Liu v. Holder (2d Cir. August 5, 2009)
JACOBS, Parker, Wesley
The 2d Circuit denied this petition for review of a Chinese asylum seeker who sought asylum/withholding/CAT (pre-REAL ID) based on his participation in the June Fourth Movement from 1989 to 1991 and on his pro-democracy activities between 2001 and 2003. Petitioner did not submit any documentary evidence in support of his claim. As Petitioner did not challenge the pretermittance of his asylum application and did not argue for CAT on appeal, the Court only addressed withholding of removal. The Court first found that any claim by Petitioner had to be based only on his more recent activities, as there had been a fundamental change in circumstances since his participation in the June Fourth Movement. The Court then addressed whether it was error for the IJ and BIA to deny Petitioner’s application on the ground that he failed to meet his burden of establishing eligibility for withholding because of his failure to bolster inconsistent testimony with corroborating evidence. The Court found that it was not. Moreover, the Court found that the IJ did not err in pointing to missing corroborating evidence during – and not prior to – his decision.
The Court stated:
But though we require an IJ to specify the points of testimony that require corroboration, we have not held that this must be done prior to the IJ’s disposition of the alien’s claim. After all, a factfinder may not be able to decide sufficiency of evidence until all the evidence has been presented; insufficiency cannot be determined while there is evidence to be introduced. Likewise, it is not easy to know when an explanation would be required for a lack of corroboration, because an IJ may not determine that corroboration is necessary until all the evidence is in, and the IJ has had an opportunity to weigh the evidence and prepare an opinion--steps that may not occur until days after the hearing. Accordingly, while we have sometimes remanded a case if the IJ failed to explain his reliance on a lack of corroborating evidence, the alien bears the ultimate burden of introducing such evidence without prompting from the IJ.
The Court also emphasized the fact that Petitioner had not sought to reopen his case in order to present the missing evidence or on appeal explained why the evidence was unavailable.
PFR denied.
Atty for Petitioner: Jim Li, New York, NY.