Nicholas v. Gonzales

164 F. App'x 52
CourtCourt of Appeals for the Second Circuit
DecidedJanuary 24, 2006
DocketNo. 03-4242-AG NAC
StatusPublished

This text of 164 F. App'x 52 (Nicholas v. Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nicholas v. Gonzales, 164 F. App'x 52 (2d Cir. 2006).

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (“BIA”) decision, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the petition be GRANTED and REMANDED to the BIA for further proceedings.

Stanley Nicholas, a native and citizen of Sri Lanka, petitions for review of a BIA order denying his application for asylum and relief under the United Nations Convention Against Torture (“CAT”), adopted, S. Treaty Doc. No. 100-20 (1998), and granting his application for voluntary departure. We assume the parties’ familiarity with the facts of this case, its procedural posture, and the decision below.

This court reviews factual findings, including adverse-credibility determinations, under the substantial-evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Jin Hui Gao v. United States Att’y Gen., 400 F.3d 968, 964 (2d Cir.2005). In the present case, the IJ did not make an explicit finding that Nicholas’s testimony lacked credibility, although he found that Nicholas’s claims were uncorroborated and concluded that there was “no competent, credible or substantial evidence” of persecution. Even if this conclusion was intended as an adverse-credibility finding, it would be insufficient to support the IJ’s denial of Nicholas’s asylum application. Although the IJ concluded that Nicholas had failed to present sufficient testimonial and corroborative evidence to establish his claim for asylum relief, the IJ erred in analyzing the evidence submitted in support of Nicholas’s asylum claim. Moreover, although the IJ’s decision was largely based on Nicholas’s lack of corroborating evidence, the IJ failed to properly consider Nicholas’s explanation for his failure to provide certain documents, and failed to consider whether the evidence was actually available to Nicholas under the circumstances, as the record shows sufficient evidence corroborating Nicholas’s asylum claim.

First, the IJ erred in finding that Nicholas should have provided an original or a certified copy of his travel agency’s license, and evidence that he had actually been a [54]*54travel agent, to corroborate his claim, and in not giving any weight to Nicholas’s explanation for the document’s unavailability. Indeed, this court has stated that “even under circumstances where corroboration may reasonably be expected, petitioners may meet their burden of proof by offering a believable and sufficient explanation as to why such corroborating evidence was not presented.” Diallo v. INS, 232 F.3d 279, 289-90 (2d Cir.2000). Thus, although the IJ may have reasonably requested that Nicholas provide his travel agency’s license or that a government-certified copy be presented at the hearing in support of his claim, the IJ erred in failing to weigh Nicholas’s reasonable explanation for the absence of the document — that his travel agency had been sealed by the police when he had been arrested, precluding both him and his Mends from obtaining the original license, and that he had not obtained a copy of the license from the government before he had left Sri Lanka because he had not wanted to alert the government that he had planned to flee the country. Moreover, while Nicholas did not provide the original SMN agency license, he did submit into evidence a copy of SMN Travel’s certificate of incorporation; a picture of Nicholas in a travel office handing a ticket to a customer; and a 1990 Course Record for Nicholas for a course titled “Airline Ticketing and Reservations.” These documents, coupled with Nicholas’s reasonable explanation of why he was unable to obtain the original or a certified copy of his travel agency’s license, were sufficient to corroborate his claim.

Similarly, the IJ also erred in finding that Nicholas’s asylum claim failed because he had failed to present corroborating evidence that he had ever been arrested, tortured, or injured by police; that he had sought medical attention for the police-related injuries; or that his father had paid a bribe for his release. As an initial matter, the agency’s regulations provide that “[t]he testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.” 8 C.F.R. §§ 208.13(a), 208.16(b). Moreover, Nicholas presented numerous documents which established that the Sri Lankan government frequently engaged in the practices described by Nicholas in his account of his detainment, torture, and arrest. Thus, although Nicholas’s testimony could have been sufficient to establish that he had been arrested and tortured, the evidence he submitted regarding the government’s practices in targeting Tamils for detention, torture, and disappearances bolstered his claim.

The IJ also cited Nicholas’s failure to provide proof that he had been detained and tortured by Sri Lankan police, but failed to consider whether it was reasonable to expect that Nicholas could obtain proof of his detention and torture under the circumstances. See Diallo, 232 F.3d at 289-90. Indeed, this Court has held that:

IJs must “back demands for corroborative evidence with a reasoned explanation ... that responds to evidence of actual conditions in the asylum-seeker’s former country of residence” because such explanation “constitutes one small, but crucial defense against potentially mistaken, culturally biased assumptions about the existence and availability of documents.”

Cao He Lin v. United States Dep’t of Justice, 428 F.3d 391, 405 (2d Cir.2005) (citing Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 154 (2d Cir.2003)). In this case, the IJ’s call for Nicholas to corroborate his claim of detention and torture was unreasonable under the circumstances, particularly in light of the 1999 U.S. Department of State Report on Human Rights Practices in Sri Lanka, which made clear that [55]*55such detention, arrest, and torture by the police occurred frequently in Sri Lanka at the time.

Moreover, in finding that Nicholas had failed to meet his burden, the IJ cited Nicholas’s failure to seek damages against the Sri Lanka police for his alleged detainment and torture and failed to credit Nicholas’s explanation for not seeking damages under the circumstances. Indeed, Nicholas testified that few people in Sri Lanka pursued damages against the police for illegal detainment and torture, an assertion supported by the 1999 U.S. Department of State Report on Human Rights Practices in Sri Lanka. Thus, the IJ erred in failing to credit Nicholas’s explanation, supported by the 1999 country report, for his failure to seek damages for his detention and torture.

Finally, the IJ found that neither Nicholas’s nor his wife’s family had been hurt or harmed by the government or the Liberation Tigers of Tamil Ealam (“LTTE”) despite evidence in the record to the contrary.

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164 F. App'x 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nicholas-v-gonzales-ca2-2006.