Joining the majority of courts and consistent with the Board of Immigration Appeals’ interpretation of the Immigration and Nationality Act, the INA does not require an immigration judge to give an alien seeking relief from removal advance notice of specific corroborating evidence necessary to establish his claim or to grant an automatic continuance to allow him to obtain such evidence.
Background
This appeal presents two questions related to aliens seeking protection under the United States immigration laws. First, once the requirements for removability are met, does the government have the burden to prove that the amount of loss caused by the alien’s fraud conviction is $10,000 or more for purposes of an alien’s eligibility for asylum and withholding of removal under the Immigration and Nationality Act, or INA, and for protection under the Convention Against Torture, or CAT.
Second, does 8 U.S.C. § 1229a(c)(4)(B) require an immigration judge, or IJ, to: (1) provide an alien with advanced notice of the need to offer corroborating evidence, and (2) make a finding as to whether such corroborating evidence was reasonably available if the needed corroborating evidence was not provided?
Burden of proof
Wambura is right that the government has the burden of establishing by clear and convincing evidence that an alien is removable in the first place, including the amount of loss involved in an aggravating felony that serves as the basis for the removal. But that does not aid Wambura here.
The government charged that Wambura was removable because he had been convicted of two crimes involving moral turpitude, and an “aggravated felony” which includes “an offense that … involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” Wambura seeks a “reversal of the ‘aggravated felony’ holding” but concedes that doing so “would not vitiate the IJ’s additional holding that Wambura is removable because he had pleaded guilty to two separate crimes of moral turpitude.” Since “Wambura does not contest that his conviction for two separate crimes of moral turpitude renders him removable,” the government carried its burden of establishing removability independent of any conviction for an aggravated felony.
Of course, Wambura can still apply for relief or protection from removal. But to obtain that relief, he—not the government—has the burden to prove that he satisfies the applicable eligibility requirements.
Corroborating evidence
Wambura argues that § 1229a(c)(4)(B) required the IJ to give him advanced notice of the need for corroborative evidence. However the statute does not say anything specific about advanced notice. At best, the statute is silent on this issue. In light of this silence, the court must defer to the BIA’s interpretation of the statute so long as it is reasonable. The BIA has held it was up to the IJ to decide, within his discretion, whether to grant a continuance for the applicant to obtain additional corroboration.
Wambura points out that two sister courts have reached a different result. But the majority of circuit courts that have addressed this issue, like the BIA, have concluded that advanced notice is not required. This court joins the majority view that the INA does not require an IJ to give an alien seeking relief from removal advance notice of specific corroborating evidence necessary to establish his claim or grant an automatic continuance to allow him to obtain such evidence.
Finally, while the IJ noted the lack of corroborating evidence, she did not discuss whether the corroborating evidence was reasonably available. And the BIA did not address this issue in affirming the IJ’s denial of Wambura’s application for CAT deferral of removal, in part due to the lack of corroborating evidence.
The statute requires the agency to first address whether there is “otherwise credible testimony.” Absent that, the statute does not require either corroboration or a finding about its reasonable availability. On remand, the agency must determine whether there was “otherwise credible testimony” in need of corroboration.
Petition for review granted in part, denied in part and remanded.
Concurrence
(Harris, J.): I agree the petitioner bore the burden of showing that he had not been convicted of an aggravated felony, and that he failed to carry his burden. I also agree that once Wambura explained to the IJ why he had not provided the requested corroborating evidence, the IJ was required to, but did not, determine whether Wambura had given “otherwise credible testimony,” and, if so, whether he could “reasonably obtain” the corroborating evidence she deemed necessary. In my view, however, that is the end of this case, and unlike the majority, I would stop there.
Wambura v. Barr (Lawyers Weekly No. 001-124-20, 23 pp.) (A. Marvin Quattlebaum Jr., J.) (Pamela Harris, J., concurring in the judgment) Case No. 19-1360. Nov. 13, 2020. From the Board of Immigration Appeals. Jeffrey A. Clair for Petitioner. Gregory A. Pennington Jr. for Respondent.
