Shah (not precedential): IJ Duty To Develop Record On Missing Corroboration

Shah v. Mukasey, No. 07-1954 (3d Cir. Apr. 11, 2008) (not precedential), per curiam by Judges Fuentes, Weis, and Garth.
http://www.ca3.uscourts.gov/opinarch/071954np.pdf

The BIA erred by penalizing an asylum-seeker for not presenting corroborating evidence without analyzing the person's explanation for why he didn't submit it to the court. (Immigration Judge Donald Vincent Ferlise heard the case but did not address the corroboration issue -- the IJ found the asylum-seeker not credible and the BIA held that IJ Ferlise's rationale was unfounded and conducted its own analysis of corroborating evidence.) The Third Circuit also criticized the BIA's refusal to give the asylum-seeker time to gather the corroborating evidence.

The basic rule, once again, is:

Before denying a claim for lack of corroboration, the BIA must engage in a three-part inquiry: “(1) an identification of 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.” Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001)

An IJ has a duty to tell asylum-seekers what type of corroborating evidence they expect to see. That gives asylum-seekers a chance to gather the evidence expected. The asylum-seeker offered an explanation why he didn't have the corroborating evidence -- the IJ never told him what to get and if he had a little time he would be able to get it.

The BIA tersely said it "was not persuaded" but the Third Circuit didn't know what the BIA could mean because the asylum-seeker's explanation seemed reasonable. So the Third Circuit held the BIA erred as a matter of law and remanded to the BIA with a direction to remand the case to an IJ to let the asylum-seeker gather the corroborating evidence.

If an IJ or the BIA denies a case for lack of corroboration, check the record to see whether they had identified what kind of evidence they wanted and offered time to gather it. If they didn't do that, check to see whether they analyzed why the excuse of not being given time to gather the corroborating evidence was not a good excuse.

Additional note: The Third Circuit took up this issue because of how compelling the issue is even though the asylum-seeker did not raise it in his Third Circuit brief. So the Third Circuit waived the requirement to include issues in the appeal brief (similar to the exhaustion doctrine but not exactly the same) based on how compelling the glaring error was.