Split Noted: Must An IJ Provide Notice Of The Need For Corroboration?

Per Pulatov v. Holder (6th Cir. Feb. 25, 2013)

In 2005, Congress passed the REAL ID Act.  The effect of the statute was largely to abrogate several lines of outlier, pro-immigrant precedent from a certain "liberal" circuit.  One of the abrogated lines of precedent held that an Immigration Judge could not require corroboration from a credible alien.

In lieu of the no-corroboration rule, the REAL ID Act provided, in a clause now codified as 8 U.S.C. 1158(b)(1)(B)(ii):

The testimony of the applicant may be sufficient to sustain the applicant's burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.  In determining whether the applicant has met the applicant's burden, the trier of fact may weigh the credible testimony along with other evidence of record.  Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.

(Emphases added).  In this unpublished disposition, the CA6 notes, but does not resolve a split between the CA3 and CA9, on the one hand, and the CA7, over whether an IJ must provide notice and an opportunity to respond after reaching the determination that corroboration is necessary.  (p. 7 n.5).

The CA7 concludes that the statute already provides notice of the need for corroboration, because testimony alone only "may be" sufficient, and administrative efficiency does not require a second opportunity to obtain it.

In contrast, the CAs 3 and 9 hold that the statutory language requires opportunity to respond.  Specifically, the Ninth Circuit relies on the  tense of "should provide" and "must be provided" to conclude that the "language focuses on conduct that follows the IJ's determination, not precedes it[;] the statute's future directed language means that the applicant must be informed of the corroboration that is required."  (Third emphasis added).

I come down in the middle of this split.  Specifically, I agree with the Seventh Circuit that the statute provides notice of the general need for corroboration.  And I disagree with the Ninth Circuit that the statute uses future directed language--all of the verbs highlighted are in the present tense.  Thus, I don't think additional advance notice of the need for corroboration is required.

But once an IJ concludes that corroboration is necessary, the statute does mandate--as the CAs 3 and 9 conclude, that the alien be provided an opportunity to respond.  Such a response could take two forms:

1. An explanation that the alien had previously sought the requested corroboration, and was unable to obtain it, in which case the IJ would have to evaluate the explanation and determine whether the requested evidence is reasonable obtainable.  
2. An explanation that the alien had not previously sought the requested corroboration, and believes he would be able to provide it, in which case the IJ would have to determine whether the alien acted reasonably.  

• If the applicant reasonably believed the requested corroboration related to a minor point in his story or would be cumulative, the applicant should be afforded a continuance to obtain the requested evidence.  
• If the applicant acted unreasonably in failing to seek the requested corroboration despite the statutory notice, because it related to a central and uncorroborated point in his story, then the IJ could deny asylum because the alien may simply be seeking to delay the inevitable.

Finally, my apologies for the lagtime between posts.  Nine briefs, two in the Supreme Court, in a month will do that to a man.