559 F. App'x 296
5th Cir.2014Background
- Temesgen Fishaye, an Eritrean national, applied for asylum, withholding of removal, and CAT relief alleging persecution after allowing a prisoner he guarded to escape. CAT relief was granted; asylum and withholding were denied.
- The IJ found Fishaye not credible based on alleged inconsistencies (harm in a credible-fear interview vs. later testimony; religious-practice statements) and lack of corroboration; the BIA affirmed and denied a motion to remand for new evidence.
- Fishaye explained inconsistencies as translation issues (Tigrinya distinctions) and inability to practice religion publicly in Eritrea. The IJ and BIA rejected these explanations.
- The IJ found Fishaye failed to provide reasonably available corroboration (e.g., brother’s Swedish documents, letters attesting religious practice); Fishaye later submitted such letters in a motion to remand.
- The BIA denied remand, concluding the new exhibits were either untranslated, available earlier, or Fishaye failed to show they were unavailable at the hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adverse credibility finding | Fishaye: inconsistencies due to translator misunderstanding and inability to practice religion publicly | Gov: IJ and BIA properly relied on inconsistencies under the REAL ID Act | Court: Affirmed—substantial evidence supports adverse credibility; not compelled to accept explanations |
| Corroboration requirement | Fishaye: corroboration unavailable (religious suppression in Eritrea; risk to attestants) | Gov: Fishaye could have obtained corroboration (brother in Sweden, later letters); IJ reasonably found evidence available | Court: Affirmed—Fishaye failed to show corroboration was unavailable; IJ not compelled to find otherwise |
| Waiver / reviewability of corroboration issue | Fishaye: court may review corroboration because raised in response brief | Gov: argues waiver of appeal on corroboration | Court: Considered issue; reviewed corroboration determination on the merits |
| Motion to remand for new evidence | Fishaye: new ID, brother’s ID, and letters were material and not available at hearing | Gov: Evidence was untranslated or could have been obtained earlier; Fishaye didn’t show unavailability | Court: Affirmed denial—BIA did not abuse discretion; Fishaye failed to show new evidence was both material and unavailable at prior hearing |
Key Cases Cited
- Wang v. Holder, 569 F.3d 531 (establishes substantial-evidence review and deference to IJ credibility findings under REAL ID Act)
- Rui Yang v. Holder, 664 F.3d 580 (corroboration requirement and review standard for availability of evidence)
- United States v. Ramirez, 557 F.3d 200 (permitting consideration of issues raised in response brief)
- Wang v. Ashcroft, 260 F.3d 448 (treatment of motions to remand as equivalent to motions to reopen)