Mokorya Wambura v. William Barr, 980 F.3d 365

Mokorya Cosmas Wambura, a Tanzanian national and U.S. lawful permanent resident, pled guilty to conspiracy, wire/mail fraud and aggravated identity theft related to a mortgage/ rental scheme; sentenced to 60 months and ordered to pay ~$434,867.65 in restitution.
DHS initiated removal proceedings charging removability based on (1) an aggravated felony involving fraud/deceit with alleged victim loss > $10,000 and (2) two crimes involving moral turpitude.
Wambura applied for asylum, withholding of removal, and CAT protection claiming political persecution/torture risk due to past leadership in Chadema (Tanzanian opposition party); he sought CAT deferral as his remaining viable relief.
At merits hearing the IJ found Wambura removable, ruled him ineligible for asylum/withholding based on his convictions, found his claim speculative and not sufficiently corroborated, and denied CAT relief; the BIA affirmed.
Wambura appealed, raising two principal legal challenges: (1) whether the government bore the burden to prove the fraud loss exceeded $10,000 for eligibility purposes, and (2) whether 8 U.S.C. § 1229a(c)(4)(B) requires the IJ to give advance notice to produce corroboration and to expressly find whether corroborating evidence was reasonably available.

Issue	Wambura's Argument	DHS's Argument	Held
Whether government must prove loss > $10,000 for relief eligibility (after removability established)	Nijhawan requires gov’t to prove loss; restitution insufficient to support aggravated-felony bar	Once removability is established, alien bears burden at relief stage to prove ineligibility of aggravated felony; IJ/BIA properly relied on conviction/restitution	Held for DHS: burden to show nonexistence of aggravated-felony consequences at relief stage rests with alien, not gov’t; BIA affirmed
Whether 8 U.S.C. § 1229a(c)(4)(B) requires advance notice to provide corroboration and an IJ finding on reasonable availability of corroboration	IJ must give specific, advance notice and opportunity to obtain corroboration; must make availability findings if corroboration absent	Statute is silent on forced advance notice; Matter of L‑A‑C‑ and majority of circuits allow IJ discretion; IJ must assess explanations when offered	Split: held that advance notice is not required (defer to BIA), but remanded because IJ/BIA failed to determine whether there was “otherwise credible testimony”; if so, agency must decide whether corroborating evidence was reasonably available

Nijhawan v. Holder, 557 U.S. 29 (2009) (government must prove loss amount by clear and convincing evidence to establish aggravated-felony removability)
Salem v. Holder, 647 F.3d 111 (4th Cir. 2011) (at relief stage burden shifts to removable noncitizen to prove eligibility requirements, including absence of aggravated felony)
Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011) (IJ must give notice and opportunity to present corroboration before final decision)
Saravia v. Att’y Gen., 905 F.3d 729 (3d Cir. 2018) (aligns with Ninth Circuit: notice and opportunity to corroborate required for meaningful review)
Gaye v. Lynch, 788 F.3d 519 (6th Cir. 2015) (statute does not unambiguously require IJ advance notice; disagrees with Ren)
Liu v. Holder, 575 F.3d 193 (2d Cir. 2009) (IJ need not provide pre-disposition notice; may identify corroboration points when weighing evidence)
Avelar-Oliva v. Barr, 954 F.3d 757 (5th Cir. 2020) (IJ not required to give advance notice of specific corroboration or automatic continuance)
Sec. & Exch. Comm’n v. Chenery Corp., 318 U.S. 80 (1943) (courts need the agency’s reasoning to conduct meaningful review)