Silais v. Sessions
855 F.3d 736
| 7th Cir. | 2017Background
- Hernel Silais, a Haitian national and opposition political party member, arrived in the U.S. without valid entry documents in 2011 and conceded inadmissibility but sought asylum, withholding of removal, and CAT protection.
- Silais testified to multiple assaults and threats by pro-Aristide "Chimeres" members (not a formal government entity) from 2002–2010 tied to his political activity; he never filed police reports for those incidents.
- He submitted testimony, 20+ documents (identity, party membership, affidavits), a country-conditions expert (Brian Concannon), and a medical affidavit (Dr. Rowley); late additional materials were denied admission by the IJ for lack of cross-examination availability.
- The IJ found Silais credible but emphasized vague/inconsistent testimony and a fatal lack of corroboration for the specific violent incidents; alternatively concluded the harms did not rise to past persecution and that he failed to show government inability/unwillingness to protect.
- The BIA affirmed, adding that the country-conditions and medical evidence were general and did not corroborate the specific incidents; it found no prejudice from excluding the late submissions.
- The Seventh Circuit applied substantial-evidence review and denied the petition, holding the record did not compel a contrary conclusion.
Issues
| Issue | Silais's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the IJ/BIA ignored or misconstrued key evidence | Agency ignored or misstated Concannon and Dr. Rowley and misunderstood the 2010 election incident | Agency considered and discussed the evidence but found it general and not probative of the specific incidents; record supported Agency conclusions | Denied — Agency did not ignore evidence; factual disagreements do not compel reversal |
| Whether denial to admit supplemental evidence violated statutory or due-process rights | Denial prevented him from supplying corroboration and prejudiced his claim | IJ acted within authority to regulate hearing and excluded late materials lacking availability for cross-examination; petitioner showed no prejudice | Denied — no procedural violation shown and no prejudice because supplemental materials wouldn’t have cured lack of specific corroboration |
| Whether alleged harms constitute past persecution | Silais contends the assaults and threats amounted to persecution warranting asylum/withholding | Government contends harms were harassment, not persecution, and lack of corroboration undermines claim | Denied — harms uncorroborated and not compelled to be past persecution on this record |
| Whether government was unwilling/unable to protect against private-group violence | Silais argues the Chimeres had ties to officials and police failed to protect (e.g., released detainee) | Government emphasizes Silais never sought police protection or filed reports, undermining unwillingness/inability claim | Denied — failure to seek or attempt police protection and lack of evidence that government was unable/unwilling to protect |
Key Cases Cited
- Mansour v. INS, 230 F.3d 902 (7th Cir. 2000) (standard for BIA’s statement of reasons and reviewability)
- Santashbekov v. Lynch, 834 F.3d 836 (7th Cir. 2016) (review of IJ and BIA when BIA adds analysis)
- Kholyavskiy v. Mukasey, 540 F.3d 555 (7th Cir. 2008) (deference under substantial-evidence test and burden to compel contrary conclusion)
- N.L.A. v. Holder, 744 F.3d 425 (7th Cir. 2014) (private-actor persecution requires government complicity or inability/unwillingness to protect)
- Cece v. Holder, 733 F.3d 662 (7th Cir. 2013) (same; standards for persecution by private actors)
- Darinchuluun v. Lynch, 804 F.3d 1208 (7th Cir. 2015) (REAL ID Act corroboration rules and notice not required)
- Boyanivskyy v. Gonzales, 450 F.3d 286 (7th Cir. 2006) (prejudice where IJ scheduled hearing knowing key witnesses unavailable)
- Gomes v. Gonzales, 473 F.3d 746 (7th Cir. 2007) (example of severe, corroborated past persecution)