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Corroborating evidence not required for asylum

If an immigration judge finds an asylum applicant’s testimony of persecution to be credible, asylum should not be denied for lack of corroborating evidence, the Seventh Circuit held on Sept. 19.

Ehab S. Dawoud and his wife, Amani Y. Refaat, are members of the Coptic Church, an orthodox sect of Christianity native to Egypt. Several months after they were married, a friend with their permission sent a videotape of their wedding ceremony and reception to a television program that showcases local weddings.

The video depicted a Coptic ceremony, alcohol consumption, and dancing by a woman who was not fully veiled. A week after the video aired, three angry members of the terrorist group al-Gama’a al-Islamiyya came to Dawoud’s home to confiscate the tape.

They blindfolded Dawoud and took him to a building outside the city, where he was kept chained and underfed for 10 days; his captors beat him for consorting with “infidels” and threatened that his “blood would be sacrificed,” which they asserted was “legal” in Egypt.

Dawoud did not report the incident to the authorities, because in Egypt, he claimed, reporting Islamic militants to the government usually brings retribution.

Two days later, Dawoud was confronted by the “National Police of Egypt,” who went to his house and said that a report had been filed against him for “insult[ing] the Muslim religion.” He was taken to a police building and placed in solitary confinement, where for three days he was tortured by electrocution until he agreed to sign a confession.

He was then released and told to stay in his hometown until he was summoned for a hearing before the Emergency Court, a tribunal which operates under Egypt’s Emergency Law and hears cases that implicate national security.

Rather than wait, Dawoud and Refaat secured passports and visas for the United States and fled the country. They applied for asylum, but the immigration judge (IJ) denied their applications, finding their testimony incredible.

What the court held

Case: Dawoud v. Gonzales, Nos. 04-1275 & 04-2417.

Issue: Where an asylum petitioner’s testimony is credible, should asylum be denied for lack of corroborating evidence?

Holding: No. Where the applicant cannot reasonably be expected to obtain corroborating evidence, and his testimony regarding persecution is credible, asylum should not be denied.

The Board of Immigration Appeals (BIA) rejected the adverse credibility finding, finding Dawoud’s testimony internally, consistent with the written declarations, and not inherently improbable.

Nevertheless, the BIA affirmed because of Dawoud’s failure to provide any corroborating evidence. Dawoud and Refaat petitioned for review, and the Seventh Circuit granted their petitions, in a decision by Judge Diane P. Wood.

The court first rejected the BIA’s finding that Dawoud’s testimony is inconsistent with background information on Egypt, noting that the 2001 Country Report and reports in the record from Freedom House, a human rights group, document assault, imprisonment and discrimination against Copts by authorities in Egypt.

The court wrote, “In concluding that Dawoud’s tale is inconsistent with this background information, the BIA focused on a few flowery bromides in the Country Report about Egypt’s increased concern over religious freedom. But by ignoring the report’s lengthy discussion of repeated and flagrant governmental abuses of Coptic Christians, the Board gives the impression that it did not bother to read the Country Report in its entirety. The report and other background information on the whole is quite consistent with — and provides a plausible backdrop for — Dawoud’s claim of persecution. The Board abused its discretion by concluding otherwise.”

Turning to the corroboration issue, the court held it erroneous to deny asylum because of the lack of any corroborating evidence.

8 C.F.R. 208.13(a) provides: “The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.”

Nevertheless, the BIA interprets the regulation to allow IJs to demand corroboration even from credible applicants.

Reiterating its holding in Gontcharova v. Ashcroft, 384 F.3d 873, 877 (7th Cir. 2004), the court rejected this interpretation, stating, “The regulation, in our view, cannot bear an interpretation that would exclude all possibility of an applicant’s relying exclusively on credible but uncorroborated testimony, so long as that testimony is specific, detailed, and convincing.”

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Case Analysis

The court added, “The policy behind a rule permitting reliance solely on credible testimony is simple. Many asylum applicants flee their home
countries under circumstances of great urgency. Some are literally running for their lives and have to abandon their families, friends, jobs, and material possessions without a word of explanation. They often have nothing but the shirts on their backs when they arrive in this country. To expect these individuals to stop and collect dossiers of paperwork before fleeing is both unrealistic and strikingly insensitive to the harrowing conditions they face.”

Applying the rule, the court concluded, “Here, as the BIA acknowledged, Dawoud provided credible, detailed, and convincing testimony. Furthermore, this was not a case where corroborating information was wholly lacking; as we have noted above, the State Department Report taken as a whole did corroborate Dawoud’s account. We find that the BIA in these circumstances should not have rested its decision on his failure to supply even more evidence.”

Accordingly, the court granted the petitions, and remanded the cases for further proceedings.

Click here for Case Analysis.

David Ziemer can be reached by email.

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