Omondi v. Holder

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2253
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Antony Gitau Omondi, *
*
Petitioner, *
*
v. * Petition for Review of an Order of
* the Board of Immigration Appeals.
Eric H. Holder, Jr., Attorney *
General of the United States, *
*
Respondent. *
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Submitted: January 11, 2012
Filed: March 15, 2012
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Before RILEY, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
___________

SHEPHERD, Circuit Judge.

Antony Gitau Omondi, a native and citizen of Kenya, faces removal and has
petitioned this court to review the decision of the Board of Immigration Appeals
(BIA) that affirmed an immigration judge’s (IJ) denial of Omondi’s petition for
asylum, withholding of removal, and relief under the Convention Against Torture.
Specifically, Omondi seeks remand to the BIA for consideration of issues he raised
before the BIA that were not explicitly addressed in the BIA’s disposition of his
immigration appeal. Because we are unable to determine whether the BIA considered
Omondi’s claim that the IJ hearing transcript was deficient, we vacate the BIA’s order
and remand for further administrative proceedings.

I. Background

Omondi entered the United States as a visitor in June 2001. He filed an asylum
application in June 2002 claiming refugee status based on sexual orientation. In
2005, Omondi’s application was denied by the IJ based on an adverse credibility
determination. After Omondi appealed to the BIA, the BIA concluded the IJ’s
credibility findings were based on “minor inconsistencies, speculation, and
conjecture,” and that the IJ failed to apply the appropriate standard for requiring
corroborating evidence. Pointing to the standard regarding credibility and
corroboration set forth by this court in El-Sheikh v. Ashcroft, 388 F.3d 643, 647 (8th
Cir. 2004), the BIA remanded the case to allow the IJ to determine whether Omondi
had otherwise established eligibility for relief.

In 2009, the IJ held a hearing and took all new testimony from Omondi.
Omondi testified through an interpreter that he was afraid to return to Kenya because
he is gay. In a written affidavit and in his hearing testimony, Omondi described
events where he and his then-boyfriend Geofrey Kamau were arrested by police in
Kamakunji, beaten, and forced to perform sex acts with each other in front of the
guards. In support of his application, Omondi submitted a letter from Kamau that
stated that the two men had been detained. However, Kamau’s letter omitted many
details that were present in Omondi’s account—including any mention of being
beaten and forced to perform sex acts. Omondi also submitted letters from his brother
and another individual who confirmed that Omondi was arrested by Kenyan officials.

The IJ denied Omondi’s application for relief and again ordered Omondi
removed. The IJ found Omondi’s testimony credible and noted Omondi had “given
an otherwise consistent account describing in graphic detail his experience of

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detention, starvation, and physical abuse at the Kamakunji police station.” (IJ
Decision, Sept. 10, 2009, at 7.) However, the IJ held that Omondi had not
corroborated his claim of past persecution. Specifically, the IJ found that although
Omondi had sufficiently corroborated his membership in the particular social group
of “homosexual men in Kenya,” Omondi did not “sufficiently corroborate the most
essential feature of his claim—his account of detention at the Kamukunji police
station where he and Kamau were allegedly beaten, whipped, starved, and forced to
perform sexual intercourse publicly.” (Id. at 8.) The IJ held that Omondi failed to
meet his burden of proving past persecution in Kenya on account of his membership
in a particular social group, a well-founded fear of future persecution, or the
likelihood of torture.

Omondi again appealed to the BIA. In his appeal to the Board, as well as in a
separate motion, Omondi asked that a corrected transcript of the IJ hearing be
prepared because the current transcript included 236 instances in which the word
“indiscernible” appeared. The BIA did not rule on his motion for a corrected
transcript. Instead, on May 19, 2011, the BIA issued a written opinion dismissing
Omondi’s appeal and denying a motion to remand based on new evidence. The BIA
concluded that there was “no reason to disturb the [IJ’s] decision.” (BIA Decision,
May 19, 2011, at 2.) The Board held the IJ had sufficiently explained why
corroboration was required and Omondi “could not sufficiently explain the glaring
omission.” (Id.) The BIA further held that Omondi had not proven that he was likely
to be persecuted or subjected to torture in Kenya. (Id. at 2-3.)

II. Analysis

In denying Omondi’s claims for relief, the BIA agreed with the IJ’s assessment
that Omondi failed to adequately corroborate his claim of being beaten and forced to
perform sex acts in prison. Omondi challenges the BIA’s conclusion that he failed
to present sufficient corroborative evidence. First, he claims that under the

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appropriate standard at the time of his application, no corroboration was required.
Second, he argues that corroborative evidence was unavailable.

“Where the BIA has adopted the IJ’s opinion and added reasoning and analysis
of its own, we review both decisions.” Khrystotodorov v. Mukasey, 551 F.3d 775,
781 (8th Cir. 2008). “In removal actions, we apply a de novo standard of review to
issues of law ‘but accord substantial deference to the BIA’s interpretation of
immigration statutes and regulations.’” Garcia-Torres v. Holder, 660 F.3d 333, 335
(8th Cir. 2011) (citation omitted). “With respect to the agency’s findings of fact, we
review for substantial evidence under the governing statutory standard: [T]he
administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” Id. (citation and internal quotation
marks omitted).

Pursuant to the following analysis, we conclude that the IJ and the BIA did not
err in requiring Omondi to corroborate his claims. However, the BIA’s opinion does
not explicitly address Omondi’s argument that the hearing transcript from the IJ was
deficient. Because it failed to rule on the transcript issue, it is unclear on appeal
whether the Board considered Omondi’s claim that he testified before the IJ that
corroborative evidence was unavailable because Kamau had “disappeared.” We
therefore remand to allow the BIA to take up the deficient transcript issue and to
determine whether it affects the Board’s assessment of whether corroborative
evidence was available to Omondi.

A.

Omondi first argues that the IJ and BIA erred by requiring him to submit
corroborative evidence even though they found his testimony credible. We do not
find his argument on this point to be convincing.

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 Omondi is correct that his application was filed prior to May 11, 2005, and so
the burden of proof standard under the REAL ID Act of 2005, 8 U.S.C. §
1158(b)(1)(B), does not apply.1 See Litvinov v. Holder, 605 F.3d 548, 550 n.2 (8th
Cir. 2010). However, even prior to the enactment of the REAL ID Act, the BIA held
that corroborative evidence may be required in instances where an applicant’s
testimony is credible but where it is reasonable to expect corroboration. Specifically,
in Matter of S-M-J, 21 I. & N. Dec. 722 (BIA 1997) (en banc), the BIA opined:

Where the record contains general country condition information, and
an applicant’s claim relies primarily on personal experiences not
reasonably subject to verification, corroborating documentary evidence
of the asylum applicant’s particular experience is not required.
Unreasonable demands are not placed on an asylum applicant to present
evidence to corroborate particular experiences (e.g., corroboration from
the persecutor). However, where it is reasonable to expect corroborating
evidence for certain alleged facts pertaining to the specifics of an
applicant’s claim, such evidence should be provided. That is, an asylum
applicant should provide documentary support for material facts which
are central to his or her claim and easily subject to verification, such as
evidence of his or her place of birth, media accounts of large
demonstrations, evidence of a publicly held office, or documentation of
medical treatment. . . . The absence of such corroborating evidence can
lead to a finding that an applicant has failed to meet her burden of proof.

21 I. & N. Dec. at 725-26.

1
The REAL ID Act states, in relevant part, that “[w]here the trier of fact
determines that the applicant should provide evidence that corroborates otherwise
credible testimony, such evidence must be provided unless the applicant does not
have the evidence and cannot reasonably obtain the evidence.” 18 U.S.C. §
1158(b)(1)(B)(ii).

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 In El-Sheikh v. Ashcroft, 388 F.3d 643, 647 (8th Cir. 2004), we recognized that
our sister courts had taken alternative approaches to Matter of S-M-J. While the
Second and Third Circuits accepted the BIA’s position regarding corroborative
evidence, the Ninth Circuit rejected the principle that an asylum applicant may be
required to corroborate credible testimony.2 Faced with this conflicting precedent,
our court followed the Second and Third Circuits in “accept[ing] the BIA’s position
regarding corroborative evidence as articulated in [Matter of S-M-J].” El-Sheikh, 388
F.3d at 647. We also agreed with the rule expressed by the Second Circuit that a
denial of an asylum application based on a lack of corroboration could not be
sustained if “‘the BIA failed to (1) rule explicitly on the credibility of [the
applicant’s] testimony; (2) explain why it was reasonable . . . to expect additional
corroboration; or (3) assess the sufficiency of [the applicant’s] explanations for the
absence of corroborating evidence.’” El-Sheikh, 388 F.3d at 647 (quoting Diallo v.
I.N.S., 232 F.3d 279, 287 (2d Cir. 2000)). See also Madjakpor v. Gonzales, 406 F.3d
1040, 1045 (8th Cir. 2005) (upholding IJ’s finding that, although petitioner’s
testimony was credible, petitioner’s failure to make any attempt to contact relatives,
business associates, or members of an affiliated resistance group to obtain statements
or other documentary evidence corroborating his testimony was unreasonable).

Omondi argues that our pre-REAL ID precedent on corroboration
inappropriately relies on Matter of S-M-J and ignores a later BIA decision, Matter of

2
Compare Diallo v. I.N.S., 232 F.3d 279, 285-86 (2d Cir. 2000); Abdulai v.
Ashcroft, 239 F.3d 542, 551-54 (3d Cir. 2001); with Ladha v. I.N.S., 215 F.3d 889,
899 (9th Cir. 2000), overruled on other grounds by Abebe v. Mukasey, 554 F.3d
1203, 1208 (9th Cir. 2009) (en banc) (per curiam), cert. denied, 130 S. Ct. 3272
(2010). We note that the Ninth Circuit’s position in Ladha has since been superseded
by the REAL ID Act of 2005, which explicitly allows a trier of fact to require
corroboration, even for “otherwise credible testimony.” See Aden v. Holder, 589
F.3d 1040, 1044 & n.7 (9th Cir. 2009) (citing 8 U.S.C. § 1158(b)(1)(B)(ii)).

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Y-B, 21 I. & N. Dec. 1136 (BIA 1998) (en banc). Seizing on language in Matter of
Y-B, Omondi argues that corroborative testimony is not required where testimony is
sufficiently “[s]pecific, detailed, and credible.” See Matter of Y-B, 21 I. & N. Dec.
at 1139 (“Specific, detailed, and credible testimony or a combination of detailed
testimony and corroborative background evidence is necessary to prove a case for
asylum.” (emphasis added)). Omondi argues that his testimony was so detailed and
credible that requiring corroborative evidence was unreasonable.

Omondi misreads Matter of Y-B, because in that decision the BIA noted that
“the weaker an alien’s testimony, the greater the need for corroborative evidence.”
21 I. & N. at 1139. Reading Matter of S-M-J and Matter of Y-B together, it is
apparent that the reasonableness of requiring corroborative evidence is a case-specific
inquiry. If an applicant’s testimony is sufficiently specific, detailed, and credible,
then it may not be reasonable to require further corroborative evidence. However, if
the applicant’s testimony lacks specificity or credibility, or if corroborative evidence
is available to the applicant, it may be reasonable for the IJ or BIA to require the
submission of additional evidence. Each case is different, however, and will allow
an independent assessment based on the circumstances presented. See Diallo, 232
F.3d at 286 (“[T]he appropriate formulation is that credible testimony may be enough,
depending on the circumstances.”); Eta-Ndu v. Gonzales, 411 F.3d 977, 984 (8th Cir.
2005) (“[T]he IJ and the BIA may require corroborative evidence where it is
reasonable to expect corroboration.” (internal marks omitted)).

In the instant case, the IJ determined that Omondi’s testimony was credible,
noting specifically that Omondi gave a “consistent account describing in graphic
detail his experience of detention, starvation, and physical abuse at the Kamakunji
police station.” (IJ Decision, Sept. 10, 2009, at 7.) Yet the IJ held that Omondi did
not sufficiently corroborate his individualized claim of past persecution:

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 Although Kamau’s affidavit details the homosexual relationship for
which he and the respondent were detained by Kenyan officers for three
days, the affidavit lacks any reference to Kamau and the respondent
having been physically or emotionally abused or forced to perform
sexual intercourse while in detention. Instead, the affidavit proceeds to
discuss the couple’s release from prison due to a lack of evidence and
the respondent’s desire to travel to the U.S. Kamau’s affidavit is
deficient with respect to the respondent’s central claim, and the
respondent has produced no other evidence discussing his alleged
persecution at the Kamukunji police station. For these reasons, the
Court finds that the respondent did not sufficiently corroborate his claim
of past persecution.

(Id. at 8.) The IJ then described why it was reasonable to require such corroborative
testimony:

The events at the Kamukunji police station not only constitute the sole
basis for the respondent’s claim of past persecution, but were easily
subject to verification through the affidavit of Kamau. Kamau was the
only witness to the alleged persecution besides the Kenyan police, and
he shared with the respondent the painful and humiliating experience of
starvation, physical abuse, and forced public intercourse for three days.
Kamau sent the respondent an affidavit of support with the knowledge
that it was meant to further his former partner’s claim. . . . Although the
credible testimony of an applicant may suffice without corroboration, in
light of the material and central nature of the events at the Kamukunji
police station, it was reasonable to expect corroboration of those events.

(Id. at 9.) In approving this analysis by the IJ, the BIA agreed that “[u]nder the
circumstances, it [was] . . . reasonable to expect such corroboration particularly since
it is the crux of the respondent’s claim of past persecution.” (BIA Decision, May 19,
2011, at 2.)

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 The IJ did not err in first making a credibility determination and then
explaining why corroborative evidence was reasonably required. See El-Sheikh, 388
F.3d at 647. Because Omondi offered the affidavit of Kamau to corroborate his
account of what occurred at the police station, it was reasonable for the IJ to expect
Kamau’s account to at least mention mistreatment by the guards. Kamau’s failure to
make any reference to such mistreatment calls into question the crux of Omondi’s
claims. As a result, we do not believe it was unreasonable for the IJ and the BIA to
expect further corroborative evidence from Kamau.

B.

Omondi next argues that even if corroboration was appropriately required,
there is an issue of whether corroborative evidence was available. He argues that the
BIA failed to address transcription and translation errors in the transcript of the
hearing before the IJ, and in failing to do so, overlooked his explanation for why
corroborative evidence was not reasonably available. Omondi claims that the BIA’s
failure to address the transcription errors has stifled his ability to appeal and denied
him due process.

In its order denying Omondi’s application, the IJ faulted Omondi for not
getting a supplemental affidavit from Kamau to corroborate his claims of police abuse
and forced sex:

The Court is not persuaded by the respondent’s explanation for the
absence of additional corroborating evidence. In response to concerns
regarding the insufficiency of Kamau’s affidavit, the respondent stated
that he could not have known to ask Kamau to write a more detailed
affidavit because he never reviewed the original affidavit submitted in
2002. In addition, the respondent stated that he merely assumed that
Kamau’s affidavit sufficiently supported his claim. The Court notes that

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 the parties bear responsibility for reviewing evidence submitted for the
record. Further, the Court finds that the respondent has been given
ample notice and opportunity to ask Kamau to supplement the affidavit
pursuant to the concerns expressed by [the first IJ] Judge Brahos in his
oral decision and by the DHS at the respondent’s hearing in 2005.

(IJ Opinion, Sept. 10, 2009, at 9-10.)

In addressing Omondi’s challenge, we begin by recognizing that “[w]e may not
reverse the IJ’s determination with respect to the availability of corroborating
evidence unless a reasonable trier of fact would be compelled to conclude that the
evidence is unavailable.” Khrystotodorov, 551 F.3d at 782; see also 8 U.S.C. §
1252(b)(4).3

However, a separate governing principle of our review “requires that the
grounds upon which the administrative agency acted be clearly disclosed and
adequately sustained.” SEC v. Chenery Corp., 318 U.S. 80, 94 (1943). Under the
Chenery doctrine, “the BIA must consider the issues raised and announce its decision
in terms sufficient to enable a reviewing court to perceive that it has heard and
thought and not merely reacted.” Averianova v. Holder, 592 F.3d 931, 936 (8th Cir.
2010) (citation omitted). “[I]t is not necessary for the BIA to list every possible
positive and negative factor in its decision,” or “to write an exegesis on every
contention.” Id. (citations omitted). But the IJ or BIA “must give reasons that are
‘specific’ enough that a reviewing court can appreciate the reasoning behind the

3
Although the REAL ID Act does not govern Omondi’s burden of proof, “it
does govern our standard of review with respect to the IJ’s determination regarding
corroborative evidence.” Rui Yang v. Holder, 664 F.3d 580, 587 n.7 (5th Cir. 2011)
(noting the “amended standard of review set forth in 8 U.S.C. § 1252(b)(4) takes
effect on the date the REAL ID Act was enacted” (citing REAL ID Act of 2005 §
101(e), Pub. L. 109-13, 119 Stat. 231)).

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decision and perform the requisite judicial review.” Singh v. Gonzales, 495 F.3d 553,
557 (8th Cir. 2007).

Although the BIA’s order adopted the IJ’s findings as to the availability of
evidence, noting that Omondi “could not sufficiently explain the glaring omission,”
it never addressed Omondi’s argument that the transcript below was deficient. As a
result, it is not apparent to us in our review that the BIA ever considered the
explanation Omondi alleges he made during the IJ hearing as to why he was unable
to contact Kamau. The Due Process Clause of the Fifth Amendment entitles Omondi
to a fair hearing, Kipkemboi v. Holder, 587 F.3d 885, 890 (8th Cir. 2009), which
includes “the opportunity to be heard at a meaningful time and in a meaningful
manner.” Mohamed v. Gonzales, 477 F.3d 522, 526 (8th Cir. 2007) (citation
omitted). Although we express no opinion on the issue of whether an inaccurate or
incomplete transcription may have prejudiced Omondi’s “ability to perfect an
appeal,” see Kheireddine v. Gonzales, 427 F.3d 80, 85 (1st Cir. 2005) (citation
omitted), we find that remand is appropriate to allow the BIA to address the issue in
the first instance. See I.N.S. v. Orlando Ventura, 537 U.S. 12, 16-17 (2002) (per
curiam) (noting that “a court of appeals should remand a case to an agency for
decision of a matter that statutes place primarily in agency hands”).

C.

Omondi raises a number of other challenges in his petition for review,
including that the IJ and BIA erred in their assessment of his eligibility for relief.
Whether Omondi has met his burden of showing eligibility for relief hinges largely
on whether he can show that the corroborative evidence reasonably required by the
IJ was unavailable. As such, it would be premature for this court to take up Omondi’s

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challenge to the BIA’s eligibility for relief determination.4 For purposes of remand,
however, we do address two of Omondi’s related claims under the Chenery doctrine.

Omondi claims that the BIA failed to take up his claim that the IJ was biased
against him. Omondi argues the IJ’s reference to Omondi’s coerced sex in prison as
being forced to “make love” demonstrated that the IJ failed to approach the
application neutrally. Omondi also points to two times where the IJ made statements
after objections in line with “Alright, I’ll . . . let him answer it. It won’t have any
effect on this Court, but I’ll let him answer the question” as showing that the IJ had
predetermined the outcome of the case. The Board’s failure to address these issues
in its order did not violate the Chenery doctrine. Overall, “[t]he BIA satisfied the
requirement that it announce its decision in terms sufficient to enable this court to
determine that it has considered the facts—heard and thought, not merely reacted.”
Rodriguez-Rivera v. I.N.S., 993 F.2d 169, 171 (8th Cir. 1993) (per curiam). Although
the IJ could have chosen his words more carefully, it does not follow that the use of
the phrase “make love” as a euphemism for sexual intercourse demonstrates bias.
Omondi’s own affidavit first introduced the phrase when he recounted that his police
captors “told us to show them how we make love.” The IJ’s other statements also do
not amount to a showing that the IJ failed to properly consider the evidence. See
United States v. White, 557 F.3d 855, 858 (8th Cir. 2009).

4
Likewise, because the BIA may alter its analysis on remand when it considers
the corroboration issue and whether it affects Omondi’s claims of persecution, we
decline to reach Omondi’s challenge that the merits analysis by the BIA fell afoul of
the Chenery doctrine.

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 III. Conclusion

Pursuant to the foregoing analysis, the IJ and BIA did not err in their
assessment that it was reasonable to expect further corroborative evidence from
Omondi to support his asylum application. Because Kamau was involved in the same
arrest and detention as Omondi, it was reasonable to expect Kamau’s letter to
corroborate the crux of Omondi’s account. We find that remand is warranted in this
case, however, because it is not apparent from the BIA’s order whether the BIA
addressed Omondi’s claim that deficiencies in the IJ hearing transcript masked his IJ
hearing testimony that corroborative testimony was unavailable. We vacate the BIA’s
order and remand the case for further proceedings consistent with this opinion.
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