The actual holding in the case is not especially noteworthy, because the Seventh Circuit has held in previous cases, that asylum should not be denied to credible applicants, solely because of lack of corroboration.
In Balogun v. Ashcroft, 374 F.3d 492, 502-503 (7th Cir. 2004), the court held, corroboration should be required only as to ‘material facts’ and only when the corroborative evidence is reasonably accessible.
What is noteworthy is the court’s suggestion in dicta that the standard has not been changed by the enactment earlier this year of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231. The new law provides that an IJ may require an otherwise credible applicant to provide corroborating evidence unless the applicant does not have the evidence and cannot reasonably obtain it (the act was not at issue in this case because Dawoud applied for asylum before it took effect).
The court wrote, Interestingly, even under the new rules there will still be some applicants whose cases will turn solely on their own testimony those who neither have nor can reasonably obtain corroborating evidence.
The court added, When the time comes and we have a fully briefed case before us, we can decide how much difference, as a practical matter, the REAL ID Act has made. It is possible that the change is less than meets the eye, since even now there is no dispute about the appropriateness of asking for corroboration in the common situation when the IJ has some doubt about an applicant’s credibility.
The corroboration provision in the REAL ID Act has been subject to much criticism for purportedly requiring persecuted people to obtain corroboration of their persecution from the very officials they are fleeing.
However, the dicta by the Seventh Circuit suggests that it does not intend to do anything different in light of the new legislation.
In addition, the analysis of the act by the Congressional Resource Service does not suggest that they should interpret the new law any different from the old.
The analysis states, Under the REAL ID Act, the testimony of the applicant may suffice to sustain the applicant’s burden without corroboration, but only if the adjudicator determines that it is credible, persuasive and refers to specific facts demonstrating refugee status. The adjudicator is entitled to consider credible testimony along with other evidence. If the adjudicator determines in his/her discretion that the applicant should provide corroborating evidence for otherwise credible testimony, such corroborating evidence must be provided unless the applicant does not have it and cannot reasonably obtain it. Considering the totality of circumstances and all relevant factors, the adjudicator may base an applicant or witness credibility determination on, among other relevant factors, demeanor, candor, responsiveness, inherent plausibility of the account, consistency between the written and oral statements (regardless of when they were made, whether they were under oath, and considering the circumstances under which the statements were made), internal consistency of a statement, consistency of statements with other evidence of record (including the Department of State reports on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy or falsehood goes to the heart of an applicant’s claim. There is no presumption of credibility; however, if no adverse credibility determination is explicitly made, the applicant or witness has a rebuttable presumption of credibility on appeal.
The analysis continues, similar to the Seventh Circuit’s assessment, it is not clear that the REAL ID Act represents either a significant departure from case law standards for credibility and corroboration or a clear resolution of inconsistencies among case precedents in different federal appellate courts and also the BIA.
This provision appears to be intended primarily to resolve the difference between the BIA and the Ninth Circuit with regard to credibility and sufficiency of evidence by adopting the BIA position with some modification
Finally, it should be noted that the next day, the Seventh Circuit affirmed a denial of asylum, because of lack of corroboration, but found that, in that case, the petitioner could reasonably have produced it. Hussain v. Gonzales, Nos. 04-1865 & 04-3068 (7th Cir., Sept. 20, 2005).
The court also upheld the adverse credibility finding against Hussain, noting that although he claimed to have been shot in his knees by government agents, he had no scars consistent with such an event.
Where an IJ makes an adverse credibility determination that is reasonable, and the petitioner supplies no evidence to corroborate his testimony, asylum should not be granted, both under the old law, and under the REAL ID Act of 2005.
– David Ziemer
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David Ziemer can be reached by email.