Alejandro Saravia v. Attorney General United States , 905 F.3d 729 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-2234
_____________
ALEJANDRO MISAEL MELENDEZ SARAVIA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
______________
On Petition for Review of an Order of the Board of
Immigration Appeals
(Agency No. A204-490-174)
_____________
Argued: June 13, 2018
Before: CHAGARES, GREENBERG and FUENTES,
Circuit Judges
(Opinion filed: October 1, 2018)
Gregory Bischoping [ARGUED]
University of Pennsylvania Law School
(Admitted pursuant to L.A.R. 46.3)
Stuart T. Steinberg
Thomas J. Miller
Derek J. Brader
Dechert LLP
Cira Centre
2929 Arch St.
Philadelphia, PA 19104
Counsel for Petitioner
Sabatino F. Leo [ARGUED]
Chad A. Readler
Anthony P. Nicastro
U.S. Department of Justice
Civil Division
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Counsel for Respondent
_____________
OPINION OF THE COURT
_____________
2
FUENTES, Circuit Judge.
This case concerns the Board of Immigration Appeals’
failure to follow precedent set forth by this Court. 1
Alejandro Misael Melendez Saravia (“Saravia”)
petitions for review of the Board’s decision affirming the
Immigration Judge’s denial of his application for withholding
of removal under 8 U.S.C. § 1231(b)(3)(A) and relief under the
Convention Against Torture. 2 Before the Immigration Judge,
Saravia argued that he had a well-founded fear of persecution
on the basis of his membership in a particular social group.
The Immigration Judge found Saravia to be credible, but
determined that Saravia failed to corroborate his claim. The
Board affirmed the Immigration Judge’s decision, and this
petition followed.
In Chukwu v. Attorney General, 3 we held that an
Immigration Judge must “give the applicant notice of what
corroboration will be expected and an opportunity to present
an explanation if the applicant cannot produce such
corroboration.” 4 Despite the Board’s subsequent contrary
1
See Abdulai v. Ashcroft, 239 F.3d 542, 553 (3d Cir. 2001)
(“The [Board] is required to follow court of appeals precedent
within the geographical confines of the relevant circuit.”
(citation omitted)).
2
See 8 C.F.R. § 1208.18 (implementing the Convention
Against Torture).
3
484 F.3d 185 (3d Cir. 2007).
4
Id. at 192.
3
decision, 5 we remind Immigration Judges in our Circuit that
they must follow the requirements of Chukwu. We will vacate
and remand.
I. Facts
Saravia is a native and citizen of El Salvador. In about
1996, when Saravia was five, his mother left for the United
States for economic reasons. After this, he lived with his
father.
A. Saravia’s Encounters with MS-13
In 2005, members of MS-13 began trying to recruit
Saravia into the gang. He refused, and they beat and threatened
him. Before the Immigration Judge, Saravia testified that they
kicked him and hit him with fists, but that the injuries were not
severe enough for him to go to the hospital. Saravia testified
that the gang members threatened Saravia with the murder of
his family if he told his father and his father reported the gang
to the police. Saravia also testified that after the gang
discovered that his mother lived in the United States, they
demanded money from him. The gang issued Saravia an
ultimatum: either join the gang or pay $15,000. He testified
that gang members continued threatening him, leading his
father to send Saravia and Saravia’s younger sister to live with
their mother in Paterson, New Jersey. He entered the United
States without inspection sometime in 2006.
5
Matter of L-A-C-, 26 I. & N. Dec. 516, 523–24 (B.I.A. 2015)
(“Applicants have the burden to establish their claim without
prompting from the Immigration Judge.”).
4
Saravia testified that in March of 2011, his cousin, Juan
Ramon Hernandez Melendez, was killed in El Salvador by
members of MS-13. He testified that Juan was a police officer
and that MS-13 had asked Juan for firearms and killed him
when he refused. Saravia also testified that eight months after
his cousin was killed, members of MS-13 in El Salvador
kidnapped another of his cousins, Francisco Hernandez, and
brutally tortured him for information about Saravia and
Saravia’s father. Hernandez was released in December 2011,
but then murdered by MS-13 gang members two days later,
according to Saravia.
Saravia also testified that he fears returning to El
Salvador because a property inherited by his mother has been
occupied and seized by MS-13 after his mother, via a cousin of
Saravia’s in El Salvador, began renting the property to a
woman apparently affiliated with MS-13. Saravia testified that
MS-13 uses the house for meetings and to torture people, and
that he fears that if he returns to El Salvador, the government
will assume he is linked to the gang.
In August 2015, MS-13 gang members attacked
Saravia’s father. He was hospitalized for five days. During his
recovery, MS-13 gang members called Saravia’s half-brother
and threatened to kill Saravia’s father and his family if he
reported the beating to police. According to Saravia, they
added that they would kill Saravia if they found him in El
Salvador. Saravia’s half-brother then fled to the United States.
B. Saravia’s Arrest and the Telephone Threats
In April 2015, Saravia was arrested in New Jersey and
charged with aggravated assault, simple assault on a law
5
enforcement officer, resisting arrest by physical force or
violence, aggravated assault with a deadly weapon, unlawful
possession of a firearm, and unlawful possession of a weapon.
These charges, according to Saravia, arose from a domestic
misunderstanding and police officers’ decision to hit and
handcuff him.
Saravia testified that, while he was in police custody,
MS-13 gang members called his mother and threatened to kill
him if he returned to El Salvador. They stated that they knew
he was in police custody and that he was going to be deported
back to El Salvador. In May 2015, Saravia entered into a pre-
trial intervention program. The charges against him were to be
dismissed after a one-year term of probation. However, during
his probation, Saravia was arrested for driving under the
influence.
C. Removal Proceedings Against Saravia
The Department of Homeland Security commenced
removal proceedings against Saravia by filing a Notice to
Appear with the Immigration Court in Elizabeth, New Jersey.
In March 2016, Saravia conceded inadmissibility as charged
and all factual allegations in the Notice to Appear. Thereafter,
Saravia submitted Form I-859, applying for asylum and
withholding of removal.
Saravia testified before the Immigration Judge on
November 15, 2016. In the course of Saravia’s testimony, the
Immigration Judge asked several questions regarding
corroboration:
6
JUDGE TO MR. MELENDEZ-
SARAVIA
According to your earlier
testimony, you stated that a gang
member phoned your mother here
in the United States while you
were incarcerated by the State of
New Jersey.
MR. MELENDEZ-SARAVIA TO
JUDGE
Yes, I was – when I was detained
in 2015.
JUDGE TO MR. MELENDEZ-
SARAVIA
Okay. Now – and your mother
lives here in the State of New
Jersey now, is that right?
MR. MELENDEZ-SARAVIA TO
JUDGE
Yes, she lives in Patterson [sic].
...
JUDGE TO MR. MELENDEZ-
SARAVIA
7
Why hasn’t she come here to
testify about this threat, this recent
threat against you?
MR. MELENDEZ-SARAVIA TO
JUDGE
Yes, my mom is in the waiting
area. They never told us that they
needed her to do that type of
declaration.
JUDGE TO MS. AL-QALDA
[Melendez Saravia’s counsel]
Counsel, do we have a statement
from the mother attesting to that
element of the claim? I’m not
aware of one in the record.
MS. AL-QALDA TO JUDGE
I’m not aware of one in the record,
Your Honor, as well.
JUDGE TO MS. AL-QALDA
All right.
JUDGE TO MR. MELENDEZ-
SARAVIA
You also have a half-brother in the
United States, right, who recently
came to the United States?
8
MR. MELENDEZ-SARAVIA TO
JUDGE
Yes. Right.
JUDGE TO MR. MELENDEZ-
SARAVIA
Does he also reside now in the
State of New Jersey?
MR. MELENDEZ-SARAVIA TO
JUDGE
No, he lives in Boston,
Massachusetts.
JUDGE TO MR. MELENDEZ-
SARAVIA
Now, according to your testimony
he’s also aware – he also witnessed
recent threats against you from
gang members in El Salvador,
right?
MR. MELENDEZ-SARAVIA TO
JUDGE
Yes.
JUDGE TO MS. AL-QALDA
Counsel, do we have a statement
from this percipient witness?
9
MS. AL-QALDA TO JUDGE
We don’t.
JUDGE TO MS. AL-QALDA
All right. Is there any reason
why no corroboration was
offered from these two fact
witnesses?
MS. AL-QALDA TO JUDGE
Your Honor, there isn’t. We have
absolutely no excuse for that, but
simply the time constraints to
make sure that we were ready for
the individual and we were
collecting as much of the other
documents and having most of the
other documents and corroborating
evidence translated as well. 6
After asking whether there were any further questions
or witnesses—in context, witnesses immediately available for
that proceeding—the Immigration Judge adjourned the
proceeding. The record does not indicate any additional
proceedings prior to the Immigration Judge’s decision.
In a written decision issued on December 15, 2016, the
Immigration Judge denied Saravia’s application. He found
6
A346–47 (emphasis added).
10
Saravia to be a credible witness. 7 However, he found that
Saravia “failed to corroborate [] critical aspects of his claim,
including the alleged threats against him personally.” 8 The
Immigration Judge acknowledged this Circuit’s three-part
requirement when finding lack of corroboration, but ruled that,
because of the Board’s 2015 opinion in Matter of L-A-C-, 9 he
was not required to give Saravia “advance notice of the specific
corroborating evidence necessary to meet [his] burden of
proof.” 10
The Immigration Judge found that Saravia was
ineligible for asylum because he applied more than one year
after entering the United States.
Specifically, the Immigration Judge found that Saravia
had not met his burden for withholding of removal because he
failed to establish a “particular social group” in the purported
group of which he was a member: “young men looked at to be
recruited by then MS-13 gang in El Salvador.” 11
Applying Matter of M-E-V-G-, 12 the Immigration Judge
concluded that Saravia’s proposed social group was neither
7
A13 (“After careful consideration of the totality of the
circumstances and all relevant factors, the Court finds
Respondent credible.”).
8
A14.
9
26 I. & N. Dec. 516 (B.I.A. 2015).
10
Id. at 524.
11
A16. On appeal, Saravia’s counsel defines the group as
“young male Salvadorans who were recruited by gangs and
refused to join.” Petitioner’s Br. at 12.
12
26 I. & N. Dec. 227 (B.I.A. 2014).
11
sufficiently “socially distinct” nor sufficiently particular. He
further denied Convention Against Torture relief because
Saravia did not establish the probability that he would be
tortured if returned to El Salvador, and because he had not
established government participation, consent, or acquiescence
to any torture that would occur.
The Board, ignoring supplemental evidence provided
by Saravia on appeal (as required by law), affirmed. 13 In one
paragraph, it confused Saravia’s nation of origin, repeatedly
referring to his experiences in Honduras. It held that the
Immigration Judge properly applied M-E-V-G-. This petition
for review followed.
II. Jurisdiction and Standard of Review
We have jurisdiction to review a final order of the Board
dismissing an appeal of an Immigration Judge’s denial of an
alien’s application for withholding of removal and relief under
the Convention Against Torture under 8 U.S.C. § 1252(a)(1).
We may only consider the reasons provided by the Board, 14 but
13
See Matter of Fedorenko, 19 I. & N. Dec. 57, 73–74 & n.10
(B.I.A. 1984) (“[A]ll evidence which is pertinent to
determinations made during deportation proceedings, such as
the determination of the respondent's eligibility for suspension
of deportation, must be adduced in the hearing before the
immigration judge.”).
14
See Orabi v. Att’y Gen. of the U.S., 738 F.3d 535, 539 (3d
Cir. 2014) (“Because the [Board] did not reach its decision
based on this ground, we may not affirm the judgment on this
ground.”) (citing Sec. & Exch. Comm’n v. Chenery Corp., 332
U.S. 194, 196 (1947)).
12
where the Board “both adopts the findings of the [Immigration
Judge] and discusses some of the bases for the [Immigration
Judge’s] decision, we have authority to review the decisions of
both the [Immigration Judge] and the [Board].” 15 We defer to
the administrative findings of fact, which “are conclusive
unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 16 We review questions of law de
novo. 17
III. Discussion
Presented with a credible witness, the Immigration
Judge found that Saravia failed to sufficiently corroborate his
story. Contrary to our established precedent, the Immigration
Judge here failed to provide Saravia with notice and an
opportunity to provide that corroboration. In doing so, the
Immigration Judge relied on a decision of the Board that is
contrary to the law of this Circuit. Because Immigration
Judges in this Circuit must follow the law of this Circuit, we
will vacate and remand for further proceedings.
A. The Burden of Asylum and Related Relief
“The burden of establishing eligibility for asylum,
withholding of removal, and relief under [the Convention
Against Torture] is on the applicant.” 18 Saravia does not
15
Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004) (citing
Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004)).
16
8 U.S.C. § 1252(b)(4)(B).
17
Orabi, 738 F.3d at 539.
18
Toure v. Att’y Gen. of U.S., 443 F.3d 310, 317 (3d Cir. 2006)
(citing 8 C.F.R. § 208.13(a)).
13
petition this Court for review of the denial of his asylum
application. His asylum claim was denied as time-barred, as
he did not apply for asylum within one year of entering the
United States. Before us, he petitions for review of the denial
of his application for withholding of removal and the denial of
his application for relief under the Convention Against Torture.
Withholding of removal is relief from removal distinct
from asylum, although they are related. 19 To be eligible for
withholding of removal, the applicant must “establish that his
or her life or freedom would be threatened in the proposed
country of removal on account of race, religion, nationality,
membership in a particular social group, or political
opinion.” 20 “The testimony of the applicant, if credible, may
be sufficient to sustain the burden of proof without
corroboration.” 21 “Withholding of removal does not rely on
the perspective of the applicant’s well founded fear, but is
instead appropriate only if the Attorney General determines
that there is a ‘clear probability’ that the alien’s life or freedom
would be threatened upon her removal to a particular
country.” 22
19
See, e.g., 8 C.F.R. § 208.3(b) (“An asylum application shall
be deemed to constitute at the same time an application for
withholding of removal . . . .”); Chukwu v. Att’y Gen. of U.S.,
484 F.3d 185, 188 (3d Cir. 2007) (“Withholding of removal is
a remedy distinct from asylum and confers only the right not
to be deported to a particular country, rather than the right to
stay in this one.”).
20
8 C.F.R. § 1208.16(b).
21
Id.22
Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005) (quoting
INS v. Stevic, 467 U.S. 407, 412 (1984)).
14
To obtain relief under the Convention Against Torture,
the applicant must show “that it is more likely than not that he
would be tortured upon return to his country.” 23
The role of corroboration in sustaining an applicant’s
burden is identical in asylum, withholding of removal, and
relief under the Convention Against Torture. That role is
defined by two relevant statutory provisions. First, 8 U.S.C.
§ 1158(b)(1)(B)(ii), as amended by the REAL ID Act of
2005, 24 provides, with respect to asylum:
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
23
Chukwu, 484 F.3d at 189 (citing 8 C.F.R. § 1208.16(c)).
24
Pub. L. No. 109-13, Div. B, Title I, sec. 101, 119 Stat. 305,
310.
15
testimony, such evidence must be
provided unless the applicant does
not have the evidence and cannot
reasonably obtain the evidence. 25
This same provision applies to withholding of removal
and relief under the Convention Against Torture. 8 U.S.C. §
1231(b)(3)(C) provides that, for the purposes of withholding of
removal and relief under the Convention Against Torture, 8
U.S.C. § 1158(b)(1)(B)(ii) and 8 U.S.C. § 1158(b)(1)(B)(iii)
describe the manner in which “the trier of fact shall determine
whether the alien has sustained the alien’s burden of proof.” 26
Second, 8 U.S.C. § 1252(b)(4), as amended by the
REAL ID Act, prohibits a court from “revers[ing] a
determination made by a trier of fact with respect to the
availability of corroborating evidence . . . unless the court
finds, pursuant to subsection (b)(4)(B), that a reasonable trier
of fact is compelled to conclude that such corroborating
evidence is unavailable.” 27
B. The Abdulai Inquiry
Prior to the passage of the REAL ID Act, we concluded
in Abdulai v. Ashcroft that the Board’s rule requiring applicant
corroboration in certain cases was valid in principle, albeit
invalidly applied. 28 Our formulation of the rule, which has
come to be known as the “Abdulai inquiry” or “Abdulai
25
8 U.S.C. § 1158(b)(1)(B)(ii) (emphasis added).
26
8 U.S.C. § 1231(b)(3)(C).
27
Toure, 443 F.3d at 325.
28
239 F.3d 542, 554 (3d Cir. 2001).
16
analysis,” 29 imposes the following obligations on the
Immigration Judge when determining that a failure to
corroborate undermines the applicant’s claim:
(1) an identification of the facts for
which “it is reasonable to expect
corroboration;” (2) an inquiry as to
whether the applicant has provided
information corroborating the
relevant facts; and, if he or she has
not, (3) an analysis of whether the
applicant has adequately explained
his or her failure to do so. 30
Abdulai, however, predates the passage of the REAL ID
Act of 2005, which, among other things, modified the language
of § 1158(b)(1) and § 1252(b)(4). Prior to its amendment by
the REAL ID Act, § 1158(b)(1) did not specify the burden of
proof to be carried by the applicant, as now codified in
§ 1158(b)(1)(B)(ii). 31 Further, the REAL ID Act amended
§ 1252(b)(4) to prohibit a court from “revers[ing] a
determination made by a trier of fact with respect to the
availability of corroborating evidence,” with the exception
noted above. 32 Despite the statutory changes, we held in Toure
v. Attorney General of the United States, that the REAL ID Act
29
Chukwu, 484 F.3d at 193 (“The [Immigration Judge] thus
failed to satisfy the Abdulai analysis before penalizing Chukwu
for failing to corroborate his date of membership.”).
30
Abdulai, 239 F.3d at 554.
31
Toure, 443 F.3d at 325; REAL ID Act of 2005, Pub. L. No.
109-13, Div. B, Title I, sec. 101(a).
32
Pub. L. No. 109-13, Div. B, Title I, sec. 101(e).
17
and § 1252(b)(4) specifically do not “alter our rules that (1) an
[Immigration Judge] has a duty to develop an applicant’s
testimony . . . and (2) as a logical predicate to appellate review,
the [Board] must adequately explain the reasons for its
decisions.” 33 In other words, as we stated in Chukwu v.
Attorney General of the United States, “we cannot ascertain
whether the trier of fact would be compelled to find the
evidence unavailable unless the applicant is given a chance to
explain why he thinks it is unavailable.” 34
Thus, we recognized, in both Chukwu and Toure, that
satisfying Abdulai requires Immigration Judges to “give the
applicant notice of what corroboration will be expected and an
opportunity to present an explanation if the applicant cannot
produce such corroboration” under § 1252(b)(4). 35 Neither
Chukwu nor Toure, however, considered the amended
33
443 F.3d at 325. We note that the Immigration Judge’s
obligation to develop the record takes on particular importance
where a respondent in removal proceedings is not provided
counsel. A respondent has only “the privilege of being
represented, at no expense to the Government, by counsel of
the alien's choosing who is authorized to practice in such
proceedings.” 8 U.S.C. § 1229a(b)(4)(A). See Ponce-Levia v.
Ashcroft, 331 F.3d 369, 374 (3d Cir. 2003) (“It is well-
established that an alien at an immigration hearing has some
form of right to counsel. It is equally well-settled, though, that
‘there is no Sixth Amendment right to counsel in deportation
hearings.’”) (quoting Uspango v. Ashcroft, 289 F.3d 226, 231
(3d Cir. 2002)).
34
484 F.3d at 192 (describing reasoning of Toure).
35
Id. (citing Toure, 443 F.3d at 324).
18
provisions of § 1158(b)(1)(B)(ii), 36 and in Matter of L-A-C-,
the Board held that this provision requires neither notice nor an
opportunity to corroborate or explain the failure to
corroborate. 37 We now consider whether the Immigration
Judge’s failure to provide Saravia notice and opportunity to
corroborate is justified under Matter of L-A-C- and
§ 1158(b)(1)(B)(ii).
C. The Immigration Judge’s Failure to Provide
Notice and Opportunity to Corroborate
The Immigration Judge’s written decision reflects his
reliance on Matter of L-A-C-, the Board’s decision holding that
notice and opportunity to corroborate or explain the failure to
corroborate are not required under § 1158(b)(1)(B)(ii). Under
Matter of L-A-C- and its interpretation of § 1158(b)(1)(B)(ii),
the decision of the Immigration Judge understood Abdulai to
require only an evaluation of “Respondent’s reasons for not
submitting” corroborating evidence. 38 It held that Saravia’s
reasons were “inadequate.” 39
That interpretation of § 1158(b)(1)(B)(ii), however, is
not reasonable. 40 As noted, the last sentence in
§ 1158(b)(1)(B)(ii) states that “[w]here the trier of fact
36
Chukwu, 484 F.3d at 191 n.2; Toure, 443 F.3d at 326 n.9.
37
Matter of L-A-C-, 26 I. & N. Dec. at 523–24 (“Applicants
have the burden to establish their claim without prompting
from the Immigration Judge.”).
38
A14.
39
Id.
40
Cf. Chevron v. Nat. Res. Def. Council, Inc., 467 U.S. 837(1984).
19
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 [it].” Whether we construe under
§ 1252(b)(4)(D) or § 1158(b)(1)(B)(ii), we cannot conclude on
review that it was fair to require Saravia to provide further
corroboration without telling him so and giving him the
opportunity either to supply that evidence or to explain why it
was not available. Under any other rule, our review is not
meaningful. 41
That opportunity to supply evidence or explain why it is
not available can only occur before the Immigration Judge
rules on the applicant’s petition. To decide otherwise is
illogical temporally and would allow for “gotcha” conclusions
in Immigration Judge opinions. “Justice requires that an
applicant for asylum be given a meaningful opportunity to
establish his or her claim.” 42 Therefore, under the law in this
Circuit, the Immigration Judge was obligated to provide
Saravia with notice and an opportunity to corroborate his
claim.
We realize a circuit split exists on the purported
ambiguity of the last sentence of § 1158(b)(1)(B)(ii).
Compare, e.g., Gaye v. Lynch, 788 F.3d 519, 528-30 (6th Cir.
2015) (there is no notice requirement in corroboration cases);
Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009) (“the alien
bears the ultimate burden of introducing [corroborating]
41
See Abdulai, 239 F.3d at 555; Chukwu, 484 F.3d at 192
(citing Toure, 443 F.3d at 325).
42
Mulanga v. Ashcroft, 349 F.3d 123, 136 (3d Cir. 2003)
(quoting Senathirajah, 157 F.3d at 221).
20
evidence without prompting from the IJ”); and Rapheal v.
Mukasey, 533 F.3d 521, 530 (7th Cir. 2008) (same), with Ren
v. Holder 648 F.3d 1079, 1091-92 (9th Cir. 2011) (“[T]he
statute [§ 1158(b)(1)(B)(ii)] is clear. An applicant must be
given notice of the corroboration required, and an opportunity
to either provide that corroboration or explain why he cannot
do so.”); accord Zhi v. Holder, 751 F.3d 1088, 1095 (9th Cir.
2014).
While our result aligns with Ren, our rule derives
principally from the fact that we cannot have meaningful
judicial review without giving the applicant notice and an
opportunity to corroborate. See Chukwu, 484 F.3d at 192;
Toure, 443 F.3d at 325; see generally Reed at 562-66. The
record here reflects that the Immigration Judge did not give
Saravia notice or an opportunity to provide corroborating
evidence or explain its unavailability. At most, Saravia was
given the opportunity to explain, through counsel, why he had
not submitted corroborating evidence from his mother and
half-brother. 43 The Immigration Judge asked “[i]s there any
reason why no corroboration was offered from [Saravia’s
mother and half-brother]?” 44
The Immigration Judge’s question does not bear on the
requirements of Chukwu, Toure, and Abdulai. Whether
Saravia did not corroborate his testimony is a question entirely
different from whether he could not corroborate his testimony.
43
There appears to have been no previous discussion, let alone
notice, of Saravia’s failure to corroborate his claim of gang
violence in El Salvador. The Immigration Judge marked a
2015 State Department report into the record.
44
A347.
21
We have clarified, in Chukwu and Toure, that Abdulai is not
simply an inquiry into why an applicant submitted certain
things into evidence and not others, but whether evidence
corroborating an applicant’s testimony is available. For an
applicant to provide an explanation “if he cannot produce”
corroboration, 45 he must be provided an opportunity to produce
it. The decision of the Board is inconsistent with the law of
this Circuit. 46
In fact, as the Immigration Judge noted when asking
why Saravia’s mother had not testified, Saravia’s mother was
outside in the waiting area during the proceedings. Saravia
stated that “[t]hey never told us that they needed her to do that
type of declaration.” 47 Saravia’s half-brother was in Boston at
the time Saravia testified before the Immigration Judge. In this
case, it appears that Saravia, through counsel, did assert that
corroboration was available but had not been submitted due to
constraints of time and resources. Saravia appears to have
attempted to submit some corroborating evidence on appeal
before the Board. Although that is an improper venue to
submit new evidence, 48 it was also improper for the
Immigration Judge to deny Saravia notice and an opportunity
to produce the corroboration of his claims or an opportunity to
explain his failure if he could not do so.
45
Chukwu, 484 F.3d at 192 (citing Toure, 443 F.3d at 324).
46
See Abdulai, 239 F.3d at 553 (“The [Board] is required to
follow court of appeals precedent within the geographical
confines of the relevant circuit.” (citation omitted)).
47
A346.
48
See Matter of Fedorenko, 19 I. & N. Dec. 57, 73–74 & n.10
(B.I.A. 1984).
22
We do not reach the merits of Saravia’s application, nor
do we opine on the potential effect of intervening law on those
merits. 49 Because “it is impossible for us to determine whether
‘a reasonable trier of fact [would be] compelled to conclude
such corroborating evidence is unavailable’ unless a petitioner
is given the opportunity to testify as to its availability,” 50 we
will vacate and remand for a new corroboration
determination. 51
For the foregoing reasons, Saravia’s petition is granted
and the order of the Board of Immigration Appeals is vacated.
This case is remanded for further proceedings consistent with
this opinion.
49
See Matter of A-B-, 27 I. & N. Dec. 316, 320 (A.G. 2018)
(“Generally, claims by aliens pertaining to domestic violence
or gang violence perpetrated by non-governmental actors will
not qualify for asylum.”); S.E.R.L. v. Att’y Gen. of U.S., 894
F.3d 535, 549–55 (3d Cir. 2018) (granting Chevron deference
to the Board’s revised “particularity” and “social distinction”
analysis of particular social group).
50
Toure, 443 F.3d at 325 (quoting 8 U.S.C. § 1252(b)(4)(D)).
51
See id. (remanding for new corroboration determination).
23