Abdirisaq Hassan Aden v. Eric H. Holder Jr. ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABDIRISAQ HASSAN ADEN, 
Petitioner, No. 08-71168
v.
 Agency No.
A088-515-143
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 12, 2009—Pasadena, California
Filed December 18, 2009
Before: Andrew J. Kleinfeld, Carlos T. Bea and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Kleinfeld
16631
HASSAN ADEN v. HOLDER 16633
COUNSEL
Victoria Diaz, Ruben Aranda, Linda Imonode, and Mark
Sorokin, law students from the University of Arizona College
16634 HASSAN ADEN v. HOLDER
of Law, supervised by Willie M. Jordan-Curtis, Assistant
Dean for Student Affairs and Associate Dean for Student
Affairs, University of Arizona College of Law, Tucson, Ari-
zona, for the petitioner.
Gregory G. Katsas, Stephen J. Flynn, Mark C. Walters,
Department of Justice, Washington, DC, for the respondent.
OPINION
KLEINFELD, Circuit Judge:
We address corroboration in this asylum case under the
REAL ID Act.
Facts
Abdirisaq Hassan Aden entered the United States from
Mexico at the San Ysidro, California, port of entry. He con-
ceded removability and, with the help of counsel, applied for
asylum. He presented himself as a Somalian from a minority
clan who feared persecution from the two dominant clans.
His account of Somalian life is horrific. He testified that he
is from the Bilisyar (or Biliser) subclan of the Wardey clan,
though he also stated that the name of his clan was Warduy-
Ali or Madaheweyne. In 2003, when Hassan was fourteen,
Hawiye men invaded the family home, and while he hid under
the bed, they raped one of his sisters and abducted a woman
who was visiting. The Hawiye men got Hassan Aden out from
under the bed, pointed a gun at him and threatened to kill him,
and beat him with a metal pole. Another time, Hawiye men
accused him of spying for the Darod clan and beat him into
unconsciousness. The Hawiye beat him again at a Hawiye
militia checkpoint when he could not come up with a suffi-
cient bribe.
HASSAN ADEN v. HOLDER 16635
Three of Hassan Aden’s brothers (he had ten siblings and
seven half-siblings) were killed, one by a bomb, one accused
by Hawiye men of spying for the Darod, one at a Hawiye
militia checkpoint. Hassan Aden and his father decided that
he should leave Somalia, though Hassan Aden’s family and
also his wife remain there. His father sold eight of his fifteen
cows and paid $4,180 to a Hawiye smuggler who got him out
of Mogadishu to Dubai, then Mexico, where he came across
the U.S. border.
The Immigration Judge was skeptical of Hassan Aden’s
account. He doubted that Hassan Aden was the impoverished
illiterate from a mud hut that he testified he was because pho-
tographs found in Hassan Aden’s possession showed him
looking affluent in clothes that would go fine in America, and
one showed him with a book with English on the cover, in
which Hassan Aden testified that he wrote accounts when he
traveled to the village to sell the family’s produce. (Hassan
Aden explained that his father wrote the words, he could read
but not write words, and he wrote only numbers.) Hassan
Aden also testified that he learned English by watching mov-
ies on video cassette, which added to the IJ’s suspicion that
Hassan Aden’s family was not poor as he claimed.
The IJ doubted that Hassan Aden was as bereft of English
as he said for another reason, that he sometimes answered the
questions before the translator translated them. Importantly,
as relates to Hassan Aden’s asylum claim, the IJ was skeptical
of Hassan Aden’s story that he hid but was found, and that all
the men in his family ran away leaving the women to the
Hawiye.
Most centrally, the IJ doubted that there was such a clan as
the Bilisyar or Wardey, because none of the country materials
produced by either side mentioned either name, and he
doubted that Hassan Aden was a member of the claimed clan.
Hassan Aden’s claim for asylum was that he was persecuted
on account of being a member of the Bilisyar subclan of the
16636 HASSAN ADEN v. HOLDER
Wardey clan. Because of his doubts, the IJ continued the hear-
ing and requested that Hassan Aden produce corroboration
regarding existence of the clan and Hassan Aden’s member-
ship in it. At the resumed hearing, Hassan Aden produced
three things that he said he had obtained by calling the Somali
community in San Diego, which in turn contacted the Somali
community in Minneapolis. All three are unsworn documents
from Minneapolis labeled “affidavit,” one saying that Abdiri-
saq “Hussein Adan” was a member of the Wardaa clan, the
other two saying that they had personal knowledge of the
Wardey-Ali clan and the Bilisyar subclan, because they had
lived in the Lower Juba region near Goobweyo (where Has-
san Aden had testified he was from). The IJ remained unsatis-
fied, because none of the three writers claimed to know
Hassan Aden and no anthropological or other country evi-
dence from scholarly sources was produced to show that the
Bilisyar or Wardey clans actually existed.
The IJ denied Hassan Aden’s application for asylum and
withholding of removal under the Convention Against Tor-
ture. The IJ specifically declined to make any adverse credi-
bility determination, but held that Hassan Aden’s failure to
produce adequate corroboration for his statements of clan
membership undermined his application for asylum.
Hassan Aden appealed to the Board of Immigration
Appeals, arguing that the IJ erred in denying his application
because he gave “ample testimony” regarding his well-
founded fears of persecution in Somalia, and that his testi-
mony and other documentation were sufficient to demonstrate
his eligibility for asylum. He argued that the IJ had no basis
on which to doubt his credibility, contending that flaws in
translation contributed to the IJ’s perception of inconsisten-
cies in his testimony.
The BIA wrote its own decision, and did not adopt the IJ’s
decision. The BIA held that there was no clear error in the IJ’s
findings of fact, “including his assessment of the respondent’s
HASSAN ADEN v. HOLDER 16637
claim to his identity as a member of a minority clan in Soma-
lia.” The BIA wrote that “[w]hile the respondent presented
voluminous evidence regarding the clan structure of Somalia,
he failed to provide any credible corroborating evidence, such
as scholarly sources, ethnological studies, or witnesses, show-
ing the existence of the alleged Bilisyar and/or Wardey-Ali
clans in Somalia.” The BIA found “no error in the Immigra-
tion Judge’s decision to give little weight to the affidavits . . .
where the affidavits were in fact inconsistent with each
other.” Regarding Hassan Aden’s claim of prejudicial transla-
tion error, the BIA said that he “failed to cite to any alleged
errors in translation and/or explained how they would have
affected the outcome of his proceedings.”
Analysis
Because the BIA wrote its own decision and did not adopt
the IJ’s decision. we review the BIA decision only, not the
IJ’s decision.1
I. Requirement of Corroboration.
The main issue in this case is corroboration. Hassan Aden’s
claim for asylum is that he was persecuted on account of
being a member of the Bilisyar subclan of the Wardey clan.
He offered his testimony as proof. The BIA did not find that
Hassan Aden was not credible, nor did it find that he was. It
concluded that he had not borne his burden of proof because
he had failed to provide sufficient corroboration. The IJ
recessed and continued his hearing so that he could provide
corroboration, so there is no issue whether he should have
been given notice of his need for it and time to provide it. He
provided three “affidavits.” An affidavit is a sworn declaration,2
and the three documents were not sworn, so though labeled
affidavits, they are properly characterized as letters. The BIA
1
Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004).
2
Black’s Law Dictionary 66 (9th ed. 2009).
16638 HASSAN ADEN v. HOLDER
wanted something more, such as “scholarly sources, ethnolog-
ical studies, or witnesses.”
[1] We have a line of circuit authority for the proposition
that corroboration cannot be required from an applicant who
testifies credibly. In Ladha v. INS, we “reaffirmed that an
alien’s testimony, if unrefuted and credible, direct and spe-
cific, is sufficient to establish the facts testified without the
need for any corroboration.”3 Kataria v. INS relied on Ladha
in stating that “the BIA may not require independent corrobo-
rative evidence from an asylum applicant who testifies credi-
bly in support of his application.”4 Kataria stated that “we
must accept an applicant’s testimony as true in the absence of
an explicit adverse credibility finding.”5
[2] Congress abrogated these holdings in the REAL ID Act
of 2005.6 The statute says that the applicant’s credible testi-
mony “may” be sufficient without corroboration, but the trier
of fact may require corroboration (unless not reasonably
obtainable) even for “otherwise credible testimony”7:
The testimony of an 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
3
Ladha v. I.N.S., 215 F.3d 889, 901 (9th Cir. 2000).
4
Kataria v. I.N.S., 232 F.3d 1107, 1113 (9th Cir. 2000).
5
Id.6
Pub. L. 109-13, 119 Stat. 231 (2005). Hassan Aden applied for asylum
after May 11, 2005, the effective date of the statutory changes.
7
8 U.S.C. § 1158(b)(1)(B)(ii).
HASSAN ADEN v. HOLDER 16639
evidence that corroborates otherwise credible testi-
mony, such evidence must be provided unless the
applicant does not have the evidence and cannot rea-
sonably obtain the evidence.8
Thus the law on corroboration is different now from what it
was when we decided Kataria and Ladha. The statutory
phrase “may be sufficient to sustain the applicant’s burden
without corroboration” implies that the testimony also may
not be sufficient. The phrase “but only if the applicant satis-
fies the trier of fact that the applicant’s testimony is credible,
is persuasive, and refers to specific facts sufficient to demon-
strate that the applicant is a refugee” means that there are
three prerequisites before uncorroborated testimony may be
considered sufficient: (1) the applicant’s testimony is credi-
ble; (2) the applicant’s testimony is persuasive; and (3) the
applicant’s testimony refers to facts sufficient to demonstrate
refugee status. Credible testimony is not by itself enough.
Otherwise the other two requirements would be mere surplus-
age.9
[3] The statute additionally restricts the effect of apparently
credible testimony by specifying that the IJ need not accept
such testimony as true. The statute provides that the IJ may,
in determining whether it satisfies the applicant’s burden of
proof, “weigh the credible testimony along with other evi-
dence of record.”10 For example, if, hypothetically, the IJ said
“you seem like an honest person, but the country report says
that the Wardey clan is treated with great respect and never
hindered in any way by the Darod and Hawiye clans,” he
8
Id.9
See Exxon Corp. v. Hunt, 475 U.S. 355, 369 (1986) (rejecting the read-
ing of a phrase that made a latter phrase surplusage); United States v. Wen-
ner, 351 F.3d 969, 975 (9th Cir. 2003) (recognizing the same canon of
statutory construction); 2A Norman J. Singer, Sutherland Statutory Con-
struction § 46:06, at 181-94 (6th ed. 2000).
10
8 U.S.C. § 1158(b)(1)(B)(ii).
16640 HASSAN ADEN v. HOLDER
would weigh persuasiveness in light of the whole record
including such evidence.
[4] The last sentence of the provision deals with inherent
difficulty in providing corroborating evidence from a foreign
country, especially if, as is often the case, the country is in
turmoil and the applicant is from a disfavored group or the
corroboration would have to be from his persecutors. Corrob-
orating evidence “must” be provided where the trier of fact
determines that it should be, “unless the applicant does not
have the evidence and cannot reasonably obtain the evidence.”11
This means that an applicant cannot be turned down solely
because he fails to provide evidence corroborating his testi-
mony, where he does not have and cannot reasonably obtain
the corroboration. But it also means that he can be turned
down for failing to provide corroboration where he does have
it or could reasonably obtain it.
[5] Congress has thus swept away our doctrine that “when
an alien credibly testifies to certain facts, those facts are
deemed true.”12 Apparently honest people may not always be
telling the truth, apparently dishonest people may be telling
the absolute truth, and truthful people may be honestly mis-
taken or relying on unreliable evidence or inference them-
selves. Congress has installed a bias toward corroboration in
the statute to provide greater reliability. This is not very dif-
ferent from other litigation. In the most routine personal
injury case, when a plaintiff credibly testifies that the collision
caused $10,000 worth of damage to his car, $5,000 in medical
expenses, and $10,000 in wage loss, the jury is likely to reject
and is free to reject his damages testimony unless it sees the
body shop invoice, the medical bills, and documentary evi-
11
Id.12
Ladha v. I.N.S., 215 F.3d 889, 900 (9th Cir. 2000).
HASSAN ADEN v. HOLDER 16641
dence of wage loss. Congress thus made asylum litigation a
little more like other litigation.13
Our sister circuits construe the new provision on corrobora-
tion as we do.14
II. Sufficiency of corroboration.
Hassan Aden argues alternatively that even if corroboration
was properly required (as we hold), the corroboration he pro-
vided sufficed. The BIA, as Hassan Aden correctly argues,
merely assumes that there may be scholarly sources that men-
tion the Wardey clan and the Bilisyar subclan if they exist.
This argument is a little slippery. If there were such scholarly
13
Consider jury instructions for civil cases:
§ 104.25 Failure to Call Available Witness
If a party fails to call a person as a witness who has knowledge
about the facts in issue, and who is reasonably available to the
party, and who is not equally available to the other party, then
you may infer that the testimony of that person is unfavorable to
the party who could have called the witness and did not.
§ 104.26 Failure to Produce Available Evidence
If a party fails to produce evidence that is under that party’s
control and reasonably available to that party and not reasonably
available to the adverse party, then you may infer that the evi-
dence is unfavorable to the party who could have produced it and
did not.
O’Malley, Grenig, Lee, Federal Jury Practice and Instruction, Civil, Vol.
3, at 149-50 (5th ed. 2000). It is hard to imagine a civil trial in which the
party bearing the burden of proof asked the trier of fact to take his uncor-
roborated word for a proposition reasonably subject to corroboration.
14
See Balachandran v. Holder, 566 F.3d 269, 273 (1st Cir. 2009); San-
die v. Attorney Gen., 562 F.3d 246, 252 (3d Cir. 2009); Lin v. Holder, 565
F.3d 971, 976-77 (6th Cir. 2009); Krishnapillai v. Holder, 563 F.3d 606,
618 (7th Cir. 2009); cf. Liu v. Holder, 575 F.3d 193, 197 (2d Cir. 2009)
(noting the statutory change but not construing it because the case
reviewed an asylum application that predated the effective date of the stat-
utory change).
16642 HASSAN ADEN v. HOLDER
materials, then they would corroborate Hassan Aden, but if
there are not, then it would be impossible to prove that the
clan and subclan exist. The BIA’s statement invites the objec-
tion that the half day hearings by impecunious petitioners typ-
ical of asylum cases should not be burdened with expensive
expert witnesses testifying about their searches of the aca-
demic literature and their opinions about it. Fortunately the
BIA did not require such academic or expert testimony or
documentation. It merely suggested it as a possibility, along
with “witnesses.”
Hassan Aden argues that he did provide witnesses, the three
“affidavits.” The three letters (they are unsworn) were given
“little weight” by the BIA because the writers did not know
Hassan Aden and were “inconsistent.” The BIA’s explanation
is vulnerable to criticism. After all, someone from the Lower
Juba region may know very well that the clan and subclan
exist, which was the point, without having any acquaintance
with Hassan Aden or his family. But one of the letters does
indeed say that “Abdirisaq Hussein Adan” is a member of the
“Wardaa” clan, something the writer could not know without
some foundation in knowledge of petitioner, a knowledge nei-
ther claimed nor consistent with misspelling two of petition-
er’s three names.
[6] Considering that the country report, and not only peti-
tioner’s testimony, establishes that Somalia is a violently dis-
orderly place with no established state, inability to obtain
documentation from Somalia might be quite credible, had
Hassan Aden testified (he did not) that he wrote or emailed
his family but the system of communication did not work and
he had no idea whether his communications or theirs got
through. A reasonable finder of fact might deem sufficient for
corroboration the two identical letters saying that the writers
had resided in the Lower Juba region, and the Wardey-Ali
clan and Bilisyar subclan were minorities who lived there.
Our standard of review, though, does not enable us to substi-
tute our judgment about the persuasiveness of this corrobora-
HASSAN ADEN v. HOLDER 16643
tion for the BIA’s. We are required to accept administrative
findings of fact “unless any reasonable administrator would
be compelled to conclude to the contrary.”15 This standard
also applies to the IJ’s determinations “with respect to the
availability of corroborating evidence.”16 Even if we might
conclude to the contrary regarding sufficiency of corrobora-
tion, we cannot say that “any reasonable adjudicator would be
compelled to conclude to the contrary.”17 The highly deferen-
tial standard of review compels us to let stand the BIA’s
determination that Hassan Aden’s corroboration was insuffi-
cient. Thought the three letters support the conclusion that
Hassan Aden’s claimed clan and subclan exist, the law is that
“[t]o reverse the BIA finding we must find that the evidence
not only supports that conclusion, but compels it.”18 The ques-
tion is close, but in light of the other evidence in the record
casting doubt on Hassan Aden’s story, we cannot say that the
letters “compel” that conclusion.
III. Translation.
[7] Hassan Aden argues that he was denied due process of
law because his credibility was thrown into doubt by errone-
ous translation. The examples he points to are that the transla-
tor said “jungle” but he did not describe his area as “jungle,”
and he said he had never attended school but the translator
presented this as though he had said he had no education. The
former was irrelevant, and the latter was cleared up by further
questioning. Also, the IJ noted that Hassan Aden responded
to several questions before they were translated, indicating
that he was not entirely reliant on the translator. Difficulties
arise in communication between people who do not speak
each others’ languages, but Hassan Aden has not demon-
strated any prejudice from the claimed translation errors. To
15
8 U.S.C. § 1252(b)(4)(B).
16
Id. § 1252(b)(4).
17
Id. § 1252(b)(4)(B).
18
I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).
16644 HASSAN ADEN v. HOLDER
establish a due process violation, a petitioner must show that
defects in translation prejudiced the outcome of the hearing.19
IV. Torture.
Hassan Aden argues in his brief to us that he is entitled to
relief under the Convention Against Torture.20 His brief to the
BIA, though, argued only credibility, clan identity, and perse-
cution. The government asserts that we lack jurisdiction over
this claim because Hassan Aden failed to exhaust the issue
before the BIA. Hassan Aden did not include the Convention
Against Torture in his Notice of Appeal to the BIA, nor did
he argue the issue in his brief before the BIA. However, he
stated in the conclusion of his briefing that the IJ erred by
“denying his application for asylum, holding him ineligible
for withholding of removal, and denying him the protections
afforded under the Convention Against Torture.”
In Zhang v. Ashcroft, we address similar circumstances in
which a petitioner merely “mentioned in his brief to the BIA
that he was requesting reversal of the IJ’s denial of relief
under the Convention Against Torture,” but failed to brief that
topic at any length.21 We held that this mention was “suffi-
cient to put the BIA on notice that [the petitioner] was chal-
lenging the IJ’s Convention determination, and [gave] the
agency . . . an opportunity to pass on this issue.”22 Here, as in
Zhang, the petitioner mentioned his Convention Against Tor-
ture claim in his brief to the BIA. Accordingly, Hassan Aden
adequately exhausted his claim before the BIA, and we have
jurisdiction to address that claim on appeal.
19
Acewicz v. I.N.S., 984 F.2d 1056, 1063 (9th Cir. 1993).
20
8 C.F.R. § 1208.16(c).
21
Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004).
22
Id.; accord Kaganovich v. Gonzales, 470 F.3d 894, 897 (9th Cir.
2006).
HASSAN ADEN v. HOLDER 16645
[8] To be eligible for withholding of removal based on the
Convention Against Torture, Hassan Aden must prove that he
is more likely than not going to be tortured if sent back to Soma-
lia.23 Torture must be “inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other
person acting in an official capacity.”24 We cannot say on the
record before us that a reasonable adjudicator would be com-
pelled to find, contrary to that of the IJ below, that Hassan
Aden established these facts.25 We thus affirm the denial of
relief under the Convention Against Torture.
The petition for review is DENIED.
23
8 C.F.R. § 1208.16(c)(2).
24
Id. § 1208.18(a)(1).
25
8 U.S.C. § 1252(b)(4)(B).