Zimmer's Books

by William K. Zimmer, in Immigration Matters

 

The procedural history, facts of record, holding and rationale in Mohndamenang v. Garland (February 6, 2023) No. 21-60380 are as follows:

 

Case History

The Department of Homeland Security (“DHS”) charged that the Petitioner was subject to removal.

 

The Immigration Judge sustained the removal charge and denied the Petitioner’s applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).

 

The Petitioner appealed the Immigration Judge’s adverse decision and asked the Board of Immigration Appeals (“BIA”) to remand the record of proceedings to the Immigration Judge.

 

The BIA granted the Petitioner’s motion to remand.

 

A second Immigration Judge denied the Petitioner’s relief applications.

 

The Petitioner then appealed to the BIA.

 

The BIA affirmed the Immigration Judge’s denial of all of the Petitioner’s claims.  

 

The Petitioner then filed a petition for review of the BIA’s decision.

 

 

Facts

• The Petitioner is a native and citizen of Cameroon who applied for admission to the United States in 2019.
• The DHS charged that the Petitioner was subject to removal under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, as amended ("the Act") as immigrant applying for admission to the United States without an immigrant visa or other suitable travel document.
• On November 13, 2019, the Petitioner appeared in immigration court and admitted that he was removable as charged and applied for asylum, withholding of removal based on his political opinion and protection under the CAT.
• Later at a hearing on the merits of his relief applications, the Petitioner admitted that he had no corroborative materials
• Nevertheless, the Petitioner testified that he feared returning to Cameroon because the government was killing “English-speaking Cameroonians” such as himself.
• The Petitioner further testified that he had been arrested by the Cameroonian government and was tortured daily while in detention.
• According to the Petitioner, he had later been involved in a peaceful protest when the military appeared and shot dead some of the participants.
• The Petitioner indicated that after this incident he escaped Cameroon.
• The Immigration Judge found the Petitioner not credible and denied the respondent’s applications, stating that the Petitioner’s testimony was vague and uncorroborated.
• The Petitioner appealed to the BIA, claiming that the Immigration Judge should have developed the record by asking him follow-up questions before making an adverse credibility finding, and asked for a remand to consider additional evidence.
• The BIA agreed with the Petitioner and remanded the record of proceedings to the immigration court to consider “additional pertinent evidence.”
• A new Immigration Judge considered the Petitioner’s additional evidence and more detailed testimony and found him to be credible, but nevertheless denied the Petitioner’s relief applications for failure to offer sufficient corroborating evidence in support of his testimony.
• Alternatively, the new Immigration Judge determined that  “[e]ven if [Arafat] were to have been found to have provided sufficient corroboration, the Court would, in the alternative, deny his application for asylum because he failed to show past persecution or a well-founded fear of persecution on account of a protected ground.”
• The Petitioner appealed to the BIA, which affirmed the Immigration Judge’s denial on all claims.
• In particular, the Board affirmed the denial of the asylum and withholding-of removal claims on account of Arafat’s lack of corroboration and affirmed the denial of CAT protection “for the reasons stated in the [I.J.’s] decision, which includes his finding of the lack of independent evidence concerning the respondent’s claimed fear of torture.”

 

Held

Petition for Review DENIED

 

Rationale

The Petitioner issued three challenges to the BIA’s decision:

1. The BIA erred in requiring him to provide additional specific evidence supporting his credible testimony without following the procedures laid out in Matter of L-A-C- 26 I&N Dec. 516 (BIA 2015).
2. The BIA ignored substantial record evidence, including corroborating country conditions evidence.
3. The BIA erred in affirming the denial of his CAT claims.

 

The Fifth Circuit Court of Appeal reasoned as follows:

 

Application of Matter of L-A-C- Including Preservation of Petitioner’s Explanation

• With regard to asylum applicants, the testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration.  However, corroborating evidence must be provided unless the applicant demonstrates that he “does not have the evidence and cannot reasonably obtain the evidence.”  See section 208(b)(1)(B)(ii) of the Immigration and Nationality Act, (“the Act’).  See also Rui Yang v. Holder, 664 F.3d 580, at 586 (5th Cir. 2011).
• The Immigration Judge never required “specific corroborating evidence” from the Petitioner and the Immigration Judge “did not hold one missing piece of evidence to be the sine qua non to corroboration.”
• Instead, the Immigration Judge engaged in a comprehensive analysis of why Petitioner’s credible testimony was not corroborated by the evidence provided and decided that such evidence would have been reasonably available to the Petitioner.
• In these circumstances, the procedural requirements relating to corroborating evidence in Matter of L-A-C- do not apply.
• Under the substantial evidence standard, findings of fact will not be disturbed unless the evidence supports a contrary conclusion and the evidence compels it. Chen v. Gonzales, 470 F.3d 1131, at 1134 (5th Cir. 2006).
• In particular, the Immigration Judge’s oral decision makes clear that the Immigration Judge did consider all of the Petitioner’s evidence and properly decided that it was not sufficient to corroborate his testimony.  Furthermore, the Petitioner’s evidence is not “so compelling that no reasonable factfinder” could find that he is ineligible for relief or protection from removal.”  See INS v. Elias-Zacarias, 502 U.S. 478, at 483–84 (1992).

 

Cat Claim

• The Fifth Circuit Court of Appeal affirmed the Immigration Judge’s dismissal of the Petitioner’s CAT claim for the same reason the dismissal of the asylum and withholding of removal claims were affirmed:  Under the substantial evidence standard, no grounds exist to reverse the Immigration Judge’s holding that the Petitioner had not provided sufficient corroborating evidence to support his testimony.

 

Commentary

Obviously, the basic precedent established in Mohndamenang v. Garland (February 6, 2023) No. 21-60380 is that, unless the Immigration Judge narrowly requires specific corroborating evidence such as a document or a witness statement or physical evidence, the Immigration Judge has the discretionary authority to base a determination on the record as a whole that credible testimony is not corroborated and conclude that such evidence is reasonably available.

The Mohndamenang v. Garland opinion describes a immigration court proceeding scenario that occurs occasionally, but frequently enough to merit comment.

The Petitioner in Mohndamenang v. Garland invited the Immigration Judge to conduct a physical examination of his allegedly injured foot during immigration court proceedings which, in my opinion, was properly declined.

Do not ask the Immigration Judge to examine marks or damaged body parts during an asylum hearing.  Not only is the Immigration Judge as well the attorneys present not competent to examine a person’s body and interpret whatever is revealed, but a picture is worth a thousand words for review on appeal. 

The following is a courtroom exchange in which I was involved that demonstrates what not to do in an immigration hearing:

Q:  What – did they beat you with anything other than their hands . . . ?

A:  They . . .  and I have a big mark on my butt and I could show it to you.

JUDGE TO ___________ (Attorney)

A:  Would Your Honor wish to see it?  It’s on her hip and not on her butt.

Q:  Well, no. I’m not a physician.  I’m not in any position to evaluate marks on someone’s body.

A:  We’re not asking that.  We’re asking to acknowledge whether, in fact, she has a mark on her body.

Q:  That’s not something I’m going to do at a hearing.  If you wanted to do that properly, you could have had photographs, had some kind of testimony with regard to the photograph.  I’m not going to conduct physical examinations in the courtroom.

A:  Okay, Your Honor.  I guess the fact of the matter is that –

Q:  She’s testified that it’s here.  We’re just going to have to rely on her testimony.  I don’t have any reason to doubt her at this point.

A:  We weren’t able to find any physicians who could do it free and there were none available so –

Q:  You have a camera.

A:  Your Honor would take a photograph of her scar –

Q:  Sure.

A:  -- without expert testimony?

Q:  Accompanied with testimony if someone who was there when it was taken can verify that it was taken of her.

A:  Okay.  She could show it to you.

Q:  It’s not that complicated.

A:  All right.[1]

 

If you have a picture a written evaluation by a medical specialist should accompany the picture.  Even a Supreme Court Justice is not medically competent to evaluate and interpret scars, marks and mutilated or missing body parts.  If you can’t afford or find a medical specialist to evaluate or explain the pictured evidence the strength of the evidence diminishes to the extent that various uninformed conclusions might be drawn, but at least the record will contain evidence that might corroborate the respondent’s testimony and conclusions.

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