Babacar Gaye v. Loretta E. Lynch
788 F.3d 519
| 6th Cir. | 2015Background
- Babacar Gaye, a Mauritanian national, entered the U.S. with a false passport and applied for asylum on February 12, 2001; IJ Burman initially denied relief based on credibility and timeliness, BIA remanded for credibility assessment.
- IJ Burman recused on remand as he felt biased; IJ Holt reviewed the record, declined a new live hearing, and denied asylum, withholding, and CAT relief for lack of credible testimony and insufficient corroboration.
- BIA affirmed IJ Holt, concluding Gaye failed to prove his entry date by clear-and-convincing evidence (one-year asylum bar) and failed to provide reasonably obtainable corroboration for withholding and CAT claims; it also rejected his ineffective-assistance claim for lack of prejudice.
- Gaye petitioned for review in the Sixth Circuit challenging (1) jurisdiction over the untimely asylum denial, (2) denial of a new hearing/due process when IJ Holt decided credibility on the cold record, (3) lack of IJ notice about required corroboration, and (4) ineffective assistance of counsel.
- Majority dismissed review of the asylum-timeliness finding and the unexhausted due-process claim, held no statutory right to IJ notice about specific corroboration, and denied relief on withholding/CAT and ineffective-assistance claims; Judge White dissented on jurisdiction and due process.
Issues
| Issue | Gaye's Argument | Government's Argument | Held |
|---|---|---|---|
| Jurisdiction to review asylum-timeliness (1-year bar) | BIA’s reliance on IJ credibility and procedure raised legal questions; court should review | Timeliness determination is factual; REAL ID exception covers only legal/constitutional issues; BIA found no changed/extraordinary circumstances | Dismissed for lack of jurisdiction — timeliness/factual showing not reviewable |
| Due process re: IJ Holt deciding credibility without new live hearing | Denied meaningful hearing; remand required because Burman s record was flawed and successor IJ must observe demeanor | Gaye failed to raise this constitutional claim to BIA (no exhaustion); successor IJ certified familiarity with record under regulation | Dismissed for lack of jurisdiction (unexhausted); on merits majority rejects claim but dissent would remand |
| Requirement of IJ notice of what corroboration is required | IJ must notify applicant what corroboration is needed and allow opportunity to supply it | Statute/regulations do not impose a requirement that IJ give itemized advance notice; continuances may suffice | Denied — federal law does not require IJ to give advance notice of specific corroboration required |
| Ineffective assistance of counsel | Counsel failed to introduce available corroboration; ineffective assistance prejudiced proceeding | Gaye did not identify what evidence counsel failed to present or show prejudice per Lozada/Assaad standards | Denied — BIA reasonably found no prejudice and Gaye failed to meet burden |
Key Cases Cited
- Giraldo v. Holder, 654 F.3d 609 (6th Cir. 2011) (standard of review for jurisdictional and legal questions)
- Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir. 2006) (REAL ID exception for review of legal/constitutional claims)
- Abdurakhmanov v. Holder, 735 F.3d 341 (6th Cir. 2013) (substantial-evidence review of fact and credibility findings)
- Dorosh v. Ashcroft, 398 F.3d 379 (6th Cir. 2005) (corroboration rule and when uncorroborated testimony suffices)
- Sylla v. INS, 388 F.3d 924 (6th Cir. 2004) (need for specific reasons to support credibility findings)
- Abdallahi v. Holder, 690 F.3d 467 (6th Cir. 2012) (due-process claim where successor IJ reviewed transcript instead of live hearing)
- Rapheal v. Mukasey, 533 F.3d 521 (7th Cir. 2008) (rejecting requirement that IJ give advance notice of required corroboration)
- Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011) (contrasting view: REAL ID requires notice of corroboration)