Rui Yang v. Holder
2011 U.S. App. LEXIS 24769
5th Cir.2011Background
- Yang, a Chinese Falun Gong practitioner, seeks asylum, withholding of removal, and CAT protection in the United States.
- He arrived in the U.S. on Sept. 2, 1998 (J-1) and switched to an F-1 in Jan. 2002, stopping attendance in June 2002.
- He filed asylum claims on Nov. 28, 2001 after learning his father faced prosecution for Falun Gong in China.
- A notice to appear was mailed to his Los Angeles address; he did not receive it and was removed in absentia on Mar. 10, 2006.
- Post-removal, a motion to reopen transferred his asylum matter to Dallas; he appeared with no attorney and received multiple continuances.
- The IJ denied the asylum, withholding, and CAT claims on Oct. 31, 2008, citing lack of corroborating evidence and lack of nexus; the BIA affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May BIA deny asylum based solely on lack of corroboration? | Yang argues credibility is sufficient without corroboration. | Holder argues the regulation allows denial when corroboration is reasonably unavailable. | Law supports BIA's corroboration-based denial. |
| Was the BIA's corroboration rule reasonably applied to Yang? | Yang contends he could not obtain letters from family. | Yang failed to exhaust remedies for continuances and letters; not reversible. | BIA reasonably applied S-M-J- rule; misapplication not shown. |
| May this court consider new evidence Yang submitted on appeal? | Yang submitted evidence not previously presented. | New evidence is not properly before the court without exhaustion. | Court lacks jurisdiction to consider new evidence; exhaust remedies required. |
Key Cases Cited
- Matter of S-M-J-, 21 I. & N. Dec. 722 (BIA 1997) (corroboration may be required when reasonably available)
- Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005) (affirmed need for corroboration where appropriate)
- Abdulai v. Ashcroft, 239 F.3d 542 (3d Cir. 2001) (credibility vs. corroboration framework;)
- Dorosh v. Ashcroft, 398 F.3d 379 (6th Cir. 2004) (regulation interpretation and evidence corroboration)
- Mutagwanya v. Gonzales, 129 Fed. Appx. 899 (5th Cir. 2005) (discusses corroboration expectations for asylum seekers)