Saturday, April 12, 2008

Zheng (not precedential): BIA Cannot Start Surprise Analysis Of Corroboration

Zheng v. Mukasey, No. 07-1155 (Apr. 9, 2008) (not precedential)
272 Fed. Appx. 162, 2008 WL 948319
Per Curiam by Judges Rendell, Greenberg, and Van Antwerpen

Another case where the BIA suddenly starts analyzing whether there was lack of corroborating evidence from the asylum-seeker but the BIA fails to give the asylum-seeker a chance to explain why the evidence the BIA wants to see is missing. Here, Immigration Judge Mirlande Tadal did not focus on the lack of corroborating evidence -- the BIA by surprise started analyzing that on its own during the appeal.

It makes sense that IJ Tadal did not go through the required three-part inquiry on corroboration -- the IJ was not concerned with that issue. But it was an error for the BIA to fail to go through the three-part inquiry while it reached a conclusion that the asylum-seeker failed to provide corroboration.

This is not the first time the BIA has made this mistake. The Third Circuit even quoted an earlier decision that said “We have repeatedly held that the BIA’s . . . failure to engage in the three-part inquiry described above requires that the BIA’s findings regarding corroboration be vacated and remanded.” I guess they could have quoted George Santayana, who wrote "Those who do not learn from history are doomed to repeat it."

If the BIA writes in its decision that the asylum-seeker lacked corroboration, immediately check to see whether that issue was fully developed by the IJ. And whether the BIA followed the three-part inquiry that is required.

For all the people who criticize the availability of circuit court appeals in immigration cases, it is very striking that the circuit courts have to overturn many BIA decisions for making the same error in each of the cases. It is strong evidence for expanding federal court review of immigration court decisions, not narrowing federal court review!

For Zheng, Joshua E. Bardavid of NYC.  For the government, Bary J. Pettinato, Ari Nazarov, Katharine Clark of OIL.


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