PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 17-2234

_____________

ALEJANDRO MISAEL MELENDEZ SARAVIA,

 Petitioner

 v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

 Respondent

______________

On Petition for Review of an Order of the Board of 

Immigration Appeals

(Agency No. A204-490-174)

_____________

Argued: June 13, 2018

Before: CHAGARES, GREENBERG and FUENTES, 

Circuit Judges

(Opinion filed: October 1, 2018)

Gregory Bischoping [ARGUED]

University of Pennsylvania Law School

(Admitted pursuant to L.A.R. 46.3)
2

Stuart T. Steinberg

Thomas J. Miller

Derek J. Brader

Dechert LLP

Cira Centre

2929 Arch St.

Philadelphia, PA 19104

Counsel for Petitioner

Sabatino F. Leo [ARGUED]

Chad A. Readler

Anthony P. Nicastro

U.S. Department of Justice

Civil Division

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

Counsel for Respondent

_____________

OPINION OF THE COURT

_____________
3

FUENTES, Circuit Judge.

This case concerns the Board of Immigration Appeals’ 

failure to follow precedent set forth by this Court.

1

Alejandro Misael Melendez Saravia (“Saravia”) 

petitions for review of the Board’s decision affirming the 

Immigration Judge’s denial of his application for withholding 

of removal under 8 U.S.C. § 1231(b)(3)(A) and relief under the 

Convention Against Torture.2

 Before the Immigration Judge, 

Saravia argued that he had a well-founded fear of persecution 

on the basis of his membership in a particular social group. 

The Immigration Judge found Saravia to be credible, but 

determined that Saravia failed to corroborate his claim. The 

Board affirmed the Immigration Judge’s decision, and this 

petition followed.

In Chukwu v. Attorney General,

3 we held that an 

Immigration Judge must “give the applicant notice of what 

corroboration will be expected and an opportunity to present 

an explanation if the applicant cannot produce such 

corroboration.”4

 Despite the Board’s subsequent contrary 

 1 See Abdulai v. Ashcroft, 239 F.3d 542, 553 (3d Cir. 2001) 

(“The [Board] is required to follow court of appeals precedent 

within the geographical confines of the relevant circuit.” 

(citation omitted)).

2 See 8 C.F.R. § 1208.18 (implementing the Convention 

Against Torture). 

3 484 F.3d 185 (3d Cir. 2007).

4 Id. at 192.
4

decision,5 we remind Immigration Judges in our Circuit that 

they must follow the requirements of Chukwu. We will vacate 

and remand.

I. Facts

Saravia is a native and citizen of El Salvador. In about 

1996, when Saravia was five, his mother left for the United 

States for economic reasons. After this, he lived with his 

father. 

A. Saravia’s Encounters with MS-13

In 2005, members of MS-13 began trying to recruit 

Saravia into the gang. He refused, and they beat and threatened 

him. Before the Immigration Judge, Saravia testified that they 

kicked him and hit him with fists, but that the injuries were not 

severe enough for him to go to the hospital. Saravia testified 

that the gang members threatened Saravia with the murder of 

his family if he told his father and his father reported the gang 

to the police. Saravia also testified that after the gang 

discovered that his mother lived in the United States, they 

demanded money from him. The gang issued Saravia an 

ultimatum: either join the gang or pay $15,000. He testified 

that gang members continued threatening him, leading his 

father to send Saravia and Saravia’s younger sister to live with 

their mother in Paterson, New Jersey. He entered the United 

States without inspection sometime in 2006.

 5 Matter of L-A-C-, 26 I. & N. Dec. 516, 523–24 (B.I.A. 2015) 

(“Applicants have the burden to establish their claim without 

prompting from the Immigration Judge.”).
5

Saravia testified that in March of 2011, his cousin, Juan 

Ramon Hernandez Melendez, was killed in El Salvador by 

members of MS-13. He testified that Juan was a police officer 

and that MS-13 had asked Juan for firearms and killed him 

when he refused. Saravia also testified that eight months after 

his cousin was killed, members of MS-13 in El Salvador 

kidnapped another of his cousins, Francisco Hernandez, and 

brutally tortured him for information about Saravia and 

Saravia’s father. Hernandez was released in December 2011, 

but then murdered by MS-13 gang members two days later, 

according to Saravia.

Saravia also testified that he fears returning to El 

Salvador because a property inherited by his mother has been 

occupied and seized by MS-13 after his mother, via a cousin of 

Saravia’s in El Salvador, began renting the property to a 

woman apparently affiliated with MS-13. Saravia testified that 

MS-13 uses the house for meetings and to torture people, and 

that he fears that if he returns to El Salvador, the government 

will assume he is linked to the gang.

In August 2015, MS-13 gang members attacked 

Saravia’s father. He was hospitalized for five days. During his 

recovery, MS-13 gang members called Saravia’s half-brother 

and threatened to kill Saravia’s father and his family if he 

reported the beating to police. According to Saravia, they 

added that they would kill Saravia if they found him in El 

Salvador. Saravia’s half-brother then fled to the United States.

B. Saravia’s Arrest and the Telephone Threats

In April 2015, Saravia was arrested in New Jersey and 

charged with aggravated assault, simple assault on a law 
6

enforcement officer, resisting arrest by physical force or 

violence, aggravated assault with a deadly weapon, unlawful 

possession of a firearm, and unlawful possession of a weapon. 

These charges, according to Saravia, arose from a domestic 

misunderstanding and police officers’ decision to hit and 

handcuff him. 

Saravia testified that, while he was in police custody, 

MS-13 gang members called his mother and threatened to kill 

him if he returned to El Salvador. They stated that they knew 

he was in police custody and that he was going to be deported 

back to El Salvador. In May 2015, Saravia entered into a pretrial intervention program. The charges against him were to be 

dismissed after a one-year term of probation. However, during 

his probation, Saravia was arrested for driving under the 

influence.

C. Removal Proceedings Against Saravia

The Department of Homeland Security commenced 

removal proceedings against Saravia by filing a Notice to 

Appear with the Immigration Court in Elizabeth, New Jersey. 

In March 2016, Saravia conceded inadmissibility as charged 

and all factual allegations in the Notice to Appear. Thereafter, 

Saravia submitted Form I-859, applying for asylum and 

withholding of removal. 

Saravia testified before the Immigration Judge on 

November 15, 2016. In the course of Saravia’s testimony, the 

Immigration Judge asked several questions regarding 

corroboration:
7

JUDGE TO MR. MELENDEZSARAVIA

According to your earlier 

testimony, you stated that a gang 

member phoned your mother here 

in the United States while you 

were incarcerated by the State of 

New Jersey.

MR. MELENDEZ-SARAVIA TO 

JUDGE

Yes, I was – when I was detained 

in 2015.

JUDGE TO MR. MELENDEZSARAVIA

Okay. Now – and your mother 

lives here in the State of New 

Jersey now, is that right?

MR. MELENDEZ-SARAVIA TO 

JUDGE

Yes, she lives in Patterson [sic].

. . . 

JUDGE TO MR. MELENDEZSARAVIA
8

Why hasn’t she come here to 

testify about this threat, this recent 

threat against you?

MR. MELENDEZ-SARAVIA TO 

JUDGE

Yes, my mom is in the waiting 

area. They never told us that they 

needed her to do that type of 

declaration.

JUDGE TO MS. AL-QALDA 

[Melendez Saravia’s counsel]

Counsel, do we have a statement 

from the mother attesting to that 

element of the claim? I’m not 

aware of one in the record.

MS. AL-QALDA TO JUDGE

I’m not aware of one in the record, 

Your Honor, as well.

JUDGE TO MS. AL-QALDA

All right.

JUDGE TO MR. MELENDEZSARAVIA

You also have a half-brother in the 

United States, right, who recently 

came to the United States?
9

MR. MELENDEZ-SARAVIA TO 

JUDGE

Yes. Right.

JUDGE TO MR. MELENDEZSARAVIA

Does he also reside now in the 

State of New Jersey?

MR. MELENDEZ-SARAVIA TO 

JUDGE

No, he lives in Boston, 

Massachusetts.

JUDGE TO MR. MELENDEZSARAVIA

Now, according to your testimony 

he’s also aware – he also witnessed 

recent threats against you from 

gang members in El Salvador, 

right?

MR. MELENDEZ-SARAVIA TO 

JUDGE

Yes.

JUDGE TO MS. AL-QALDA

Counsel, do we have a statement 

from this percipient witness?
10

MS. AL-QALDA TO JUDGE

We don’t.

JUDGE TO MS. AL-QALDA

All right. Is there any reason 

why no corroboration was 

offered from these two fact 

witnesses?

MS. AL-QALDA TO JUDGE

Your Honor, there isn’t. We have 

absolutely no excuse for that, but 

simply the time constraints to 

make sure that we were ready for 

the individual and we were 

collecting as much of the other 

documents and having most of the 

other documents and corroborating 

evidence translated as well.6

After asking whether there were any further questions 

or witnesses—in context, witnesses immediately available for 

that proceeding—the Immigration Judge adjourned the 

proceeding. The record does not indicate any additional 

proceedings prior to the Immigration Judge’s decision. 

In a written decision issued on December 15, 2016, the 

Immigration Judge denied Saravia’s application. He found 

 6 A346–47 (emphasis added).
11

Saravia to be a credible witness.7

 However, he found that 

Saravia “failed to corroborate [] critical aspects of his claim, 

including the alleged threats against him personally.”8

 The 

Immigration Judge acknowledged this Circuit’s three-part 

requirement when finding lack of corroboration, but ruled that, 

because of the Board’s 2015 opinion in Matter of L-A-C-,

9 he

was not required to give Saravia “advance notice of the specific 

corroborating evidence necessary to meet [his] burden of 

proof.”10

The Immigration Judge found that Saravia was 

ineligible for asylum because he applied more than one year 

after entering the United States.

Specifically, the Immigration Judge found that Saravia 

had not met his burden for withholding of removal because he 

failed to establish a “particular social group” in the purported 

group of which he was a member: “young men looked at to be 

recruited by then MS-13 gang in El Salvador.”11

 

Applying Matter of M-E-V-G-,

12 the Immigration Judge 

concluded that Saravia’s proposed social group was neither 

 7 A13 (“After careful consideration of the totality of the 

circumstances and all relevant factors, the Court finds 

Respondent credible.”). 

8 A14.

9 26 I. & N. Dec. 516 (B.I.A. 2015).

10 Id. at 524.

11 A16. On appeal, Saravia’s counsel defines the group as 

“young male Salvadorans who were recruited by gangs and 

refused to join.” Petitioner’s Br. at 12.

12 26 I. & N. Dec. 227 (B.I.A. 2014).
12

sufficiently “socially distinct” nor sufficiently particular. He 

further denied Convention Against Torture relief because 

Saravia did not establish the probability that he would be 

tortured if returned to El Salvador, and because he had not 

established government participation, consent, or acquiescence 

to any torture that would occur.

The Board, ignoring supplemental evidence provided 

by Saravia on appeal (as required by law), affirmed.

13 In one 

paragraph, it confused Saravia’s nation of origin, repeatedly 

referring to his experiences in Honduras. It held that the 

Immigration Judge properly applied M-E-V-G-. This petition 

for review followed.

II. Jurisdiction and Standard of Review

We have jurisdiction to review a final order of the Board 

dismissing an appeal of an Immigration Judge’s denial of an 

alien’s application for withholding of removal and relief under 

the Convention Against Torture under 8 U.S.C. § 1252(a)(1). 

We may only consider the reasons provided by the Board,14 but 

 13 See Matter of Fedorenko, 19 I. & N. Dec. 57, 73–74 & n.10 

(B.I.A. 1984) (“[A]ll evidence which is pertinent to 

determinations made during deportation proceedings, such as 

the determination of the respondent's eligibility for suspension 

of deportation, must be adduced in the hearing before the 

immigration judge.”).

14 See Orabi v. Att’y Gen. of the U.S., 738 F.3d 535, 539 (3d 

Cir. 2014) (“Because the [Board] did not reach its decision 

based on this ground, we may not affirm the judgment on this 

ground.”) (citing Sec. & Exch. Comm’n v. Chenery Corp., 332 

U.S. 194, 196 (1947)).
13

where the Board “both adopts the findings of the [Immigration 

Judge] and discusses some of the bases for the [Immigration 

Judge’s] decision, we have authority to review the decisions of 

both the [Immigration Judge] and the [Board].”15 We defer to 

the administrative findings of fact, which “are conclusive 

unless any reasonable adjudicator would be compelled to 

conclude to the contrary.”16 We review questions of law de 

novo.

17

III. Discussion

Presented with a credible witness, the Immigration 

Judge found that Saravia failed to sufficiently corroborate his 

story. Contrary to our established precedent, the Immigration 

Judge here failed to provide Saravia with notice and an 

opportunity to provide that corroboration. In doing so, the 

Immigration Judge relied on a decision of the Board that is 

contrary to the law of this Circuit. Because Immigration 

Judges in this Circuit must follow the law of this Circuit, we 

will vacate and remand for further proceedings.

A. The Burden of Asylum and Related Relief

“The burden of establishing eligibility for asylum, 

withholding of removal, and relief under [the Convention 

Against Torture] is on the applicant.”18 Saravia does not 

 15 Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004) (citing 

Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004)).

16 8 U.S.C. § 1252(b)(4)(B).

17 Orabi, 738 F.3d at 539. 

18 Toure v. Att’y Gen. of U.S., 443 F.3d 310, 317 (3d Cir. 2006) 

(citing 8 C.F.R. § 208.13(a)).
14

petition this Court for review of the denial of his asylum 

application. His asylum claim was denied as time-barred, as 

he did not apply for asylum within one year of entering the 

United States. Before us, he petitions for review of the denial 

of his application for withholding of removal and the denial of 

his application for relief under the Convention Against Torture.

Withholding of removal is relief from removal distinct 

from asylum, although they are related.19 To be eligible for 

withholding of removal, the applicant must “establish that his 

or her life or freedom would be threatened in the proposed 

country of removal on account of race, religion, nationality, 

membership in a particular social group, or political 

opinion.”20 “The testimony of the applicant, if credible, may 

be sufficient to sustain the burden of proof without 

corroboration.”21 “Withholding of removal does not rely on 

the perspective of the applicant’s well founded fear, but is 

instead appropriate only if the Attorney General determines 

that there is a ‘clear probability’ that the alien’s life or freedom 

would be threatened upon her removal to a particular 

country.”22

 19 See, e.g., 8 C.F.R. § 208.3(b) (“An asylum application shall 

be deemed to constitute at the same time an application for 

withholding of removal . . . .”); Chukwu v. Att’y Gen. of U.S., 

484 F.3d 185, 188 (3d Cir. 2007) (“Withholding of removal is 

a remedy distinct from asylum and confers only the right not 

to be deported to a particular country, rather than the right to 

stay in this one.”).

20 8 C.F.R. § 1208.16(b).

21 Id.

22 Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005) (quoting

INS v. Stevic, 467 U.S. 407, 412 (1984)).
15

To obtain relief under the Convention Against Torture, 

the applicant must show “that it is more likely than not that he 

would be tortured upon return to his country.”23

The role of corroboration in sustaining an applicant’s 

burden is identical in asylum, withholding of removal, and 

relief under the Convention Against Torture. That role is 

defined by two relevant statutory provisions. First, 8 U.S.C. 

§ 1158(b)(1)(B)(ii), as amended by the REAL ID Act of 

2005,24 provides, with respect to asylum:

The testimony of the applicant 

may be sufficient to sustain the 

applicant's burden without 

corroboration, but only if the 

applicant satisfies the trier of fact 

that the applicant's testimony is 

credible, is persuasive, and refers 

to specific facts sufficient to 

demonstrate that the applicant is a 

refugee. In determining whether 

the applicant has met the 

applicant's burden, the trier of fact 

may weigh the credible testimony 

along with other evidence of 

record. Where the trier of fact 

determines that the applicant 

should provide evidence that 

corroborates otherwise credible 

 23 Chukwu, 484 F.3d at 189 (citing 8 C.F.R. § 1208.16(c)).

24 Pub. L. No. 109-13, Div. B, Title I, sec. 101, 119 Stat. 305, 

310.
16

testimony, such evidence must be 

provided unless the applicant does 

not have the evidence and cannot 

reasonably obtain the evidence.25

This same provision applies to withholding of removal 

and relief under the Convention Against Torture. 8 U.S.C. § 

1231(b)(3)(C) provides that, for the purposes of withholding of 

removal and relief under the Convention Against Torture, 8 

U.S.C. § 1158(b)(1)(B)(ii) and 8 U.S.C. § 1158(b)(1)(B)(iii) 

describe the manner in which “the trier of fact shall determine 

whether the alien has sustained the alien’s burden of proof.”26

Second, 8 U.S.C. § 1252(b)(4), as amended by the 

REAL ID Act, prohibits a court from “revers[ing] a 

determination made by a trier of fact with respect to the 

availability of corroborating evidence . . . unless the court 

finds, pursuant to subsection (b)(4)(B), that a reasonable trier 

of fact is compelled to conclude that such corroborating 

evidence is unavailable.” 27

B. The Abdulai Inquiry

Prior to the passage of the REAL ID Act, we concluded

in Abdulai v. Ashcroft that the Board’s rule requiring applicant 

corroboration in certain cases was valid in principle, albeit 

invalidly applied.28 Our formulation of the rule, which has 

come to be known as the “Abdulai inquiry” or “Abdulai 

 25 8 U.S.C. § 1158(b)(1)(B)(ii) (emphasis added).

26 8 U.S.C. § 1231(b)(3)(C).

27 Toure, 443 F.3d at 325.

28 239 F.3d 542, 554 (3d Cir. 2001).
17

analysis,”29 imposes the following obligations on the 

Immigration Judge when determining that a failure to 

corroborate undermines the applicant’s claim:

(1) an identification of the facts for 

which “it is reasonable to expect 

corroboration;” (2) an inquiry as to 

whether the applicant has provided 

information corroborating the 

relevant facts; and, if he or she has 

not, (3) an analysis of whether the 

applicant has adequately explained 

his or her failure to do so.30

Abdulai, however, predates the passage of the REAL ID 

Act of 2005, which, among other things, modified the language 

of § 1158(b)(1) and § 1252(b)(4). Prior to its amendment by 

the REAL ID Act, § 1158(b)(1) did not specify the burden of 

proof to be carried by the applicant, as now codified in 

§ 1158(b)(1)(B)(ii).31 Further, the REAL ID Act amended

§ 1252(b)(4) to prohibit a court from “revers[ing] a 

determination made by a trier of fact with respect to the 

availability of corroborating evidence,” with the exception

noted above.32 Despite the statutory changes, we held in Toure 

v. Attorney General of the United States, that the REAL ID Act 

 29 Chukwu, 484 F.3d at 193 (“The [Immigration Judge] thus 

failed to satisfy the Abdulai analysis before penalizing Chukwu 

for failing to corroborate his date of membership.”).

30 Abdulai, 239 F.3d at 554.

31 Toure, 443 F.3d at 325; REAL ID Act of 2005, Pub. L. No. 

109-13, Div. B, Title I, sec. 101(a). 32 Pub. L. No. 109-13, Div. B, Title I, sec. 101(e).
18

and § 1252(b)(4) specifically do not “alter our rules that (1) an 

[Immigration Judge] has a duty to develop an applicant’s 

testimony . . . and (2) as a logical predicate to appellate review, 

the [Board] must adequately explain the reasons for its 

decisions.”33 In other words, as we stated in Chukwu v. 

Attorney General of the United States, “we cannot ascertain 

whether the trier of fact would be compelled to find the 

evidence unavailable unless the applicant is given a chance to 

explain why he thinks it is unavailable.”34

Thus, we recognized, in both Chukwu and Toure, that 

satisfying Abdulai requires Immigration Judges to “give the 

applicant notice of what corroboration will be expected and an 

opportunity to present an explanation if the applicant cannot 

produce such corroboration” under § 1252(b)(4).35 Neither 

Chukwu nor Toure, however, considered the amended 

 33 443 F.3d at 325. We note that the Immigration Judge’s 

obligation to develop the record takes on particular importance 

where a respondent in removal proceedings is not provided 

counsel. A respondent has only “the privilege of being 

represented, at no expense to the Government, by counsel of 

the alien's choosing who is authorized to practice in such 

proceedings.” 8 U.S.C. § 1229a(b)(4)(A). See Ponce-Levia v. 

Ashcroft, 331 F.3d 369, 374 (3d Cir. 2003) (“It is wellestablished that an alien at an immigration hearing has some 

form of right to counsel. It is equally well-settled, though, that 

‘there is no Sixth Amendment right to counsel in deportation 

hearings.’”) (quoting Uspango v. Ashcroft, 289 F.3d 226, 231 

(3d Cir. 2002)).

34 484 F.3d at 192 (describing reasoning of Toure). 

35 Id. (citing Toure, 443 F.3d at 324).
19

provisions of § 1158(b)(1)(B)(ii), 36 and in Matter of L-A-C-,

the Board held that this provision requires neither notice nor an 

opportunity to corroborate or explain the failure to 

corroborate.

37 We now consider whether the Immigration 

Judge’s failure to provide Saravia notice and opportunity to 

corroborate is justified under Matter of L-A-C- and 

§ 1158(b)(1)(B)(ii).

C. The Immigration Judge’s Failure to Provide 

Notice and Opportunity to Corroborate

The Immigration Judge’s written decision reflects his

reliance on Matter of L-A-C-, the Board’s decision holding that 

notice and opportunity to corroborate or explain the failure to 

corroborate are not required under § 1158(b)(1)(B)(ii). Under 

Matter of L-A-C- and its interpretation of § 1158(b)(1)(B)(ii), 

the decision of the Immigration Judge understood Abdulai to 

require only an evaluation of “Respondent’s reasons for not 

submitting” corroborating evidence.38 It held that Saravia’s 

reasons were “inadequate.”39 

That interpretation of § 1158(b)(1)(B)(ii), however, is 

not reasonable.40 As noted, the last sentence in 

§ 1158(b)(1)(B)(ii) states that “[w]here the trier of fact 

 36 Chukwu, 484 F.3d at 191 n.2; Toure, 443 F.3d at 326 n.9.

37 Matter of L-A-C-, 26 I. & N. Dec. at 523–24 (“Applicants 

have the burden to establish their claim without prompting 

from the Immigration Judge.”).

38 A14.

39 Id.

40 Cf. Chevron v. Nat. Res. Def. Council, Inc., 467 U.S. 837 

(1984).
20

determines that the applicant should provide evidence that 

corroborates otherwise credible testimony, such evidence must 

be provided unless the applicant does not have the evidence 

and cannot reasonably obtain [it].” Whether we construe under 

§ 1252(b)(4)(D) or § 1158(b)(1)(B)(ii), we cannot conclude on 

review that it was fair to require Saravia to provide further 

corroboration without telling him so and giving him the 

opportunity either to supply that evidence or to explain why it 

was not available. Under any other rule, our review is not 

meaningful.

41

 

That opportunity to supply evidence or explain why it is 

not available can only occur before the Immigration Judge

rules on the applicant’s petition. To decide otherwise is 

illogical temporally and would allow for “gotcha” conclusions 

in Immigration Judge opinions. “Justice requires that an 

applicant for asylum be given a meaningful opportunity to 

establish his or her claim.”42 Therefore, under the law in this 

Circuit, the Immigration Judge was obligated to provide 

Saravia with notice and an opportunity to corroborate his 

claim.

We realize a circuit split exists on the purported 

ambiguity of the last sentence of § 1158(b)(1)(B)(ii). 

Compare, e.g., Gaye v. Lynch, 788 F.3d 519, 528-30 (6th Cir. 

2015) (there is no notice requirement in corroboration cases); 

Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009) (“the alien 

bears the ultimate burden of introducing [corroborating] 

 41 See Abdulai, 239 F.3d at 555; Chukwu, 484 F.3d at 192 

(citing Toure, 443 F.3d at 325).

42 Mulanga v. Ashcroft, 349 F.3d 123, 136 (3d Cir. 2003) 

(quoting Senathirajah, 157 F.3d at 221).
21

evidence without prompting from the IJ”); and Rapheal v. 

Mukasey, 533 F.3d 521, 530 (7th Cir. 2008) (same), with Ren 

v. Holder 648 F.3d 1079, 1091-92 (9th Cir. 2011) (“[T]he 

statute [§ 1158(b)(1)(B)(ii)] is clear. An applicant must be 

given notice of the corroboration required, and an opportunity 

to either provide that corroboration or explain why he cannot 

do so.”); accord Zhi v. Holder, 751 F.3d 1088, 1095 (9th Cir. 

2014).

While our result aligns with Ren, our rule derives 

principally from the fact that we cannot have meaningful 

judicial review without giving the applicant notice and an 

opportunity to corroborate. See Chukwu, 484 F.3d at 192; 

Toure, 443 F.3d at 325; see generally Reed at 562-66. The 

record here reflects that the Immigration Judge did not give 

Saravia notice or an opportunity to provide corroborating 

evidence or explain its unavailability. At most, Saravia was 

given the opportunity to explain, through counsel, why he had 

not submitted corroborating evidence from his mother and 

half-brother.

43 The Immigration Judge asked “[i]s there any 

reason why no corroboration was offered from [Saravia’s 

mother and half-brother]?”44 

The Immigration Judge’s question does not bear on the 

requirements of Chukwu, Toure, and Abdulai. Whether

Saravia did not corroborate his testimony is a question entirely 

different from whether he could not corroborate his testimony. 

 43 There appears to have been no previous discussion, let alone 

notice, of Saravia’s failure to corroborate his claim of gang 

violence in El Salvador. The Immigration Judge marked a 

2015 State Department report into the record. 44 A347.
22

We have clarified, in Chukwu and Toure, that Abdulai is not 

simply an inquiry into why an applicant submitted certain 

things into evidence and not others, but whether evidence 

corroborating an applicant’s testimony is available. For an 

applicant to provide an explanation “if he cannot produce” 

corroboration,45 he must be provided an opportunity to produce 

it. The decision of the Board is inconsistent with the law of 

this Circuit.46

In fact, as the Immigration Judge noted when asking 

why Saravia’s mother had not testified, Saravia’s mother was 

outside in the waiting area during the proceedings. Saravia 

stated that “[t]hey never told us that they needed her to do that 

type of declaration.”47 Saravia’s half-brother was in Boston at 

the time Saravia testified before the Immigration Judge. In this 

case, it appears that Saravia, through counsel, did assert that 

corroboration was available but had not been submitted due to 

constraints of time and resources. Saravia appears to have 

attempted to submit some corroborating evidence on appeal 

before the Board. Although that is an improper venue to 

submit new evidence,48 it was also improper for the 

Immigration Judge to deny Saravia notice and an opportunity 

to produce the corroboration of his claims or an opportunity to 

explain his failure if he could not do so.

 45 Chukwu, 484 F.3d at 192 (citing Toure, 443 F.3d at 324).

46 See Abdulai, 239 F.3d at 553 (“The [Board] is required to 

follow court of appeals precedent within the geographical 

confines of the relevant circuit.” (citation omitted)).

47 A346.

48 See Matter of Fedorenko, 19 I. & N. Dec. 57, 73–74 & n.10 

(B.I.A. 1984).
23

We do not reach the merits of Saravia’s application, nor 

do we opine on the potential effect of intervening law on those 

merits.

49 Because “it is impossible for us to determine whether 

‘a reasonable trier of fact [would be] compelled to conclude

such corroborating evidence is unavailable’ unless a petitioner 

is given the opportunity to testify as to its availability,”50 we 

will vacate and remand for a new corroboration 

determination.51

For the foregoing reasons, Saravia’s petition is granted 

and the order of the Board of Immigration Appeals is vacated. 

This case is remanded for further proceedings consistent with 

this opinion.

 49 See Matter of A-B-, 27 I. & N. Dec. 316, 320 (A.G. 2018) 

(“Generally, claims by aliens pertaining to domestic violence 

or gang violence perpetrated by non-governmental actors will 

not qualify for asylum.”); S.E.R.L. v. Att’y Gen. of U.S., 894 

F.3d 535, 549–55 (3d Cir. 2018) (granting Chevron deference 

to the Board’s revised “particularity” and “social distinction” 

analysis of particular social group).

50 Toure, 443 F.3d at 325 (quoting 8 U.S.C. § 1252(b)(4)(D)).

51 See id. (remanding for new corroboration determination).