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Miah v. Ashcroft

October 09, 2003

BISMILLAH MIAH, PETITIONER
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES; IMMIGRATION & NATURALIZATION SERVICE, RESPONDENTS



On Petition for Review of an Order of the Board of Immigration Appeals (INS No. A78 420 602)

Before: Roth, Fuentes and Aldisert, Circuit Judges

The opinion of the court was delivered by: Fuentes, Circuit Judge

PRECEDENTIAL

Argued on January 16, 2003

OPINION OF THE COURT

Bismillah Miah ("Miah"), a national of Bangladesh, petitions for review of a decision of the Board of Immigration Appeals ("BIA" or "Board") ordering him removed to his home country. The Immigration Judge had denied Miah's petition for political asylum and withholding of removal on the basis that Miah's testimony lacked sufficient credibility and corroboration to sustain the burden of proof. The BIA, rejecting the Immigration Judge's adverse credibility determination, nonetheless dismissed the appeal because the petitioner failed to corroborate the events on which he based his claim. We agree with petitioner that the BIA failed to properly analyze the issue of corroboration in accordance with previous rulings of this Court. We therefore vacate the BIA's order and remand the matter for further proceedings consistent with this opinion.

I. Background

A. Procedural

Miah attempted to enter the United States on November 11, 2000, at John F. Kennedy International Airport in New York, New York. He was denied admission to the United States and detained by the Immigration and Naturalization Service for a full asylum hearing after an INS officer determined that Miah had established a credible fear of persecution if returned to Bangladesh. The INS initiated removal proceedings against Miah, charging him as inadmissible pursuant to Section 212(a)(6)(C)(I) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(6)(C)(I), as an alien who sought admission by fraud or willful misrepresentation. Miah was also charged as inadmissible under Section 212(a)(7)(A)(i)(I) of the INA, 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an immigrant not in possession of a valid entry document. On January 29, 2001, Miah appeared before an Immigration Judge ("IJ") and denied that he was removable under section 1182(a)(6)(C)(I). He conceded removability under section 1182(a)(7)(A)(i)(I); but, he requested political asylum, withholding of removal, and relief under the United Nations Convention Against Torture.

The IJ held a hearing on Miah's application for relief on February 21, 2001. Thereafter, on April 11, 2001, the IJ denied Miah's application on all grounds of requested relief. Two aspects of the IJ's decision are relevant to this appeal. First, the IJ determined that Miah's testimony was not credible because it lacked sufficient detail. A.R. 34. Second, the IJ concluded that the documentation submitted by Miah failed to corroborate any of the incidents described in his testimony. Id. at 35.

Specifically, the IJ noted that a letter from Miah's father lacked detail regarding any of the alleged incidents. Id. The IJ also commented that, other than the letter from his father, Miah neglected to submit any letters or affidavits from any witnesses to the alleged incidents, such as other members of his political party, his employees, or other family members. Id. Finally, the IJ found that, while Miah submitted a doctor's note indicating that he received treatment during three periods of time, the note lacked details regarding Miah's injuries and treatments and contained some dates that did not coincide with the dates described in Miah's testimony and written application. Id.

On May 11, 2001, Miah filed a Notice of Appeal of the IJ's decision with the BIA. The BIA dismissed the appeal on September 17, 2001. Although the BIA dismissed the appeal, it did not accept all of the IJ's conclusions. After indicating that the IJ placed undue weight on Miah's airport statement and mistakenly relied on the fact that Miah escaped harm until 1999, the BIA rejected the IJ's adverse credibility finding. Id. at 3. However, the BIA agreed with the IJ that Miah failed to meet his burden of proof due to a lack of corroboration. Id. In reaching this conclusion the BIA took note of several findings made by the IJ: (1) the letter from Miah's father did not provide specific details regarding any of the incidents described by Miah; (2) the doctor's note supplied by Miah was unpersuasive; and (3) Miah failed to obtain specific factual statements from his employees, other members of his political party, or family members who witnessed the incidents on which his claim is based. Id. After observing that Miah neglected to offer an explanation for these shortcomings on appeal, the BIA concluded that the IJ correctly ruled that Miah failed to carry his burden of proof.

On October 3, 2001, Miah filed a Petition for Review and Motion to Stay Removal with this Court. Thereafter, we granted a Motion to Stay Removal ...


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