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Vague Or Not Vague, That Is The Issue - Update On 2nd Circuit's Disposition Toward Testimony And Evidence In Asylum Hearings

by Oliver H. Qiu, Esq. And Tao Lin, Esq.

For advocates of international human rights under the jurisdiction of the second circuit (i.e., the states of New York, Connecticut and Vermont), we have long peeked at the "liberal" decisions decided by the ninth Circuit with an envious yet unyielding hope for a change of life. That is precisely the reason when Qiu v. Ashcroft, _F._d_ (2d Cir. 2003) was decided on April 16, 2003 inside the grandeur neoclassical 40 Foley Square, it was greeted with a hail of applause and considerable amount of appreciation. The highlight of this Petition for Review is whether the petitioner testified specifically, i.e., vague or not vague, at the administrative hearings and whether there is sufficient corroborative evidence to support his claim. Prior to this case, the 2nd Circuit's stance on these issues has been less than confusing and more or less neutral comparing to the 9th Circuit. See Anderson v. McElroy, 953 F.2d 803 (2d Cir. 1992), Diallo v. INS, 232 F. 3d 279 (2d Cir. 2000), Guan Shan Liao v. United States, 293 F.3d 61 (2d Cir. 2002).

The case involves a Chinese male, who asserted his spouse was forcibly sterilized by the authority under the one-child family planning program. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA, codified as 8 U.S.C. 1101(a))(42), individuals (including the husband whose spouse was sterilized in accordance with Matter of C-Y-Z, 21 I&N Dec. 915 (BIA 1997) would be eligible for asylum protection in the United States.

Among other things, the Court points out that the petitioner fulfilled the obligation to testify specifically "within the ambit of the IIRIRA and Matter of C-Y-Z". It entirely throws out the Government's argument demanding greater details such as how, when, where, and how long is the alleged sterilization. "Rain or sunshine", the decision says, the list of circumstantial details should not be expanded indefinitely. Obviously, this ruling is a set back for the agency that has in the past played the game at its free will. A game without rules "would enable the administrative decision maker to reject whichever applicants that fact-finder happens to disfavor". Then, is it now safe to lay back on the language of the statute for a standardized testimony? Not exactly. The ruling makes clear that in this case, the ex post discovery of defective testimony weights in the consideration of the three-judge panel. That is to say, albeit such apparent procedural errors on the part of the administrative agency, it is still the best strategy to let the testimony go substantively beyond the few basic factors scattered in the plain language of IIRIRA. In any sense, this ruling is likely to paint a new horizon for future testimonies taken in the immigration courts across the 2nd Circuit's jurisdiction.

Another striking feature about the ruling is the Court's disposition of "reasonable available" evidence, which is the second prong of the Diallo rule calling for corroboration evidence in support of testimony. The cloud over the availability of the birth certificates and Chinese birth control certificates went vaporized before the following comments: "what is reasonably available differs among societies and, given the widely varied and sometimes terrifying circumstances under which refugees flee their homelands, from one asylum seeker to the next". The Court reasoned that the advanced record-keeping system in affluent Western society may not objectively available in countries where most asylum seekers are originated. What's more troubling to the Court indeed is the fact that BIA failed to prove the existence of such documents or accessibility to asylum seekers. Notably this might indicate the Court's smooth shift to the 9th Circuit's "easily available" standard, already these two standards are quite reflective of each other. See Sidhu v. INS, 220 F.3d 1085, 1092 (9th Cir. 2000); also Mejia-Paiz v. INS, 111 F.3d 720, 724 (9th Cir. 1997).

Finally, the ruling unveils yet does not venture further into the mist of the Immigration Judge's duty to assist in developing the petitioner's case. The Court did cite former BIA member Rosenburg's dissenting opinion from Matter of S-M-J-, 21 I&N. Dec. 722 (BIA 1997). And it promises to look into the possibility of creating such duties and the proper remedy for breach. Once again, it posts the interesting question of what is the Immigration Judge's real role in the hearings, now that the entire EOIR remains in DOJ and the Office of District Counsel joins the ranks of DHS. Would this ruling and the change of administrative hierarchy provide incentives for the Immigration Judge to make adjustments such as taking much more prudent attitudes in terms of eliciting testimony? Not to mention there is jurisprudential authority from the UN Handbook, which calls for a shared duty between applicants and examiners in "ascertaining and evaluating" the facts. But is it going to be the next big thing? We will see.

Overall, this ruling unequivocally favors the petitioner/alien and sweeps through some of the most terrifying territory in the mythic world of asylum hearings. The ruling speaks for itself that ultimately commonsense prevails over disbelief, bias, stereotype, abuse of discretion, and anything else.

About The Authors

Oliver H. Qiu, Esq. is an Associate Attorney at Caesar & Napoli and Tao Lin, Esq. is the Managing Attorney of Caesar & Napoli's Immigration Department. Visit for further information about the New York City based firm.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.