Sunday, April 05, 2009

Sandie: Corroboration Properly Required In This Particular Case; Stay of Removal Does Not Stay Voluntary Departure Unless Requested

Sandie v. Holder
No. 07-1865
April 3, 2009

Judges Smith, Cowen, and district court judge Anne B. Thompson. Decision by Judge Smith.

For Mr. Sandie, Alexander Maltas of Lathan & Watkins in DC and Michele R. Pistone of Villanova Law School's Clinic for Asylum Refugee & Emigrant Services in Villanova, PA. For the government, Lindsay B. Glaunder, Theodore C. Hirt, Michael P. Lindemann, and John D. Williams of various parts of OIL.

IJ Miriam Mills denied the asylum request in March 2006 of a man from Sierra Leone who feared a secret group called the Wonde & Poro Society. IJ Mills focused on how Mr. Sandie did not corroborate his story. The BIA affirmed in February 2007. The Third Circuit concluded that the BIA did not make any error and denied the appeal by Mr. Sandie.

One issue was whether the BIA was required to address how the IJ believed the asylum-seeker's testimony was not credible before analyzing how much corroboration would be needed. Under Miah v. Ashcroft, 346 F.3d 434 (3d Cir. 2003), the BIA must do a new analysis of how much corroboration is needed if the BIA throws out an IJ's conclusion that testimony is not credible. Without much explanation, the Third Circuit held that in this particular case, the BIA was not required to do new analysis of how much corroboration is needed because even if the IJ's conclusion about the credibility was thrown out, the IJ's corroboration analysis did not depend on the credibility determination.

On the issue of corroboration, an IJ is the first to decide whether corroboration for testimony central to a claim should be required. In making that decision, an IJ must identify the testimony to be corroborated, examine whether there is corroboration, and analyze whether the asylum-seeker has adequately explained any lack of corroborating evidence after giving the person a chance to explain. The Third Circuit concluded that the IJ gave notice to the asylum-seeker of the need to provide corroboration. It did not go into details, so it's tough to know what the record on appeal said on this topic. The Third Circuit also inferred that because the asylum-seeker submitted a report that addressed a scar, it is clear that the IJ had warned about the need to corroborate the scar -- this seems to be a stretch as written by the Third Circuit, because sometimes asylum-seekers submit reports about a wide range of topics even though the IJ has not asked for corroboration on those topics. This is typical of expansive, comprehensive litigation styles, not a narrow response to the IJ's explicit requests. For those of us who read the opinion but have no chance to review the record on appeal, it's hard to tell how well-supported the Third Circuit's analysis is.

On another note, the Third Circuit held that if there is a period of voluntary departure, the person appealing needs to make a motion to stay the voluntary departure period (usually alongside a motion for a stay of removal). Unlike in the Sixth, Eighth, and Ninth Circuits, the Third Circuit joins the First, Second, and Seventh Circuits in refusing to extend the voluntary departure period when asked for a stay of removal unless there is another motion alongside it to request that. This is a classic circuit split that might have to be resolved in the Supreme Court.


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