RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0155p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MANUEL GUZMAN-VAZQUEZ, ┐
Petitioner, │
│
> No. 19-3417
v. │
│
│
WILLIAM P. BARR, Attorney General, │
Respondent. │
┘
On Petition for Review from the Board of Immigration Appeals;
No. A 206 154 087.
Decided and Filed: May 18, 2020
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.
No. 19-3417 Guzman-Vazquez v. Barr Page 2
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Manuel Guzman, a native and citizen of
Mexico, petitions for review of the decision of the Board of Immigration Appeals (“BIA”)
affirming an immigration judge’s denial of his application for withholding of removal.1 Because
the IJ and BIA erred in failing to give Guzman an opportunity to explain why he could not
reasonably obtain certain corroborative evidence, because substantial evidence does not support
the Immigration Judge (“IJ”) and BIA’s determinations regarding the unavailability of evidence
to corroborate Guzman’s claim about abuse by his stepfather, and because the BIA incorrectly
required Guzman to demonstrate that his membership in a particular social group was “at least
one central reason” for his persecution, we GRANT the petition for review, VACATE the BIA’s
order, and REMAND for proceedings consistent with this opinion.
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 § 241(b)(3) of the Immigration and Nationality Act (“INA”), and
withholding and deferral of removal under the Convention Against Torture. Id. at 91 (Hr’g Tr. at
12); id. at 41 (IJ Order).
1
At most points throughout the petitioner’s brief, he is referred to as “Guzman,” rather than Guzman-
Vazquez. Accordingly, we refer to him in this opinion as “Guzman.”
No. 19-3417 Guzman-Vazquez v. Barr Page 3
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 stepfather regularly subjected him to physical
abuse, as follows:
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.
2
The name of this town is spelled incorrectly in both the hearing transcript and Guzman’s application for
withholding. See U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, SPANISH NAME
BOOK 85, 131 (1973) (“San Pedro Mixtepec”).
No. 19-3417 Guzman-Vazquez v. Barr Page 4
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 weeks ago, he
said he could “try[] getting a letter from her,” but that he had not already done this because she
was unable to write. Id. at 127, 142–43. He added that “the same reason, communication
No. 19-3417 Guzman-Vazquez v. Barr Page 5
problems” explained why he did not have a letter from his uncle in Mexico, id. at 143, who
remains in Estanzuela Grande, id. at 114.
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.
3
The following account of the IJ’s oral decision includes only those portions relevant to the present petition
for review. For example, the IJ explained why Guzman had not demonstrated exceptional circumstances exempting
him from the one-year filing deadline for asylum applications, A.R. at 47–48 (IJ Decision at 6–7), but Guzman does
not challenge this determination in the present petition. Nor does the petition challenge any of the factual or legal
determinations relating to the threat he faced as a male relative of his father, Javier Guzman-Romero (Guzman’s
claims are limited to the rulings relating to his stepfather’s abuse), so this section omits the IJ’s discussion of this
issue.
No. 19-3417 Guzman-Vazquez v. Barr Page 6
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—namely the passage of time rendering his dependency on his
stepfather moot—which left his past-persecution claim nonviable. Id. at 50–51. The IJ
also concluded that Guzman could not establish a well-founded fear of future persecution. Id. at
51–53.
The IJ denied Guzman’s applications for asylum, withholding of removal under
§ 241(b)(3) of the INA, and withholding and deferral of removal under the Convention Against
Torture, and ordered him removed from the United States to Mexico. Id. at 41 (IJ Order).
Guzman appealed this decision to the BIA.
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
4
Twice in its opinion, the BIA erroneously stated that Guzman’s proposed social group was male relatives
of his stepfather. See A.R. at 3, 4 (BIA Decision at 1, 2). In fact, Guzman alleged that he had been targeted because
he belonged to the group comprising male relatives of his biological father. The BIA’s opinion makes clear,
however, that it correctly understood Guzman to be arguing that he was targeted as a member of his biological
father’s family and that “‘his step-child status was at least one factor causing his persecution.’” Id. at 5 (quoting
Resp. Br. at 7). The errors are therefore harmless.
No. 19-3417 Guzman-Vazquez v. Barr Page 7
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 8 U.S.C. § 1252(a)(1).
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 8 U.S.C. § 1252(b)(4)(B)).
We review questions of law de novo. Giraldo v. Holder, 654 F.3d 609, 611 (6th Cir. 2011).
Still, “[w]e defer to the BIA’s interpretation of the statutes and regulations it administers, so long
as the interpretation is reasonable.” Gaye v. Lynch, 788 F.3d 519, 526 (6th Cir. 2015).
III. DISCUSSION
This petition raises several questions. First, did the IJ and BIA correctly apply the
corroboration requirement set forth in 8 U.S.C. § 1158(b)(1)(B)(ii)? Second, did substantial
evidence support the IJ’s and BIA’s determination that Guzman inadequately explained why he
No. 19-3417 Guzman-Vazquez v. Barr Page 8
failed to corroborate his past-persecution claim involving his stepfather? Third, did the IJ and
BIA apply the proper construction of 8 U.S.C. § 1231(b)(3)(C) (the withholding statute) in
requiring Guzman to demonstrate that his stepchild status was “at least one central reason” why
his stepfather abused him? The answer to each of these questions is no.
A. Application of § 1158(b)(1)(B)(ii)
Guzman first argues that the IJ and BIA erred as a matter of law in applying 8 U.S.C.
§ 1158(b)(1)(B)(ii), which governs the burden of proof for a withholding claim. The statute
reads in relevant part:
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.
Id. Guzman argues that under this court’s interpretation of the statute in Gaye v. Lynch, 788 F.3d
519, 530 (6th Cir. 2015), “applicants seeking humanitarian protection must divine in advance of
their testimony whether an IJ will deem them credible and consistent enough to be able to carry
their burden without supplying corroborating evidence.” Pet. Br. at 17. Guzman also stated in
his notice of appeal from the IJ’s decision that the IJ “erred as a matter of law in holding
corroboration was required,” A.R. at 35 (Notice of Appeal from IJ Decision at 2), and argued in
his brief to the BIA that the IJ “speculated as to the availability of witness testimony,” A.R. at 21
(Resp. Br. at 8). For the following reasons, we conclude that the IJ did not err in failing to give
notice of the specific corroborating evidence that would be considered persuasive to meet
Guzman’s burden of proof, but did err, in part, in requiring certain corroborative evidence
without giving Guzman an opportunity to explain why it was not reasonably available.
Our decision in Gaye analyzed the question of notice under § 1158(b)(1)(B)(ii) and held
that “federal law does not entitle [an individual in removal proceedings] to notice from the
Immigration Court as to what sort of evidence the [individual] must produce to carry his
burden.” 788 F.3d at 530. This decision “remains controlling authority unless an inconsistent
decision of the United States Supreme Court requires modification of the decision or this Court
sitting en banc overrules the prior decision.” Salmi v. Sec’y of Health & Human Servs., 774 F.2d
No. 19-3417 Guzman-Vazquez v. Barr Page 9
685, 689 (6th Cir. 1985). As a matter of circuit precedent, Guzman was not entitled to notice
that the IJ would require him to corroborate his claims with other evidence.5
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. 8 U.S.C. § 1158(b)(1)(B)(ii). The requirement, set forth in the latter clause,
is triggered by the occurrence of the former clause, a “determinat[ion]” by the IJ. That is,
after or upon or in the case of the IJ’s determination, corroborative evidence must thereafter be
provided, unless the applicant can explain why the evidence is not reasonably available.
The syllogistic nature of this provision is unambiguous.
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
5
Guzman also challenges the constitutionality of Gaye’s interpretation of § 1158(b)(1)(B)(ii). See Pet. Br.
at 15 (“The IJ and BIA deprived Guzman of his Fifth Amendment right to due process in removal proceedings by
misapplying the Real ID Act of 2005’s corroboration requirement.”). Gaye did not address the constitutionality of
this statute, nor has any court since Gaye determined whether the provision—as construed in Gaye—comports with
Fifth Amendment protections. Given that we resolve this case on other grounds, however, we decline to opine on
the constitutionality of this statute. See Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (“It
is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of
the case.”) (quoting Burton v. United States, 196 U.S. 283, 295 (1905)).
No. 19-3417 Guzman-Vazquez v. Barr Page 10
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 § 1158(b)(1)(B)(ii), relying on Matter of L-A-C-.
In Uzodinma v. Barr, 951 F.3d 960 (8th Cir. 2020), the court explained that “[a]t a merits
hearing, the IJ need not identify the specific corroborating evidence that would be persuasive[,]
[n]or must the IJ grant an automatic continuance for the applicant to present corroborating
evidence later.” Id. at 966 (citing Matter of L-A-C-, 26 I. & N. Dec. at 520); see also Gaye,
788 F.3d at 530. However, “[w]hen an asylum applicant must provide corroborating evidence,
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the IJ must afford an opportunity to explain its unavailability, ensuring the explanation is in the
record.” Uzodinma, 951 F.3d at 966 (citing Matter of L-A-C-, 26 I. & N. Dec. at 521–22). Other
circuits have gone further, holding that under § 1158(b)(1)(B)(ii), an applicant is entitled not
only to an opportunity to explain the absence of corroborative evidence, but also to notice from
the IJ as to what type of corroboration will be expected, see Chukwu v. Attorney Gen. of U.S.,
484 F.3d 185, 192 (3d Cir. 2007); Ren v. Holder, 648 F.3d 1079, 1090–93 (9th Cir. 2011).6
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
6
The merits of this approach notwithstanding, it is foreclosed by our decision in Gaye.
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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 § 1158(b)(1)(B)(ii), the BIA’s interpretation of it, and the
foregoing analyses of our sister circuits, we conclude that an IJ may not rule against a petitioner
on the basis of his failure to produce corroborative evidence when he has been given no
opportunity to explain its absence. The question here is whether the IJ in fact “speculated as to
the availability of witness testimony” and other corroborative evidence without giving Guzman
an opportunity to explain the unavailability of such corroboration. A.R. at 21 (Resp. Br. at 8).
Viewing the administrative record as a whole, it is clear that for some of the IJ’s findings as to
Guzman’s failure to produce corroborative evidence, Guzman did have an opportunity to explain
the absence of such evidence. For instance, while questioning Guzman about abuse by his
stepfather, counsel for DHS asked Guzman about why he had failed to produce evidence to
corroborate his testimony, and Guzman responded. A.R. at 142 (Hr’g Tr. at 62). Counsel for
DHS also asked him about corroboration from individuals who had been experiencing threats in
Guzman’s hometown, and again Guzman responded. See id. at 143 (Hr’g Tr. at 63). Although,
as discussed above, the plain language of § 1158(b)(1)(B)(ii) suggests that the applicant is
required to explain the absence of corroborative evidence only if the IJ has first determined that
such evidence is necessary, here it is clear that Guzman had the opportunity to account for the
unavailability of certain evidence, even without the IJ himself developing the record. See In Re
S-M-J-, 21 I. & N. Dec. at 726 (“Although the burden of proof in establishing a claim is on the
No. 19-3417 Guzman-Vazquez v. Barr Page 13
applicant, the Service and the Immigration Judge both have a role in introducing evidence into
the record.”). Our review of whether an applicant had the opportunity to explain why certain
corroborative evidence was absent does not depend formulaically on whether the IJ or another
party asked about the availability of such evidence.
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 relationship with the respondent,”
A.R. at 46 (IJ Decision at 5), by contrast, Guzman had no opportunity to explain the absence of
such evidence prior to the IJ’s decision. No one—not Guzman’s counsel, not counsel for DHS,
and not the IJ—ever suggested a need for corroboration of these alleged facts prior to the IJ’s
decision. To be clear, the IJ was not required to give notice in advance of the hearing “as to what
sort of evidence [Guzman] [had to] produce to carry his burden.” Gaye, 788 F.3d at 530.
Although Guzman likely did not anticipate the need to bring to the removal proceedings a copy
of his stepfather’s passport or an affidavit from a family member stating, “Guzman’s stepfather
exists,” under our precedent, the IJ was permitted to require such evidence of Guzman without
giving him prior notice. But because the IJ relied on Guzman’s failure to provide corroborative
evidence on these facts, he was required to “afford [Guzman] 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. at 519. As the Third Circuit has aptly stated, “it is impossible for us to determine
whether ‘a reasonable trier of fact [would be] compelled to conclude that such corroborating
evidence is unavailable,’ 8 U.S.C. § 1252(b)(4)(D), unless a petitioner is given the opportunity to
testify as to its availability.” Toure v. Attorney Gen. of U.S., 443 F.3d 310, 325 (3d Cir. 2006).
In this case, the IJ did not afford Guzman an opportunity to explain why evidence corroborating
the existence of his stepfather, for example, was not reasonably available, nor did any of the
direct- and cross-examination of Guzman elicit such an explanation for the record. Accordingly,
the IJ and BIA erred by basing their rulings against Guzman, in part, on his failure to corroborate
the existence of his stepfather, the stepfather’s marriage to Guzman’s mother, and the
stepfather’s relationship with Guzman, when he was given no opportunity to explain why
evidence corroborating these facts was not reasonably available.
No. 19-3417 Guzman-Vazquez v. Barr Page 14
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. Section 1229a(c)(4)(B) as amended by the REAL ID
Act provides:
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.
8 U.S.C. § 1229a(c)(4)(B); see also 8 U.S.C. § 1158(b)(1)(B)(ii) (sustaining burden of proof for
asylum and withholding claims). “A reviewing court may not reverse an agency finding as to the
availability of corroborating evidence unless the court finds a reasonable trier of fact would be
compelled to conclude that such evidence is unavailable.” Fisenko v. Holder, 336 F. App’x 504,
510 (6th Cir. 2009) (citing 8 U.S.C. § 1252(b)(4)). Even when the immigration judge finds an
applicant’s testimony to be credible, as here, if “the agency determines that an applicant should
provide corroborating evidence, . . . corroborating evidence is required unless the applicant
cannot reasonably obtain that evidence.” Urbina-Mejia v. Holder, 597 F.3d 360, 367 (6th Cir.
2010).
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 connections to governmental authorities, for example, we do not
question the IJ’s conclusion that “the Court would not expect a 14-year-old memory would be
such that he would know exactly what his step-father did, was involved in or how he was
affiliated with the village or town.” A.R. at 45 (IJ Decision at 4). Our review is limited to the
question of whether the IJ’s and BIA’s determination that Guzman failed to demonstrate why
corroborative evidence was unavailable was supported by substantial evidence. The INA sets
forth in unmistakable terms how we review this question: “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), 1229a(c)(4)(B), or 1231(b)(3)(C) of this title, unless the
No. 19-3417 Guzman-Vazquez v. Barr Page 15
court finds, pursuant to subsection (b)(4)(B), that a reasonable trier of fact is compelled to
conclude that such corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4). Conversely,
if we determine that this is “a case where the applicant’s testimony is the only evidence
available,” then “the immigration judge’s contrary conclusion”—requiring the applicant to
adduce corroborative evidence in order to satisfy his burden of proof—“must be reversed.”
Urbina-Mejia, 597 F.3d at 368 n.4.
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
No. 19-3417 Guzman-Vazquez v. Barr Page 16
“maybe once a year.” Id. Based on this testimony, which the IJ found credible—and which
offered far more by way of explanation than “stating only that he had lost contact with [his
sister],” see Lin v. Holder, 565 F.3d 971, 977 (6th Cir. 2009)—Guzman cannot have been
reasonably expected to have solicited and procured an affidavit from his sister.7 This stands in
stark contrast to cases in which applicants for relief fail to provide corroboration from relevant
witnesses with whom they are in frequent—or at least regular or reliable—contact. See, e.g.,
Urbina-Mejia, 597 F.3d at 363 (“The immigration judge specifically noted the lack of
correspondence from his father and siblings in Honduras, with whom he is in regular contact, or
testimony from his mother, with whom he lives.”) (emphasis added); Yanyun Ni, 556 F. App’x at
470 (“In her testimony, Ni said she speaks often with her husband in China and also remains in
contact with her mother-in-law, with whom her husband and children live.”); Gjoni, 168 F.
App’x at 59 (“Affidavits from Gjoni’s immediate family members would not have been difficult
for Gjoni to obtain. At the time of the hearing, Gjoni’s brothers lived with him in Detroit. Thus,
it would have been easy for any one of the three of Gjoni’s brothers to be called as a witness.”);
Kassem v. Holder, 438 F. App’x 378, 381 (6th Cir. 2011) (“Kassem could have corroborated the
threats against him by obtaining a statement from his wife, with whom he was in regular
contact.”).
7
The dissent suggests that, under § 1252(b)(4), as a precondition to proving that corroborative evidence is
unavailable, an applicant must, without exception, “try to obtain corroboration.” Dissent Op. at 36. Yet such a
requirement is absent from both § 1252(b)(4) and § 1158(b)(1)(B)(ii), and for good reason: It may be abundantly
clear—as it is in this case—that securing documentary evidence is impossible, that it does not exist, see Toure v.
Attorney Gen. of U.S., 443 F.3d 310, 325 n.8 (3d Cir. 2006), or simply that the evidence is not “reasonably
available,” without a track record of the applicant carrying out futile attempts to secure it. See Hor v. Gonzales,
421 F.3d 497, 500–01 (7th Cir. 2005) (faulting the IJ for ignoring objective country conditions that rendered certain
court documents not reasonably available). Our precedent is not to the contrary. It is true that in opinions upholding
IJ determinations, we have occasionally noted applicants’ apparent failures to attempt to secure certain pieces of
corroborative evidence. See, e.g., Lin, 565 F.3d at 977 (denying petition of an applicant who “stat[ed] only that he
had lost contact with [a potential corroborator]” and did not attempt to locate him). But especially in the
immigration context, where “each case is fact dependent,” Adhiyappa v. I.N.S., 58 F.3d 261, 267 (6th Cir. 1995), an
important or even case-dispositive factor in one scenario may be less significant in another. Indeed, never in a
published opinion have we held that “reasonable adjudicator[s] would be compelled” to disagree with the IJ’s
finding on corroboration only when the applicant puts forth evidence that he attempted to secure the evidence in
question. 8 U.S.C. § 1252(b)(4). There have been—and will be—cases in which the lack of a demonstrated attempt
to secure corroborative evidence weighs heavily against the applicant, but this is not one of them, as our discussion
illustrates. Guzman’s credible testimony made clear the unavailability of corroborative evidence from his sister (and
mother, as discussed below), even if he did not testify that he attempted to secure it.
No. 19-3417 Guzman-Vazquez v. Barr Page 17
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 “explain why he feared that they would be harmed for statements
made in private communications sent to him”); Munoz-Cano v. Sessions, 690 F. App’x 407, 410
(6th Cir. 2017) (“Munoz-Cano submitted a note demanding 600,000 quetzals that his father
mailed him but failed to provide a letter from his father explaining how or when the note was
received. His father’s ability to send the note undercuts Munoz-Cano’s explanation for the
failure to send a letter.”). There is simply no evidence in the record—let alone substantial
evidence—that Guzman and his sister were in the type of contact that would make corroboration
from her “reasonably available.” Lin, 565 F.3d at 978. We are therefore compelled to conclude
that the IJ’s conclusion that Guzman could have received corroborative evidence from his sister
because “he was still in contact with [her]” is not supported by substantial evidence. A.R. at 45
(IJ Decision at 4).
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
8
The dissent would have us ignore Guzman’s credible testimony that his mother both abused him and has
suffered abuse at the hands of his stepfather because Guzman has not explicitly linked these facts to his explanation
for lacking an affidavit from his mother. Dissent Op. at 38. We reject this impoverished conception of judicial
review. See Nat’l Air Carrier Ass’n v. C. A. B., 436 F.2d 185, 195 (D.C. Cir. 1970) (“[W]e point out that judicial
review is conducted on the basis of the record as a whole, so that rather conclusory findings can frequently be
No. 19-3417 Guzman-Vazquez v. Barr Page 18
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 transcribed and conveyed
to the applicant. For instance, in Hachem v. Holder, 656 F.3d 430 (6th Cir. 2011), we noted that
the applicant had “admitted that while his mother did not know how to write, others in his
mother’s household knew how to write and could have provided a statement.” Id. at 433. There
are no such admissions here—to the contrary, there is credible testimony that Guzman’s mother
still lives with his abusive stepfather. A.R. at 137–38 (Hr’g Tr. at 57–58). Might Guzman have
somehow managed to walk his partially illiterate, abused (and abusive) mother through the
process of dictating a sworn statement over the phone without her husband finding out? Perhaps.
But requiring Guzman to undertake this measure would be plainly excessive. See Merriam-
Webster’s Collegiate Dictionary 1037 (11th ed. 2014) (defining “reasonably” to mean “not
extreme or excessive”). There is substantial evidence that an affidavit from Guzman’s mother
redeemed by resort to a detailed factual record.”). Guzman unmistakably presented his claim that the IJ erred in
concluding that corroborative evidence from Guzman’s mother was reasonably available both to the BIA, A.R. at
20–21 (Resp. Br. at 7–8), and to this court, Pet. Br. at 15, and the record contains especially compelling reasons for
Guzman’s failure to obtain such corroboration. Just as § 1158(b)(1)(B)(ii) does not require the IJ to make a formal
inquiry of why corroborative evidence is unavailable, see supra Part III.A., it does not require applicants to offer a
formal explanation in order to carry their burden. For example, had Guzman testified credibly that his mother was
deceased, but had not expressly stated, “I cannot provide an affidavit from my mother because she is no longer
alive,” we expect that the dissent would not conclude that such an affidavit was reasonably available. Indeed, the
dissent appears to recognize—to a limited extent—the absurdity of requiring the victim of abuse to secure an
affidavit from his abuser, see Dissent Op. at 38, but suggests that such a requirement would be absurd only when the
victim’s legal claim itself rests on the abuse of the would-be affiant. This distinction manifestly lacks significance.
No. 19-3417 Guzman-Vazquez v. Barr Page 19
was not reasonably available—not the other way around. We are compelled to conclude that this
corroborative evidence was unavailable.9
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 have made his
past-persecution claim more or less likely to be true. The IJ’s statement that his aunt or uncle
9
To be clear, we do not conclude that the BIA can make further findings of fact before declaring this
evidence unavailable. We have remanded for further findings of fact when the BIA has not explained (1) why it was
reasonable to expect corroboration in a particular case and (2) why an applicant’s explanations for lack of
corroboration were insufficient. See Niang v. Gonzales, 195 F. App’x 371, 377 (6th Cir. 2006) (citing Diallo, 232
F.3d at 290). Although the IJ and BIA did not expressly acknowledge Guzman’s reason for failing to provide
corroboration from his mother, they did explain that because he was “in contact” with his mother, it was reasonable
to expect corroboration from her. A.R. at 45 (IJ Decision at 4); id. at 5 (BIA Decision at 3). Given the lack of
evidence supporting this conclusion, our remand does not seek further articulation of the IJ’s and BIA’s rationales.
See Shah v. Attorney Gen. of U.S., 273 F. App’x 176, 180 (3d Cir. 2008) (declining to remand for further discussion
of an applicant’s excuse for lack of corroboration, when the BIA’s refusal to accept this excuse was erroneous “no
matter what the BIA’s actual rationale”).
10
Guzman testified that he had multiple uncles, but the IJ’s decision does not clarify which uncle it is
discussing. We consider herein references to both uncles.
No. 19-3417 Guzman-Vazquez v. Barr Page 20
could have provided corroboration glosses over Guzman’s testimony that when he was one year
old, he and his mother moved from Estanzuela Grande, where the Guzman-Vazquez family was
located, to a new town six hours away. See A.R. 110 (Hr’g Tr. at 30) (“[M]y family take me
away from—my mother take me away from that town to a different town, but—about six hours
away so she can . . . for we can survive because they were telling those people that I was next.”);
id. at 116 (“My mother take me out of that town when I was one year old.”). His two uncles
thereafter apparently retained possession of the family farm in Estanzuela Grande. Id. at 112.
One uncle subsequently fled Mexico to escape the violence to which the family was subjected;
the other remains in Estanzuela Grande to this day—far from where Guzman suffered abuse at
the hands of his stepfather. Id. at 112–14 (A: “On my father’s side I got two [uncles].”
Q: “Where is the other uncle?” A: “He’s in United States.” Q: “Do you know why he came to
the United States?” A: “Same reason, he not want to get killed.” Q: “Okay. So the other uncle
is still in the town, I think you testified that.” A: “Yes. . . . Yes, this is the one he’s living in the
town.”). In other words, neither of them left Estanzuela Grande for San Pedro Mixtepec along
with Guzman and his mother. Similarly, the aunt of whom the IJ spoke as another potential
corroborator lived “about an hour away from where [Guzman’s] dad used to live” in Estanzuela
Grande—again, far from where Guzman lived in San Pedro Mixtepec with his stepfather. Id. at
124. There is thus no evidence in the record that these family members lived in San Pedro
Mixtepec or had any awareness of the abuse to which Guzman was subjected by his stepfather.
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
No. 19-3417 Guzman-Vazquez v. Barr Page 21
period.” Urbina-Mejia, 597 F.3d at 368.11 For these reasons, the IJ’s determination that the
aunt’s and uncles’ testimony would have “corroborate[d] otherwise credible testimony” was not
supported by substantial evidence. 8 U.S.C. § 1229a(c)(4)(B).
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.” 8 U.S.C. § 1158(b)(1)(B)(ii).
The IJ’s and BIA’s conclusion that this evidence was reasonably obtainable was not “supported
by reasonable, substantial, and probative evidence on the record considered as a whole.”
Mikhailevitch, 146 F.3d at 388 (quoting INS v. Elias–Zacarias, 502 U.S. 478, 481 (1992)
(quoting 8 U.S.C. § 1105a(a)(4))).
11
The dissent conflates corroboration with credibility in arguing that “[l]etters from Guzman’s aunt or
uncles confirming that his father had been murdered and that he had moved with his mother to the small town where
his stepfather lived would increase the likelihood that he was telling the truth about the abuse too.” Dissent Op. at
41. With respect to a “credibility determination,” the REAL ID Act allows the IJ to consider “any inaccuracies or
falsehoods in [an applicant’s] statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes
to the heart of the applicant’s claim, or any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). But this
component of the statute is irrelevant here, because the IJ explicitly found Guzman to be credible, see A.R. at 43
(IJ Decision at 2), and neither the IJ nor the BIA ruled against Guzman on this claim based on his failure to produce
corroborative evidence that his father had been murdered or that he had moved to San Pedro Mixtepec.
“[T]he Board’s denial of relief may be affirmed only on the basis articulated in the decision and this Court may not
assume that the Board considered factors that it failed to mention in its opinion.” Daneshvar v. Ashcroft, 355 F.3d
615, 626 (6th Cir. 2004). The dissent’s approach contravenes this rule.
No. 19-3417 Guzman-Vazquez v. Barr Page 22
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
step-father 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 (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.”
8 U.S.C. § 1158(b)(l)(B)(i). The Act did not, however, establish a similar standard for
withholding claims. Instead, 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) [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.
8 U.S.C. § 1231(b)(3)(C) (emphasis added).
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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
12
We have not opined on this issue. In the unpublished Sixth Circuit cases cited by the government, we
stated—without any discussion—that an applicant for withholding of removal must demonstrate that a protected
ground was “at least one central reason” for the claimed persecution. See Torres-Vaquerano v. Holder, 529 F.
App’x 444, 447 (6th Cir. 2013); Agustin-Tomas v. Sessions, 728 F. App’x 590, 594 (6th Cir. 2018). We did not
opine on the nexus issue presented in this case for good reason: In neither Torres-Vaquerano nor Agustin-Tomas
did the parties dispute the applicability of the “at least one central reason” test to withholding claims. See generally
Petitioner’s Brief, Torres-Vaquerano v. Holder, 529 F. App’x 444 (6th Cir. 2013) (No. 12-3355); Brief for
Respondent, Torres-Vaquerano, 529 F. App’x 444; Brief of Petitioner, Agustin-Tomas v. Sessions, 728 F. App’x
590 (6th Cir. 2018) (No. 17-3884); Respondent’s Answering Brief, Agustin-Tomas, 728 F. App’x 590. Furthermore,
these unpublished decisions are non-precedential. See 6th Cir. R. 32.1(b).
13
The Third Circuit noted that “the parties appear[ed] to agree on this point.” Gonzalez-Posadas, 781 F.3d
at 685 n.6.
No. 19-3417 Guzman-Vazquez v. Barr Page 24
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 ID Act—in fact, it amended it
to clarify that clauses (ii) and (iii) of the asylum statute’s burden-of-proof provision—but,
critically, not clause (i), which includes the “one central reason” test—would be applied to
withholding claims. Id. at 358–59 (“Congress’s express incorporation of two of the three asylum
burden-of-proof provisions into the withholding of removal statute, but not the provision
including the ‘one central reason’ language, indicates that Congress did not intend for the ‘one
central reason’ standard to apply to withholding of removal claims.”). Second, because
“‘a reason’ includes weaker motives than ‘one central reason,’” the statutes must mean different
things. Id. at 359. For these reasons, Matter of C-T-L- “starts with a false premise that Congress
was ‘silent.’ It was not. It explicitly said ‘at least one central reason’ for asylum, and ‘a reason,’
an expressly different standard, for withholding.” Id. With respect to the BIA’s call for Chevron
deference, the Ninth Circuit explained that “there is no ambiguity justifying deference to the
administrative agency’s contrary view.” Id. at 360.
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 § 1158(b)(1)(B),
mentions only “a reason,” not “at least one central reason.” And as the Ninth Circuit explained,
Congress was clearly aware of the possibility of applying the asylum statute’s three burden-of-
proof provisions to the withholding statute. Indeed, it did this for two out of the three provisions,
but not for the one provision that we consider here.
No. 19-3417 Guzman-Vazquez v. Barr Page 25
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,’ 8 U.S.C. § 1158(b)(1)(B)(i), a
requirement that is inapplicable to a withholding claim.” Resp. Br. at 29. The BIA made a
similar point in Matter of C-T-L-, stating that it would have been nonsensical for Congress to
link the “one central reason” provision of the asylum statute to the withholding statute, because
that provision “refers to the definition of a ‘refugee’ in section 101(a)(42)(A) that an applicant
must meet, which is a lesser burden than that required for withholding of removal.” 25 I. & N.
Dec. at 347. The government and the BIA are correct that “refugee” is a term of art linked
specifically to the asylum statute, not to the withholding statute. See 8 U.S.C. § 1231(b)(3)(A)
(withholding of removal) (“Notwithstanding paragraphs (1) and (2), the 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”) (emphasis added).
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.” 8 U.S.C. § 1158(b)(1)(B)(ii). But based on the government’s and the BIA’s logic,
neither clause (i) or (ii) of § 1158(b)(1)(B) should relate to withholding claims, because both
refer to proof “that the applicant is a refugee.” However, we know from Congress’s linking of
No. 19-3417 Guzman-Vazquez v. Barr Page 26
the withholding statute in § 1231(b)(3)(C) to subsection § 1158(b)(1)(B)(ii)—which requires
proof that the applicant is a refugee—that Congress had no qualms with making burden-of-proof
rules in the asylum statute applicable to the withholding statute. The decision not to incorporate
the asylum statute’s “one central reason” test thus appears, once again, not to have been the
product of “mere drafting oversight.” Barajas-Romero, 846 F.3d at 358.
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 § 1231(b)(3)(C), as discussed above, this reasoning ignores the crucial
context in which we have stated that withholding imposes a “higher burden” than asylum. Take
Singh v. Ashcroft, 398 F.3d 396 (6th Cir. 2005), which the dissent cites for its “higher burden”
observation. Dissent Op. at 50. When we made this observation in Singh, it immediately
followed our specific comparison of the likelihood of persecution between the asylum and
withholding statutes. Specifically, we explained:
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,
No. 19-3417 Guzman-Vazquez v. Barr Page 27
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
8 U.S.C. § 1231(b)(3) must demonstrate that a protected ground was at least one reason for their
persecution, and we remand to the BIA to decide the case under the correct standard.14
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
14
We note furthermore that no evidence in the record suggests that Guzman’s stepfather was motivated by
“crime.” A.R. at 50 (IJ Decision at 9). The repeated references to Guzman’s “fear of criminality” are therefore
misplaced, id., and the BIA should address these errors in the IJ’s decision on remand.
No. 19-3417 Guzman-Vazquez v. Barr Page 28
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 8 C.F.R.
§ 1208.16(b)(1)(i)(A)-(B)).
Given that the BIA did not address this alternative rationale for denying Guzman relief,
we decline to review it, pursuant to INS v. Orlando Ventura, 537 U.S. 12 (2002). In Orlando
Ventura, the immigration judge had denied an applicant relief because he failed to demonstrate a
nexus to a protected ground. The IJ added in her decision that country conditions had changed
so significantly that the applicant’s claim of persecution was not viable. The BIA agreed with
the IJ on the nexus issue, but did not address the IJ’s alternative holding. On petition for review,
after rejecting the BIA’s conclusion on the nexus issue, the Ninth Circuit Court of Appeals held
that even though the BIA had not decided the changed-circumstances question, the court would
not remand for a decision on this issue because the record evidence demonstrated that
circumstances in the applicant’s country had not, in fact, changed. The Supreme Court reversed
the Ninth Circuit, explaining in part:
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
No. 19-3417 Guzman-Vazquez v. Barr Page 29
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.
No. 19-3417 Guzman-Vazquez v. Barr Page 30
_________________
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. 8 U.S.C. § 1158(b)(1)(B)(ii). To stop
judicial interference with this new discretion, Congress barred courts from reversing
corroboration decisions unless any “reasonable” person would be “compelled to conclude that
corroborating evidence is unavailable.” Id. § 1252(b)(4). Here, Guzman testified that he spoke
to his mother a mere two weeks before his hearing and regularly texts with his aunt. Yet he did
not even try to get a letter from them (or others) over the three-plus years his immigration
proceedings progressed. How can this record compel the conclusion that no evidence from
relatives was available?
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,
No. 19-3417 Guzman-Vazquez v. Barr Page 31
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. 8 U.S.C. § 1231(b)(3)(A). The asylum
statute requires an immigrant to prove that one of these reasons was “at least one central reason”
for a persecutor’s harm. Id. § 1158(b)(1)(B)(i). Because the withholding-of-removal statute
lacks this language, the majority holds, it requires immigrants to show only that a statutory
reason was “a reason” for threatened harm and permits relief even if that harm would still occur
for a different reason. Yet the plain text requires threats to arise “because of” a statutory reason.
Id. § 1231(b)(3)(A). The Supreme Court and this court have repeatedly held that “because of”
adopts at least but-for causation. United States v. Miller, 767 F.3d 585, 591–92 (6th Cir. 2014).
I thus would hold that an immigrant must prove that a statutory reason “was a but-for reason” of
the threatened harm. Id. at 591.
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. Rec. 109–10, 114–17 (“AR”).
No. 19-3417 Guzman-Vazquez v. Barr Page 32
His father’s brothers (Guzman’s uncles) took over his father’s property. One uncle still lives
there and the other now lives in New Jersey. AR 110–13. Soon after his father’s murder,
Guzman moved with his mother and sister to another small town six hours away. AR 110, 116,
121. At some point his mother married his stepfather. When Guzman was still a small child, his
stepfather began to beat or whip him every other week. AR 106, 128, 140. Guzman’s stepfather
abused him because he hated him and got upset when Guzman did not finish chores quick
enough. AR 140, 145. His stepfather also hit his sister, and hit his mother when she tried to stop
the abuse. AR 107, 128, 140. Yet Guzman said his mother also abused him for the same reason:
His stepfather and mother forced him to do everything and “[i]f something [was] not there in the
house when they look for it, it’s on me.” AR 147–48. Guzman recalled that his stepfather had a
good relationship with the police because he had an official town position, so no one reported
this abuse. AR 108–09. Guzman also never received medical care for his injuries. AR 141.
When he was 14, he left home. AR 106. His aunt (his father’s sister) eventually helped him
come to the United States. Id. He entered this country in 1998 when he was 17. AR 105, 121–
22.
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
No. 19-3417 Guzman-Vazquez v. Barr Page 33
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.
II
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.” 8 U.S.C. § 1231(b)(3)(A). The majority holds that
no reasonable person could think that Guzman should have corroborated his claim; that Guzman
was wrongly not given an opportunity to explain why he did not corroborate certain facts; and
that the statute sets a lenient causation test. I disagree on all three fronts.
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.
No. 19-3417 Guzman-Vazquez v. Barr Page 34
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[.]” 8 U.S.C. § 1229a(c)(4)(A)(i). Subparagraph (A) of the
withholding-of-removal statute identifies those requirements (threats to life or freedom because
of a protected ground). Id. § 1231(b)(3)(A). The REAL ID Act next added subparagraph (C),
which incorporates new credibility and corroboration procedural rules from the asylum statute
(§ 1158): “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 [8 U.S.C. §] 1158(b)(1)(B).”
Id. § 1231(b)(3)(C).
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.
Id. § 1158(b)(1)(B)(ii); id. § 1229a(c)(4)(B). This rule’s last sentence shows that an immigrant
“must” provide corroborating evidence if the “trier of fact determines that the applicant should”
do so. Id. § 1158(b)(1)(B)(ii). The word “must” imposes a command, not an option; immigrants
are “obliged or required” to provide this evidence. American Heritage Dictionary of the English
Language 1160 (4th ed. 2000); Merriam-Webster’s Collegiate Dictionary 819 (11th ed. 2014).
And this duty extends to any evidence that could “strengthen or confirm” an immigrant’s claim.
Black’s Law Dictionary 421 (10th ed. 2009) (defining “corroborate”). It also applies even if an
immigrant provides “otherwise credible testimony.” 8 U.S.C. § 1158(b)(1)(B)(ii).
No. 19-3417 Guzman-Vazquez v. Barr Page 35
The “statutory history” confirms that the REAL ID Act gives immigration judges wide
latitude. Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1071–72 (2020); Antonin Scalia & Bryan
A. Garner, Reading Law 256 (2012). Before the Act, the Board had long held that “the provision
of corroborating evidence is not optional, and [immigrants] must satisfy their affirmative duty to
corroborate their claim to the degree that they can, or otherwise reasonably explain their failure
to do so.” In re B-B-, 22 I. & N. Dec. 309, 311 (BIA 1998). The Board applied this rule not just
to evidence of general country conditions, In re S-M-J-, 21 I. & N. Dec. 722, 724 (BIA 1997) (en
banc), but also to evidence of an immigrant’s specific claims, In re M-D-, 21 I. & N. Dec. 1180,
1182–83 (BIA 1998) (en banc), vacated on other grounds by Diallo v. INS, 232 F.3d 279 (2d Cir.
2000). And the rule applied even if an immigrant testified credibly. S-M-J-, 21 I. & N. Dec. at
731. Why would Congress feel the need to codify these procedures? The Ninth Circuit’s
caselaw. That court had broadly rejected the Board’s corroboration requirements. See Dorosh v.
Ashcroft, 398 F.3d 379, 382 (6th Cir. 2004) (discussing Ladha v. INS, 215 F.3d 889 (9th Cir.
2000)). By placing these corroboration rules in the statute, courts could no longer refuse to
follow them.
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. 8 U.S.C.
§ 1158(b)(1)(B)(ii). The adverb “reasonably” signals that immigrants need not take “extreme or
excessive” measures. Merriam-Webster’s Collegiate Dictionary, supra, at 1037. But what
qualifies as “excessive”? Reasonable is, after all, a “protean word[]” whose meaning depends on
context. Vrljicak v. Holder, 700 F.3d 1060, 1062 (7th Cir. 2012). In this context I would look to
the Board’s prior “administrative interpretation” for what Congress had in mind when choosing
this word. Scalia & Garner, supra, at 323–24. The Board had held that immigrants must
“explain [the] unavailability” of corroborating evidence. S-M-J-, 21 I. & N. Dec. at 724. And it
expected them to take fairly significant efforts to obtain it. In Dorosh, for example, an
immigrant claimed that she had not obtained corroboration from her mother because “her letters
did not reach her mother, her mother had no telephone and had to go [to] the post office to call
her, and any attempts to talk about [her] asylum case or obtain affidavits from others would have
No. 19-3417 Guzman-Vazquez v. Barr Page 36
jeopardized her mother’s safety.” 398 F.3d at 383. Yet we upheld the Board’s finding that the
immigrant “could be ‘reasonably expected’” to obtain evidence from her mother. Id.
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), 1229a(c)(4)(B), or 1231(b)(3)(C) of this title, unless the
court finds, pursuant to subsection (b)(4)(B), that a reasonable trier of fact is compelled to
conclude that such corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4). The Board’s
corroboration finding is thus “conclusive unless any reasonable adjudicator would be compelled
to conclude to the contrary.” Id. § 1252(b)(4)(B); see Hachem v. Holder, 656 F.3d 430, 435 (6th
Cir. 2011).
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
No. 19-3417 Guzman-Vazquez v. Barr Page 37
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 questioned how
he might get a letter, he said that his mother “probably [would] have to talk to someone up there
to write it for her.” AR 143. Guzman thus conceded that corroboration might be available.
Legally, we have made the same point—three times, no less—when rejecting illiteracy as an
excuse. A relative’s illiteracy “would not have prevented [the relative] from telling someone
else, even [the immigrant’s] lawyer, what had happened and from capturing that interview on a
tape or in a written affidavit.” Sy v. Holder, 316 F. App’x 408, 410 (6th Cir. 2009) (per curiam);
Hachem, 656 F.3d at 433–35; Kassem v. Holder, 438 F. App’x 378, 379–81 (6th Cir. 2011).
Others agree. See Dorje v. Lynch, 637 F. App’x 631, 633 (2d Cir. 2016) (order); cf. Singh v.
Att’y Gen. of U.S., 216 F. App’x 242, 246 (3d Cir. 2007). I would not treat Guzman, our court,
No. 19-3417 Guzman-Vazquez v. Barr Page 38
and our sister circuits as unreasonable in thinking that someone might be able to transcribe a
letter for a relative.
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 8 U.S.C. § 1252(d)(1), we may review “only those
claims ‘properly presented to the [Board] and considered on their merits.’” Tomaszczuk v.
Whitaker, 909 F.3d 159, 167 (6th Cir. 2018) (citation omitted); Gazeli v. Sessions, 856 F.3d
1101, 1106–07 (6th Cir. 2017). Guzman’s brief to the Board nowhere even mentioned his
mother’s abuse. AR 17. What is more, Guzman does not even raise this argument now. His
brief identifies only his mother’s illiteracy and the claim that she has “forsaken” him as the
reasons why he did not obtain a letter from her. Pet. Br. 16. So even if Guzman had exhausted
this issue, he forfeited it in our court. See Welson v. Sessions, 744 F. App’x 249, 259 n.8 (6th
Cir. 2018).
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
No. 19-3417 Guzman-Vazquez v. Barr Page 39
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 of
his lengthy immigration proceedings. Cf. Shkabari, 427 F.3d at 331.
In response, the majority asserts that their remote contact proves that Guzman could not
“reasonably obtain” evidence from his sister under 8 U.S.C. § 1158(b)(1)(B)(ii). But Dorosh
shows that corroboration is reasonably available from individuals even if an immigrant’s contact
with them is not “convenient, regular, or private.” 398 F.3d at 383. Like the immigrant and her
mother in Dorosh, Guzman and his sister remained in contact. Here, Guzman’s sister had to
walk an hour or less for a phone; there, the immigrant’s mother “had to go to the post office” for
a phone. Id. If anything, the Board could reasonably view Dorosh as the harder case. There, the
immigrant testified that her mother might put herself in danger by providing help. Id. Guzman
makes no such claim about his sister.
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. 8 U.S.C. § 1252(b)(4)(B). And I do not think any minor factual distinction between
this case and Dorosh compels the conclusion that the Board’s decision on corroboration was
unreasonable. Indeed, after the REAL ID Act, we have upheld a Board’s decision to require
corroboration from a person with whom an immigrant had “lost contact.” Lin v. Holder,
565 F.3d 971, 977 (6th Cir. 2009). In Lin, the Board found that the immigrant “should have
made an effort to locate him through his family or friends in China.” Id. Guzman at least was in
contact with his sister, so the Board could reasonably conclude that he should have “made an
effort” to get evidence from her too. Id.; cf. Renteria-Cortes v. Holder, 563 F. App’x 466, 469
(6th Cir. 2014) (per curiam).
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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 about abuse by his stepfather.” Majority Op. 19. This
conclusion does not permit us to overturn the Board’s order. To begin with, the majority flips
the burden of proof on its head. We have little idea how much (or how little) Guzman’s aunt or
uncles know of his stepfather’s abuse. That evidentiary gap should doom Guzman’s request for
relief; it should not be a basis to grant it. Because Guzman did not present evidence from his
aunt or uncles, he needed to provide an “explanation . . . as to why [the] information was not
presented.” S-M-J-, 21 I. & N. Dec. at 725. Silence does not cut it. And Guzman nowhere
offered the reason that the majority now assumes—that these relatives must not have known
anything because they lived hours away.
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
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any tendency to make a fact more or less probable than it would be without the evidence.” Fed.
R. Evid. 401. I would not read the statute, as the majority does, to compel production of only
smoking-gun evidence. And statements from Guzman’s aunt or uncles would make his abuse
claims more plausible, as both the Board and the immigration judge indicated. AR 5, 45–46.
The Board found that Guzman had provided “insufficient corroboration” on even basic facts,
such as his stepfather’s existence. AR 5. Letters from Guzman’s aunt or uncles confirming that
his father had been murdered and that he had moved with his mother to the small town where his
stepfather lived would increase the likelihood that he was telling the truth about the abuse too.
Not only that, Guzman testified that his “aunt is the one who [gave him] the deal to come into
[the] United States.” AR 106. Given that she got him this “deal,” a reasonable adjudicator could
conclude that she had information about why he had fled his home.
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.” 8 U.S.C. § 1252(d)(1). We have even repeatedly read § 1252(d)(1) as
limiting our “jurisdiction.” Ramani v. Ashcroft, 378 F.3d 554, 559 (6th Cir. 2004); Saleh v. Barr,
795 F. App’x 410, 421 (6th Cir. 2019) (Murphy, J., concurring) (collecting cases). This
jurisdictional bar also covers procedural claims that an immigrant fails to raise with the Board,
such as the claim that a judge “failed to develop the record by denying [an immigrant] the
opportunity to explain the lack of corroborative evidence[.]” Xuefang He v. Holder, 502
F. App’x 430, 434 (6th Cir. 2012). I read this caselaw as precluding the majority’s legal rule in
this case. The immigration judge’s decision noted that Guzman did not corroborate various
facts, including his stepfather’s existence and marriage to his mother. AR 46. Before the Board,
Guzman did not claim that the judge failed to give him the opportunity to explain the lack of
No. 19-3417 Guzman-Vazquez v. Barr Page 42
corroborating evidence. Guzman argued that he adequately explained why he could not
reasonably obtain that evidence. AR 20–21. So we lack jurisdiction to adopt this new rule. And
while I doubt that exhaustion is jurisdictional, Saleh, 795 F. App’x at 421–23 (Murphy, J.,
concurring), we are bound by our precedent.
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, 8 U.S.C. § 1158(b)(1)(B)(ii), does not give him
this right. Id. (discussing Gaye v. Lynch, 788 F.3d 519, 530 (6th Cir. 2015)). And while
Guzman argues that Gaye’s holding violates due process, he recognizes that we are bound by
that decision and only “reserves the right to seek en banc review[.]” Id.
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. 8 U.S.C. § 1158(b)(1)(B)(ii). “[A] circuit split exists” over the
meaning of this text. Saravia v. Att’y Gen., 905 F.3d 729, 738 (3d Cir. 2018). The Ninth and
Third Circuits have noted that this corroboration command kicks in only if (“where”) a judge
decides that an immigrant should provide corroboration. Ren v. Holder, 648 F.3d 1079, 1091–93
(9th Cir. 2011). These courts read this text as requiring a judge first to decide on the need for
corroboration, then to give immigrants “notice of the corroboration required, and an opportunity
to either provide that corroboration or explain why [they] cannot do so.” Id. at 1091–92;
Saravia, 905 F.3d at 737–38.
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
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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. 8 U.S.C.
§ 1158(b)(1)(B)(ii). The Ninth Circuit found a notice command in this text based on its structure
requiring immigrants to provide corroboration only “where” (i.e., “if”) a judge decides they
must. See Ren, 648 F.3d at 1091. Gaye rejected that interpretation. 788 F.3d at 529–30. Yet
the majority adopts the very same reading that Gaye rejected, reasoning (like the Ninth Circuit)
that the text operates “sequentially.” Compare Majority Op. 9, with Ren, 648 F.3d at 1091,
1093. As we said before, “[t]his text does not suggest that the alien is entitled to notice from the
[immigration judge] as to what evidence the alien must present.” Gaye, 788 F.3d at 530. And I
do not see how the text can entitle immigrants to notice for some purposes (to explain why the
evidence is unavailable), but not to notice for others (to obtain the evidence). Either the text
entitles immigrants to notice of the required corroboration or it does not. We should not “render
[the] statute a chameleon.” See Clark v. Martinez, 543 U.S. 371, 382 (2005).
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 8 C.F.R. §§ 1240.12–.13. A judge might, for example,
want to review the testimony in detail instead of making an immediate judgment call. So the
judge may not identify the specific facts that an immigrant should have corroborated until “days
after the hearing” when the judge “weigh[s] the evidence and prepare[s] an opinion.” Liu,
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575 F.3d at 198. Immigration judges should not have to hold a second hearing in that
circumstance, adding to their “overburdened” dockets. Rapheal, 533 F.3d at 530; see Gaye, 788
F.3d at 529. Instead, the Board has told immigration judges that they have discretion over how
to manage hearings. L-A-C-, 26 I. & N. Dec. at 522. I would not read the corroboration statute
as departing from that background principle by imposing “rigid requirements for the
consideration of corroboration.” Id. at 524.
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 unavailable and Liu did not explain its
absence. Id. The Second Circuit denied Liu’s petition for review. It noted that immigration
judges should identify “‘specific pieces of missing, relevant documentation’ and ‘show[] that this
documentation was reasonably available.’” Id. at 198 (citation omitted). And it said that an
immigrant must “have an opportunity to explain the omission” and that the judge “must assess
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any explanation that is given.” Id. It then said: “But though we require an [immigration judge]
to specify the points of testimony that require corroboration, we have not held that this must be
done prior to the [immigration judge’s] disposition of the alien’s claim.” Id. The court reasoned
that a judge “may not determine that corroboration is necessary until all the evidence is in” and
the judge “has had an opportunity to weigh the evidence and prepare an opinion.” Id. It thus
held that an immigrant “bears the ultimate burden of introducing such evidence without
prompting from the” judge. Id. And while this case did not interpret the Real ID Act’s
corroboration provision, id. at 197, the Second Circuit follows the same rules in applying the
statute, Wei Sun v. Sessions, 883 F.3d 23, 30–31 (2d Cir. 2018).
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.
No. 19-3417 Guzman-Vazquez v. Barr Page 46
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.” 8 U.S.C. § 1231(b)(3)(A)
(emphasis added). In this respect the statute follows the asylum statute, which covers “refugees”
who cannot return to their country due to “a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion.” Id.
§ 1101(a)(42)(A) (emphasis added); see id. § 1158(b)(1)(A). Both statutes make a persecutor’s
“motive critical.” INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992). Yet “[p]ersecutors may have
differing motives for engaging in acts of persecution, some tied to reasons protected [by the
withholding-of-removal statute] and others not.” See In re S-P-, 21 I & N. Dec. 486, 494 (BIA
1996) (en banc). What happens if a persecutor threatens harm for “mixed motives”—one of
which the statute covers (say, the victim’s race) and another of which it does not (say, the
victim’s wealth)?
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
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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. 8 U.S.C. § 1231(b)(3)(A). This
phrase typically means “by reason of” or “on account of.” See American Heritage Dictionary,
supra, at 159; Merriam-Webster’s Collegiate Dictionary, supra, at 108. “In everyday usage,”
the phrase “indicates a but-for causal link between the action that comes before it and the
circumstance that comes afterwards.” Miller, 767 F.3d at 591. In the withholding-of-removal
context, for example, one would not naturally say that a persecutor threatened harm “because of”
an immigrant’s relationship to his father if the persecutor would have threatened the exact same
harm even if the immigrant had a different father. Cf. Elias-Zacarias, 502 U.S. at 483.
Substantial precedent supports this conclusion. “[T]he Supreme Court has ‘insiste[d]’”
that the phrase “because of” in a statute “require[s] a showing of ‘but-for causality.’” Miller,
767 F.3d at 591 (quoting Burrage v. United States, 571 U.S. 204, 213 (2014)). Consider the Age
Discrimination in Employment Act, which bars discrimination “because of” an employee’s age.
29 U.S.C. § 623(a)(1). The Supreme Court held that an employee “must prove that age was the
‘but-for’ cause of the employer’s adverse decision.” Gross, 557 U.S. at 176. Courts have
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extended this logic to many other civil-rights statutes. See Comcast Corp. v. Nat’l Ass’n of
African American-Owned Media, 140 S. Ct. 1009, 1013–17 (2020); Univ. of Tex. Sw. Med. Ctr.
v. Nassar, 570 U.S. 338, 347, 352 (2013); Lewis, 681 F.3d at 321. Or take the hate-crime statute,
which bars a defendant from harming a victim “because of” the victim’s religion or other
protected trait. 18 U.S.C. § 249(a)(2)(A). Our court has held that this criminal law requires the
government to prove that the aggressor “would not have acted but for the victim’s actual or
perceived religious beliefs.” Miller, 767 F.3d at 591.
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 § 1231(b)(3)(A) nor
precedent interpreting “because of.” It instead cited two changes the REAL ID Act made to
other provisions. Change One: The Act, as noted, added subparagraph (C) to the withholding-of-
removal statute to incorporate the asylum statute’s credibility and corroboration rules in
§ 1158(b)(1)(B)(ii)–(iii). 8 U.S.C. § 1231(b)(3)(C). Because subparagraph (C) uses the phrase
“a reason” when cross-referencing these asylum provisions, the Ninth Circuit found that the
withholding-of-removal statute must adopt a causation test that requires a statutorily covered trait
to be only a reason (not a but-for reason) for threatened harm. Change Two: Subparagraph (C)
does not cross-reference the new causation standard that the REAL ID Act added to the asylum
statute: “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.” Id. § 1158(b)(1)(B)(i). Because the asylum statute says “one central reason” and the
withholding-of-removal statute says “a reason,” the Ninth Circuit held, Congress must have
intentionally adopted a weaker motive test for withholding-of-removal claims. Barajas-Romero,
846 F.3d at 358–60.
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
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subparagraph (A), the trier of fact shall” follow the corroboration and credibility rules in
§ 1158(b)(1)(B)(ii)–(iii). 8 U.S.C. § 1231(b)(3)(C). The Ninth Circuit plucked “a reason” out of
context as if this subparagraph read: “An alien must prove that a characteristic identified in
subparagraph (A) is a reason that the alien’s life or freedom would be threatened.”
The subparagraph does not say that. Its dependent clause instead explains when to use the
procedures subparagraph (C) cross-references: when judges are deciding whether an immigrant’s
“life or freedom would be threatened for a reason described in subparagraph (A).” The word
“for” means “because of” so subparagraph (C) simply mirrors subparagraph (A). Merriam-
Webster’s Collegiate Dictionary, supra, at 488. Congress also would not hide a substantive
change to the statute in the dependent clause of a subparagraph about the procedures for
resolving claims. Confirming that this subparagraph concerns only process, Congress entitled it:
“Sustaining burden of proof; credibility determinations.” 119 Stat. at 304; Scalia & Garner,
supra, at 221. The subparagraph thus gives us no ground to depart from the plain meaning of
“because of” or the decisions holding that this phrase requires a statutory reason to be a but-for
reason. See Miller, 767 F.3d at 591–92.
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 § 1158(b)(1)(B)(i), but the withholding-of-
removal statute cross-references only (b)(1)(B)(ii) and (iii). 8 U.S.C. § 1231(b)(3)(C).
“[W]here, as here, Congress has simultaneously chosen to amend one statute in one way and a
second statute in another way, we normally assume the differences in language imply differences
in meaning.” Comcast, 140 S. Ct. at 1018. Just as Congress adopted a motivating-factor test for
Title VII but not for the ADEA, Gross, 557 U.S. at 174–75, so too Congress adopted a central-
reason test for asylum but not for withholding of removal. I thus would not defer to the Board’s
view that withholding of removal impliedly incorporates the asylum statute’s central-reason test.
See Matter of C-T-L-, 25 I. & N. Dec. 341, 345–48 (BIA 2010). The “practical advantages” of
incorporating that language into the withholding-of-removal statute, id. at 346, give courts no
basis to ignore a statutory text that does not do so. Our role “is to apply the statute as it is
written—even if we think some other approach might accor[d] with good policy.” Burrage,
571 U.S. at 218 (internal quotation marks omitted). Where does that leave us? It means that,
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unlike with the asylum statute, courts are left only with the plain meaning of “because of,” which
requires a statutory reason to be a but-for reason for persecution. Cf. Gross, 557 U.S. at 174–77.
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 “does not alter the fundamental details of a regulatory scheme in vague terms or
ancillary provisions.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1626–27 (2018) (quoting
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001)). Reading the withholding-of-
removal statute instead to require but-for causation comports with this structure. After the
REAL ID Act, courts and the Board continue to debate what the central-reason test means.
Some decisions suggest that it adopts a more rigorous version of the weak motivating-factor test
they applied before the Act. See Ndayshimiye v. Att’y Gen., 557 F.3d 124, 129–31 (3d Cir.
2009); Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009); In re J-B-N & S-M, 24 I &
N. Dec. 208, 213–14 (BIA 2007). Other decisions suggest that it should require but-for
causation. See Diaz-Rivas v. U.S. Att’y Gen., 769 F. App’x 748, 754 (11th Cir. 2019); Nicolas-
Sebastian v. Barr, 769 F. App’x 248, 251 (6th Cir. 2019); Matter of N-M-, 25 I. & N. Dec. 526,
531 (BIA 2011); cf. Lopez-Cruz v. Att’y Gen., 765 F. App’x 707, 710–11 (3d Cir. 2018) (per
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curiam). Either way, reading the withholding-of-removal statute according to its plain text
makes those claims no less demanding than asylum claims. It thus respects the traditional
understanding that withholding-of-removal claims will fail when asylum claims fail. Lopez-
Arias, 777 F. App’x at 796–97.
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.