Singh v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

NIRMAL SINGH, 
Petitioner, No. 08-70434
v.
 Agency No.
A099-330-446
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
December 15, 2010—Pasadena, California

Filed June 17, 2011

Before: Alex Kozinski, Chief Judge,
Diarmuid F. O’Scannlain, Susan P. Graber,
M. Margaret McKeown, Raymond C. Fisher,
Ronald M. Gould, Richard A. Paez, Johnnie B. Rawlinson,
Richard R. Clifton, Consuelo M. Callahan, and
Carlos T. Bea, Circuit Judges.

Opinion by Judge McKeown;
Dissent by Judge O’Scannlain

8223
8226 SINGH v. HOLDER

COUNSEL

Hilary Han, Dobrin & Han, PC, Seattle, Washington, argued
the cause for the petitioner and filed a brief; Bart Klein, Law
Offices of Bart Klein, Seattle, Washington, was on the brief.
Taranjeet Kaur Buttar, Buttar & Cantor, LLP, Tukwila, Wash-
ington, also filed a brief; Patrick Cantor, Buttar & Cantor,
LLP, Tukwila, Washington, was on the brief.

John W. Blakeley, Senior Litigation Counsel, Office of Immi-
gration Litigation, U.S. Department of Justice, Washington,
District of Columbia, argued the case for the respondent and
filed a brief; Donald E. Keener, Deputy Director, Office of
Immigration Litigation, U.S. Department of Justice, Washing-
ton, District of Columbia; and Tony West, Assistant Attorney
General, Civil Division, U.S. Department of Justice, were on
the brief. Rebecca Ariel Hoffberg, U.S. Department of Jus-
tice, Washington, District of Columbia, also filed a brief;
Gregory Katsas, Assistant Attorney General, Civil Division,
U.S. Department of Justice, Washington, District of Colum-
bia; William C. Peachey, Assistant Director, Office of Immi-
gration Litigation, U.S. Department of Justice, Washington,
District of Columbia; and Mona Maria Yousif, Civil Division,
U.S. Department of Justice, Washington, District of Colum-
bia, were on the brief.
 SINGH v. HOLDER 8227
Charles Roth, National Immigrant Justice Center, Chicago,
Illinois, filed a brief on behalf of the National Immigrant Jus-
tice Center as amicus curiae in support of the petitioner.

OPINION

McKEOWN, Circuit Judge:

Applicants for asylum must show by clear and convincing
evidence that they filed their applications within one year
after arrival in the United States, absent changed or extraordi-
nary circumstances. See 8 U.S.C. § 1158(a)(2)(B).1 The heart
of petitioner Nirmal Singh’s argument on appeal is that his
credible testimony does not require corroboration to establish
“by clear and convincing evidence” that his asylum applica-
tion was timely. See id. Nonetheless, the Board of Immigra-
tion Appeals (“BIA”) decided that Singh could be required to
“provide evidence that corroborates otherwise credible testi-
mony,” citing 8 U.S.C. § 1158(b)(1)(B)(ii), a completely dif-
ferent statutory provision that governs proof of an applicant’s
status as a refugee.2 We agreed to rehear this case en banc to
clarify whether the BIA erred in imposing the corroboration
provision found in § 1158(b)(1)(B)(ii) on Singh’s showing of
timely filing under § 1158(a)(2)(B).3 Basic principles of statu-
tory construction lead us to conclude that the BIA improperly
imported the corroboration requirement of § 1158(b)(1)(B)(ii)
1
Unless otherwise noted, all statutory references are to the Immigration
and Nationality Act of 1952, as amended (“INA”), and codified in Title
8 of the United States Code.
2
For ease of reference, we use the term “refugee status” to refer to an
individual who is a refugee under § 1101(a)(42)(A) and not to refer to an
individual admitted as a refugee under § 1157.
3
A three-judge panel denied Singh’s petition, holding that the BIA did
not err in requiring corroboration of Singh’s testimony as to his date of
entry into the United States. Singh v. Holder, 602 F.3d 982 (9th Cir.),
vacated and reh’g en banc granted, 623 F.3d 633 (9th Cir. 2010).
8228 SINGH v. HOLDER
(governing demonstration of refugee status) into
§ 1158(a)(2)(B) (requiring applications to be timely filed).4

Section 1158(b)(1)(B)(ii) applies to the merits of an asylum
claim, not to the one-year filing deadline for asylum applica-
tions. The one-year provision is governed by § 1158(a)(2)(B),
which is silent on the issue of corroboration. It may seem
harmless to gloss over the language of the statute, but doing
so would do a disservice to our charge to interpret the statute
as written.

Further, the corroboration requirement is not without con-
sequence. This burden is not illusory, as the one-year bar
determination is not reviewable absent a legal or constitu-
tional question. See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). In
keeping with the Supreme Court’s mandate to look to “the
language of the statute itself,” Ransom v. FIA Card Servs.,
N.A., ___ U.S. ___, 131 S. Ct. 716, 723 (2011), we grant the
petition and remand the matter to the BIA.5
4
The BIA’s decision in this case was a non-precedential decision and
should be granted deference only in proportion to its thoroughness and the
“validity of its reasoning.” See Marmolejo-Campos v. Holder, 558 F.3d
903, 909 (9th Cir.) (en banc), cert. denied, 130 S. Ct. 1011 (2009). Here,
the decision was cursory and without analysis and thus entitled to no def-
erence. We have no occasion to decide whether the BIA could have
adopted a reading different from our own in a published decision entitled
to some deference.
5
It bears noting that the immigration judge (“IJ”), unlike the BIA, did
not impose the corroboration provision of § 1158(b) but instead correctly
cited § 1158(a) and found that Singh did not meet his burden because the
proffered testimony was not clear and convincing. It is true that credible
testimony that does not establish the necessary facts may not meet the
clear and convincing standard. Because the BIA did not incorporate the
IJ’s decision but instead pointedly applied § 1158(b), remand is in order.
See Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam)
(“In reviewing the decision of the BIA, we consider only the grounds
relied upon by that agency. If we conclude that the BIA’s decision cannot
be sustained upon its reasoning, we must remand to allow the agency to
decide any issues remaining in the case.”).
 SINGH v. HOLDER 8229
I. BACKGROUND

Nirmal Singh is an Indian citizen and former resident of
that nation’s Punjab state. Singh maintains that as a result of
his political activities and affiliation, he was arrested and tor-
tured on four occasions. According to Singh, after his fourth
confrontation with authorities, a police officer told him: “If
you want to save your life, leave India.” Singh claims that he
took the officer’s advice and shortly after fled to Canada.
Singh asserts that he arrived in Canada, using a false passport,
on October 10, 2004. He says he stayed there for approxi-
mately ten days before entering the United States without
inspection on or about October 20, 2004. In the fall of 2005,
Singh filed for asylum.6

At his hearing before the IJ, Singh conceded his removabil-
ity and sought asylum. The IJ rejected Singh’s request for
asylum as untimely filed. Although the IJ made no adverse
credibility finding, he found Singh’s testimony insufficient to
establish his last date of entry into the United States “by clear
and convincing evidence.” In so ruling, the IJ noted that Singh
had provided no documentation corroborating his claim that
he entered this country on October 20, 2004. Without an
established date of entry, Singh could not prove that he filed
his application “within 1 year after the date of [his] arrival in
the United States.” 8 U.S.C. § 1158(a)(2)(B).

Singh appealed to the BIA, which invoked the corrobora-
tion provision of § 1158(b)(1)(B)(ii) and concluded that
Singh’s application was time-barred because he failed to pro-
vide corroboration of his date of entry. According to the BIA,
“[a]lthough the respondent has claimed on appeal that his
6
Although the date on which Singh filed his asylum application is con-
tested, the BIA did not address this issue in its decision. In reviewing this
petition, “we consider only the grounds relied upon” by the BIA, see
Andia, 359 F.3d at 1184, and we therefore do not reach the question of the
precise filing date.
8230 SINGH v. HOLDER
credible testimony should have been sufficient to meet his
burden of proving his date of entry, the statute specifically
provides that, in determining whether an asylum applicant has
met his burden of proof, the trier of fact may require an appli-
cant to ‘provide evidence that corroborates otherwise credible
testimony.’ ” (quoting § 1158(b)(1)(B)(ii)). Singh timely peti-
tioned this court for review.

II. JURISDICTION TO REVIEW THE LEGAL QUESTION
PRESENTED.

We first consider whether we have jurisdiction to review
the BIA’s timeliness determination. Subject to certain excep-
tions, an individual’s application for asylum will be consid-
ered only if the applicant “demonstrates by clear and
convincing evidence that the application has been filed within
1 year after the date of the alien’s arrival in the United
States.” 8 U.S.C. § 1158(a)(2)(B). Section 1158(a)(3) states
that “[n]o court shall have jurisdiction to review any determi-
nation of the Attorney General under [§ 1158(a)(2)].” Read
together, these provisions appear to deprive this court of juris-
diction over determinations that an individual failed to file his
application within one year of entering this country. See
Hakeem v. INS, 273 F.3d 812, 815 (9th Cir. 2001).

Despite this jurisdictional limitation, “the Real ID Act of
2005 restores our jurisdiction over ‘constitutional claims or
questions of law.’ ” Ramadan v. Gonzales, 479 F.3d 646, 650
(9th Cir. 2007) (per curiam) (quoting Fernandez-Ruiz v. Gon-
zales, 410 F.3d 585, 587 (9th Cir. 2005)); see also 8 U.S.C.
§ 1252(a)(2)(D) (“Nothing in . . . any other provision of this
chapter . . . which limits or eliminates judicial review, shall
be construed as precluding review of constitutional claims or
questions of law raised upon a petition for review filed with
an appropriate court of appeals in accordance with this sec-
tion.”). Singh claims that, because his testimony was deemed
credible, the agency committed a legal error by requiring cor-
roboration. Because this is a legal argument about how to
 SINGH v. HOLDER 8231
construe 8 U.S.C. § 1158(b)(1)(B)(ii), and not a factual argu-
ment about whether the evidence proved Singh’s date of
entry, we have jurisdiction to review Singh’s challenge.

III. THE ONE-YEAR FILING DEADLINE UNDER
§ 1158(b)(1)(B)(ii) DOES NOT INCLUDE A STATUTORY
CORROBORATION REQUIREMENT.

We now turn to whether an immigration judge may require
an asylum applicant to corroborate credible testimony that he
complied with the one-year filing deadline. The BIA has not
addressed this issue in a precedential decision. We therefore
analyze the statute de novo, and begin with the statutory text.

Section 1158, entitled “Asylum,” is divided into two sub-
sections: (a) addresses the “Authority to apply for asylum,”
and (b) governs the “Conditions for granting asylum.” The
first provision, subsection (a), regulates whether an applicant
can even get out of the starting gate to apply for asylum. An
applicant who does not pass the threshold tests under (a)
never gets to (b).

[1] The one-year filing deadline for asylum applications is
found in § 1158(a)(2)(B), which precludes applicants from
applying for asylum unless they demonstrate by clear and
convincing evidence7 that they filed “within 1 year after the
date of [their] arrival in the United States.” Subsection (a)
also includes other requirements, such as physical presence or
arrival in the United States, id. § 1158(a)(1), and the absence
of disqualifying factors such as a safe third country to which
the individual may be removed, id. § 1158(a)(2)(A), or a pre-
viously denied asylum application, id. § 1158(a)(2)(C). None
of the threshold requirements found in § 1158(a) references
corroboration or documentary evidence.
7
Throughout the INA, the clear and convincing standard has been
defined as “between a preponderance of the evidence and proof beyond a
reasonable doubt.” Kenyeres v. Ashcroft, 538 U.S. 1301, 1305 (2003)
(internal quotation marks omitted).
8232 SINGH v. HOLDER
[2] Congress imposed the one-year filing deadline for asy-
lum applicants as part of the Illegal Immigration Reform and
Illegal Immigrant Responsibility Act of 1996. Pub. L. No.
104-208, § 604(a), 110 Stat. 3009-691. Congress later made
additional revisions to asylum law through the REAL ID Act
of 2005, but the Act did not amend § 1158(a)(2)(B)—the peti-
tioner’s burden to demonstrate compliance with the one-year
deadline—or add a corroboration provision of general appli-
cability throughout the INA. See Pub. L. No. 109-13, § 101,
119 Stat. 231, 302-06 (2005). Because Congress declined to
provide a corroboration provision applicable to the timely fil-
ing requirement in § 1158(a), the question before us is
whether Congress addressed corroboration of timely filing in
another statutory provision. The answer is “no.”

[3] Until the passage of the REAL ID Act, it was the law
of this circuit that corroboration of an asylum applicant’s
credible testimony with respect to refugee status could not be
required. See Aden v. Holder, 589 F.3d 1040, 1043-44 (9th
Cir. 2009) (citing Ladha v. INS, 215 F.3d 889, 901 (9th Cir.
2000); Kataria v. INS, 232 F.3d 1107, 1113 (9th Cir. 2000)).
With the REAL ID Act, Congress abrogated our case law by
adding to the INA three new, independent corroboration pro-
visions: one for asylum, one for withholding of removal, and
one for all other forms of relief.8 The corroboration provisions
are virtually identical and none applies to the one-year filing
deadline.9
8
Section 101 of the REAL ID Act, which included all of the new cor-
roboration requirements, is attached as an appendix.
9
The dissent would read the REAL ID Act’s three provisions as a single
overarching corroboration requirement for the INA. In support of its inter-
pretation of the statute, the dissent cites the REAL ID Act’s “bias toward
corroboration” referenced in Aden, 589 F.3d at 1045. Dissenting op. at
8248-49. However, Aden dealt only with the burden of demonstrating ref-
ugee status under § 1158(b)(1)(B)(ii), despite the general dicta included in
the opinion and cited by the dissent. See 589 F.3d at 1043-44. And, more
to the point, the corroboration language appears affirmatively in individual
sections, not as an umbrella requirement.
 SINGH v. HOLDER 8233
[4] The first provision is titled “CONDITIONS FOR
GRANTING ASYLUM” and added § 1158(b)(1)(B)(ii).
REAL ID Act of 2005, Pub. L. No. 109-13, § 101(a), 119
Stat. 231, 302-03. The BIA and the dissent rely upon this pro-
vision, which allows adjudicators to request corroboration of
an applicant’s testimony establishing refugee status where
such corroboration is reasonably available, to conclude that
Singh failed to demonstrate compliance with the one-year
deadline due to the lack of corroborating evidence. See 8
U.S.C. § 1158(b)(1)(B)(ii).

[5] Nothing in the text of the statute allows the corrobora-
tion provision of § 1158(b)(1)(B)(ii) to be imported magically
into § 1158(a), the provision establishing the one-year filing
deadline. Rather, the language of § 1158(b)(1)(B)(ii) and its
immediate statutory context mandate the opposite conclusion.
See Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)
(“The plainness or ambiguity of statutory language is deter-
mined by reference to the language itself, the specific context
in which that language is used, and the broader context of the
statute as a whole.”); see also Ransom, 131 S. Ct. at 723-24
(interpreting the statute based on the plain language and the
statutory context and purpose).

Subsection 1158(b) governs the “Conditions for granting
asylum,” and covers the grant of asylum, not the authority
simply to start the asylum process through an application.
Within § 1158(b), the first subparagraph, § 1158(b)(1)(A),
provides the agency the discretionary authority to grant asy-
lum to an individual who has applied “in accordance with the
[established] requirements and procedures” and who “is a ref-
ugee within the meaning of” § 1101(a)(42)(A). 8 U.S.C.
§ 1158(b)(1)(A) (emphasis added). The next subparagraph,
§ 1158(b)(1)(B), is titled “Burden of proof” and provides that
“[t]he burden of proof is on the applicant to establish that the
applicant is a refugee.” Id. § 1158(b)(1)(B)(i) (emphasis
added). This clause refers exclusively to demonstrating that
the applicant is a refugee under the statute.
8234 SINGH v. HOLDER
[6] The corroboration provision invoked by the BIA,
§ 1158(b)(1)(B)(ii), follows in the next clause and is also
linked to an applicant’s refugee status. Under the heading
“Sustaining burden,” § 1158(b)(1)(B)(ii) provides, in its
entirety:

The testimony of the [asylum] applicant may be suf-
ficient to sustain the applicant’s burden without cor-
roboration, 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 deter-
mining whether the applicant has met the applicant’s
burden, the trier of fact may weigh the credible testi-
mony along with other evidence of record. Where
the trier of fact determines that the applicant should
provide evidence that corroborates otherwise credi-
ble testimony, such evidence must be provided
unless the applicant does not have the evidence and
cannot reasonably obtain the evidence.

Emphasis added. This corroboration provision is linked by its
language10 and context directly to proof “that the applicant is
a refugee.” Id. § 1158(b)(1)(B)(ii) (emphasis added). The stat-
utory definition of a refugee relates exclusively to whether the
applicant has suffered past persecution or has a well-founded
fear of future persecution on account of a protected ground.
Id. § 1101(a)(42)(A). This definition of a refugee contains no
cross-reference to the procedural requirements for asylum,
such as being physically present in the United States or filing
a timely application. See id. In short, the corroboration lan-
guage in subsection (b) stands independent of the timely filing
deadline in subsection (a).
10
The statutory language refers specifically to refugee status, contrary
to the dissent’s suggestion that we rely “solely” on the title of the statutory
section to support our interpretation. See Dissenting op. at 8248 n.3.
 SINGH v. HOLDER 8235
[7] This interpretation is sensible when considering the
practical application of § 1158 as a whole. Subsection 1158(a)
lays out the predicate requirements that enable an individual
to apply for asylum, including the one-year filing deadline. Id.
§ 1158(a)(2)(B). If the individual cannot clear those hurdles,
then subsection (b) does not apply at all. A sequential reading
of the two statutory subsections, the plain language of each,
and the focus of subsection (b) on refugee status all point to
a single conclusion: the refugee corroboration provision of
subsection (b) does not apply to the time bar under subsection
(a).11 The BIA erred as a matter of law in applying
§ 1158(b)(1)(B)(ii) to Singh’s showing of timely filing,
because that provision applies only to the merits of an asylum
application, not to preliminary requirements such as time-
liness.

[8] As noted above, § 1158(b) was not the only corrobora-
tion provision added to the INA by the REAL ID Act. The
second such corroboration provision is titled “WITHHOLD-
ING OF REMOVAL” and added § 1231(b)(3)(C). 119 Stat.
at 303-04. Consistent with the text of the Act, that provision
governs applications for withholding of removal only. Fur-
ther, the corroboration provision codified at § 1231(b)(3)(C)
incorporates § 1158(b)(1)(B)(ii) by reference, including the
limitation to refugee status determinations. There is no basis
for holding that the corroboration requirement applicable to
withholding of removal claims would apply to Singh’s asylum
application.

[9] The third provision is titled “OTHER REQUESTS
FOR RELIEF FROM REMOVAL” and added § 1229a(c)(4).
119 Stat. at 304. The overall structure of the Act underscores
11
The dissent has it upside down. We hold that the corroboration provi-
sion applies only to demonstration of refugee status, contrary to the dis-
sent’s suggestion that we have imposed this provision on all components
of an individual’s asylum application other than the one-year deadline. See
Dissenting op. at 8246-47.
8236 SINGH v. HOLDER
that this provision is distinct from the preceding section and
applies to all forms of relief from removal other than asylum
or withholding of removal. Because § 1229a(c)(4) does not
apply to asylum applications, it follows that this section can-
not apply to Singh’s asylum application.

At first glance, the Act engenders some ambiguity on this
point, because the codified portion of the Act, entitled “Appli-
cations for relief from removal,” does not contain the word
“other” and refers to “relief or protection from removal” with-
out qualification. 8 U.S.C. § 1229a(c)(4). Looking only at the
codified text of the Act, it may appear at first glance that
§ 1229a(c)(4) could apply to all forms of relief from removal,
including asylum and withholding of removal. But that con-
clusion cannot be correct. In this case, the text and structure
of the Act, including the title of the subsection actually
adopted by Congress—“OTHER REQUESTS FOR RELIEF
FROM REMOVAL”—provide a clear indication of congres-
sional intent to exclude asylum and withholding applications
from that provision. See Almendarez-Torres v. United States,
523 U.S. 224, 234 (1998) (“[T]he title of a statute and the
heading of a section are tools available for the resolution of
a doubt about the meaning of a statute.” (internal quotation
marks omitted)). The legislative history reinforces that the
corroboration provision codified at § 1229a(c)(4)(B) governs
“other applications for relief from removal” and not applica-
tions for asylum and withholding of removal. H.R. REP. NO.
109-72, at 169 (2005) (Conf. Rep.).12 We should give effect
12
The Conference Report is unambiguous:
Other Applications for Relief. Subsection 101(d) of Division B
would add a new paragraph 240(c)(4) to the INA [codified at 8
U.S.C. § 1229a(c)(4)]. This paragraph would apply the credibility
and corroboration standards in section 101(a)(3) of Division B to
other applications for relief and protection from removal. The
new paragraph also codifies the current requirement that an alien
applying for relief or protection from removal bears the burden
of satisfying the eligibility requirements for that relief or protec-
tion . . . .
Emphasis added.
 SINGH v. HOLDER 8237
to this legislative intent—§ 1229a(c)(4)(B) applies only to
applications for forms of relief other than asylum and with-
holding. See Chevron U.S.A. Inc. v. Natural Res. Def. Coun-
cil, Inc., 467 U.S. 837, 843 n.9 (1984) (“If a court, employing
traditional tools of statutory construction, ascertains that Con-
gress had an intention on the precise question at issue, that
intention is the law and must be given effect.”).

[10] There is no mystery here whether Congress intended
the REAL ID Act’s corroboration provisions to apply to an
asylum applicant’s showing of timely filing. In the same sec-
tion of the same Act, Congress added three free-standing cor-
roboration provisions, each covering a different form of relief:
one for the merits of asylum applications (section 101(a) of
the Act, adding § 1158(b)(1)(B)(ii)); one for the merits of
applications for withholding of removal (section 101(c) of the
Act, adding § 1231(b)(3)(C)); and one for the requirements of
all other forms of relief (section 101(d) of the Act, adding
§ 1229a(c)(4)(B)).13 Because none of those provisions applies
to the timeliness of an asylum application, and because no
other statutory provision creates a relevant corroboration pro-
vision, the BIA erred as a matter of law in applying the cor-
roboration provision found in § 1158(b)(1)(B)(ii) to Singh’s
showing that he timely filed an application for asylum.

[11] The question now is where our holding leaves Singh.
The clear and convincing standard requires more than proof
by a preponderance of the evidence and less than proof
beyond a reasonable doubt. Kenyeres, 538 U.S. at 1305. To
date, the BIA has provided neither definition nor structure to
13
The dissent’s complaint that our reading requires an immigration
judge “to evaluate the immigrant’s testimony . . . under completely differ-
ent standards,” Dissenting op. at 8248, is puzzling. Even the dissent
acknowledges that the one-year requirement is subject to a “clear and con-
vincing” analysis. Refugee status is governed by a preponderance of the
evidence, and withholding of removal by “more probable than not.” Immi-
gration judges are quite capable of distinguishing among different stan-
dards and routinely do so under the INA.
8238 SINGH v. HOLDER
the contours of that standard with respect to the one-year fil-
ing bar.14 Indeed, testimony may be credible without rising to
the level of clear and convincing evidence. As a consequence,
we take no position whether, in the absence of credible testi-
mony that meets the clear and convincing standard, an immi-
gration judge may weigh the lack of reasonably available
corroborating evidence in assessing compliance with the stan-
dard. Nor do we consider whether Singh simply failed to meet
the standard here, without reference to corroborative evi-
dence, as the BIA did not address that issue. We leave those
considerations to the BIA in the first instance and remand this
case to the BIA for the agency to determine—without impos-
ing the statutory corroboration provision in
§ 1158(b)(1)(B)(ii)—whether Singh’s credible testimony
unaided by corroborating evidence demonstrated by clear and
convincing evidence that Singh’s application was timely.

Petition GRANTED; REMANDED for further proceed-
ings consistent with this opinion.

14
It is worth noting that in the Asylum Officer Basic Training module
regarding the one-year deadline, the agency instructs adjudicators that tes-
timony alone may be sufficient to establish that an applicant entered
within one year of filing, noting that “[i]n most cases it would seem unrea-
sonable to require documents proving that an applicant was not physically
present in the United States at a given time. ‘Proving a negative’ presents
multiple problems for both the applicant and the Service.” INS Asylum
Officer Basic Training, One-Year Filing Deadline (Mar. 10, 2010).
 SINGH v. HOLDER 8239
APPENDIX

Section 101 of the REAL ID Act of 2005, PL 109-13, 119
Stat. 231, 302-06 (boldface added to section and subsection
headings):

SEC. 101. PREVENTING TERRORISTS FROM
OBTAINING RELIEF FROM REMOVAL.

(a) CONDITIONS FOR GRANTING ASYLUM.—Section
208(b)(1) of the Immigration and Nationality Act (8 U.S.C.
1158(b)(1)) is amended—
(1) by striking “The Attorney General” the first place such
term appears and inserting the following:
“(A) ELIGIBILITY.—The Secretary of Homeland Security or
the Attorney General”;

(2) by striking “the Attorney General” the second and third
places such term appears and inserting “the Secretary of
Homeland Security or the Attorney General”; and

(3) by adding at the end the following:
“(B) BURDEN OF PROOF.—
“(i) IN GENERAL.—The burden of proof is on the applicant
to establish that the applicant is a refugee, within the meaning
of section 101(a)(42)(A). To establish that the applicant is a
refugee within the meaning of such section, 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.
“(ii) SUSTAINING BURDEN.—The testimony of the appli-
cant may be sufficient to sustain the applicant’s burden with-
out 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.
8240 SINGH v. HOLDER
Where the trier of fact determines that the applicant should
provide evidence that corroborates otherwise credible testi-
mony, such evidence must be provided unless the applicant
does not have the evidence and cannot reasonably obtain the
evidence.
“(iii) CREDIBILITY DETERMINATION.—Considering the
totality of the circumstances, and all relevant factors, a trier
of fact may base a credibility determination on the demeanor,
candor, or responsiveness of the applicant or witness, the
inherent plausibility of the applicant’s or witness’s account,
the consistency between the applicant’s or witness’s written
and oral statements (whenever made and whether or not under
oath, and considering the circumstances under which the
statements were made), the internal consistency of each such
statement, the consistency of such statements with other evi-
dence of record (including the reports of the Department of
State on country conditions), and any inaccuracies or false-
hoods in such statements, without regard to whether an incon-
sistency, inaccuracy, or falsehood goes to the heart of the
applicant’s claim, or any other relevant factor. There is no
presumption of credibility, however, if no adverse credibility
determination is explicitly made, the applicant or witness
shall have a rebuttable presumption of credibility on appeal.”.

(b) EXCEPTIONS TO ELIGIBILITY FOR ASYLUM.—
Section 208(b)(2)(A)(v) of the Immigration and Nationality
Act (8 U.S.C. 1158(b)(2)(A)(v)) is amended—
(1) by striking “inadmissible under” each place such term
appears and inserting “described in”; and
(2) by striking “removable under”.
(c) WITHHOLDING OF REMOVAL.—Section 241(b)(3)
of the Immigration and Nationality Act (8 U.S.C. 1231(b)(3))
is amended by adding at the end the following:
“(C) SUSTAINING BURDEN OF PROOF; CREDIBILITY
DETERMINATIONS.—In determining whether an alien has
demonstrated that the alien’s life or freedom would be threat-
ened for a reason described in subparagraph (A), the trier of
fact shall determine whether the alien has sustained the alien’s
 SINGH v. HOLDER 8241
burden of proof, and shall make credibility determinations, in
the manner described in clauses (ii) and (iii) of section
208(b)(1)(B).”.

(d) OTHER REQUESTS FOR RELIEF FROM
REMOVAL.—Section 240(c) of the Immigration and
Nationality Act (8 U.S.C. 1230(c)) is amended—
(1) by redesignating paragraphs (4), (5), and (6) as paragraphs
(5), (6), and (7), respectively; and
(2) by inserting after paragraph (3) the following:
“(4) APPLICATIONS FOR RELIEF FROM REMOVAL.—
“(A) IN GENERAL.—An alien applying for relief or protec-
tion from removal has the burden of proof to establish that the
alien—
“(i) satisfies the applicable eligibility requirements; and
“(ii) with respect to any form of relief that is granted in the
exercise of discretion, that the alien merits a favorable exer-
cise of discretion.
“(B) SUSTAINING BURDEN.—The applicant must comply
with the applicable requirements to submit information or
documentation in support of the applicant’s application for
relief or protection as provided by law or by regulation or in
the instructions for the application form. In evaluating the tes-
timony of the applicant or other witness in support of the
application, the immigration judge will determine whether or
not the testimony is credible, is persuasive, and refers to spe-
cific facts sufficient to demonstrate that the applicant has sat-
isfied the applicant’s burden of proof. In determining whether
the applicant has met such burden, the immigration judge
shall weigh the credible testimony along with other evidence
of record. Where the immigration judge determines that the
applicant should provide evidence which corroborates other-
wise 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.
“(C) CREDIBILITY DETERMINATION.—Considering the
totality of the circumstances, and all relevant factors, the
immigration judge may base a credibility determination on the
8242 SINGH v. HOLDER
demeanor, candor, or responsiveness of the applicant or wit-
ness, the inherent plausibility of the applicant’s or witness’s
account, the consistency between the applicant’s or witness’s
written and oral statements (whenever made and whether or
not under oath, and considering the circumstances under
which the statements were made), the internal consistency of
each such statement, the consistency of such statements with
other evidence of record (including the reports of the Depart-
ment of State on country conditions), and any inaccuracies or
falsehoods in such statements, without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of
the applicant’s claim, or any other relevant factor. There is no
presumption of credibility, however, if no adverse credibility
determination is explicitly made, the applicant or witness
shall have a rebuttable presumption of credibility on appeal.”.

(e) STANDARD OF REVIEW FOR ORDERS OF
REMOVAL.—Section 242(b)(4) of the Immigration and
Nationality Act (8 U.S.C. 1252(b)(4)) is amended by adding
at the end, after subparagraph (D), the following: “No court
shall reverse a determination made by a trier of fact with
respect to the availability of corroborating evidence, as
described in section 208(b)(1)(B), 240(c)(4)(B), or
241(b)(3)(C), unless the court finds, pursuant to section
242(b)(4)(B), that a reasonable trier of fact is compelled to
conclude that such corroborating evidence is unavailable.”.

(f) CLARIFICATION OF DISCRETION.—Section
242(a)(2)(B) of the Immigration and Nationality Act (8
U.S.C. 1252(a)(2)(B)) is amended—
(1) by inserting “or the Secretary of Homeland Security” after
“Attorney General” each place such term appears; and
(2) in the matter preceding clause (i), by inserting “and
regardless of whether the judgment, decision, or action is
made in removal proceedings,” after “other provision of
law,”.

(g) REMOVAL OF CAPS.—
(1) ASYLEES.—Section 209 of the Immigration and Nation-
 SINGH v. HOLDER 8243
ality Act (8 U.S.C. 1159) is amended—
(A) in subsection (a)(1)—
(i) by striking “Service” and inserting “Department of Home-
land Security”; and
(ii) by striking “Attorney General” each place such term
appears and inserting “Secretary of Homeland Security or the
Attorney General”;
(B) in subsection (b)—
(i) by striking “Not more” and all that follows through “asy-
lum who—” and inserting “The Secretary of Homeland
Security or the Attorney General, in the Secretary’s or the
Attorney General’s discretion and under such regulations as
the Secretary or the Attorney General may prescribe, may
adjust to the status of an alien lawfully admitted for perma-
nent residence the status of any alien granted asylum who—”;
and
(ii) in the matter following paragraph (5), by striking “Attor-
ney General” and inserting “Secretary of Homeland Security
or the Attorney General”; and

(C) in subsection (c), by striking “Attorney General” and
inserting “Secretary of Homeland Security or the Attorney
General”.

(2) PERSONS RESISTING COERCIVE POPULATION
CONTROL METHODS.—Section 207(a) of the Immigration
and Nationality Act (8 U.S.C. 1157(a)) is amended by striking
paragraph (5).

(h) EFFECTIVE DATES.—

(1) The amendments made by paragraphs (1) and (2) of sub-
section (a) shall take effect as if enacted on March 1, 2003.

(2) The amendments made by subsections (a)(3), (b), (c), and
(d) shall take effect on the date of the enactment of this divi-
sion and shall apply to applications for asylum, withholding,
or other relief from removal made on or after such date.
8244 SINGH v. HOLDER
(3) The amendment made by subsection (e) shall take effect
on the date of the enactment of this division and shall apply
to all cases in which the final administrative removal order is
or was issued before, on, or after such date.

(4) The amendments made by subsection (f) shall take effect
on the date of the enactment of this division and shall apply
to all cases pending before any court on or after such date.

(5) The amendments made by subsection (g) shall take effect
on the date of the enactment of this division.

(i) REPEAL.—Section 5403 of the Intelligence Reform and
Terrorism Prevention Act of 2004 (Public Law 108-458) is
repealed.
 SINGH v. HOLDER 8245
O’SCANNLAIN, Circuit Judge, joined by GOULD,
RAWLINSON, CLIFTON, and CALLAHAN Circuit Judges,
dissenting:

“Any alien who is physically present in the United States
. . . may apply for asylum,” 8 U.S.C. § 1158(a)(1), but only
if he “demonstrates by clear and convincing evidence that the
application has been filed within 1 year after the date of the
alien’s arrival in the United States,” id. § 1158(a)(2)(B). Here,
the Immigration Judge (“IJ”) was not convinced by Nirmal
Singh’s mere verbal assertions, credible as the petitioner may
be, and thus required Singh to come forward with evidence
corroborating his alleged date of entry. When Singh failed to
do so, the IJ dismissed his application as time-barred, and the
Board of Immigration Appeals (“BIA”) affirmed, noting cor-
rectly that the burden of proof on granting asylum empowers
an IJ to seek corroborating evidence from an otherwise credi-
ble witness.

Because the plain terms of the statutory scheme allow an IJ
to seek corroboration from an applicant seeking to demon-
strate his eligibility for asylum, and because the majority’s
reading would variegate an otherwise uniform statute, I
respectfully dissent.

I

Our old rule that “the BIA may not require independent
corroborative evidence from an asylum applicant who testifies
credibly in support of his application,” Kataria v. INS, 232
F.3d 1107, 1113 (9th Cir. 2000), has been formally extin-
guished. For asylum applications filed after May 11, 2005,1
“Congress abrogated these holdings in the REAL ID Act of
1
REAL ID Act of 2005, Pub. L. No. 109-13, § 101(h)(2), 119 Stat. 231,
305; Oyekunle v. Gonzales, 498 F.3d 715, 717 (7th Cir. 2007) (“For aliens
who applied for asylum after May 11, 2005[, the REAL ID Act] in effect
codifies the [corroboration] rule . . . .”).
8246 SINGH v. HOLDER
2005.” Aden v. Holder, 589 F.3d 1040, 1044 (9th Cir. 2009).
Instead, while credible testimony still can, in some circum-
stances, sustain the applicant’s burden of proof, it does not
automatically do so. See 8 U.S.C. § 1158 (b)(1)(B)(ii) (“[T]he
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 testi-
mony is credible, is persuasive, and refers to specific facts
sufficient to demonstrate that the applicant is a refugee.”
(emphasis added)). Now, “[w]here 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.” Id. Thus, credible testimony
may be sufficient to satisfy the applicant’s burden of proof,
but the Act also enables the trier of fact to require something
more. To the extent our prior decisions hold to the contrary,
they are superseded by the REAL ID Act. Aden, 589 F.3d at
1044.

That, more or less, should end the matter in this case.
Although the IJ found Singh to be credible, the IJ concluded
that Singh had not sustained his burden of demonstrating his
date of entry into the United States through his testimony
alone. The IJ thus required Singh to provide corroborating
evidence of his alleged date of entry, which he failed to do.
As the BIA concluded, such request was fully within the IJ’s
power, and there was no error in rejecting Singh’s application
as untimely.

II

The majority rejects all of this by concluding that 8 U.S.C.
§ 1158(b)(1)(B)(ii)—which explicitly provides for the IJ’s
authority to require corroborating evidence—applies to every-
thing in an asylum applicant’s burden except his duty to estab-
lish the timeliness of his application. As the majority would
have it, no provision of the REAL ID Act explicates how an
 SINGH v. HOLDER 8247
IJ may ensure that an immigrant has successfully demon-
strated his date of entry by “clear and convincing evidence.”
In light of the statute taken as a whole, I cannot agree with the
majority’s conclusion.2

A

First, contrary to the majority’s suggestion, the text of the
section 1158(b)(1)(B)(ii) does not restrict the IJ’s authority to
seek corroborating evidence only to whether the applicant is
a “refugee.” Rather, this section speaks generally of “the
applicant’s burden” for demonstrating his eligibility for asy-
lum, and states that, to sustain such burden, “[w]here 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 evi-
dence and cannot reasonably obtain the evidence.” 8 U.S.C.
§ 1158(b)(1)(B)(ii). In order to demonstrate his eligibility for
asylum, an asylum applicant must prove both that he has filed
his application within one year after his entry into the United
States and that he meets the statutory definition of a “refu-
gee.” See id. §§ 1158(a)-(b). In other words, an asylum appli-
cant’s “burden” for prevailing on his application necessarily
includes the burden of establishing his date of entry.

Section 1158(b)(1)(B)(ii)’s discussion of the applicant’s
ability to sustain his “burden” thus refers to Singh’s need to
demonstrate his eligibility as a refugee meeting all statutory
requirements for asylum. And because the text of such section
nowhere limits its scope only to the determination of one por-
tion of the applicant’s statutory burden, as the majority sug-
2
The majority does not dispute that Singh’s need to establish his date
of entry by “clear and convincing evidence,” 8 U.S.C. § 1158(a)(2)(B),
may inherently empower the IJ to require corroborating evidence of such
date. The only question enunciated by the majority, however, is whether
the BIA erred in explicitly consulting section 1158(b)(1)(B)(ii) in affirm-
ing the IJ’s actions.
8248 SINGH v. HOLDER
gests, the BIA did not err in consulting the section in
affirming the IJ’s decision.3

B

Moreover, although the majority suggests that structural
elements of section 1158 leave some ambiguity as to the
scope of subsection (b)(1)(B)(ii), I cannot conclude, as the
majority does, that this structure was meant to frustrate the
IJ’s efforts to determine whether an applicant had provided
clear and convincing evidence of his date of entry. As dis-
cussed, establishing both the timeliness of his application and
his status as a “refugee” are necessary to an immigrant’s suc-
cessful asylum application. But under the majority’s view, an
IJ will be forced to evaluate the immigrant’s testimony on
these two questions under completely different standards.
Under the majority opinion, an IJ will assess the question of
an applicant’s refugee status under section 1158(b)(1)(B)(ii),
but will assess the timeliness of his application without regard
to any provision explaining the applicant’s standard for sus-
taining his burden. The text of the statute does not create such
a divide, and there is no reason that we should.

Indeed, taking the statute as a whole, the analytical divide
created by the majority’s analysis goes far beyond the provi-
sions dealing with asylum applications. The majority explains
that the statute is divided into three general sections, each
3
The majority suggests that its reading of the statute—which relies
solely on the titles Congress ascribed to certain statutory subsections,
many of which were not even codified in the United States Code—is com-
pelled by the statute’s text and through “[b]asic principles of statutory
construction.” Majority Op. at 8227. Yet, tellingly, the majority concludes
that under a precedential order, the BIA’s interpretation of the statute may
be entitled to “some deference.” Majority Op. at 8228 n.4. Because admin-
istrative deference is applicable only where a statute is ambiguous, see
Christopher v. SmithKline Beecham Corp., 635 F.3d 383, 392 (9th Cir.
2011), I take this caveat to be an admission by the majority that its reading
of the statute is indeed not compelled by the statute’s text.
 SINGH v. HOLDER 8249
dealing with a different form of relief: section 1158 pertains
to applications for asylum, section 1231(b)(3) pertains to
withholding of removal, and section 1229a(c)(4) pertains to
“other” requests for relief. See Majority Op. at 8234-36. But
each of these sections contains a nearly identical provision
that expressly permits an IJ to require corroborating evidence
from an otherwise credible witness. See 8 U.S.C.
§§ 1158(b)(1)(B)(ii); 1229a(c)(4)(B); 1231(b)(3)(C). Read
together, these provisions set forth a single overarching cor-
roboration standard for sustaining an immigrant’s burden of
proving his eligibility for any form of relief under the statute.
Indeed, throughout the REAL ID Act, “Congress has installed
a bias toward corroboration in the statute to provide greater
reliability.” Aden, 589 F.3d at 1045. And we treat the BIA’s
application of these corroboration provisions identically on
review. See § 1252(b)(4)(D).

But the majority isolates Singh’s testimony as to his date
of entry from this uniform standard for assessing his credibil-
ity on all other matters relating to his requests for relief. This
move is neither compelled by the statute’s text, nor does it
comply with the statute’s general aim to “ma[ke] immigration
litigation a little more like other litigation,” where parties with
the burden of proof ordinarily provide whatever corroboration
they have when presenting their case.4 Aden, 589 F.3d at
1045. In short, the majority has sidestepped the sweep of the
statute’s text to remove one of the most basic features of an
asylum application from the statute’s general corroboration
standards.
4
This is a basic aspect of the REAL ID Act that the majority seems
either to miss or to gloss over. Indeed, as we have previously recognized,
with the REAL ID Act, Congress “changed the standard governing when
a trier of fact may require corroborating evidence from where the evidence
is ‘easily available’ to where the evidence is ‘reasonably obtainable,’ and
imposed a heightened standard of review requiring that we reverse an
agency’s determination concerning the availability of corroborative evi-
dence only if a reasonable trier of fact would be compelled to conclude
that such corroborating evidence is unavailable.” Shrestha v. Holder, 590
F.3d 1034, 1047-48 (9th Cir. 2010) (citations omitted).
8250 SINGH v. HOLDER
III

In the case at hand, the IJ made no adverse credibility find-
ing against Singh, but ultimately determined that he had not
satisfied his burden of proving his date of entry by clear and
convincing evidence. To meet that burden, the IJ sought cor-
roborating evidence from Singh, which he failed to provide.
As Singh admitted that he had no documents to corroborate
his date of entry, it was his burden to explain its absence. In
re J-Y-C-, 24 I. & N. Dec. 260, 263 (B.I.A. 2007). Aside from
his bald assertion that he “could not reasonably be expected
to provide proof of when he entered the United States,” the
record is devoid of any indication from Singh as to why he
was unable to corroborate a such a basic fact.

Without either evidence corroborating Singh’s self-serving
declaration of his date of entry or an explanation for the
unavailability of such evidence, I have no choice but to con-
clude that the IJ did not err in barring Singh’s application as
untimely.5

5
I note that the court lacks jurisdiction to consider Singh’s claim that the
REAL ID Act required the IJ to notify him of his need to present corrobo-
rating evidence and to provide him with an opportunity to bring forth such
evidence, as Singh never exhausted this issue before the BIA. See 8 U.S.C.
§ 1252(d)(1); Barron v. Ashcroft, 383 F.3d 674, 677-78 (9th Cir. 2004).