Archange Saint Ford v. Attorney General United States ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
Nos. 21-1729 & 21-3325
____________
ARCKANGE SAINT FORD,
Petitioner
v.
ATTORNEY GENERAL
UNITED STATES OF AMERICA,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A209-873-543)
Immigration Judge: Mirlande Tadal
Argued on April 13, 2022
Before: AMBRO, BIBAS, and ROTH, Circuit Judges
(Opinion filed May 16, 2022)
Robert A. Painter (ARGUED)
American Friends Service Committee
Immigration Rights Program
570 Broad Street
Suite 1001
Newark, NJ 07102
Counsel for Petitioner
Christina R. Ziedan (ARGUED)
Mona M. Yousif
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
OPINION OF THE COURT
ROTH, Circuit Judge:
The need for effective assistance of counsel applies in
immigration law just as it does in criminal law. Aliens, many
of whom do not speak English and some of whom are detained
before their immigration hearings, can be particularly
susceptible to the consequences of ineffective lawyers.
2
Petitioner Arckange Saint Ford paid a lawyer to represent him
in removal proceedings, but Saint Ford’s requests for relief
from deportation were denied after the lawyer failed to present
important and easily available evidence going to the heart of
Saint Ford’s claims. Saint Ford retained new counsel, and his
new lawyer asked the Board of Immigration Appeals to reopen
his case because of his former attorney’s ineffective assistance.
The Board declined to do so. Because Saint Ford presents a
meritorious ineffective-assistance claim, we will vacate the
Board’s decision and remand.
I. Background1
Saint Ford, a Haitian national, became involved in
Haitian national politics in 2012 by joining the opposition
political party, Platform Petit Dessalines (PPD). He believed
the ruling political party in Haiti, the Haitian Tet Kale Party
(PHTK), and its leader, then-President Joseph Martelly, were
corrupt and involved in human rights abuses. Between June
2013 and June 2014, Saint Ford received anonymous telephone
calls threatening that he would become a “victim” if he did not
leave the PPD and join the PHTK.2 Although Saint Ford did
not know the identity of the callers, he testified that they told
him he should join the PHTK, “and that’s how [he] knew that
1
The factual background is drawn from the transcript of Saint
Ford’s individual removal hearing before the Immigration
Judge, the Immigration Judge’s and Board of Immigration
Appeals’ decisions, and evidentiary attachments to Saint
Ford’s administrative filings. Citations to the Administrative
Record refer to the record Saint Ford submitted in support of
his second appeal, No. 21-3325.
2
AR 146 at ¶¶ 8, 10; 604–05.
3
they were members of the PHTK Party.”3
In July 2014, armed men encircled Saint Ford’s home
and began shooting into it. They then set it on fire and burned
it down. Saint Ford was not in the house during the assault; he
had fled a few days earlier, fearing for his safety. He reported
the attack to Haitian authorities, and investigators came to his
home the next day. Investigators confirmed that Saint Ford’s
home “was completely burnet [sic] out” and interviewed Saint
Ford’s neighbor who witnessed the attack.4 Haitian authorities
never determined who attacked Saint Ford’s home. After the
attack, Saint Ford’s neighbor “advised him to leave the area in
order to save his life and that of his family.”5
Saint Ford fled Haiti a few weeks later: first to the
Dominican Republic, then to Brazil, and finally to the United
States. Later the United States began removal proceedings
against Saint Ford, claiming he was in the country without a
valid travel or entry document.
Saint Ford hired an attorney to represent him at his
removal hearing before an Immigration Judge (IJ). Through
that attorney, he conceded removability. However, the
attorney prepared and submitted a Form I-589 application for
asylum, withholding of removal, and relief under the
Convention Against Torture (CAT). After preparing the Form
I-589, Saint Ford and the attorney had little contact. Saint Ford
stated former counsel “never reviewed the application with me
3
AR 604.
4
AR 743.
5
AR 637.
4
or told me what it said.”6 Saint Ford also stated the attorney
“never prepared me for my final hearing” before the IJ.7
The attorney provided scant documentary evidence to
support Saint Ford’s application: a few letters from Saint
Ford’s neighbors, a one-page police report memorializing the
investigation into the attack on Saint Ford’s home, his PPD
membership card, and an attestation confirming his PPD
membership. Shortly before the IJ hearing, the attorney
submitted the Haiti 2019 Human Rights Report. That 2019
State Department Human Rights Report contained no mention
of either the PPD or the PHTK.
During Saint Ford’s hearing, the IJ repeatedly asked the
attorney about record evidence related to the PPD. The IJ
specifically asked the attorney if he had submitted any
documents attesting to the history and existence of PPD as a
political party and PPD’s platform. The IJ explained to the
attorney that Saint Ford’s PPD membership card was “not
sufficient to establish that there is such a party in existence,”
and continued to ask if former counsel had “any literature about
the party[.] When it was formed, the leaders and whether – and
the, the status of the party in Haiti, whether it’s still in
existence.”8 Eventually, the attorney admitted he did not
submit any documents about the PPD.
The IJ denied relief on all claims.9 Although she found
6
AR 203 at ¶ 14.
7
AR at 204 at ¶ 22.
8
AR 609–10.
9
The IJ concluded Saint Ford was statutorily ineligible to apply
for asylum because he filed his asylum application outside the
5
that Saint Ford was credible and that he had provided sufficient
documentary evidence to corroborate his testimony, the IJ
concluded that Saint Ford “submitted no objective evidence”
to help meet his burden in proving that he was harassed or
persecuted on account of his political opinion by members of
the PHTK.10 The IJ determined that “the record does not
support [Saint Ford’s] conclusion” that he would be killed in
Haiti because the PHTK was still in power, as “[t]here was no
evidence presented in the record that members of the political
party of Petit Desalin are systematically targeted and
persecuted in Haiti on account of their membership [i]n said
party.”11 Further, the IJ found that there was no evidence
presented that Saint Ford’s fear of persecution upon his return
to Haiti was reasonable.
After the IJ denied Saint Ford’s claims, Saint Ford
retained new counsel and appealed to the Board of Immigration
Appeals. The Board affirmed the IJ’s decision. Saint Ford
appealed to the Court of Appeals,12 and then moved the Board
to reopen his case because, among other reasons, his former
counsel provided ineffective assistance. Saint Ford argued that
his former counsel “failed to submit the necessary country
condition information to corroborate and support” his claims,
“did not include in [Saint Ford’s] application for relief or elicit
during testimony critical information regarding the targeting of
Mr. Saint Ford’s family members in Haiti, and failed to prepare
one-year deadline and did not present argument or evidence
demonstrating changed or extraordinary circumstances.
10
AR 523.
11
AR 524–25.
12
That appeal was docketed at No. 21-1729. We consolidated
those appeals.
6
[Saint Ford] for his individual hearing.”13
The Board denied Saint Ford’s motion to reopen. It first
reasoned that former counsel denied Saint Ford’s allegations.
Next, the Board concluded that the evidence Saint Ford
proffered in support of his motion to reopen did not establish
that former counsel had failed to acquire and submit easily
obtainable documentary evidence related to the PPD. Then,
assuming Saint Ford had established that former counsel
provided ineffective assistance, the Board concluded that he
did not show he suffered prejudice. It reasoned that “there is
no indication that any additional evidence submitted or
solicited by [Saint Ford’s] former counsel would have enabled
[Saint Ford] to establish a clear probability that his life or
freedom would be threatened on account of a protected ground
in Haiti or that he would be tortured upon his return to Haiti
with the consent or acquiescence of a public official.”14
Saint Ford petitioned for us to review the Board’s denial
of his motion to reopen.15 He contends, among other things,
that the Board erred in finding that former counsel did not
provide ineffective assistance.
13
AR 110.
14
AR 5.
15
Saint Ford’s first appeal, No. 21-1729, is also before us.
Because we will grant relief based on ineffective assistance of
counsel, we need not address Saint Ford’s underlying claims
related to the merits of the IJ’s opinion.
7
II. Analysis16
A. Ineffective Assistance of Counsel
Ineffective assistance of counsel can deny an alien due
process if it prevents the alien from reasonably presenting his
case.17 We apply a two-part test to evaluate error and
prejudice: (1) would competent counsel have acted otherwise,
and, if so, (2) whether the alien was prejudiced by counsel’s
performance.18 The first prong, ineffectiveness, requires the
alien to demonstrate that his counsel’s conduct was not an
“objectively reasonable tactical decision.”19 The second
prong, prejudice, requires the alien to demonstrate that there
was a “‘reasonable probability’ that ‘the IJ would not have
entered an order of removal absent counsel’s errors.’”20 The
alien need not show his counsel’s performance did, in fact, alter
the outcome of the earlier proceeding, or even that a different
16
The Board had jurisdiction over Saint Ford’s motion to
reopen proceedings in a case in which the Board had rendered
a decision under 8 C.F.R. § 1003.2(g)(2)(i). We have
jurisdiction over his petition for review under 8 U.S.C. §§
1252(a)(1), (b)(6).
17
See, e.g., Rranci v. Att’y Gen. of U.S., 540 F.3d 165, 175 (3d
Cir. 2008).
18
Id. An alien must also meet certain procedural requirements
set forth by the Board, but the government does not dispute that
Saint Ford satisfied those requirements here.
19
Mena-Flores v. Holder, 776 F.3d 1152, 1169 (10th Cir.
2015).
20
Calderon-Rosas v. Att’y Gen. U.S., 957 F.3d 378, 387 (3d
Cir. 2020) (quoting Fadiga v. Att’y Gen. U.S., 488 F.3d 142,
159 (3d Cir. 2007)).
8
outcome was “more likely than not”; we have explained that
“reasonable probability” means merely “a ‘significant
possibility.’”21
i. Ineffectiveness
The Attorney General assumes Saint Ford’s former
counsel provided ineffective assistance to Saint Ford. That
was wise. An “attorney’s failure to produce easily available
evidence supporting a claim for immigration relief falls below
the constitutionally required standard of performance.”22 Saint
Ford’s former counsel failed to produce sufficient country
condition information to support Saint Ford’s claims, including
any documentation about the PPD (Saint Ford’s political party)
or the PHTK (Haiti’s ruling political party). That information
is easily available online; it is conveniently located on the
PPD’s website, among other places. Saint Ford’s former
counsel provided ineffective assistance when he failed to
submit readily accessible, objective information related to the
political parties at the heart of Saint Ford’s claims.
The Board erred in crediting Saint Ford’s former
counsel’s denials of wrongdoing.23 We have explained that
21
Id. (quoting United States v. Payano, 930 F.3d 186, 193 n.5
(3d Cir. 2019)).
22
Calderon-Rosas, 957 F.3d at 388 (citing Fadiga, 488 F.3d at
162). We have explained that in “formal removal proceedings,
the Fifth Amendment and the immigration laws provide aliens
with the right to counsel.” Bonilla v. Sessions, 891 F.3d 87, 91
(3d Cir. 2018) (citing 8 U.S.C. § 1229a(b)(4); Leslie v. Att’y
Gen. of U.S., 611 F.3d 171, 180–81 (3d Cir. 2010)).
23
In the criminal law ineffective-assistance-of-counsel arena,
9
facts “presented in the motion to reopen are ‘accepted as true
unless inherently unbelievable.’”24 There is nothing inherently
unbelievable about Saint Ford’s contentions that his former
counsel provided ineffective assistance. In fact, his
contentions are buttressed by the IJ’s hearing transcript, which
shows Saint Ford’s former counsel failed to include relevant
country condition information in the record. The Board’s
choice to credit former counsel’s denials of his own
deficiencies was error.
Former counsel’s failure to provide any objective
evidence about the PPD, the PHTK, and Haiti’s political
conditions cannot reasonably be viewed as a tactical decision.
Saint Ford has thus shown that his former counsel did not act
in an objectively reasonable manner. Because former counsel
provided ineffective assistance, we must now determine
whether Saint Ford suffered prejudice.
we have recognized that a lawyer cannot be expected to argue
his own ineffective assistance. See, e.g., United States v.
Cocivera, 104 F.3d 566, 570 (3d Cir. 1996). Our sister circuits
agree. See, e.g., Ciak v. United States, 59 F.3d 296, 303 (2d
Cir. 1995); United States v. Del Muro, 87 F.3d 1078, 1080 (9th
Cir. 1996); Harris v. Comm’r, Dep’t of Corr., 874 F.3d 682,
690 (11th Cir. 2017). It is just as reasonable that in the
immigration-law ineffective-assistance-of-counsel context, a
lawyer cannot be expected to argue his own ineffective
assistance.
24
Shardar v. Att’y Gen. of U.S., 503 F.3d 308, 313 (3d Cir.
2007) (quoting Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir.
2005)).
10
ii. Prejudice
The “familiar standard for prejudice in an ineffective-
assistance claim is whether there is a ‘reasonable probability’
that ‘the IJ would not have entered an order of removal absent
counsel’s errors.’”25 This “reasonable probability” standard
“does not require a petitioner to show counsel’s deficient
performance did, in fact, affect the outcome of the case, or even
that a different outcome was ‘more likely than not’; instead, we
have cautioned, ‘reasonable probability’ means merely a
‘significant possibility.’”26 To be sure, the Board “need not
‘write an exegesis on every contention,’” but “it must ‘consider
the issues raised, and announce its decision in terms sufficient
to enable a reviewing court to perceive that it has heard and
thought and not merely reacted.’”27
Here, the Board failed to do so, and its application of
our “reasonable probability” standard was wrong. The Board
concluded there was “no indication that any additional
evidence submitted or solicited by [Saint Ford’s] former
counsel would have enabled [Saint Ford] to establish a clear
probability that his life or freedom would be threatened on
account of a protected ground in Haiti or that he would be
tortured upon his return to Haiti with the consent or
acquiescence of a public official.”28 As in Calderon-Rosas and
Filja, nothing in the Board’s prejudice analysis suggests it
25
Calderon-Rosas, 957 F.3d at 387 (quoting Fadiga, 488 F.3d
at 159).
26
Id. (quoting Payano, 930 F.3d at 193 n.5).
27
Id. (quoting Filja v. Gonzales, 447 F.3d 241, 256 (3d Cir.
2006)).
28
AR 5.
11
sufficiently reviewed Saint Ford’s argument. Like Calderon-
Rosas, the Board incorrectly applied our “reasonable
probability” standard. In support of his motion to reopen, Saint
Ford submitted extensive evidence about the PPD, including a
summary of the PPD’s political agenda, the participation of the
PPD’s leader, Haitian Senator Jean-Charles Moise, in
opposition activities, and the murder and targeting of PPD
members in Haiti. The Board never mentioned this new
evidence—evidence at the core of Saint Ford’s claims, and
evidence that the IJ repeatedly highlighted as missing both
during Saint Ford’s hearing and in her decision denying Saint
Ford’s claims.
Constitutionally adequate counsel would have
introduced this readily available evidence. Given the IJ’s focus
on the lack of information about the PPD, there is a reasonable
possibility that, if this readily available evidence had been
presented, the IJ would have granted cancellation of removal.
For this reason, Saint Ford is entitled to a new hearing on his
cancellation application.
B. Changed Country Conditions
Saint Ford also argued that the Board abused its
discretion in finding that there was not a sufficient change in
country conditions in Haiti since his individual hearing.
Specifically, he contends the Board ignored the “rapidly
deteriorating political, security and human rights situation in
the country.”29
29
Pet. Br. at 29.
12
The Board “has ‘a duty to explicitly consider any
country conditions evidence submitted by an applicant that
materially bears on his claim.’”30 “This duty is heightened for
motions to reopen based on changed country conditions.”31
The Board must meaningfully evaluate the evidence submitted
in support of the motion to reopen and “may not ignore
evidence favorable to the alien, particularly when, as here, the
alien’s administrative brief expressly calls the [Board’s]
attention to it.”32
Here, Saint Ford submitted the following changed
country condition information:
• A January 2021 executive decree
scheduling a constitutional referendum
expressly forbidden by the Haitian
constitution;
• Executive decrees issued between
November 2020 and May 2021 that
redefined domestic terrorism to include
protest actions, permitted Haiti’s military
to operate domestically, and created a
new state-run security apparatus;
• A July 2021 rejection of the acting
Haitian president Ariel Henry by Haitian
30
Liem v. Att’y Gen. U.S., 921 F.3d 388, 396 (3d Cir. 2020)
(quoting Zheng v. Att’y Gen. of U.S., 549 F.3d 260, 268 (3d
Cir. 2008)).
31
Id.32
Huang v. Att’y Gen. of U.S., 620 F.3d 372, 388 (3d Cir. 2010)
(citing Espinosa-Cortez v. Att’y Gen. of U.S., 607 F.3d 101,
107 (3d Cir. 2010)).
13
opposition leaders following the
assassination of the Haitian president;
and,
• Arrest warrants issued in July and August
2021 targeting political opponents after
the president’s assassination.
These developments preceded and followed the assassination
of Haiti’s president, Jovenel Moïse, in July 2021. The Board,
without discussing any of Saint Ford’s newly adduced
evidence, concluded that these developments were merely “an
incremental increase in political unrest and violence in
Haiti.”33 It is unclear to us what, exactly, the Board would
consider an adequate change in country conditions if the
assassination of the country’s leader is simply an “incremental
increase” in unrest. This cannot be. We conclude that the
Board erred because it failed to explicitly consider the evidence
of changed country conditions that Saint Ford submitted,
including the assassination of Haiti’s president and the
resulting crackdown on political opponents and general
political chaos.
III. Conclusion
For these reasons, we will reverse the Board’s denial of
Saint Ford’s motion to reopen. We will remand this matter to
the IJ for a new hearing on Saint Ford’s application for
cancellation of removal.
33
AR 5.
14
AMBRO, Circuit Judge, concurring
Arckange Saint Ford will get a second shot at canceling
the Government’s order of removal—that’s what matters. The
majority is remanding because of his former counsel’s
deficient performance at Saint Ford’s removal hearing. I agree
with that and concur in full.
But former counsel was not the only one who made
significant missteps at the hearing. The Immigration Judge did
as well. I therefore would have granted Saint Ford’s initial
petition for review and remanded on that basis. I write
separately to explain these errors in the hope that similar ones
will not be made at Saint Ford’s new hearing.
* * *
An applicant seeking withholding of removal bears the
burden of proving it is “more likely than not that his life or
freedom would be threatened if returned to his country”
because of “race, religion, nationality, membership in a
particular social group, or political opinion.” Serrano-Alberto
v. Att’y Gen., 859 F.3d 208, 214 (3d Cir. 2017) (alterations
adopted) (internal quotation marks omitted); 8 U.S.C.
§ 1231(b)(3)(A). He is rebuttably presumed to satisfy that
burden by showing he was persecuted in the past if he
demonstrates (1) “he was targeted for mistreatment on account
of one of the statutorily-protected grounds,” (2) “that the
incident, or incidents of mistreatment rise to the level of
persecution,” and (3) the “persecution was committed by the
government or forces the government is either unable or
unwilling to control.” Thayalan v. Att’y Gen., 997 F.3d 132,
138 (3d Cir. 2021) (internal quotation marks omitted);
1
Serrano-Alberto, 859 F.3d at 214. As the majority opinion
explains, the IJ found Saint Ford didn’t make that showing
here.
But where did he fall short? The IJ identified two flaws.
First, Saint Ford submitted “no objective evidence to
corroborate his claim that he was harassed or persecuted on
account of his political opinion.” A.R. at 176. And second, he
did not support his suspicion that he was threatened by
“members of the current government party.” Id.
Compare those findings with the hearing transcript.
Here are just a few soundbites:
Saint Ford: “The government that was in place
at the time [was] trying to kill me.” Id. at 580.
Saint Ford: “I received threatening calls by
going against [the government].” Id. at 585.
Saint Ford: “[T]he first call, the person didn’t
give their name, but they said if I didn’t leave the
political party that I was in and join[] their party,
that I would become a victim.” Id. at 586.
Saint Ford: “[T]he members of the government,
they wanted to kill me because they realized that
they can lose power.” Id. at 597.
Government Attorney: “[Y]ou told the Court
that you really don’t know who the individuals
are who were harassing you. Correct?”
2
Saint Ford: “I don’t know their names because
they never told me who they were. I only know
that they would tell me that I should join the
PHTK Party and that’s how I knew that they
were members of the PHTK Party.” Id. at 604.
Government Attorney: “Okay. So . . . it would
be a fair statement to say that the people who
harassed you and burned down your house could
be members supporting their political party like
yourself. Isn’t that true?”
Saint Ford: “No, they were members that were
part of the party, like, government members in
the party.” Id. at 605–06.
The transcript thus shows Saint Ford testified that
(1) “government members in the [PHTK] party” harassed him
and burned down his house, and (2) they were threatening him
because they wanted him to “leave the political party that [he]
was in and join[] their party.” Id. at 586, 604–06.
And an applicant’s testimony is evidence. See Saravia
v. Att’y Gen., 905 F.3d 729, 735 (3d Cir. 2018). So, logically,
it would be incorrect to say that Saint Ford presented no
evidence that he was threatened by government members for
his political activity. The IJ, it seems, ruled against Saint Ford
not because of an absence of evidence in the record, but a lack
of corroborating evidence supporting Saint Ford’s own
testimony.
Before diving into whether the IJ was correct to hold
Saint Ford at fault for his lack of corroborating evidence, I first
note that doing so was—at the very least—internally
inconsistent. The IJ’s opinion began by finding Saint Ford’s
3
testimony credible and stating that he “provided the Court with
[a] sufficient amount of documentary evidence to corroborate
his testimony.” A.R. at 175. Yet on the very next page the IJ
contradicted her finding of sufficient corroboration when she
denied his application for withholding of removal because he
“submitted no objective evidence to corroborate his claim that
he was harassed or persecuted on account of his political
opinion by members of the current government party.” Id. at
176 (emphasis added). She went on to cite his lack of
“objective” or “supporting” evidence three more times as a
reason for denying his application. Id. at 176, 179. So, no
matter what she said at the outset, even a cursory look at the
opinion shows the IJ didn’t believe Saint Ford actually
“corroborate[d] his testimony.” Id. at 175.
The next question, then, is whether the IJ was right to
find Saint Ford needed to present “objective” or “supporting”
evidence to corroborate his credible testimony. Perhaps.
Congress has said that “[t]he 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.” 8 U.S.C. § 1158(b)(1)(B)(ii) (emphasis
added); id. § 1231(b)(3)(C) (extending § 1158(b)(1)(B) to
applications for withholding of removal). Though the IJ found
Saint Ford’s testimony credible, his statements about the
identity and motives of his harassers might be read as
unspecific. For example, though Saint Ford insisted that
“government members in the [ruling] party” burned down his
house, A.R. at 606, he was not an eyewitness to that event and
offered no other basis for this assertion. The IJ was thus not
off base to “determine[] that the applicant should provide
4
evidence that corroborates otherwise credible testimony.” 8
U.S.C. § 1158(b)(1)(B)(ii).
But the IJ was wrong to stop there and jump straight to
denying Saint Ford’s application. Congress has recognized
corroborating evidence may not always be available to a
refugee. Id. So when the IJ determines the applicant should
corroborate his credible testimony, he must do so “unless the
applicant does not have the evidence and cannot reasonably
obtain the evidence.” Id. To ensure applicants are not required
to provide corroboration when there is none to be offered, our
Circuit has adopted a three-step inquiry, known as the “Abdulai
inquiry,” that an IJ must conduct before requiring
corroboration. See Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d
Cir. 2001). The IJ must “(1) identify the facts for which it is
reasonable to expect corroboration; (2) inquire as to whether
the applicant has provided information corroborating the
relevant facts; and, if he or she has not, (3) analyze whether the
applicant has adequately explained his or her failure to do so.”1
Luziga v. Att’y Gen., 937 F.3d 244, 255 (3d Cir. 2019)
(alterations adopted) (internal quotation marks omitted). This
inquiry must occur before the IJ rules on the application so that
the applicant has both notice of the need for corroboration and
an opportunity to provide it or explain its unavailability.
Saravia, 905 F.3d at 737–38.
1
Though we decided Abdulai before the REAL ID Act of 2005
amended 8 U.S.C. § 1158(b)(1)(B)(ii), we have later confirmed
that the Abdulai inquiry continues to apply in our Circuit. See
Saravia, 905 F.3d at 737; Luziga, 937 F.3d at 255; Blanco v.
Att’y Gen., 967 F.3d 304, 316 (3d Cir. 2020).
5
We “strictly enforce this rule.” Luziga, 937 F.3d at 255.
Otherwise the applicant is not given a “meaningful opportunity
to establish his or her claim.”2 Saravia, 905 F.3d at 738
(quoting Mulanga v. Ashcroft, 349 F.3d 123, 136 (3d Cir.
2003)). So whenever an IJ fails to develop an applicant’s
testimony under the Abdulai inquiry and “holds the lack of
corroboration against the applicant, we vacate and remand.”
Luziga, 937 F.3d at 255 (alterations adopted) (internal
quotation marks omitted).
Here, though it was reasonable to request Saint Ford
corroborate his testimony about the identity and motive of his
harassers, the IJ did not tell him what corroboration she needed
or give him a chance to present that evidence. There is no
indication she engaged in the Abdulai inquiry as required
before skipping straight to “hold[ing] the lack of corroboration
against [Saint Ford].” Id. (alterations adopted). She went from
first to third across the pitcher’s mound. Our Abdulai inquiry
is there to ensure these important corners aren’t cut.
2
Failure to conduct this analysis also complicates our review.
Congress has instructed that once the IJ rules on the availability
of corroborating evidence, we may not reverse unless “a
reasonable trier of fact is compelled to conclude that such
corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4).
But without the IJ walking through the Abdulai analysis, it is
“impossible for us to determine whether a reasonable trier of
fact would be compelled to conclude such corroborating
evidence is unavailable.” Saravia, 905 F.3d at 739 (internal
quotation marks omitted). There would be nothing in the
record to inform our review.
6
I believe the IJ erred. I thus would have “strictly
enforce[d]” our Abdulai rule, see Luziga, 937 F.3d at 255,
granted Saint Ford’s initial petition for review, and remanded
on that basis.
7