MANUEL GUZMAN-VAZQUEZ, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent.
No. 19-3417
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: May 18, 2020
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0155p.06. On Petition for Review from the Board of Immigration Appeals; No. A 206 154 087. Before: MERRITT, MOORE, and MURPHY, Circuit Judges.
COUNSEL
ON BRIEF: R. Andrew Free, LAW OFFICE OF R. ANDREW FREE, Nashville, Tennessee, for Petitioner. Patricia E. Bruckner, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
MOORE, J., delivered the opinion of the court in which MERRITT, J., joined. MURPHY, J. (pp. 30–51), delivered a separate dissenting opinion.
KAREN NELSON
I. BACKGROUND
Manuel Guzman is a native and citizen of Mexico who has lived in the United States for over twenty years. Administrative Record (“A.R.“) at 177 (Appl. for Withholding at 1). After leaving home at age 14, he crossed the border between Mexico and California at 17 and has not returned to Mexico since. Id.; id. at 106 (Removal Proceedings Tr. (“Hr‘g Tr.“) at 26). On July 17, 2014, the Department of Homeland Security served him with a notice of hearing for removal proceedings. Id. at 1010 (Notice of Hr‘g). On July 18, 2016, Guzman applied for asylum, withholding of removal under
A. The Hearing
At the hearing on his application for relief from removal, Guzman testified to the following information. He was born in the town of Estanzuela Grande in Oaxaca, Mexico. Id. at 117 (Hr‘g Tr. at 37); id. at 177 (Appl. for Withholding at 1). He has one biological sister. Id. at 118 (Hr‘g Tr. at 38); id. at 180 (Appl. for Withholding at 4). In his hometown, his family faced violence at the hands of another family, who murdered both his father and grandfather. Id. at 148 (Hr‘g Tr. at 68). After his father was killed, when Guzman was one year old, he and his mother moved to a different town, San Pedro Mixtepec, which was about six hours away. Id. at 110; id. at 180 (Appl. for Withholding at 4).2
In San Pedro Mixtepec, Guzman suffered mistreatment at the hands of his mother and stepfather. Id. at 105–06, 147 (Hr‘g Tr. at 25–26, 67). He explained that his mother cared more about her stepchildren, and that “she can‘t worry about her kids with her relationship with her husband.” Id. at 127. Guzman testified that his
He usually get a, a rope, a root, he cut a root from the, the, the shores at the top of the dirt because he know that is not going to break. He used to mark my whole body whenever I take shower one day my mother see my back, how hurt I was. . . . I told him one day that I cannot take it no more because I was hurt, so I started running, he chased me, he chased me, so I tried to go under the fence, but I got stuck, and he hurt me worse.
Id. at 128. Guzman stated that his stepfather would “look for any reason” to hit him. Id. at 140. He also testified that his stepfather hit his sister, id. at 140, and that when his mother tried to stop his stepfather from abusing him, “she got hurt, too, for the same reason, for she talking to him about me.” Id. at 128; see also id. at 144 (“[S]he know that I can get hurt by the -- by, by him because she know how she, how she got treated by the -- by this man because of me.“). At the same time, according to Guzman, his mother abused him, doing the “[s]ame thing my step-dad did, because he like a repeat.” Id. at 147. No one reported the stepfather‘s abuse because he was in charge of the political subdivision where they lived. Id. at 108–09.
When Guzman left home at age 14, his mother and stepfather told him never to set foot on their property again. Id. at 126. Three years later, his aunt gave him a “deal” to come to the United States, id. at 106, where he has lived since 1998, id. at 177 (Appl. for Withholding at 1). He testified that he fears returning to Mexico for several reasons. First, he fears that his stepfather, who still has connections to the police and harbors resentment toward him for abandoning the family, would kill him. Id. at 129, 145 (Hr‘g Tr. at 49, 65); id. at 140 (“He‘s still looking for me.“). Second, he fears that the individuals who murdered his family members would believe, if he returned, that he had come to avenge his father‘s death, and would try to kill him. Id. at 150; id. at 114–15 (explaining that these individuals murdered his cousin a few months before the hearing).
Because Guzman did not present affidavits from family members in support of his application for relief, portions of the hearing dealt with the whereabouts of these individuals and how frequently Guzman communicates with them. First, he testified that he last spoke between two to four weeks before the hearing with an uncle who fled Estanzuela Grande for the United States to escape the violence that their family faced and now lives in New Jersey. Id. at 112–13. Guzman offered no explanation for why he had not asked this uncle to write a statement for him. Id. at 113. Second, he stated that he has an aunt who lives “about an hour away from where [his] dad used to live,” with whom he exchanges text messages “every week, every other week.” Id. at 124–25. When asked why this aunt had not provided a statement for him about continued threats from the individuals in Estanzuela Grande who have harmed his family members, Guzman did not offer an explanation. Id. at 124–25. Third, with respect to his sister, who still lives in Mexico, he stated that “where she live there‘s really no communication, so that‘s the reason I‘m not really talk to her.” Id. at 142. He continued:
We talk like maybe once a year. Now where she live is no, no communication so she had to walk, I think 30 minutes, 40 to an hour to, to -- where she can go to a public phone, I mean to a store where she can pay for a phone, so this is why I not really talk to her.
Id. at 142. Finally, with respect to his mother, with whom he had last spoken two
B. The Immigration Judge‘s Decision3
The immigration judge found that although Guzman was “generally credible,” his testimony alone was insufficient to sustain his burden of proof without corroboration. A.R. at 43 (IJ Decision at 2). The IJ further found that Guzman “should have and could have produced corroborative evidence.” Id. With respect to corroboration of his claim that his stepfather abused him, the IJ found that this claim was “easily subject to verification.” Id. at 45. Addressing Guzman‘s explanation for why he lacked such verification, the IJ stated:
The respondent offered an explanation by way of the fact that it would be hard or difficult to communicate with his sister and get the information, and where the Court understands that and appreciates it, the respondent‘s testimony was that he was still in contact with his sister, that he‘s in contact with his mother, that he‘s in contact with his aunt, that he‘s in contact with his uncle, all the people that could provide corroboration, yet no corroboration has been provided to corroborate the details of the respondent‘s claim.
Id. The IJ then stressed the importance of corroboration on the issue of Guzman‘s stepfather‘s political influence, given Guzman‘s young age and potentially incomplete memory at the time of the alleged abuse. Id. Corroboration of the claim that there was a relationship between Guzman‘s stepfather and the “police or town management,” the IJ found, could have come from Guzman‘s sister, his mother, “or any other sort of documentation in the town, or from the town.” Id. at 45–46. Additionally, the IJ found that there was insufficient evidence in the record “that the step-father exi[s]ts, that he is, in fact, married to the mother, and that there is a step-father relationship with the respondent.” Id. at 46. These claims, too, the IJ found, were “easily subject to verification . . . through, at least, a letter from his sister.” Id.
After finding that the abuse Guzman suffered at his stepfather‘s hands rose to the level of persecution under the INA and that Guzman was a member of two particular social groups—(1) male relatives of Javier Guzman-Romero (his biological father) and (2) children born to his mother and Javier Guzman-Romero—the IJ concluded that Guzman could not establish that he had suffered harm on account of his membership in these groups. Id. at 48–50. Instead, the IJ found that Guzman was “the victim of a[n] individual motivated by depravity and crime, and that he was abused by a thug, a bully and a criminal.” Id. at 50. The IJ found that Guzman had a “fear of criminality.” Id. The IJ alternatively concluded that there had been a change in circumstances in Guzman‘s life—
The IJ denied Guzman‘s applications for asylum, withholding of removal under
C. The BIA‘s Decision
The BIA adopted the reasoning of the IJ.4 In particular, the BIA concluded that Guzman did not adequately explain why he could not obtain affidavits from his aunt, sister, or mother “since he remains in contact with them.” A.R. at 5 (BIA Decision at 3). It also concurred with the IJ that even if there had been adequate corroboration, the harm perpetrated on Guzman “was not based on his membership in [a particular social group].” Id. Finally, the BIA rejected Guzman‘s argument that he could satisfy the nexus requirement by demonstrating that his stepchild status was “at least” one factor causing his persecution, explaining that “that lower burden of proof for nexus has not been adopted by the United States Court of Appeals for the Sixth Circuit.” Id. Instead, Guzman was required to demonstrate that his stepchild status was a “central reason” for the harm he suffered. Id. at 6 & n.3 (citing Matter of C-T-L-, 25 I. & N. Dec. 341 (2010)). The BIA therefore dismissed his appeal. Id.
Guzman timely petitioned this court for review. We have jurisdiction to review the BIA‘s decision pursuant to
II. STANDARD OF REVIEW
“Where, as here, the BIA reviewed the IJ‘s decision de novo and issued its own separate opinion, we review the BIA‘s opinion as the final agency determination.” Hassan v. Holder, 604 F.3d 915, 924 (6th Cir. 2010). “However, to the extent the BIA adopted the immigration judge‘s reasoning, this court also reviews the immigration judge‘s decision.” Sanchez-Robles v. Lynch, 808 F.3d 688, 692 (6th Cir. 2015).
“This Court reviews both the immigration judge‘s and the BIA‘s factual findings under the substantial-evidence standard.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). “The substantial-evidence standard requires us to defer to the agency‘s findings of fact ‘if supported by reasonable, substantial, and probative evidence on the record considered as a whole.‘” Abdurakhmanov v. Holder, 735 F.3d 341, 345 (6th Cir. 2012) (quoting Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir. 1998) (citations omitted)). “These findings ‘are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.‘” Ben Hamida v. Gonzales, 478 F.3d 734, 736 (6th Cir. 2007) (quoting
III. DISCUSSION
This petition raises several questions. First, did the IJ and BIA correctly apply the corroboration requirement set forth in
A. Application of § 1158(b)(1)(B)(ii)
Guzman first argues that the IJ and BIA erred as a matter of law in applying
Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.
Our decision in Gaye analyzed the question of notice under
Gaye did not, however, address the question of an applicant‘s opportunity to explain why corroborative evidence is not reasonably available, when the IJ has deemed such evidence necessary to satisfy the individual‘s burden of proof. See 788 F.3d at 529–30. Following the plain language of the statute, the BIA‘s interpretation of it, and the interpretations of our sister circuits on this issue, we conclude without difficulty that an IJ may not require corroborative evidence without giving the applicant an opportunity to explain its absence. Start with the statutory text, which operates sequentially. “Where” the IJ determines that “otherwise credible testimony” needs corroboration, then the evidence must be provided unless the applicant cannot reasonably obtain it.
Yet our conclusion that the applicant must be given the chance to explain why corroborative evidence is not reasonably available would be the same even if the statutory language were ambiguous and we deferred to the BIA, see INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999), because the agency interprets the statute identically on this point. Prior to the enactment of the REAL ID Act of 2005, the BIA explained that “[b]ecause the burden of proof is on the [applicant], an applicant should provide supporting evidence, both of general country conditions and of the specific facts sought to be relied on by the applicant, where such evidence is available.” In Re S-M-J-, 21 I. & N. Dec. 722, 724 (BIA 1997). However, “[i]f such evidence is unavailable, the applicant must explain its unavailability, and the Immigration Judge must ensure that the applicant‘s explanation is included in the record.” Id. (emphasis added). Congress thereafter explicitly adopted the standards set forth in In Re S-M-J- in enacting the REAL ID Act. See H.R. CONF. REP. 109-72, at 166, as reprinted in 2005 U.S.C.C.A.N. 240, 292 (“Congress anticipates that the standards in Matter of S-M-J-, including the BIA‘s conclusions on situations where corroborating evidence is or is not required, will guide the BIA and the courts in interpreting this clause.“). Accordingly, following the REAL ID Act‘s enactment, the BIA reaffirmed that In Re S-M-J-‘s requirement of an opportunity to explain the absence of corroborative evidence still controlled:
Where credible testimony alone is determined to be insufficient, an applicant for asylum or withholding of removal bears the burden to provide reasonably available supporting evidence for material facts that are central to his claim and are easily subject to verification. Matter of S-M-J-, 21 I. & N. Dec. at 725. If the evidence is unavailable, the Immigration Judge must afford the applicant an opportunity to explain its unavailability and ensure that the explanation is included in the record.
Matter of L-A-C-, 26 I. & N. Dec. 516, 519 (BIA 2015) (emphasis added). This did not mean that the IJ was required to give “advance notice of the need for specific corroborating evidence,” id. at 520, as we subsequently recognized in Gaye, see 788 F.3d at 530 (“This text does not suggest that the alien is entitled to notice from the IJ as to what evidence the alien must present.“). But on the question of explaining the absence of such evidence, the BIA reiterated that “[a]t the merits hearing, in circumstances where the Immigration Judge determines that specific corroborating evidence should have been submitted, the applicant should be given an opportunity to explain why he could not reasonably obtain such evidence.” Matter of L-A-C-, 26 I. & N. Dec. at 521 (emphasis added).
Our sister circuits have reasoned similarly. For example, the Eighth Circuit recently adopted the same, twofold interpretation of
No circuit has held that an IJ may rule against an applicant on the basis of failing to provide corroborative evidence when the applicant has not had the chance to explain its absence. For example, in Rapheal v. Mukasey, 533 F.3d 521 (7th Cir. 2008), the Seventh Circuit rejected the same type of notice requirement that we rejected in Gaye, but was not faced with a scenario in which the petitioner had been given no opportunity by the IJ to explain the absence of corroborative evidence, and did not opine on this issue. Indeed, the court recounted how the IJ explicitly asked the applicant why he had not produced specific pieces of corroborative evidence. See id. at 529 (“[IJ]: And ma‘am, if [your father] is so well-known in Liberia, why have you not been able to present anything to me, to show that he was well-known in Liberia? A: Because I didn‘t leave home in peaceful home. I didn‘t left home with peace. [IJ]: Well, is there any information anywhere in the media regarding your family in Liberia? A: I wouldn‘t know. I wouldn‘t know.“). Similarly, in Wei Sun v. Sessions, 883 F.3d 23 (2d Cir.), cert. denied, 139 S. Ct. 413 (2018), the Second Circuit explained that “the IJ should perform the following analysis: (1) point to specific pieces of missing evidence and show that it was reasonably available, (2) give the applicant an opportunity to explain the omission, and (3) assess any explanation given,” though it added that “we require an IJ to specify the points of testimony that require corroboration, [but] we have not held that this must be done prior to the IJ‘s disposition of the alien‘s claim.” Id. at 31 (citing Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009)) (first emphasis added). And in Avelar-Oliva v. Barr, 954 F.3d 757 (5th Cir. 2020), the Fifth Circuit recently considered whether to “part ways” with “the BIA‘s rejection of the advance notice and automatic continuance requirements.” Id. at 770. The court—“join[ing] the Second, Sixth, Seventh, and Eighth Circuits“—“reject[ed] the notion that an IJ, prior to disposing of an alien‘s claim, must provide additional advance notice of the specific corroborating evidence necessary to meet the applicant‘s burden of proof and an automatic continuance for the applicant to obtain such evidence,” id. at 771, but did not opine on the question of an applicant‘s opportunity to explain the absence of corroborating evidence, apart from acknowledging the BIA‘s position that an applicant must have “an opportunity to explain why he could not reasonably obtain such evidence,” id. at 770 (quoting Matter of L-A-C-, 26 I. & N. Dec. at 521). Finally, the First Circuit—citing the Third Circuit‘s decision in Chukwu—held that “before the failure to produce corroborating evidence can be held against an applicant, there must be explicit findings that (1) it was reasonable to expect the applicant to produce corroboration and (2) the applicant‘s failure to do so was not adequately explained.” Soeung v. Holder, 677 F.3d 484, 488 (1st Cir. 2012) (citing Chukwu, 484 F.3d at 191–92). This holding presumes that an applicant has received some opportunity to “adequately explain[]” his failure to produce corroborating evidence.
From the plain language of
As to evidence corroborating Guzman‘s testimony that “the step-father exi[s]ts, that he is, in fact, married to the mother, and that there is a step-father
B. Substantial Evidence and Corroboration
We turn to the question of whether substantial evidence supported the IJ‘s and BIA‘s determination that Guzman inadequately explained why he failed to corroborate his past-persecution claim involving his stepfather.
Where the immigration judge [in removal proceedings] determines that the applicant should provide evidence [that] corroborates otherwise credible testimony, such evidence must be provided unless the applicant demonstrates that the applicant does not have the evidence and cannot reasonably obtain the evidence.
The issue in this case, therefore, is not whether the IJ sufficiently explained why corroborative evidence was important. With respect to the issue of Guzman accurately recalling the extent of his stepfather‘s
As the pages of the Federal Appendix illustrate, we are often confronted with cases in which applicants for relief from removal simply provided no reason to the IJ or BIA for their failure to adduce probative testimony or affidavits from relevant witnesses. See, e.g., Dragnea v. Lynch, 624 F. App‘x 365, 370 (6th Cir. 2015) (“Dragnea gives no reason for [three relevant witnesses‘] unavailability. He therefore fails to compel a conclusion that corroborating evidence was unavailable.“); Brushtulli v. Holder, 594 F. App‘x 282, 287 (6th Cir. 2014) (“Brushtulli has given no reason why he did not or could not obtain corroborating statements from his uncles or other relatives who were aware of the incidents that occurred when he was a child.“); Yanyun Ni v. Holder, 556 F. App‘x 466, 470 (6th Cir. 2014) (“Statements from either or both of these individuals could have substantiated many of Ni‘s claims, yet no explanation was offered as to why they were unavailable to provide evidence.“); Ying Chen v. Holder, 580 F. App‘x 332, 341 (6th Cir. 2014) (“Chen never provided the IJ or the BIA with any explanation as to why these materials, or other corroborating evidence, were not provided.“); Gjoni v. Gonzales, 168 F. App‘x 54, 59 (6th Cir. 2006) (“[A]t the removal hearing, Gjoni did not provide any reasonable explanation for the absence of this corroborating evidence. Gjoni merely stated that he believed that providing the testimony of his family members to corroborate his account of the persecution he suffered would not further his claim and thus he did not call his brothers as witnesses at the hearing or provide affidavits from his parents or sister.“).
This is no such case. As to the only two individuals who, according to the record, had knowledge of the stepfather‘s abuse, Guzman provided compelling explanations for their failure to corroborate his testimony. With respect to his sister, Guzman explained that “there‘s really no communication” where she lives in Mexico, and she has to walk between 30 minutes to one hour in order to pay for a phone. A.R. at 142 (Hr‘g Tr. at 62). Because of this, he only spoke to her “maybe once a year.”
Other cases in this circuit involving complications in contact between an applicant and a potential corroborating witness do not present the heightened obstacles evident in this case. For instance, the applicant in Dorosh v. Ashcroft, 398 F.3d 379 (6th Cir. 2004), explained that she had not provided corroboration from her mother in part because “her mother had no telephone and had to go to the post office to call her.” Id. at 383. We upheld the BIA‘s decision rejecting this explanation because there was no indication that this hindrance had severely affected the applicant‘s ability to communicate with her mother. Indeed, we noted that “[w]hile contact may not have been convenient, regular, or private, it was sufficient to have allowed Petitioner to obtain a previous letter from her mother in which her mother documented her own mistreatment.” Id.; see also Fisenko, 336 F. App‘x at 512 (applicant who “testified [that] he feared for his family” failed to
With respect to Guzman‘s mother, the IJ‘s decision makes no mention of the principal reason offered by Guzman for why he did not provide a letter from her: She is unable to write. Id. Nor does the decision make note of Guzman‘s testimony that (a) his mother, like his stepfather, subjected him to abuse, and that (b) his mother was herself the victim of physical abuse by his stepfather.8 The IJ simply concluded that “he‘s in contact with his mother” and faulted Guzman for failing to provide corroboration from her. Id. It is true that Guzman testified that he talks to his mother, who still resides in Mexico with Guzman‘s stepfather, and that he had last spoken to her two weeks prior to the hearing. Id. at 127 (Hr‘g Tr. at 47). Yet the decisions of the IJ and BIA do not explain how an applicant claiming past abuse can be “reasonably expected,” Abdurakhmanov, 735 F.3d at 347, to submit an affidavit from a partially illiterate individual who has both suffered and inflicted the same abuse about which the applicant credibly testifies. See Diallo v. INS, 232 F.3d 279, 289 (2d Cir. 2000) (rejecting the BIA‘s conclusion that documentary evidence was “easily accessible” to an applicant, given his “functional illiteracy“). When we have upheld determinations of the IJ and BIA that an individual‘s illiteracy was not a bar to providing a corroborative affidavit, see Dissent Op. at 37 (citing cases), we have relied on the affiant‘s ability to have their statements
In contrast to the foregoing, Guzman did not explain why he had not submitted affidavits from his aunt or uncle.10 There is nothing in the record, however, indicating that these individuals could have corroborated his claim about abuse by his stepfather. We have noted the significance of failing to provide corroborative evidence from individuals with knowledge of relevant events. In Irhibayeva v. Holder, 549 F. App‘x 421 (6th Cir. 2013), we recounted how an applicant‘s “general credibility was brought into question by failing to offer credible, easily-obtained, corroborating evidence from the neighbor, Stepan, who was witness to the incident and with whom [the applicant] claims she still maintains contact.” Id. at 427 (emphasis added). Conversely, we have emphasized the irrelevance of testimony from individuals who lack such knowledge, which the dissent overlooks. Dissent Op. at 40–41. In Urbina-Mejia v. Holder, 597 F.3d 360 (6th Cir. 2010), we agreed with the applicant that “some of the requested corroboration, specifically letters from his siblings who were likely too young to understand any threats to their much older brother, and testimony from his mother and a letter from his pastor, who were not in Honduras during the relevant time period, are unlikely to be probative with respect to the likelihood of persecution in Honduras.” Id. at 368.
Testimony from Guzman‘s aunt and uncles falls into the latter category. Based on the evidence available to the IJ, testimony from Guzman‘s aunt or uncle would not
Without question, substantial evidence supported a determination that the uncles and aunt could have offered probative statements about external threats of violence facing members of Guzman‘s biological family. For example, when asked how he knew that another family had killed both his father and grandfather, Guzman responded, “Because my aunt told me.” Id. at 148. The IJ sensibly pointed to these individuals as knowledgeable of the violence that the Guzman-Vazquez family faced from another family in Estanzuela Grande. Id. at 44 (IJ Decision at 3). But the only probative evidence in the record situates them far from San Pedro Mixtepec, where Guzman suffered child abuse, which is the only claim that we consider in this petition for review; these relatives were undisputedly “not in [San Pedro Mixtepec] during the relevant time period,” Urbina-Mejia, 597 F.3d at 368.
period.” Urbina-Mejia, 597 F.3d at 368.11 For these
The IJ faulted Guzman for his failure to submit evidence from “all the people that could provide corroboration,” A.R. at 45 (IJ Decision at 4), yet exhaustive review of the record does not reveal any other individuals, apart from those discussed above, whose probative testimony was “reasonably available,” either in written or oral form. For this reason, we disagree with the IJ’s further conclusion that corroboration of Guzman’s claim that his stepfather had a relationship with the police or town management was available. As discussed, letters from Guzman’s sister and mother were not reasonably available, and there is no evidence in the administrative record of other individuals who might have conveyed the relevant documentation of such a relationship to Guzman. Again, we do not question the IJ’s finding that such corroboration was important to verify the recollections of an individual who left home at 14 years old. But an applicant is not required to provide corroborative evidence when he “does not have the evidence and cannot reasonably obtain the evidence.”
C. Nexus
Having concluded that the IJ and BIA erred in analyzing the availability of corroborative evidence, we next address whether the agency erred in rejecting Guzman’s claim that he was persecuted “because of” his membership in the particular social group that the IJ found cognizable. The IJ’s holding was clear: “To put it quite simply, the Court does not find that this stepfather abused [Guzman] because he was the child of his biological mother and father or that he was the child of just his father.” A.R. at 50 (IJ Decision at 9). In affirming this determination, the BIA relied on its precedent in Matter of C-T-L-, 25 I. & N. Dec. 341 (BIA 2010), explaining that for withholding cases as well as asylum cases, “a protected ground [must] be at least one central reason for the alleged persecution in order to establish the requisite nexus.” A.R. at 6 n.3 (BIA Decision at 4). In his petition for review, Guzman argues that the BIA applied the wrong standard to his claim, because “the withholding statute requires only that his membership in the particular social groups the IJ recognized [be] ‘a reason’—not ‘one central reason’ for the persecution he suffered at the hands of his step-father.” Pet. Br. at 12.
This dispute arises from changes made to the INA by the REAL ID Act. Prior to the enactment of the REAL ID Act, the INA did not specify whether and how an applicant could be granted relief from deportation—either through asylum or withholding of removal—if the applicant was persecuted because of both protected and unprotected grounds, or in other words, because of mixed motives. The REAL ID Act clarified that, with respect to asylum claims, “the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.”
In determining whether an alien has demonstrated that the alien’s life or freedom would be threatened for a reason described in subparagraph (A) [race, religion, political opinion, etc.], the trier of fact shall determine whether the alien has sustained the alien’s burden of proof, and shall make credibility determinations, in the manner described in clauses (ii) and (iii) of section 1158(b)(1)(B) of this title.
After the REAL ID Act’s enactment, the BIA subsequently held that the “one central reason” test for asylum claims applies to withholding claims, too. Matter of C-T-L-, 25 I. & N. Dec. 341 (BIA 2010). It reasoned that (1) although the withholding statute is silent on this point, language in the asylum and withholding statutes is otherwise similar, so “adopting two different standards would be unharmonious and asymmetrical,” id. at 347; (2) Congress intended to provide a uniform standard for assessing motivation, both across circuits and types of claims for relief, id. at 345–46; (3) prior to the REAL ID Act, the BIA had applied the nexus requirement to asylum and withholding cases identically, and there was “no indication that Congress intended to change this approach,” id. at 346; (4) applying different standards would, as a practical matter, “make these adjudications more complex, unclear, and uncertain,” id. at 347; and (5) even if there were no clear congressional intent, the BIA’s application of the “one central reason” standard represented a “reasonable choice within a gap left open by Congress,” id. at 348 (quoting Chevron, U.S.A., Inc., v. Natural Res. Def. Council, Inc., 467 U.S. 837, 866 (1984)).
Since Matter of C-T-L- was decided, two circuits have considered this issue in published opinions, and have come to opposite conclusions.12 In Gonzalez-Posadas v. Attorney Gen. U.S., 781 F.3d 677 (3d Cir. 2015), the Third Circuit briefly stated in a footnote that Matter of C-T-L- had correctly assessed “Congress’s intent to eliminate the confusion and disparity inherent in the ‘mixed motive’ persecution tests in the context of both claims for asylum and claims for withholding of removal.” Id. at 685 n.6 (quoting Matter of C-T-L-, 25 I. & N. Dec. at 348).13
In Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017), by contrast, the Ninth Circuit explained in a lengthy opinion why Matter of C-T-L- was incorrectly decided. First, Congress did not ignore the withholding statute when it enacted the REAL
We agree with the Ninth Circuit’s reasoning in Barajas-Romero. The court’s explanation of why the statutory text is unambiguous accounts for the government’s various arguments in this case about statutory interpretation, practical considerations, and legislative intent. We need look no further than the text of the withholding statute in comparison with the text of the asylum statute: “a reason” is different from—and weaker than—“a central reason.” We are thus not “left only with the plain meaning of ‘because of,’” Dissent Op. at 50, or “for,” id. at 49, which the dissent concludes is “but-for,” despite enumerating the myriad contexts in which courts have decided it means something else; rather we are left with the plain meaning of “for a reason” in the withholding statute in comparison with “at least one central reason” in the asylum statute. Accordingly, we interpret a statute that, unlike its statutorily-linked neighbor in
To the Ninth Circuit’s reasoning we add a brief response to the government’s argument that in Barajas-Romero, the court “overlooked the most natural explanation for the omission of a cross-reference to the ‘one central reason’ provision of the asylum statute: That provision requires the applicant to establish that he is a ‘refugee,’
Yet this argument ignores that Congress has linked the withholding statute to another provision of the asylum statute that uses the term “refugee.” Section 1231(b)(3)(C) of the withholding statute reads:
In determining whether an alien has demonstrated that the alien’s life or freedom would be threatened for a reason described in subparagraph (A), the trier of fact shall determine whether the alien has sustained the alien’s burden of proof, and shall make credibility determinations, in the manner described in clauses (ii) and (iii) of section 1158(b)(1)(B) [the asylum statute].
Id. (emphasis added). Section 1158(b)(1)(B)(ii) of the asylum statute, in turn, reads in relevant part: “The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.”
the withholding statute in
The dissent’s professed adherence to the “plain text” of the statute, Dissent Op. at 51, fits poorly with its decision to “choose” an interpretation that is found nowhere in the text. Id. at 47. It begins by setting up “two poles” between which all mixed-motives analyses must fit, id. at 46–47, even though one of these poles—requiring the statutorily covered motive to be “the sole motive for a defendant’s action,” id. at 46—has no relevance to immigration law. See Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir. 2009) (clarifying that even under the asylum burden-of-proof standard, “an asylum applicant need not prove that a protected ground was the only central reason for the persecution she suffered”) (emphasis added). This allows the dissent to call the “but for” standard on which it settles as a “middle option,” Dissent Op. at 47, when in fact its chosen standard would be stricter than the “at least one central reason” test applicable to asylum cases, despite Congress’s addition of a more stringent mixed-motive test for asylum claims than for withholding claims. Parussimova, 555 F.3d at 740.
No matter, says the dissent. This would “respect[] the traditional understanding that withholding-of-removal claims will fail when asylum claims fail.” Dissent Op. at 51. Apart from ignoring the comparatively weaker mixed-motive test that Congress established for withholding claims in
The Attorney General, in his or her discretion, may grant asylum to a “refugee;” i.e., “a person who is unable or unwilling to return to his home country ‘because of persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion.’”
. . .
An alien seeking withholding of removal must demonstrate “that there is a clear probability that he will be subject to persecution if forced to return to the country of removal.”
Singh, 398 F.3d at 401 (citations omitted) (emphasis added). Because “well-founded fear” is lower than “clear probability,” “an alien must meet a higher burden in establishing a right to withholding of removal than in demonstrating asylum eligibility,” meaning that, with respect to likelihood of persecution, “an alien who fails to qualify for asylum necessarily does not qualify for withholding of removal.” Id. Our observation in Singh that withholding poses a “higher burden” than asylum related only to the former’s steeper requirement of more-likely-than-not persecution. The dissent points to no published decision of this court that has regarded asylum denial on the basis of an applicant failing the “one central reason” test as foreclosing a withholding claim. Our decision, according to the dissent, “mak[es] causation for [withholding] claims easier to prove than causation for asylum claims,” Dissent Op. at 31, but such a general claim overlooks the narrow consequence of today’s holding, which clearly leaves untouched the more difficult burden facing a withholding applicant on the question of likelihood of persecution.
For the foregoing reasons, we hold that applicants for withholding of removal under
D. Change in Circumstances
The IJ alternatively found that even if Guzman had successfully proven his past-persecution claim, a fundamental change in circumstances—namely, the lack of dependency Guzman now has on his stepfather for sustenance—rendered his claim moot. A fundamental
change in circumstances can indeed render viable past-persecution claims nonviable. As we have explained:
If the applicant establishes that he has suffered past persecution, the government may rebut the presumption of a well-founded fear of future persecution by showing by a preponderance of the evidence either that “[t]here has been a fundamental change in circumstances such that the applicant’s life or freedom would not be threatened on account of any of the five grounds” or that “[t]he applicant could avoid a future threat to his or her life or freedom by relocating to another part of the proposed country of removal.”
Vincent v. Holder, 632 F.3d 351, 355 (6th Cir. 2011) (alterations in original) (quoting
Given that the BIA did not address this alternative rationale for denying
Generally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands. This principle has obvious importance in the immigration context. The BIA has not yet considered the “changed circumstances” issue. And every consideration that classically supports the law’s ordinary remand requirement does so here.
Id. at 16–17. The posture of the instant case is nearly identical: The IJ denied Guzman relief based in part on the nexus issue, and alternatively held that a fundamental change in circumstances rendered his past-persecution claim moot. The BIA did not opine on the change-in-circumstances question. If the facts regarding changed circumstances were undisputed—for example, if both Guzman’s mother and stepfather had died—then perhaps we could resolve this
case without remanding to the BIA. But this is not the case. See A.R. 140 (Hr’g Tr. at 60) (Q: “And you haven’t spoken to him since you left?” A: “Yeah . . . . He’s still looking for me.”); id. at 144 (“I return to Mexico I would say he probably kill me, because he had too much hate.”). In line with Orlando Ventura, “it is for the BIA to address th[is] matter[] in the first instance.” Torres-Vaquerano v. Holder, 529 F. App’x 444, 449 (6th Cir. 2013).
IV. CONCLUSION
For the foregoing reasons, we GRANT the petition for review, VACATE the BIA’s decision, and REMAND for further proceedings consistent with this opinion.
DISSENT
MURPHY, J., dissenting. Respectfully, the majority can grant Manuel Guzman-Vazquez relief only by making three mistakes and deepening two circuit conflicts. First, the majority shrinks the wide latitude Congress gave the Board of Immigration Appeals to require immigrants to corroborate their testimony. By doing so, my colleagues resuscitate the rigorous review of the Board’s corroboration decisions that Congress sought to end with the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302. Before that Act the Ninth Circuit regularly rejected the Board’s requirement that immigrants corroborate testimony. Ladha v. INS, 215 F.3d 889, 899–901 (9th Cir. 2000). In response, Congress broadly permitted immigration judges to require “evidence that corroborates otherwise credible testimony” unless immigrants prove that they do “not have the evidence and cannot reasonably obtain” it.
Second, to overturn the Board’s corroboration decision, my colleagues add to a circuit split by adopting a new legal rule: At hearings, immigration judges must identify each fact that needs corroboration so that immigrants may address the availability of any corroborating evidence for that fact. Caselaw from the Ninth and Third Circuits might support this rule. Those courts hold that immigration judges must give immigrants notice that they will need to corroborate facts and “a sufficient opportunity to obtain the evidence or explain [their] failure to do so.” Ren v. Holder, 648 F.3d 1079, 1093 (9th Cir. 2011). But our caselaw does not. We (and four other courts) hold that federal law does not entitle immigrants “to notice from the Immigration Court as to what sort of evidence” the immigrant must provide. Gaye v. Lynch,
788 F.3d 519, 530 (6th Cir. 2015); e.g., Avelar-Oliva v. Barr, 954 F.3d 757, 769–71 (5th Cir. 2020). The majority’s new rule conflicts with Gaye’s reading of the statutory text and structure. As the Second Circuit has reasoned, an immigration judge might “not determine that corroboration is necessary” until after a hearing when “weigh[ing] the evidence and prepar[ing] an opinion.” Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009). We thus should not require the judge to identify “the points of testimony that require corroboration” before that time. Id.
Third, my colleagues adopt the Ninth Circuit’s causation test for withholding-of-removal claims, making causation for those claims easier to prove than causation for asylum claims. See Barajas-Romero v. Lynch, 846 F.3d 351, 356–60 (9th Cir. 2017). Yet we have held for decades that an immigrant “who fails to qualify for asylum necessarily does not qualify for withholding of removal.” Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir. 2005) (emphasis added). We can no longer make that statement. The withholding-of-removal statute requires Guzman to prove that his “life or freedom would be threatened” “because of” one of several reasons, such as race, religion, or membership in a particular social group.
For these three general reasons, I respectfully dissent.
I
At his immigration hearing Guzman testified about his childhood in Mexico but offered no evidence from relatives. He stated that he was born in a small town, but that unknown individuals murdered his father when he was a year old. Admin.
Since living in the United States, Guzman has been arrested four times. AR 131–32, 192. Most recently, he agreed to a deferred adjudication for assaulting the mother of his children. That criminal case triggered these removal proceedings. AR 132. Guzman sought withholding of removal, asserting that he would face harm in Mexico from his father’s murderers and from his stepfather. AR 42–43, 127–28, 143–44. Guzman, now 38, believes his stepfather would be about 70 today. AR 50–51, 127, 138, 168. Yet Guzman said his stepfather still has an official town role and still hates him. AR 129, 145.
An immigration judge rejected Guzman’s claim on an evidentiary ground and a substantive ground. As for the evidentiary ground, the judge held that Guzman’s testimony was “not sufficient to sustain his burden of proof without corroboration” from relatives. AR 43. The judge explained that Guzman’s claim about his stepfather was “easily subject to verification” from his mother, sister, aunt, or uncle, and that he should have at least corroborated his stepfather’s existence. AR 45–46. As for the substantive ground, the judge held that Guzman could not establish withholding of removal’s causation element for the same reasons he could not show asylum’s causation element. AR 55. Guzman said he belonged to “particular social groups” defined as relatives of his father or children of his parents. AR 51–52. But Guzman did not show that his stepfather “abused him because he was the child of his biological mother and father.” AR 50.
The Board agreed. On the evidentiary ruling, it noted that Guzman presented “insufficient corroboration that the stepfather exists” and did not adequately explain why he could not get evidence from “such people as his aunt, sister, or mother.” AR 5. On the substantive ruling, the Board rejected Guzman’s argument that the causation element for withholding of removal is easier to meet than the causation element for asylum, which asks whether a statutorily covered reason was a “central reason” for persecution. While Guzman relied on a Ninth Circuit case for this argument, the Board recognized that our court has not adopted its view. Guzman also did not show that his relationship to his parents was “a central reason” for his stepfather’s abuse. AR 5–6.
The withholding-of-removal statute provides: “[T]he Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.”
A
1. Before delving into Guzman’s facts, I think it worth recalling Congress’s instructions on corroborating evidence. In the REAL ID Act of 2005, Congress imposed a doubly daunting task on immigrants who seek to overturn the Board’s conclusion that they should have corroborated their testimony. Pub. L. No. 109-13, 119 Stat. 302, 303–05. The Act’s evidentiary standards give immigration judges broad discretion to require corroboration, and its review standards compel courts to give great deference to those conclusions. Start with the evidentiary standards. The REAL ID Act confirmed that the withholding-of-removal statute places the burden of proof on immigrants. “An alien applying for relief or protection from removal has the burden of proof to establish that the alien” “satisfies the applicable eligibility requirements[.]”
As relevant here, the asylum statute’s new corroboration rule allows immigration judges to excuse an immigrant’s failure to obtain corroborating evidence in certain circumstances, but gives those judges broad discretion to reject uncorroborated claims:
The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant’s burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.
That said, the REAL ID Act codified the Board’s prior safety valve. Before the Act, the Board had found that immigrants need not corroborate testimony that is “not reasonably subject to verification.” S-M-J-, 21 I. & N. Dec. at 725. The Act thus added that immigrants need not present evidence if they do “not have the evidence and cannot reasonably obtain” it.
The REAL ID Act lastly altered our own review. To ensure that courts would not undercut the Board’s new statutory discretion, Congress added a standard of review specifically tailored to this issue. 119 Stat. at 305. The provision says: “No court shall reverse a determination made by a trier of fact with respect to the availability of corroborating evidence, as described in section 1158(b)(1)(B),
2. Applying this law, I would uphold the Board’s order. I begin with a big-picture reason. Guzman bore the burden to prove that no corroborating evidence was available. See Urbina-Mejia v. Holder, 597 F.3d 360, 367 (6th Cir. 2010). Yet he did not even try to gather that evidence. As we have held, a reasonable adjudicator can conclude that immigrants have not met their burden if they do not even try to obtain corroboration. See Qiao Zhen Jiang v. Holder, 341 F. App’x 126, 128 (6th Cir. 2009); Jacobs v. Holder, 337 F. App’x 458, 463 (6th Cir. 2009); Shkabari v. Gonzales, 427 F.3d 324, 331 (6th Cir. 2005). Before the REAL ID Act, for example, we upheld the Board’s rejection of an immigrant’s claim that she could not find her medical records when she “did not present any evidence in the forms of letters or envelopes” showing she attempted to do so over a span of “several months.” Shkabari, 427 F.3d at 331.
My colleagues respond that immigrants need not try to get corroboration when it is obvious that such evidence does not exist or would be impossible to obtain. Majority Op. 16 n.7. If, for example, Guzman had testified that his relatives had all passed away, no reasonable person would expect him to “try” to get a letter from them. Id. at 17 n.8. True enough. But Guzman’s mother, sister, aunt, and uncles are alive and he conceded that he could have tried to provide corroboration from at least one of them. More than three-and-a-half years passed between Guzman’s first appearance and his merits hearing. AR 76, 95. He was represented by counsel almost that entire time. AR 83–84. He spoke with some of these relatives on a regular basis. Yet the record does not show that he took a single step to obtain a letter from any of them. E.g., AR 113, 125, 142–43. His lack of diligence alone should compel us to uphold the Board’s order.
Turn to a relative-by-relative analysis. The majority says that evidence from Guzman’s mother or sister was “corroborating” but not “reasonably available,” and that evidence from his aunt or uncles was “reasonably available” but not “corroborating.” Its analysis shrinks the Board’s broad discretion and enlarges the court’s narrow review, in violation of the REAL ID Act.
Guzman’s Mother. A reasonable adjudicator could think that Guzman should have presented evidence from his mother, who lives in the same town with his stepfather. AR 137–38. She knew of his stepfather’s abuse and suffered abuse of her own. AR 107. Guzman still talks to her and, indeed, spoke with her two weeks before his hearing. AR 127. Yet his mother did not provide so much as a letter to support him. When asked if he could get evidence from her, Guzman responded: “I can try, getting a letter from her.” AR 142. So he never even tried.
Why, despite Guzman’s statement that he could try to get a letter from his mother, would any reasonable judge be forced to conclude that this evidence was unavailable? The majority asserts it is because Guzman’s mother cannot write. I must disagree on the facts and the law. Factually, Guzman did not identify his mother’s illiteracy as a reason why he could not obtain a letter. AR 142–43. He listed it as the reason why he did not ask for one. When
The majority bolsters its claim that a letter from Guzman’s mother was unavailable with a reason that Guzman himself does not raise: that his mother abused him. Whatever the merits of this argument, we cannot consider it. Under
In all events, Guzman’s cursory testimony about his mother’s abuse did not compel the Board to conclude that evidence from her was unavailable. I might agree that, if Guzman were relying on his mother’s persecution for his claim, the Board should not expect her to concede she abused her son. Cf. S-M-J-, 21 I. & N. Dec. at 725. But Guzman does not do so. For good reason. Unlike his relatively detailed testimony about his stepfather, Guzman testified only that his mother did the “same thing my step-dad did,” that he was the child who had to “do everything,” and that if “something [was] not there in the house when they look for it, it’s on” him. AR 147–48. As the Board noted, Guzman’s mother at least could have confirmed such mundane (yet critical) matters as whether his “stepfather exists” and “is married to” her. AR 5. Guzman also conceded that he still talks to his mother and that “[a]t one point” she told him that she wanted him to return to Mexico to see her because she had not seen him for a long time. AR 144. Those are not the words of someone unwilling to help. At least the Board could reasonably so conclude.
Guzman’s Sister. A reasonable adjudicator could likewise conclude that Guzman failed to establish that he could not reasonably obtain corroboration from his sister. To be sure, Guzman asserted that his sister lives in a Mexican town with no communication and must walk 30 minutes to an hour to use a public phone. AR 142. Yet Guzman conceded that he talks to her “maybe once a year.” Id. And he said that she would have critical evidence: She knew of the stepfather’s abuse and was subjected to it herself. AR 140, 142. Despite the obvious value of her recollection, Guzman again provided no evidence that he even asked her for a letter. By his own estimate, however, he would have talked to his sister at least three times over the course
In response, the majority asserts that their remote contact proves that Guzman could not “reasonably obtain” evidence from his sister under
The majority distinguishes Dorosh on the ground that the mother in that case had sent an earlier letter. See id. Yet Guzman offered no evidence that his sister could not send a letter too, if only he had asked for one. Regardless, the question here is not whether Dorosh is distinguishable. The question is whether a “reasonable adjudicator” could conclude that this case falls within the rule that corroboration is available even when contact is inconvenient or irregular.
Guzman’s Aunt and Uncles. A reasonable adjudicator lastly could conclude that Guzman could reasonably obtain evidence from his aunt or an uncle. (The immigration judge did not identify the specific uncle that the judge had in mind.) Guzman testified that he “text[s]” “every week” or “every other week” with his aunt and offered no excuse for failing to get a statement from her. AR 125. Similarly, he talked with his uncle who lives in New Jersey three to four weeks before his hearing and again gave no reason why he had not asked for a letter. AR 113. (Guzman did identify his uncle’s fear of deportation as a reason why his uncle did not appear in person, but he did not use this as an excuse for the lack of a letter. Id.; cf. Sanchez-Velasco v. Holder, 593 F.3d 733, 736 (8th Cir. 2010).) Lastly, Guzman identified “communication problems” as the lone reason why he did not have a letter from the uncle who lives on his father’s property. AR 143. Yet this conclusory claim does not compel a finding that Guzman could not have obtained a letter from this uncle. Guzman again made no effort to do so. And the alleged “communication problems” did not prevent him from learning facts about his uncle that were useful to his claim for relief, including that his uncle had been threatened by the individuals who murdered his father and so planned to leave his father’s property soon. AR 134–35.
The majority does not dispute these points. It instead rejects the Board’s decision because “[t]here is nothing in the record . . . indicating that these individuals could have corroborated [Guzman’s] claim
At the least, I would give the word “corroborate” its natural meaning to cover evidence that would “strengthen or confirm” an immigrant’s claim or “make [it] more certain.” Black’s Law Dictionary, supra, at 421. That is, the statute covers relevant evidence—evidence that “has
any tendency to make a fact more or less probable than it would be without the evidence.”
B
To overturn the Board’s corroboration decision, the majority also adopts a new legal rule that draws us deeper into a circuit conflict. My colleagues hold that the immigration judge should have given Guzman a chance to explain why he did not corroborate certain facts (such as his stepfather’s existence) by specifically asking him at the hearing about the lack of corroboration for those facts. I would reject this rule for procedural and substantive reasons.
1. Start with process. Guzman did not preserve this alleged error. For one thing, as noted, we may review an alleged error only if an immigrant “has exhausted all administrative remedies available.”
For another thing, we generally do not consider arguments when parties do not advocate for them. McKinney v. Hoffner, 830 F.3d 363, 374 (6th Cir. 2016). Here too, Guzman “never” raised this argument even before our court. Id. Instead, Guzman claims he should have been provided an opportunity to obtain corroborating evidence. Pet. Br. 18. Yet he acknowledges that we have held that the corroboration statute,
2. Turn to substance. As a refresher, the corroboration statute provides: “Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain” it.
Five other circuits have noted that the text says nothing about this notice. See, e.g., Gaye, 788 F.3d at 530. They have added that the statute and the agency’s instructions for completing applications give general notice that immigrants must provide corroboration. See Avelar-Oliva v. Barr, 954 F.3d 757, 769–71 (5th Cir. 2020). These courts thus reject the view that judges must “provide additional advance notice of the specific corroborating evidence necessary to meet the applicant’s burden of proof and an automatic continuance for the applicant to obtain such evidence.” Id. at 771; Uzodinma v. Barr, 951 F.3d 960, 966 (8th Cir. 2020); Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009); Rapheal v. Mukasey, 533 F.3d 521, 530 (7th Cir. 2008). We adopted this approach in Gaye, holding that immigrants are not entitled “to notice from [immigration judges] as to what sort of evidence [they] must produce to carry” their burden. 788 F.3d at 530.
The majority opinion limits Gaye’s scope and, in my view, mistakenly opens a third strand to this conflict. It holds that an immigration judge may not rule against an immigrant based on the absence of corroborating evidence for a specific fact unless the judge ensures that the immigrant is asked at the hearing to explain why the immigrant has not corroborated that fact. Majority Op. 12–13. For both textual and precedential reasons, I disagree with this rule.
To begin with, my colleagues’ middle path finds no support in the statute’s text.
In addition, my colleagues’ rule seems “inconsistent with the normal procedures for conducting immigration court proceedings.” Matter of L-A-C-, 26 I. & N. Dec. 516, 520 (BIA 2015). While immigration judges may render oral decisions at the end of the hearing, they also may issue written decisions later. See
My colleagues next mistakenly suggest that the circuit precedent on Gaye’s side of this conflict supports their rule. Yes, some cases say that “[w]hen an asylum applicant must provide corroborating evidence, the [immigration judge] must afford an opportunity to explain its unavailability, ensuring the explanation is in the record.” Uzodinma, 951 F.3d at 966 (citing L-A-C-, 26 I. & N. Dec. at 521–22). By this language, though, these courts did not conclude that judges must identify at the hearing the facts that immigrants should corroborate so that they may explain why they cannot reasonably obtain corroboration for those facts. Instead, the courts meant only that immigrants should have an opportunity to explain why they lack corroboration on their own initiative—“without prompting” from the judge. Liu, 575 F.3d at 198. As the Eighth Circuit said, “[a]t a merits hearing, the [judge] need not identify the specific corroborating evidence that would be persuasive.” Uzodinma, 951 F.3d at 966. Or as the Seventh Circuit noted, an immigration judge is “not required to independently ask” for corroborating evidence before ruling against the immigrant due to the lack of such evidence. Ruptash v. Holder, 525 F. App’x 491, 495 (7th Cir. 2013) (order) (citing Rapheal, 533 F.3d at 530).
The Second Circuit’s Liu decision best proves this point. See 575 F.3d at 198. There, the immigration judge denied an application for withholding of removal, citing “Liu’s failure to submit letters from his wife” and others. Id. at 195. The judge “did not remark on these omissions during the hearing, nor did he ask Liu to explain them.” Id. The Board affirmed because the record did not show that the evidence was
Now compare Liu to this case. Unlike Liu, Guzman was asked to explain the lack of corroboration. He was separately asked why he failed to obtain evidence from his sister, from his mother, from his aunt, from his uncle in Mexico, and from his uncle in New Jersey. AR 113, 125, 142–43. He tried to explain the lack of corroboration but did not adequately do so. And I would not read the statute as requiring the immigration judge to ask Guzman why he did not introduce corroborating evidence for each specific fact that the judge thought should be corroborated.
* * *
To summarize: The majority holds that every reasonable adjudicator would be forced to find that Guzman could not reasonably obtain corroboration, even though Guzman admitted that he never tried to get evidence. It relies on an excuse (illiteracy) that we have repeatedly rejected. It uses gaps in the record to favor Guzman over the Board even though Guzman bears the burden of proof. It interprets the statute to bar the Board from requiring corroboration of background evidence even if an immigrant could readily obtain it. And it imposes rigid new procedural mandates on immigration judges—deepening a circuit split in the process. All told, the majority’s logic goes a long way toward jettisoning the choices Congress made in the REAL ID Act.
C
Because I would resolve this case on corroboration grounds, I would not reach the question about the withholding-of-removal statute’s causation test. That question is difficult, as evidenced by the circuit split it has produced. Compare Barajas-Romero v. Lynch, 846 F.3d 351, 356–60 (9th Cir. 2017), with Gonzalez-Posadas v. Att’y Gen., 781 F.3d 677, 685 n.6 (3d Cir. 2015). Because the majority has resolved it, however, I offer a few competing thoughts.
The withholding-of-removal statute requires proof that a persecutor would threaten an immigrant’s “life or freedom” “because of” a covered trait—whether “race, religion, nationality, membership in a particular social group, or political opinion.”
This mixed-motives problem pops up in many contexts and has produced differing results. Courts have sometimes suggested that a statutorily covered motive must be the sole motive for a defendant’s action. See Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1177–78 (6th Cir. 1996), overruled by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 314–15 (6th Cir. 2012) (en banc). That standard would exclude persecutors who threaten victims for mixed motives (say, because of race and wealth). But in other circumstances courts have suggested that the statutorily covered motive need only play a “motivating part” or be a “motivating factor” in a defendant’s action. See Price Waterhouse v. Hopkins, 490 U.S. 228, 249–50 (1989) (plurality op.). That standard would include all persecutors who act in part for a covered motive (race) even if they also would make the identical threat for an uncovered motive (wealth). Cf. id. at 246 n.11. In between these two poles, courts have more recently analogized to tort law’s but-for causation, holding that a statutorily covered motive must be a “but-for reason” of the defendant’s action. United States v. Miller, 767 F.3d 585, 591 (6th Cir. 2014). That standard would also include persecutors who act for covered (race) and uncovered motives (wealth)—but only if the covered motive caused the persecutor’s threats such that those threats would not occur but for that motive. Id. at 591–92.
1. This background sets the stage for the question presented: Which approach best fits the withholding-of-removal statute? I would choose the middle option. An immigrant must prove that a trait protected by the withholding-of-removal statute would be a “but-for reason” of the threatened harm. Id. at 591. In other words, an immigrant must prove that a persecutor (here, Guzman’s stepfather) would not threaten harm “but for” the motive on which the immigrant relies (here, Guzman’s family relationships). Both text and precedent drive my conclusion.
As always, begin with the plain meaning of the words Congress has chosen. See Gross v. FBL Fin. Servs., 557 U.S. 167, 175–76 (2009). Immigrants must show that a persecutor threatened harm “because of” a statutorily covered reason.
Substantial precedent supports this conclusion. “[T]he Supreme Court has ‘insiste[d]’”
In short, both text and precedent show that the withholding-of-removal statute’s use of “because of” unambiguously requires a statutorily covered motive to be a but-for motive.
2. To reach a contrary result, the majority follows the Ninth Circuit. See Barajas-Romero, 846 F.3d at 356–60. That court relied on neither the text of
Neither change justifies the Ninth Circuit’s departure from the usual meaning of “because of.” To begin, the words “a reason” in subparagraph (C) say nothing about the causation test for withholding-of-removal claims. Subparagraph (C) provides: “In determining whether an alien has demonstrated that the alien’s life or freedom would be threatened for a reason described in subparagraph (A), the trier of fact shall” follow the corroboration and credibility rules in
Turning to the second change, I agree that the REAL ID Act did not add the asylum statute’s new central-reason test to the withholding-of-removal statute. Barajas-Romero, 846 F.3d at 358–59. Congress made that change in
The statutory structure points in that direction too. For decades it has been black-letter immigration law that mandatory withholding-of-removal relief requires immigrants to meet a standard higher than the standard for discretionary asylum relief. The asylum statute requires only a well-founded fear of persecution on account of a statutorily covered ground; the withholding-of-removal statute requires it to be more likely than not that immigrants would suffer that persecution. See INS v. Cardoza-Fonseca, 480 U.S. 421, 427–32 (1987). When rejecting withholding claims, therefore, we have said variations of the following on countless occasions: “Because an alien must meet a higher burden in establishing a right to withholding of removal than in demonstrating asylum eligibility, an alien who fails to qualify for asylum necessarily does not qualify for withholding of removal.” Lopez-Arias v. Barr, 777 F. App’x 793, 797 (6th Cir. 2019) (emphasis added) (quoting Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir. 2005)); e.g., Namo v. Gonzales, 401 F.3d 453, 456–57 (6th Cir. 2004); Mikhailevitch v. INS, 146 F.3d 384, 391 (6th Cir. 1998).
If Congress meant to depart from this longstanding immigration structure, it would have done so more clearly than by tucking “a reason” into a subparagraph about something else. After all, Congress
One last point. Before the REAL ID Act, “there was no uniform standard for assessing” causation. J-B-N-, 24 I. & N. Dec. at 214 n.9 (citing H.R. Rep. No. 109-72, at 163); cf. Scalia & Garner, supra, at 325. While courts had generally rejected a sole-motive test, e.g., Girma v. INS, 283 F.3d 664, 667 (5th Cir. 2002), they had not reached consensus on an alternative. Yet one thing stands out from the statutory history. The Ninth Circuit had adopted the weakest causation test, requiring a statutory reason to be only “one reason” for “persecutors’ conduct, even if other reasons appeared to have been the dominant cause[.]” Parussimova, 555 F.3d at 739 (citing cases). Because Congress threw out that test in the asylum context, see id. at 740, we should be wary of choosing that rejected test to govern what has long been the more demanding withholding-of-removal statute. The plain text precludes such a lenient test, so I must respectfully dissent.