Rapheal, Colcer v. Mukasey, Michael B.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1391
C OLCER R APHEAL,
a/k/a A SHLEY A MBER M ANNING,
Petitioner,
v.
M ICHAEL B. M UKASEY, Attorney
General of the United States,
Respondent.
____________
On Petition for Review of an Order
of the Board of Immigration Appeals.
No. A99-024-532
____________
A RGUED N OVEMBER 2, 2007—D ECIDED JULY 2, 2008
____________
Before M ANION, R OVNER, and E VANS, Circuit Judges.
M ANION, Circuit Judge. Colcer Rapheal sought asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). An Immigration Judge (“IJ”)
denied Rapheal’s petitions, finding that she was not
credible and that without any evidence to corroborate
her claims of persecution and torture, she failed to estab-
lish a right to relief. Rapheal appealed to the Board of
Immigration Appeals (“Board”), and the Board affirmed
based solely on the lack of corroborative evidence. Because
2 No. 07-1391
Rapheal’s hearing before the IJ did not conform to statu-
tory requirements, we grant the petition for review and
remand for a new hearing.
I.
Colcer Rapheal is a native and citizen of Liberia. On
January 6, 2006, Rapheal flew from Germany to the United
States and illegally entered the United States in Chicago,
using a false United States passport issued to “Ashley
Amber Manning.” Rapheal initially claimed that she
was Manning and presented both a passport and a
driver’s license in Manning’s name. Only after immigra-
tion officers spoke with the real Manning by phone did
Rapheal admit that the passport was false. Rapheal, who
had been living in Nigeria and was also a citizen of
Nigeria based on her marriage to a Nigerian, then told
immigration officials that she was afraid to return to
Nigeria.
After the airport interview, on January 25, 2006, the
Department of Homeland Security (“DHS”) issued Rapheal
a Notice to Appear (“NTA”), charging her with
removability as an alien who sought to procure admis-
sion to the United States by fraud or willful misrepre-
sentation of a material fact, and falsely representing her-
self to be a United States citizen. Rapheal admitted to
removability, and the IJ found Rapheal removable as
charged and designated Germany, or alternatively
Liberia, as the country of removal.
Rapheal then applied for asylum, withholding of re-
moval, and CAT relief. On March 1, 2006, the IJ held a
hearing via video conference, at which Rapheal pre-
sented evidence and testified in support of her petitions.
No. 07-1391 3
Rapheal stated that her father, Michael Rapheal, was a
well-known doctor for former Liberian President Charles
Taylor and was “very active” in his regime in Liberia. This
conflicted with a handwritten notation added to a typed
immigration form stating that Rapheal’s maiden name
was Colcer Kocoker. The signature “Rapheal” appears
next to the added handwritten notation, as it does at the
end of the form. Rapheal also claimed that her family
was well known in Liberia as supportive of Taylor because
her father and mother often appeared in newspaper
photographs along with Taylor. Rapheal further testi-
fied that rebels blamed her father for acting as a voodoo
doctor for Taylor, using his skills to help Taylor “use
voodoo to trick and charm” Liberians, and that she was
forced to flee Liberia after the rebels murdered her
family and seriously injured her.
After fleeing Liberia, Rapheal went to a refugee camp
in Nigeria. Rapheal testified that while at the refugee
camp she was raped multiple times by camp guards and
when she resisted, the guards hit and burned her with a
metal rod. Rapheal also testified that a guard at the
camp cut her thumb off so that she could have a “taste of
the pain” that Taylor caused the Nigerian people. She
later married a Nigerian, John Clifford Bernard, whom
she had met at the camp, and together they had two
children. Bernard was murdered and then her children
were killed in a fire. Rapheal claims the fire was pur-
posely set by Nigerian government agents because of her
husband’s political activities.
The IJ found that Rapheal was not credible because
she had earlier told immigration officers that her maiden
name was Kocoker. Although Rapheal testified that she
had never heard the name Kocoker before, the IJ found
4 No. 07-1391
her testimony not credible given that she had signed the
earlier statement listing her maiden name as Kocoker. The
IJ determined that the inconsistencies relating to her
name and identity went to the heart of her claim that
she would be harmed in Liberia because the “vast major-
ity” of her claim “rests on her assertion that the Rapheal
name is well-known as a supporter of Charles Taylor.”
Further, the IJ noted that Rapheal had failed to submit
any corroborative evidence relating to her identity, her
parents’ identity, her husband’s identity, or evidence that
the Rapheal family was well-known in Liberia. Addition-
ally, the IJ found that she did not provide any explana-
tion for her lack of corroborative evidence. The IJ then
denied Rapheal asylum, withholding of removal, and CAT
relief because under the REAL ID Act she did not meet
“her burden of proof through credible, consistent testi-
mony or a combination of testimony and corroboration.” IJ
Decision at 27. The IJ ordered Rapheal removed to Ger-
many, with an alternate order of removal to Liberia.
Rapheal appealed to the Board. The Board dismissed
Rapheal’s appeal, concluding that the IJ properly found
that Rapheal failed to meet her burden of proof for
asylum, withholding of removal, and CAT relief because
“she did not provide corroborative evidence and could
have done so . . . .” Board Decision at 2. The Board con-
cluded that it need not reach the issue of Rapheal’s credi-
bility because Rapheal was not entitled to relief given
her lack of corroborative evidence. Rapheal petitions
this court for relief.
II
Rapheal petitioned for asylum, withholding of removal,
and CAT relief. In order to qualify for asylum, Rapheal
No. 07-1391 5
must show that she meets the statutory definition of
“refugee.” Tapiero de Orejuela v. Gonzales, 423 F.3d 666,
671 (7th Cir. 2005). A refugee is defined as an individual
who is unwilling to return to her native country “because
of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42). Even if a petitioner qualifies as a refugee,
asylum is still a discretionary decision. Angoucheva v.
INS, 106 F.3d 781, 788 (7th Cir. 1997). Conversely, a peti-
tion for withholding of removal must be granted if “the
alien’s life or freedom would be threatened . . . because
of the alien’s race, religion, nationality, membership in a
particular social group, or political opinion.” Firmansjah v.
Gonzales, 424 F.3d 598, 604-05 (7th Cir. 2005). However, to
establish entitlement to withholding of removal “the
applicant must demonstrate a ‘clear probability’ that he
or she will face persecution in the country to which he
or she will be removed.” Id. at 605. The “clear probability”
standard requires an applicant to show that it is “more
likely than not” that she will be subject to persecution
if returned to her native country, a more stringent test
than the standard for establishing eligibility for asylum.
Id. The standard for CAT relief differs: “Relief under the
CAT does not have to be on account of membership in
a social group or political opinion to qualify for relief.”
Pavlyk v. Gonzales, 469 F.3d 1082, 1090 (7th Cir. 2006).
However, to obtain relief under the CAT, Rapheal must
establish that it is more likely than not that if removed
she will be subject to torture. Boyanivskyy v. Gonzales, 450
F.3d 286, 292 n.3 (7th Cir. 2006).
On appeal, Rapheal does not distinguish between her
claims for asylum, withholding of removal, or CAT relief
6 No. 07-1391
(“petitions”). Rather, she asserts that the Board erred in
denying all of her petitions based on her failure to pro-
vide corroborating evidence. In making this argument,
Rapheal initially contends that our review is limited to the
Board’s rationale (and not the IJ’s) because the Board
issued its own free-standing opinion, as opposed to
adopting or supplementing the opinion of the IJ. Rapheal
is correct that “[w]hen the [Board] issues its own opin-
ion rather than adopting or merely supplementing the
opinion of the IJ, this court’s task is to review only the
opinion of the [Board].” Moab v. Gonzales, 500 F.3d 656, 659
(7th Cir. 2007). Conversely, “where the [Board’s] decision
merely supplements the opinion of the IJ, ‘the IJ’s opinion,
as supplemented by the [Board’s] opinion, becomes the
basis for review.’ ” Id. (quoting Liu v. Ashcroft, 380 F.3d 307,
311 (7th Cir. 2004)). The government counters that the
Board’s decision was a single-member decision, issued
pursuant to 8 C.F.R. § 1003.1(e)(5),1 that affirmed in part
1
Section 1003.1(e)(5) provides: “Other decisions on the merits
by single Board member. If the Board member to whom an
appeal is assigned determines, upon consideration of the merits,
that the decision is not appropriate for affirmance without
opinion, the Board member shall issue a brief order affirming,
modifying, or remanding the decision under review, unless the
Board member designates the case for decision by a three-
member panel under paragraph (e)(6) of this section under
the standards of the case management plan. A single Board
member may reverse the decision under review if such reversal
is plainly consistent with and required by intervening Board
or judicial precedent, by an intervening Act of Congress, or by
an intervening final regulation. A motion to reconsider or to
reopen a decision that was rendered by a single Board member
(continued...)
No. 07-1391 7
and supplemented in part the IJ’s decision, and thus we
review the IJ’s decision as supplemented by the Board.
There is nothing in the text of the Board’s decision to
indicate whether it was issued pursuant to § 1003.1(e)(5) or
was a three-member panel decision issued pursuant to
§1003.1(e)(6). In the final analysis, though, as explained
below, our decision would be the same whether we
were reviewing the Board’s decision only or the IJ’s
decision as supplemented by the Board. However, in the
future the Board should exercise greater care in identi-
fying whether its decision is intended to be a stand-alone
decision or rather a supplement to the IJ’s decision.
That brings us back to Rapheal’s claim that the Board
erred in requiring her to provide corroborative evidence.
More specifically, Rapheal claims that the Board could
not require her to provide corroborative evidence with-
out making an explicit credibility finding. In support of
her argument, Rapheal cites Gontcharova v. Ashcroft, 384
F.3d 873, 877 (7th Cir. 2004). In that case, this court estab-
lished a three-part inquiry for reviewing a Board’s denial
of asylum based on the lack of corroboration. Specifically,
this court held that if the Board denies asylum based on
the lack of corroboration, the agency’s explanation
should include “(1) an explicit credibility finding; (2) an
explanation of why it is reasonable to expect additional
corroboration; and (3) an account of why the petitioner’s
explanation for not producing that corroboration is
inadequate.” Id. Rapheal argues that the Board’s decision
1
(...continued)
may be adjudicated by that Board member unless the case is
reassigned to a three-member panel as provided under the
standards of the case management plan.”
8 No. 07-1391
must be reversed because it did not satisfy the mandate
of Gontcharova.
Rapheal’s reliance on Gontcharova is misplaced because
Congress has since enacted the REAL ID Act of 2005,
which amended the law regarding credibility and corrobo-
ration for asylum and withholding of removal cases. Our
decision in Gontcharova came before passage of the REAL
ID Act and interpreted a predecessor regulation, 8 C.F.R.
§ 208.13(a). Gontcharova, 384 F.3d at 876. That regulation
provided that for purposes of establishing eligibility for
asylum, “[t]he testimony of the applicant, if credible, may
be sufficient to sustain [her] burden of proof without
corroboration.” 8 C.F.R. § 208.13(a). Prior to the REAL ID
Act, the Board interpreted the phrase “may be sufficient”
in § 208.13(a) “to mean that the applicant’s testimony,
though credible, will not always be sufficient.” Gontcharova,
384 F.3d at 876 (emphasis in original). More specifically,
in Matter of S-M-J, 21 I. & N. Dec. 722, 725 (BIA 1997),
the Board adopted the corroboration rule that provides
that under § 208.13(a), “where it is reasonable to expect
corroborating evidence for certain alleged facts per-
taining to specifics of an applicant’s claim, evidence
should be provided . . . [or] an explanation should be
given as to why such information was not presented.”
Gontcharova, 384 F.3d at 876 (quoting Matter of S-M-J, 21
I. & N. Dec. at 725).
We explained in Gontcharova that the Board’s interpreta-
tion of § 208.13(a) is not the only one possible, and then
explained the then-existent circuit split: The Second and
Third Circuits endorsed the Board’s interpretation of the
regulation, while the Ninth Circuit interpreted the reg-
ulation as meaning that it “does not require corrobora-
tive evidence . . . from applicants for asylum and with-
No. 07-1391 9
holding of deportation who have testified credibly.”
Gontcharova, 384 F.3d at 876 (quoting Ladha v. INS, 215 F.3d
889, 899 (9th Cir. 2000)). We then noted in Gontcharova
that “[w]e have expressed skepticism about the use of the
corroboration rule to discount otherwise credible testi-
mony.” Id. at 877. However, rather than rejecting the
Board’s corroboration rule out of hand, we held that “[i]n
order that we may review its application, . . . an IJ must
explain his use of it,” and set forth the three-step inquiry
noted above. Id. at 877.
The REAL ID Act, however, codified the corroboration
rule, overriding any judicial skepticism of the Board’s
interpretation of § 208.13(a) expressed in Gontcharova.
Specifically, the REAL ID Act provides that “[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.” 8 U.S.C. § 1158(b)(1)(B)(ii). The REAL ID Act,
thus, changed the framework for reviewing cases in which
the Board rejects a petition for asylum based on the lack of
corroborating evidence. See Eke v. Mukasey, 512 F.3d 372,
381 (7th Cir. 2008) (noting that “[t]he Real ID Act changed
the landscape for our review of this type of claim,” namely
claims that the IJ erred in requiring corroborating evi-
dence). Under the REAL ID Act, if the fact-finder deter-
mines that an applicant should provide corroborating
evidence, corroborating evidence is required unless the
applicant cannot reasonably obtain that evidence. More-
over, under the REAL ID Act, corroborating evidence
may be required even if the applicant is credible. 8 U.S.C.
§ 1158(b)(1)(B)(ii). By codifying the corroboration rule,
Congress removed any doubt as to the validity of that
rule. Thus, the Gontcharova three-part test, established
10 No. 07-1391
for purposes of assessing the validity of the INS’s de-
batable interpretation of the corroboration rule, no
longer controls.
Although Gontcharova no longer controls, given the
nature of the Board’s ruling (along with the IJ’s to the
extent we consider it), we conclude that, in this case, the
Board needed to consider Rapheal’s credibility before
ruling on the need for corroborative evidence. That is
because in ruling that Rapheal needed to provide cor-
roborative evidence (given the conflicting documents in
the record), the Board treated Rapheal as if she were
not credible. The Board did this, though, without first
reviewing the IJ’s credibility finding. Specifically, the
Board stated that although Rapheal’s father’s name is
Michael Rapheal, Rapheal had told the asylum officer
that her maiden name was “Kocoker.” The Board added
that Rapheal’s signature appeared on the immigration
form by a handwritten notation that her maiden name
was “Kocoker.” Rapheal, however, testified before the IJ
that she had never heard of the word Kocoker and had
told the immigration officials that her maiden name was
Rapheal and had also told them that there were mis-
takes on the immigration form, which they had promised
to correct. Had the Board found Rapheal credible, that
would mean that the immigration officials had incor-
rectly noted Kocoker as Rapheal’s maiden name, and
the disparity would not serve as a basis for requiring
corroborative evidence. Similarly, to the extent we con-
sider the IJ’s decision, the IJ’s holding that Rapheal must
provide corroborative evidence was directly tied to the IJ’s
finding that she was not credible. Specifically, after thor-
oughly analyzing Rapheal’s petitions, the IJ concluded:
The respondent indicates that the only basis for her
mistreatment is that (sic) her family’s notoriety and
No. 07-1391 11
association with the former government of Charles
Taylor. I have previously found that the respondent’s
evidence relating to a nexus between alleged harm
and her family connection is not credible. The respon-
dent’s testimony on that issue was inconsistent and not
corroborated. The respondent’s uncorroborated inconsis-
tent testimony fails to meet the burden that it is more
likely than not that she would be tortured on that
basis as well.
IJ Decision at 28 (emphasis added).
This passage, along with the reasoning the IJ em-
ployed throughout its opinion, makes clear that the IJ
determined that corroborative evidence was required
because Rapheal was not credible. This is not a case of the
IJ ruling alternatively, i.e., holding that even if Rapheal
were credible, her petition would be denied because of the
lack of corroborative evidence. Similarly, in analyzing the
need for corroborative evidence, the Board also noted the
discrepancy between Rapheal’s current testimony and the
immigration forms—which Rapheal claims contained
errors. While the REAL ID Act provides that the govern-
ment may require corroborative evidence even if the
petitioner is credible, it also provides that “[t]he testimony
of the applicant may be sufficient without corroboration,
but only if the applicant’s testimony is credible, is persua-
sive and refers to specific facts.” 8 U.S.C. § 1158(b(1)(B)(ii).
Thus, if the Board (or IJ) had found Rapheal’s testimony
credible, Rapheal might not have been required to provide
corroboration. Yet on appeal, the Board bypassed the
credibility finding, while presenting the conflicting facts as
if she were not credible. The credibility finding was also
inextricably intertwined with the IJ’s ruling on the need
for corroborative evidence. Accordingly, before relying on
12 No. 07-1391
disputed evidence about what Rapheal had said her
maiden name was, the Board needed to determine whether
Rapheal was credible.
Rapheal also claims that the Board erred in denying her
petitions because it was unreasonable for the Board to
expect her to present corroborative evidence of her
father’s relationship with Charles Taylor. The IJ also
believed that Rapheal needed to provide evidence to
corroborate her identity, given the conflicting evidence
concerning Rapheal’s name, maiden name, and hus-
band’s name. Rapheal maintains that there was no way
for her to provide corroborative evidence in the form of
newspaper articles or other documentary support to
show her father’s relationship with Taylor, given that
she was fleeing for her life and did not have time to
accumulate old newspaper articles. She adds that given
the chaos in Liberia, such evidence is not available.
Rapheal further claims that she could not obtain corrobo-
rating evidence while detained in the United States;
however, if detention in the United States was sufficient
for finding such evidence unavailable, corroborating
evidence could rarely be required. Rapheal has the bur-
den of proof in asylum cases, see 8 U.S.C. § 1158(b)(1)(B)(I),
and thus must prove that corroborative evidence is not
reasonably available. Yet in this case, Rapheal did not
present any evidence to the IJ indicating that she at-
tempted to obtain corroborative evidence, either per-
sonally or with the assistance of others. In fact, when the
IJ asked whether any corroborating evidence existed, this
exchange occurred:
Q: Now ma’am, you had testified that your father
was well-known in Liberia. Is that correct?
A: Yes, sir.
No. 07-1391 13
Q: And ma’am, if he is so well-known in Liberia, why
have you not been able to present anything to me,
to show that he was well-known in Liberia?
A: Because I didn’t leave home in peaceful home.
I didn’t left home with peace.
Q: Well, is there any information anywhere in the
media regarding your family in Liberia?
A: I wouldn’t know. I wouldn’t know.
While Rapheal offered a plausible explanation for why
she did not bring corroborating evidence with her when
she fled, Rapheal’s response that she “wouldn’t know”
whether there was any information anywhere in the
media regarding her family indicated that she did not
make any attempt to obtain corroborative evidence.
Moreover, during the hearing before the IJ, Rapheal did
not claim that she attempted to locate corroborative
evidence, nor did she indicate that such evidence would
be unavailable. Under these circumstances, and given
that the burden of proof is on Rapheal, we cannot say
that the IJ or the Board erred in holding that corrobo-
rating evidence was reasonably attainable. See 8 U.S.C.
§ 1252(b)(4) (“No court shall reverse a determination
made by a trier of fact with respect to the availability of
corroborating evidence . . . unless the court finds . . . that
a reasonable trier of fact is compelled to conclude that
such corroborating evidence is unavailable.”).2
2
It is reasonable to believe that Liberian libraries or the
newspaper publishers themselves retain older newspapers, or
universities in other parts of the world that study Liberia
maintain a collection of Liberian newspapers or television
(continued...)
14 No. 07-1391
Rapheal responds that before ruling against her for
failing to produce corroborative evidence, the IJ needed
to warn her of the need for such evidence and that the
IJ’s failure to do so violated her due process rights. Initially
we note that because on appeal Rapheal continues to
maintain that it would be impossible to obtain any cor-
roborative evidence, the IJ’s failure to warn her could not
prejudice her. In any event, Rapheal did not raise this
issue before the Board. “Although petitioners generally
do not have to exhaust due process claims administra-
tively, they must raise such claims below when alleging
procedural errors correctable by the BIA.” Sharashidze v.
Gonzales, 480 F.3d 566, 570 (7th Cir. 2007). Had Rapheal
raised this issue before the Board it could have, if appro-
priate, remanded the case to the IJ. Therefore, we lack
jurisdiction to review her claim. See 8 U.S.C. § 1252(d)(1)
(noting that a court may review an agency’s final order
only if the alien has exhausted all administrative rem-
2
(...continued)
broadcasts. Likewise, it is possible that Rapheal could obtain
some evidence to corroborate her and her family’s identity
and other aspects of her testimony. In noting these possibilities,
we are fully cognizant that documentation in disordered nations
and Third World nations is not “as regular, multicopied, and
ubiquitous . . . as in the United States.” Hor v. Gonzales, 421
F.3d 497, 501 (7th Cir. 2005). However, Rapheal bears the burden
of showing that corroborative evidence is not reasonably
obtainable and she must do more than just say, in effect,
I couldn’t get any supporting evidence. Moreover, as noted
below, see infra at 22-23, corroborative evidence is the only
hope for Rapheal if the IJ finds that she is not credible and, thus,
there is a need for Rapheal to explore every possible avenue
for corroborative evidence.
No. 07-1391 15
edies as of right). Finally, we add that the REAL ID Act
clearly states that corroborative evidence may be required,
placing immigrants on notice of the consequences for
failing to provide corroborative evidence. See 8 U.S.C.
§ 1158(b)(1)(B)(ii) (“Where the trier of fact determines
that the applicant should provide evidence that corrobo-
rates otherwise credible testimony, such evidence must be
provided unless the applicant does not have the evidence
and cannot reasonably obtain the evidence.”). To hold
that a petitioner must receive additional notice from the
IJ and then an additional opportunity to provide corrobo-
rative evidence before an adverse ruling, would neces-
sitate two hearings—the first to decide whether such
corroborating evidence is required and then another
hearing after a recess to allow the alien more time to
collect such evidence. This would add to the already
overburdened resources of the DHS, and such an ap-
proach would seem imprudent where the law clearly
notifies aliens of the importance of corroborative evidence.
Normally, at this point we would remand the case to the
Board to rule on Rapheal’s credibility, and then based on
the Board’s credibility holding, to rule anew on the need
for corroborative evidence. However, in this case, Rapheal
also argues that the hearing before the IJ violated her
due process and statutory rights. Specifically, Rapheal
argues that the IJ violated her due process and statutory
rights by holding the hearing on her petitions via video
conference, as opposed to in person. Accordingly, we
must now determine whether Rapheal is entitled to a
new hearing before the IJ.
In arguing that her due process rights were violated,
Rapheal first argues, in effect, that 8 C.F.R. § 1003.25(c) is
facially unconstitutional. See Appellant Brief at 30 (“[T]he
16 No. 07-1391
use of video conferencing in removal proceedings denies
aliens seeking asylum a meaningful opportunity to effec-
tively present their case. Accordingly, this court should
declare that 8 C.F.R. § 1003.25(c) is unconstitutional
because it infringes upon aliens’ right to due process.”)
Section 1003.25(c) provides:
Telephonic or video hearings. An Immigration Judge
may conduct hearings through video conference to the
same extent as he or she may conduct hearings in
person. An Immigration Judge may also conduct a
hearing through a telephone conference, but an evid-
entiary hearing on the merits may only be conducted
through a telephone conference with the consent of
the alien involved after the alien has been advised of
the right to proceed in person or, where available,
through a video conference, except that credible fear
determinations may be reviewed by the Immigration
Judge through a telephone conference without the
consent of the alien.
8 C.F.R. § 1003.25(c).
Congress specifically authorized proceedings by means
of a video conference. See 8 U.S.C. § 1229a(b)(2)(A)(iii). “In
cases claiming due process violations in immigration
proceedings, we recently have reminded petitioners that
proceedings which meet the statutory and regulatory
standards governing the conduct of removal hearings, as a
general rule, comport with due process.” Alimi v. Gonzales,
489 F.3d 829, 834 (7th Cir. 2007). Only where Congress has
“adopted some specific rule that is open to constitutional
doubt” would it “be necessary (and appropriate) to con-
sider constitutional claims.” Rehman v. Gonzales, 441 F.3d
506, 508 (7th Cir. 2006). Rapheal has not shown any
doubt about the constitutionality of hearings via video
No. 07-1391 17
conference. No court has ever held that Congress has
violated the due process clause by authorizing removal
hearings to proceed via video conference. See Eke, 512
F.3d at 382. In fact, the Fourth Circuit found that a
video conference hearing satisfied the due process re-
quirement set forth in Mathews v. Eldridge, 424 U.S. 319,
333-34 (1976), and provided the petitioner with an “oppor-
tunity to be heard at a meaningful time and in a mean-
ingful manner,” even though the three-hour hearing “was
plagued by communication problems.” See Rusu v. INS,
296 F.3d 316, 319, 324 (4th Cir. 2002).3 In short, Rapheal’s
facial challenge to the constitutionality of video
conferencing fails because Congress authorized such
proceedings and those proceeding provide an adequate
opportunity to be heard in a meaningful manner and at
a meaningful time. See Mathews, 424 U.S. at 333-34.
Rapheal also challenges the use of video conferencing in
her case (i.e., an as-applied challenge), claiming that
the video conference proceedings prevented her from
having an opportunity to be heard in a meaningful man-
ner. Rapheal’s as-applied argument does not challenge
the validity of the statutes and procedures that governed
her removal proceeding. “We have remarked before on
the tendency of flabby constitutional arguments to dis-
place more focused contentions. . . . Aliens should stick
with claims based on the statutes and regulations unless
they believe that one of these rules violates the Constitu-
tion or that lacunae in the rules have been filled with
defective procedures.” Rehman, 441 F.3d at 508-9. Because
3
This court in Eke also rejected a due process challenge to
video conferencing, albeit by concluding that there was no
prejudice. Eke, 512 F.3d at 383.
18 No. 07-1391
Rapheal’s as-applied challenge (as opposed to her facial
challenge) is not based on a claim that the rules them-
selves violate the Constitution, the appropriate focus is
not on constitutional principles, but on the statutory
procedures established for removal procedures, see Rehman,
441 F.3d at 509, which Rapheal also challenges.
First, Rapheal argues that the use of video confer-
encing violated her statutory right to legal representation.
Section 1229a(b)(4)(A) defines the statutory right at issue,
providing: “In proceedings under this section, under
regulations of the Attorney General-(A) the alien shall have
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). Rapheal claims the use of video con-
ferencing interfered with her ability to consult with
her attorney because her attorney was forced to either be
with her at the distant site, or be in the courtroom
where she would have superior access to evidence and
the ability to confer with the court and opposing counsel.
Rapheal also claims that the video conference arrange-
ment prevented her from conferring confidentially with
her attorney.
Although attorneys might not like having to choose
between sitting beside their clients or before the IJ, under
either scenario the alien receives the benefit of legal
representation. Moreover, there is nothing in the record
in this case to indicate that the video conferencing inter-
fered with Rapheal’s attorney’s representation. To the
contrary, the transcript of the hearing demonstrates that
Rapheal was ably represented. Rapheal counters that the
video conferencing prevented her from consulting confi-
dentially with her attorney. However, neither Rapheal
No. 07-1391 19
nor her attorney at any time during the hearing re-
quested to talk in private. Therefore, Rapheal cannot
now complain that she was prevented from conferring
confidentially with her attorney. Accordingly, under the
circumstances of this case we conclude that Rapheal’s
statutory right to legal representation was not violated.
Rapheal also argues that the video conference prevented
the government from contemporaneously transferring
documents between the detention facility and the court-
room and left her without an opportunity to review the
evidence against her. Again, although Rapheal presents
this as both a constitutional and statutory challenge, as
we have said, “[t]here is no need to invoke the Constitu-
tion when the immigration statute itself guarantees a
fair hearing.” Kadia v. Gonzales, 501 F.3d 817, 824 (7th Cir.
2007). In this case, the statutory right is found in 8 U.S.C.
§ 1229a(b)(4)(B), which provides that “the alien shall
have a reasonable opportunity to examine the evidence
against the alien, to present evidence on the alien’s own
behalf, and to cross-examine witnesses presented by the
Government.”
Whether a video conference allows aliens a reasonable
opportunity to examine the evidence against them will
depend on the circumstances. In most cases, documents
can be properly examined from afar by the alien. Or those
documents might not be material to the case or the IJ’s
decision. 4 In this case, however, the Record of Sworn
Statement (“Immigration Report”) was material to
Rapheal’s case, and the IJ relied on it in finding Rapheal
4
Of course, the government could always arrange to have
a second set of documents available at the distance-site for
review by the alien.
20 No. 07-1391
not credible. The Immigration Report was a summary
prepared by immigration officials of what Rapheal told
them during their questioning of her, and the Immigra-
tion Report contained a handwritten notation listing
Rapheal’s maiden name as Kocoker. Although Rapheal
testified that she never heard the name Kocoker, the IJ
found that Rapheal was not credible because the Immigra-
tion Report indicated that she had earlier told immi-
gration officers that her maiden name was Kocoker.
Thus, the Immigration Report proved highly relevant to
Rapheal’s case and the IJ’s decision. Rapheal claims that
given the weight the IJ placed on this handwritten nota-
tion, she should at least have had the opportunity to re-
view the document, but was unable to do so because of
her remote location. While the transcript in this case
reflects references made to the Immigration Report,
nowhere does it indicate that Rapheal was actually able to
see the document. Moreover, the record contains only a
written transcript of the proceedings, so we have no video
recording to determine whether Rapheal was shown the
Immigration Report, and if so, whether she was able to
adequately view the document. Under these circumstances,
we must conclude that the IJ denied Rapheal her rights
under 8 U.S.C. § 1229a(b)(4)(B) to a reasonable opportunity
to examine evidence used against her.5
5
Rapheal also claims that the government violated her statu-
tory right to a “reasonable opportunity to present evidence on
[her] own behalf.” 8 U.S.C. § 1229a(b)(4)(B). At the video
conference hearing, Rapheal presented testimony from a
doctor who treated her and she testified on her own behalf.
While there were some sections of the proceedings where
Rapheal’s testimony was incomprehensible, it appears the
(continued...)
No. 07-1391 21
The government argues that Rapheal’s due process
claims (reframed above in their proper statutory form) fail
because she cannot prove prejudice. To succeed on a claim
that she did not receive a fair hearing, Rapheal must
demonstrate prejudice. Hussain v. Keisler, 505 F.3d 779,
781 (7th Cir. 2007). We have explained that prejudice
means that the lack of a fair hearing “actually had the
potential for affecting the outcome” of the proceedings. See
Kuciemba v. INS, 92 F.3d 496, 501 (7th Cir. 1996) (internal
citation omitted).
In this case, although Rapheal’s attorney did not object
to the admission of the document, during the hearing
Rapheal testified that there were mistakes on the form
and that she had told the immigration officers of those
mistakes and that they had promised to correct them. Yet
at the hearing, Rapheal did not have an opportunity to
review the Immigration Report or the handwritten nota-
tion listing her maiden name as “Kocoker” or what pur-
ported to be her signature next to the notation. Rapheal’s
review of the Immigration Report and her testimony after
reviewing the Immigration Report has the potential for
affecting the IJ’s view of her credibility and in turn the
outcome of this case.6 Accordingly, Rapheal is entitled to
5
(...continued)
difficulty flowed from the speed of Rapheal’s testimony (as the
IJ and her attorney had to request several times that she
slow down), rather than the video conference technology. In
any event, we have reviewed the entire transcript and con-
clude that the video conference did not interfere with Rapheal’s
ability to present evidence on her own behalf.
6
The Immigration Report included Rapheal’s signature on
page two next to the handwritten notation stating her maiden
(continued...)
22 No. 07-1391
a new hearing. Of course, at the new hearing, the IJ
might nonetheless find Rapheal not credible, but that
will only be after Rapheal has received the statutory
rights guaranteed her by Congress.
In closing, we note that because the government denied
Rapheal a hearing that conformed to her statutory rights,
she is entitled to a new hearing and at that new hearing
there is no reason that Rapheal cannot provide any corrob-
orating evidence she has been able to obtain. While, on
appeal, her attorney claimed there was no way to obtain
corroborating evidence, we have posited some possible
avenues of inquiry. If none pans out, then Rapheal could at
least testify about her efforts to obtain corroborating
evidence. Alternatively, on remand after a new hearing, the
IJ may find Rapheal credible and that there is no need for
corroborative evidence or that corroborative evidence is
unavailable based on additional evidence of Rapheal’s
attempts to locate such evidence. However, if the IJ
again finds that Rapheal is not credible, without corrob-
orative evidence she will be unable to succeed on her
claims for relief. See 8 U.S.C. § 1158(b)(1)(B)(ii) (“The
testimony of the applicant may be sufficient to sustain the
6
(...continued)
name as “Kocoker.” Rapheal’s signature also appeared at the
end of the Immigration Report, where she verified that her
answers are “true and correct” and that the “statement is a
full, true and correct record of my interrogation.” The Immigra-
tion Report then states that Rapheal initialed each page of the
statement and the corrections noted on pages six and seven.
However, as noted above, Rapheal also initialed page two of
the statement next to the addition of “Kocoker” as her maiden
name.
No. 07-1391 23
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.”). Finally, we note that although video
conferencing is available and satisfies constitutional and
statutory standards, in this case the government’s decision
to hold a video conference seems strange because the
government had to transport Rapheal a greater distance
to participate in the video conferencing than the distance
it would have had to bring her to attend the hearing
live before the IJ. On remand, we encourage the IJ
to consider anew Rapheal’s request for an in-person
hearing, given the logistics involved in this case.7
III.
Congress authorized the use of video conferencing for
immigration hearings and, facially, this authorization
comports with the requirements of due process. While
Rapheal also presents an as-applied due process chal-
lenge, those claims are properly considered as challenges
to the claimed denials of her statutory rights. The use of
video conferencing, even though it separates attorneys
from their clients, does not violate the statutory right to
representation and, in this case, did not deny Rapheal
her right to representation. The hearing also provided
7
On appeal, Rapheal also argues that the IJ abused its discre-
tion in denying her an in-person hearing. We need not reach
this issue, however, because we are remanding the case for a
new hearing and on remand the IJ may exercise its discretion
differently.
24 No. 07-1391
Rapheal with a reasonable opportunity to present evidence
on her own behalf. However, from the record in this
case, we conclude that Rapheal did not have a chance to
review the Immigration Report admitted against her. Given
the significance the IJ placed on the handwritten nota-
tion of “Kocoker” in the Immigration Report, remand is
required to allow Rapheal to review that document and to
testify following her review of the document. On remand,
because Rapheal is entitled to a new hearing that comports
with statutory requirements, Rapheal is free to present
any corroborative evidence she has obtained. The IJ is
also free to judge her credibility and the need for corrobo-
rative evidence, as consistent with the evidence presented
at the new hearing. We G RANT the petition for review and
R EMAND for proceedings consistent with this opinion.
USCA-02-C-0072—7-2-08