Immigration – Asylum – Credibility – REAL ID Act

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Where the Board of Immigration Appeals (BIA) affirmed a denial of a petitioner’s applications for asylum, withholding of removal and relief under the Convention Against Torture, a remand is necessary because the BIA failed to address two central issues concerning a presumption of credibility and the need for corroborating evidence under the REAL ID Act.

“We thus grant the petition for review, vacate the order of removal, and remand for the BIA to address: (1) whether, in light of the rebuttable presumption of credibility to which [Awulachew] Guta-Tolossa is entitled on appeal, see 8 U.S.C. section 1158(b)(1)(B)(iii), the IJ properly concluded that Guta-Tolossa had not met his burden of proving his eligibility for asylum or withholding of removal; (2) if the IJ properly determined that more proof was necessary, whether the IJ found that Guta-Tolossa’s testimony was ‘otherwise credible’ within the meaning of 8 U.S.C. section1158(b)(1)(B)(ii); and (3) if the IJ found that Guta-Tolossa’s testimony was ‘otherwise credible,’ whether section 1158(b)(1)(B)(ii) required the IJ to provide Guta-Tolossa with notice of the need for corroborating evidence and an opportunity to provide that evidence or explain why it was not reasonably available.

“If the BIA interprets the statute as requiring that an otherwise credible applicant receive some notice of the need for corroborating evidence and an opportunity to respond, the agency will of course have to reconsider Guta-Tolossa’s appeal in light of that interpretation.”

Guta-Tolossa v. Holder (Lawyers Weekly No. 01-072-12) (18 pages) (Stahl, J.) (1st Circuit) Eleanor J. Newhoff for the petitioner; Stefanie Notatino Hennes, with whom Tony West and Leslie McKay were on brief, for the respondent (Docket No. 10-2132) (March 16, 2012).

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