Saturday, September 27, 2008

Shah (not precedential): Questioning Lack of Corroboration Must Use Three-Step Inquiry And Address The Evidence

Shah v. Mukasey
No. 07-3089
Not Precedential
September 19, 2008
2008 WL 4277147

Judges Sloviter, Stapleton, Cowen
Per Curiam

IJ Rosalind Malloy and the BIA erred in several ways when they concluded that an asylum-seeker not credible. The Third Circuit went over the standard of review for adverse credibility determinations: check for substantial evidence, which means the conclusion is not based on speculation or conjecture. Berishaj v. Ashcroft, 378 F.3d 314 (3d Cir. 2004); Gao v. Ashcroft, 299 F.3d 266 (3d Cir. 2002). Also, minor inconsistencies and minor admissions that reveal nothing about the asylum-seeker's fear are not adequate for finding adverse credibility. The Third Circuit will overturn the determination if any reasonable adjudicator would be compelled to disagree with the IJ and BIA's view. Gao v. Ashcroft, 299 F.3d at 272.

The Third Circuit criticized the decision by the BIA and IJ Malloy on several grounds:
  • Blaming the asylum-seeker for not providing any article he wrote about a particular organization was erroneous where the IJ did not evaluate the explanation that his documents and articles were burned in an attack.
  • Blaming the asylum-seeker for not providing any of those articles was erroneous because the IJ did not address two letters that corroborated the asylum-seeker's opposition to the particular organization.
  • The IJ put a heavy emphasis on how the testimony contradicted a particular report, but failed to adjust the analysis to recognize that the IJ concluded the particular report should not be given much weight because it was not authenticated.
  • Complaining that medical records of feeling depressed did not specifically state that the root of the anxiety was due to threats from a particular group was erroneous. The IJ should not assume that every doctor treating an asylum-seeker will explicitly link psychological effects to the specific group that made the threats, especially if the medical records are not even clear what the cause of the anxiety is.
In an intriguing footnote, the Third Circuit did not rule on the asylum-seeker's complaint that the extremely cold courtroom affected the testimony. Bring those sweaters and parkas when you come to Philadelphia Immigration Court in the winter! Add that one to the asylum manual. Brrrrr.

For the immigrant was William H. Vandenberg of Hogan & Vandenberg in Bala Cynwyd, PA.  For the government was Virginia M. Lum of OIL in the Justice Department.


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