wei Sun, 883 F.3d at
27 (internal quotation marks omitted). Because the “clear
probability” standard for statutory withholding of removal is more
12
demanding than the “well-founded fear” standard for asylum, “an
applicant who fails to establish eligibility for asylum fails to establish
eligibility for withholding of removal.” Id. at 28.
Finally, to qualify for CAT relief, an applicant must show “that
it is more likely than not that he or she would be tortured if removed
to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). A
“CAT claim may be established using different evidence and theories
than the alien’s claims under the INA.” Paul v. Gonzales, 444 F.3d 148,
155 (2d Cir. 2006). But where an applicant’s CAT claim and claims
under the INA are all based on the same evidence and theories, “a
petition for CAT relief may fail because of an adverse credibility
ruling rendered in the asylum” or statutory withholding of removal
context. Id. at 157.
An applicant’s credible testimony, standing alone, may be
sufficient to establish a claim for asylum, “but only if [he] satisfies the
trier of fact that [his] testimony is credible, is persuasive, and refers to
13
specific facts sufficient to demonstrate that the applicant is a refugee.”
8 U.S.C. § 1158(b)(1)(B)(ii). In some cases, an applicant must provide
corroborating evidence because the applicant’s testimony, although
credible, is not sufficient on its own.
The decision of whether to require corroborating evidence is
made in the first instance by the IJ. Under 8 U.S.C. § 1158(b)(1)(B)(ii),
“[w]here 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.” 2 An IJ may
deny a claim for relief based on the applicant’s failure to provide
2 The standards under § 11158(b)(1)(B)(ii) for asylum claims also apply for
withholding of removal under section 241 of the INA, 8 U.S.C. § 1231. 8 U.S.C.
§ 1231(b)(3)(C) (“[T]he trier of fact that shall determine whether the alien has sustained the
alien’s burden of proof, and shall make credibility determinations, in the manner described
in clauses (ii) and (iii) of section 1158(b)(1)(B) of this title.”). The standard for CAT claims
is set out in regulations issued by the Attorney General pursuant to section 2242 of the
Foreign Affairs Reform and Restructuring Act of 1998. Pub. L. No. 105–277, Div. G, Title
XII, § 2242, 112 Stat. 2681–822, 8 U.S.C. § 1231 note (2000); see also Regulations Concerning
the Convention Against Torture, 64 Fed. Reg. 8478 (1999); 8 C.F.R. § 1208.16(c) (“Eligibility
for withholding of removal under the Convention Against Torture.”).
14
reasonably obtainable corroborating evidence. In doing so, the IJ
must “(1) point to specific pieces of missing evidence and show that
it was reasonably available, (2) give the applicant an opportunity to
explain the omission, and (3) assess any explanation given.” Wei Sun,
883 F.3d at 31.
B. BIA review of an IJ’s determination that corroboration
is required
When an IJ rejects an applicant’s claims based on a lack of
corroboration, that decision has two components. First, the IJ
determines that an applicant “should provide evidence that
corroborates otherwise credible testimony.” 8 U.S.C.
§ 1158(b)(1)(B)(ii). Second, once the IJ determines that corroborating
evidence is necessary, the IJ must determine whether it is in the
applicant’s possession or the applicant could reasonably obtain it. Id.We address the standard of review that the BIA must apply to each of
these two determinations in turn.
15
1. IJ determination that corroborating evidence is
required
The parties agree, as do we, that the BIA reviews de novo the
threshold determination that corroborating evidence is required. An
IJ who finds an applicant’s testimony credible may still decide that
the testimony falls short of satisfying the applicant’s burden of proof,
either because it is unpersuasive or because it did not include
“specific facts sufficient to demonstrate that the applicant is a
refugee.” See 8 U.S.C. § 1158(b)(1)(B)(ii) (permitting an IJ to require
evidence to corroborate “otherwise credible testimony”). The
petitioner argues that the decision to require corroborating evidence
is a legal determination about whether the applicant’s credible
testimony is sufficient to meet his burden to establish eligibility for
relief. Petitioners’ Br. at 22; see Alom v. Whitaker, 910 F.3d 708, 712 (2d
Cir. 2018) (“When determining whether established facts are
sufficient to meet a legal standard, the BIA has an obligation to
conduct an independent evaluation of the evidence in the record
16
under a de novo standard of review.”). The Government contends
that the decision to require additional corroborative evidence is an
exercise of the IJ’s discretion.
The BIA reviews all decisions of an IJ de novo except the IJ’s
findings of fact, see 8 C.F.R. § 1003.1(d)(3)(i)–(ii), and we are satisfied
that the decision to require corroborating evidence is not a factual
finding. We therefore need not decide whether the IJ’s decision to
require corroboration is a legal or discretionary determination
because the BIA must review that decision de novo in either case. To
be sure, an IJ may need to make factual determinations to conclude
that an applicant has not carried his burden even given his credible
testimony. And although the BIA may not set aside an IJ’s assessment
of an applicant’s credibility absent clear error, 8
C.F.R. § 1003.1(d)(3)(i), the ultimate decision on whether a particular
applicant must provide corroborating evidence is not a purely factual
inquiry. Cf. Alom, 910 F.3d at 712 (“Where the [BIA] reviews a mixed
17
question of law and fact, the [BIA] will defer to the factual findings of
the immigration judge unless clearly erroneous, but the [BIA] retain
their independent judgment and discretion . . . regarding the review
of pure questions of law and the application of the standard of law to
those facts.” (internal quotation marks and alterations omitted)). We
therefore hold that the IJ’s decision to require corroborating evidence
to support otherwise credible testimony is subject to de novo review
by the BIA.
2. IJ determination that corroborating evidence is in
the applicant’s possession or reasonably obtainable
Second, once an IJ has decided that corroborating evidence is
needed, the applicant must provide it unless he “does not have the
evidence and cannot reasonably obtain” it. 8 U.S.C. § 1158(b)(1)(B)(ii).
The parties disagree on the standard that the BIA must apply when
reviewing an IJ’s decision about whether corroborating evidence is
reasonably obtainable.
Petitioners assert that de novo review applies because “an IJ’s
18
corroboration analysis raises a mixed question of fact (whether the IJ
is correct that certain evidence was available) and law (whether it
would be reasonable to expect an applicant to obtain that missing
evidence).” Petitioners’ Br. at 16. The Government contends that the
deferential clear error standard applies because an IJ’s determination
about whether an applicant possesses or can reasonably obtain certain
corroborating evidence is a factual issue. 3
As Petitioners concede, the initial determinations an IJ must
3 To support its view, the Government relies on the language of 8 U.S.C.
§ 1252(b)(4). See Gov’t Br. at 24. That section provides that a court may not “reverse a
determination made by a trier of fact with respect to the availability of corroborating
evidence.” 8 U.S.C. § 1252(b)(4). Because a “trier of fact” determines whether
corroborating evidence is available, the Government contends, such a determination must
be a purely factual question. Although we agree that the reasonable obtainability of
corroborating evidence is a question of fact, we decline to adopt the Government’s
rationale for two reasons. First, Section 1252(b)(4) governs only judicial review of agency
decisions. See id. § 1252(b)(4) (“No court shall reverse a determination made by a trier of
fact with respect to the availability of corroborating evidence” (emphasis added)). In
contrast, the internal agency standards of review that the BIA applies when reviewing
decisions of an IJ are established by regulation. See 8 C.F.R. § 1003.1. Second, we are not
persuaded that all decisions left to a “trier of fact” as that term is used in § 1252 must be
factual findings. Indeed, 8 U.S.C. § 1158(b)(1)(B)(ii), which is incorporated by reference
into § 1252(b)(4), leaves to the “trier of fact” the question of whether an applicant has met
his burden of proof. Such a determination—that certain facts are sufficient to meet a legal
standard—is a question of law that the BIA reviews de novo. Alom, 910 F.3d at 712.
Accordingly, we decline to draw the inference from 8 U.S.C. § 1252(b)(4) that the
Government urges.
19
make at this step are plainly factual. First, the IJ must determine
whether the applicant has corroborating evidence in his possession
but has failed to submit it. 8 U.S.C. § 1158(b)(1)(B)(ii). Next, if the
applicant does not possess the evidence, the IJ must determine if such
evidence is available at all—whether reasonably or not. If a particular
type of document is simply not kept in the applicant’s home country,
then an applicant cannot be required to provide it. These issues
present binary, inarguably factual questions subject to review for
clear error. Still, Petitioners assert, even if the literal availability of
evidence is a factual question, whether an applicant can “reasonably
obtain” evidence that is hypothetically available is a question of law.
We disagree.
We have emphasized that “[w]hat is ‘reasonably available’
differs among societies and, given the widely varied and sometimes
terrifying circumstances under which refugees flee their homelands,
from one asylum seeker to the next.” Jin Shui Qiu v. Ashcroft, 329 F.3d
20140, 153 (2d Cir. 2003), overruled on other grounds by Shi Liang Lin v.
U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007). 4 Thus, reasonableness
in the context of the availability of corroborating evidence is a fact-
bound, case-specific inquiry. An IJ must make specific findings about
an applicant’s explanation for the failure to provide corroborating
evidence, considering any information about the applicant’s country
of origin, the circumstances under which the applicant left the
country, and the applicant’s subjective understanding of whether and
how the evidence could be obtained. See, e.g., Matter of Y-I-M-, 27 I. &
N. Dec. 724, 732 (B.I.A. 2019) (“The applicant was given an
opportunity to explain the lack of corroboration, but the Immigration
Judge did not find his explanations to be persuasive.”).
Because the inquiry arises only when an applicant has not
furnished adequate evidence beyond their own testimony, an IJ
4 Although the REAL ID Act is of somewhat recent vintage—enacted in 2005—“the
corroboration standard under the REAL ID Act closely tracks our pre-REAL ID Act case
law.” Wei Sun, 883 F.3d at 28. We may thus consider our earlier decisions to evaluate the
nature of the IJ’s inquiry.
21
generally determines whether additional evidence was reasonably
obtainable based primarily on that testimony. Thus, once an IJ
determines that corroborating evidence was literally available, her
assessment of whether the applicant could reasonably obtain it turns
on her assessment of the believability of an applicant’s explanation
for the failure to provide it. See Cao He Lin v. U.S. Dep’t of Justice, 428
F.3d 391, 401 (2d Cir. 2005) (“To turn down a refugee candidate for
want of sufficient corroboration, the adjudicator must (a) identify the
particular pieces of missing, relevant documentation, and (b) show
that the documentation at issue was reasonably available to the
petitioner. The IJ must also assess the applicant’s reasons for not
furnishing the corroboration at issue.” (internal quotation marks,
alteration, and citation omitted)). Credibility is a quintessential
factual determination. See 8 C.F.R. § 1003.1(d)(3)(i).
We acknowledge that deciding what is “reasonable” may
present a question of fact in some legal contexts and a question of law
22
in others. Compare First Nat. Bank v. Pipe & Contractors' Supply Co., 273
F. 105, 108 (2d Cir. 1921) (“If the contract specifies no time, as in the
present case, a reasonable time is implied by law, and what is such
reasonable time is a question of law.”), with Sherkate Sahami Khass
Rapol (Rapol Const. Co.) v. Henry R. Jahn & Son, Inc., 701 F.2d 1049, 1051
(2d Cir. 1983) (“What is a reasonable time is generally a question of
fact for the jury.” (internal quotation marks and alterations omitted)).
See also United States v. Ekwunoh, 12 F.3d 368, 370 (2d Cir. 1993) (noting
that a district court’s sentencing determination about what was
“reasonably foreseeable” to a criminal defendant was a factual
finding subject to review for clear error). In such cases, the IJ’s
determination of whether evidence is reasonably obtainable turns
entirely on factual issues—in most cases, the IJ’s assessment of the
applicant’s credibility. Accordingly, we hold that an IJ’s
determination about whether an applicant can “reasonably obtain”
corroborating evidence is a finding of fact that the BIA reviews for
23
clear error.
C. The BIA’s application of the correct standards of
review
Finally, we consider whether the BIA in this case properly
applied the standards articulated above. We conclude that the BIA
did apply the proper standards to the IJ’s decision, and that it applied
those standards correctly.
With respect to the threshold inquiry—whether the IJ properly
concluded that Pinel-Gomez should provide additional corroborating
evidence—Petitioners argue that the BIA failed to apply de novo
review. Petitioners assert that the BIA improperly deferred to the IJ’s
corroboration analysis, thereby failing to evaluate whether Pinel-
Gomez could satisfy his burden absent additional evidence. We
disagree.
Petitioners point to nothing in the BIA’s decision indicating that
the BIA did not apply de novo review to the initial question of whether
Pinel-Gomez should provide corroborating evidence. The BIA made
24
clear that it would “review the findings of fact, including the
determination of credibility, made by the Immigration Judge under
the ‘clearly erroneous’ standard,” and that it would “review all other
issues, including issues of law, discretion, or judgment, under the de
novo standard.” CAR at 3 (quoting 8 C.F.R § 1003.1(d)(3)(i)). The BIA
identified the three pieces of evidence that Pinel-Gomez submitted
and evaluated whether, given that evidence, he should provide
additional corroborating evidence. And where the BIA considered
the factual determinations that informed the IJ’s conclusions, it was
explicit that it was employing a different standard of review.
Next, in considering whether Pinel-Gomez could reasonably
obtain corroborating evidence and was therefore required to provide
it, the BIA concluded that the IJ “determined, without clear error, that
the respondent did not provide an adequate explanation as to the
availability of the evidence, and therefore, did not corroborate an
essential element of his claim.” Id. at 4 (emphasis added). As
25
Petitioners note, in evaluating the IJ’s decision, the BIA erroneously
cited the statute governing judicial review. See CAR at 4. But the BIA
plainly applied the correct standard, even if it cited the wrong
statutory section. The erroneous citation does not alter our conclusion
that the BIA correctly reviewed for clear error the IJ’s finding on the
adequacy of Pinel-Gomez’s explanation for why he could not
reasonably obtain corroborating documents such as records relating
to his home ownership, his friend’s identity, or Pinel-Gomez’s
physical presence in Santa Elena. We therefore conclude that the
BIA’s application of the de novo and clear error standards of review,
respectively, was proper.
III. Conclusion
In sum, we hold as follows:
(1) The BIA reviews de novo an IJ’s determination under 8
U.S.C. § 1158(b)(1)(B)(ii) that an applicant should
provide additional evidence that corroborates otherwise
26
credible testimony.
(2) The BIA must review for clear error an IJ’s finding as to
whether an applicant does not have and cannot
reasonably obtain such corroborating evidence, because
that is a finding of fact that determines whether he is
excused from producing it.
(3) The BIA properly applied de novo review to the IJ’s
request for corroborating evidence and properly
reviewed for clear error the IJ’s finding that Pinel-Gomez
failed to produce requested evidence that he could
reasonably have obtained.
For the foregoing reasons, we DENY the petition for review.
27