Singh v. Holder (9th Cir. 2010)

In a dismaying decision which will have long term repercussions in all future asylum hearings, the 9th Circuit ruled that an immigration judge may require an applicant to provide corroborating documentary evidence to support his testimony, even if the applicant was credible.

Before May 11, 2005, it was well settled law in the 9th Circuit that an IJ may not require an asylum applicant to provide independent corroborative evidence if he or she testifies credibly in support of his or her application.  The applicant’s testimony alone, if it is unrefuted and credible, direct and specific, is sufficient to establish the facts to which he/she is testifying without the need for corroboration from other sources.  The REAL ID Act of 2005 changed all that.  According to the 9th Circuit, Congress, in passing the REAL ID Act, created a new evidentiary regime which is biased towards requiring corroborating evidence.  Although it may still be possible to establish facts and sustain the case with just credible testimony alone, an IJ may require that an applicant produce evidence which corroborates the testimony.   The IJ may do this even if he makes no finding that the applicant is not credible.  If the applicant is unable to offer corroboration, the IJ may conclude that despite the applicant’s credible testimony, he/she failed to meet the burden of proof.

The decision is alarming to immigration attorneys who represent asylum applicants because we understand the realities which often face persons who have left their home countries under challenging conditions.  Supporting documents can be scarce because persecuting authorities generally don’t leave a documentary trail of their activities.  When fleeing from persecution, a refugee will have little opportunity to collect sufficient evidence for a future asylum hearing.  Very few people outside the U.S. are knowledgeable about asylum laws and the process involved in establishing an asylum claim, so most asylum seekers would not be able to anticipate the facts which they are required to prove in order to establish their cases.  This is the reason that courts in the past have given much leeway to the testimony of applicants who are considered credible.  The reality is that a person’s account of the persecution he/she suffered is often times the only evidence which he/she is able to offer.  In an earlier ruling, the 9th Circuit recognized that, “common sense establishes that it is escape and flight, not litigation and corroboration, that is foremost in the mind of an alien who comes to these shores fleeing detention, torture and persecution.”

That broadminded sensibility seems to have been eliminated.  Now, an IJ may require that an applicant offer additional evidence to corroborate his testimony.  If the applicant is unable to do so, the IJ may deny his claim.  The silver lining in this case is the court’s admonishment that “corroboration may only be required where `it is reasonable to expect’ such evidence,” and, “ IJs are not to place unreasonable demands on an asylum applicant.”  The other silver lining is the dissenting opinion, which seems to be a much more well-reasoned interpretation of the REAL ID Act.  The dissent argued that an IJ, before requiring corroborating evidence, must first make a specific finding that the testimony provided on a particular fact was not credible.  Second, if the applicant is unable to provide the required evidence, he must be provided an opportunity to explain or cure before the IJ denies the claim.  No doubt that this case will be further appealed, because its consequences, if left unchallenged, are chilling.  I hope that the dissent’s position prevails in the end.