Minea Soeung v. Eric H. Holder, Jr., Attorney General

United States Court of Appeals
For the First Circuit
No. 10-1545
MINEA SOEUNG,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lipez, and Howard, Circuit Judges.
David L. Yavner for petitioner.
Jesse Matthew Bless, Trial Attorney, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
with whom Tony West, Assistant Attorney General, Anthony C. Payne,
Senior Litigation Counsel, and Jennifer Paisner Williams, Senior
Litigation Counsel, were on brief, for respondent.
April 25, 2012

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LIPEZ, Circuit Judge. Minea Soeung, a native and citizen
of Cambodia, entered the United States on a non-immigrant visitor
visa, overstayed, and timely applied for asylum, withholding of
removal, and protection under the Convention Against Torture
("CAT"). An immigration judge ("IJ") denied Soeung's application
for relief. After the Board of Immigration Appeals ("BIA")
dismissed Soeung's appeal, he petitioned for review of the BIA's
order. We grant the petition, vacate the BIA's order, and remand
for further proceedings.
I.
Entering the United States on a non-immigrant visitor
visa on September 6, 2003, Soeung was authorized to remain in this
country until March 6, 2004. He overstayed his visa and, on May
11, 2004, applied for asylum, withholding of removal, and
protection under the CAT. On February 4, 2005, the Department of
Homeland Security issued Soeung a notice to appear, charging him
with removability as an alien who had remained in the United States
longer than authorized. See 8 U.S.C. § 1227(a)(1)(B). In an
appearance before an IJ, Soeung conceded removability but also
renewed his application for asylum, withholding of removal, and
protection under the CAT. 1 A merits hearing was held on November
7, 2007.
1 The date of Soeung's initial appearance before the IJ does
not appear in the record.
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Soeung claimed past harassment and a fear of further
reprisal for his antagonism to the ruling Cambodian People's Party
and the government of Cambodian Prime Minister Hun Sen. Soeung is
a member of the opposition Sam Rainsy party in Cambodia. Between
July 2002 and September 2003, in his capacity as an immigration
officer at Cambodia's largest airport, he covertly gave sensitive
information concerning terrorist activities in Cambodia to an
employee of the United States government, Amy Fox. Specifically,
Soeung leaked information to Fox about the entry into Cambodia of
terrorists affiliated with Al Qaeda and Jemaah Islamiyah. These
leaks subverted the interests of the Hun Sen government, which was
receiving bribes to turn a blind eye to the presence of Islamic
terrorists in Cambodia. Fox warned Soeung that disclosing their
involvement with one another would endanger them both.
Nevertheless, the Hun Sen government discovered Soeung's dealings
with Fox, and Soeung was interrogated and threatened with arrest
and death. In fear, Soeung enlisted Fox's help to escape Cambodia
in September 2003. He has not attempted to contact her and does
not know her current whereabouts.
The IJ detected a number of inconsistencies both within
Soeung's testimony and between Soeung's testimony and his
application. For example, the IJ observed that Soeung's
application describes his former position as a "section deputy
chief, in charge of all activities at the port of entry." Soeung
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testified that he was a "second lieutenant." Soeung also referred
to Fox in his testimony as both the "deputy chief of the consul"
and an employee of the Central Intelligence Agency ("CIA"). His
application identifies Fox as the "third secretary vice counsel
political officer of the embassy of the United States in Cambodia."
Although the IJ noted that these and other
inconsistencies "would not necessarily have doomed [Soeung's]
application for relief," she explained that corroborating evidence
of Soeung's involvement with Fox "would have been critical" to
establishing Soeung's right to relief. The IJ continued:
The significant omissions from [Soeung's]
application for relief are the lack of any
corroborating evidence from the United States
Government. There is no letter from Amy Fox
nor any other official at the United States
Embassy or Consulate in Cambodia, nor any
letter from any State Department official or
CIA official in the United States that would
bolster [Soeung's] claim that he, in fact,
provided information to the United States
Government at risk to himself. Because of the
inconsistencies noted above, this
corroborating information is critical. Had it
been provided, the outcome of the case might
very well have been different.
Accordingly, the IJ denied Soeung's application for relief. Soeung
neither requested nor was offered a continuance to obtain any
corroborating evidence.
In response to Soeung's appeal, the BIA remanded his case
to the IJ for an explicit credibility finding, noting that the IJ
"discussed various inconsistencies and omissions, and found that
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[Soeung] failed to provide reasonably available corroboration to
establish a claim, but . . . failed to make an explicit credibility
finding." On May 13, 2009, the IJ issued a memorandum clarifying
that she had not made an adverse credibility finding and that
Soeung's application "was not denied for lack of credibility, but
rather, in part, for lack of sufficient proof."
When Soeung appealed again, the BIA dismissed his appeal.
It held that the IJ "properly determined that [Soeung] needed
additional corroboration, such as evidence from the United States
government, to support his claim" and that "[t]he inconsistencies
noted by the [IJ] in conjunction with the lack of sufficient
corroborating evidence support a determination that [Soeung] failed
to provide a plausible and coherent account of the basis for his
[application]."
This timely petition for review followed. The question
before us is whether the BIA erred in dismissing Soeung's appeal
based on his failure to corroborate his dealings with Fox, the
government agent. In answering this question, we confine our
discussion of corroboration to the law as it existed prior to the
passage of the REAL ID Act of 2005 ("Real ID Act"), Pub. L. No.
109-13, 119 Stat. 302 (2005), which came into effect exactly one
year after Soeung filed his application for relief on May 11, 2004.
See Hoxha v. Gonzales, 446 F.3d 210, 216 n.4 (1st Cir. 2006).
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II.
We review the BIA's decision rather than the IJ's, where,
as here, "the BIA has rendered a decision with its own analysis of
the question at issue." Vásquez v. Holder, 635 F.3d 563, 565 (1st
Cir. 2011); see also Mukamusoni v. Ashcroft, 390 F.3d 110, 119 (1st
Cir. 2004) ("It is the BIA's decision, as the final agency order,
that we review."). We review the BIA's legal conclusions de novo
and its factual findings under the deferential substantial evidence
standard. Peña-Beltre v. Holder, 622 F.3d 57, 61 (1st Cir. 2010).
To be eligible for asylum, an alien must establish his or
her status as a refugee. See 8 U.S.C. §§ 1101(a)(42)(A),
1158(b)(1)(B); see also Villa-Londono v. Holder, 600 F.3d 21, 24
(1st Cir. 2010). A refugee is an alien who is unable or unwilling
to return to his or her country of origin "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)(A); see also Seng v. Holder, 584
F.3d 13, 18 (1st Cir. 2009). Even if an alien qualifies as a
refugee, though, asylum remains a discretionary decision. See 8
U.S.C. § 1158(b)(1)(A); Jia Duan Dong v. Holder, 587 F.3d 8, 10
(1st Cir. 2009). In contrast, withholding of removal provides
mandatory relief, see Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir.
2004), but "claims for withholding of removal require a higher
level of proof than claims for asylum," Villa-Londono, 600 F.3d at
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24 n.1. "It follows that an alien who cannot prevail on a claim
for asylum must also lose on a counterpart claim for withholding of
removal." Seng, 584 F.3d at 20. Finally, to obtain relief under
the CAT, an alien must show that it is more likely than not that he
or she will be tortured if repatriated. See 8 C.F.R. § 1208.16(c);
see also Seng, 584 F.3d at 20.
In some circumstances, an application for asylum,
withholding of removal, or protection under the CAT may be granted
solely on the basis of the applicant's testimony. See 8 C.F.R.
§§ 1208.13(a), 1208.16(b). However, because the burden of proof is
on an alien, the BIA has adopted a rule that "where it is
reasonable to expect corroborating evidence for certain alleged
facts pertaining to the specifics of an applicant's claim, such
evidence should be provided . . . [or] an explanation should be
given as to why such information was not presented." In re S-M-J-,
21 I. & N. Dec. 722, 725 (BIA 1997). The failure to produce such
corroborating evidence can undermine an applicant's case if not
adequately explained. See id. at 725-26.
Corroboration can be required even where an applicant's
testimony is deemed credible. See Yang v. Holder, 664 F.3d 580,
584-85 (5th Cir. 2011); Dorosh v. Ashcroft, 398 F.3d 379, 382 (6th
Cir. 2004); El–Sheikh v. Ashcroft, 388 F.3d 643, 647 (8th Cir.
2004); Gontcharova v. Ashcroft, 384 F.3d 873, 876-77 (7th Cir.
2004); Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001);
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Diallo v. INS, 232 F.3d 279, 285-86 (2d Cir. 2000). But see Ladha
v. INS, 215 F.3d 889, 898-99 (9th Cir. 2000). Also, of course,
corroboration can be required where an applicant's testimony is
disbelieved, see Ligoussou v. Mukasey, 297 F. App'x 11, 13 (1st
Cir. 2008) (per curiam), or found only partially credible, see Diab
v. Ashcroft, 397 F.3d 35, 40 (1st Cir. 2005), or where no explicit
credibility finding is made. The weaker an applicant's testimony,
the greater the need for corroborating evidence. Mukamusoni, 390
F.3d at 122 (citing In re Y-B-, 21 I. & N. Dec. 1136, 1139 (BIA
1998)).
However, before the failure to produce corroborating
evidence can be held against an applicant, there must be explicit
findings that (1) it was reasonable to expect the applicant to
produce corroboration and (2) the applicant's failure to do so was
not adequately explained. See Chukwu v. Att'y Gen., 484 F.3d 185,
191-92 (3d Cir. 2007). Once made, these findings are entitled to
deference. See 8 U.S.C. § 1252(b)(4). Where such findings have
not been explicitly made, the proper course is to vacate and
remand. See Chukwu, 484 F.3d at 192; cf. Mihaylov v. Ashcroft, 379
F.3d 15, 20-21 (1st Cir. 2004) (emphasizing the "need for clear
administrative findings in reviewing the decision of the IJ or
BIA").
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III.
As the BIA has explained, it is reasonable to expect
corroboration of "material facts which are central to [an
applicant's] claim and easily subject to verification, such as
evidence of his or her place of birth, media accounts of large
demonstrations, evidence of a publicly held office, or
documentation of medical treatment." S-M-J-, 21 I. & N. Dec. at
725. On the other hand, "specific documentary corroboration of an
applicant's particular experiences is not required unless the
supporting documentation is of the type that would normally be
created or available in the particular country and is accessible to
the alien, such as through friends, relatives, or co-workers." Id.
at 726.
The corroboration identified by the IJ as lacking in this
case is far from typical - a letter "from the United States
Government . . . that would bolster [Soeung's] claim that he, in
fact, provided information to the United States Government at risk
to himself." Indeed, such a letter might be inaccessible to Soeung
for the reason he cited - Fox's insistence that she and Soeung
maintain the secrecy of their relationship.
Despite the unusual nature of the corroboration at issue,
there were no explicit findings by the IJ or the BIA that it was
reasonable to expect Soeung to produce corroboration of his
involvement with Fox, and that his explanation for the absence of
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such corroboration - namely, that Fox had warned him against
disclosing their involvement and that he had inferred her
unwillingness to document their dealings with each other - was
inadequate. The only reference in the record to the former finding
is the BIA's unsupported statement that the IJ "found that [Soeung]
failed to provide reasonably available corroboration to establish
a claim." There is no finding at all on the adequacy of Soeung's
explanation for failing to provide the required corroboration.
We cannot read these findings into the record; they
should have been made explicitly in the first instance by the IJ
and the BIA. See Chukwu, 484 F.3d at 192. Without these findings,
the BIA erred in dismissing Soeung's appeal based on his failure to
corroborate his dealings with Fox. Accordingly, we grant Soeung's
petition, vacate the BIA's order, and remand this case for further
proceedings consistent with this opinion.
So ordered.
– Concurring Opinion Follows –
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HOWARD, Circuit Judge, (Concurring). While this case in
its particulars involves corroborating evidence, or lack thereof,
in a larger sense this is a case about credibility. No one
disputes that, if Mr. Soeung's story is truthful, he is eligible to
be considered for asylum. We have explained why the petitioner may
not be able to obtain corroboration. More pointedly, we have
observed that the agency has not made the required finding that
Soeung has inadequately explained his failure to corroborate.
Granted, one might reasonably expect that a petitioner who, like
this one, has shown no hesitation to reveal alleged facts that may
put himself or others at risk, also would not hesitate to attempt,
at the very least, to provide corroboration for those assertions.
Given the current posture of the case, however, one might also
reasonably expect the government itself now to take the modest step
of attempting to verify this petitioner's story. In light of the
stakes to the petitioner and perhaps to others, the government
should do so.
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