Cao-Liu (not precedential): Wrong To Penalize Failing To Get Testimony From Someone Who Saw Nothing

Cao-Liu v. Mukasey, No. 07-1658 (3d Cir. Apr. 24, 2008) (not precedential)
http://www.ca3.uscourts.gov/opinarch/071658np.pdf
275 Fed. Appx. 176, 2008 WL 1823338

Judges Fuentes, Weis, and Garth in a per curiam opinion

IJ Alberto J. Riefkohl and the BIA erred by faulting the asylum-seeker for not having his brother testify to corroborate what he experienced. The Third Circuit concluded, though, that the brother's testimony was not necessary because the brother did not know anything about the events that prove the asylum-seeker suffered persecution.

Cao testified that when he was arrested in 2004, he was not at home but at a friend’s house, and nothing else in the record suggests that Cao’s brother had any knowledge of the circumstances surrounding Cao’s arrest. Furthermore, when Cao was asked why his brother did not attend, Cao explained that he rarely sees his brother, and that his brother had to work on the day of the hearing. Given this evidence, it was not reasonable for the IJ and the BIA to require the brother’s testimony.

The Third Circuit approved asylum for the asylum-seeker by remanding the case and telling the BIA to remand the case to the IJ to grant the asylum petition.

For Cao-Liu was Henry Zhang of Zhang & Associates in NYC.  For the government, Susan J. Houser and Brooke M. Maurer of OIL.