19-3124-ag

Pinel-Gomez v. Garland

In the

United States Court of Appeals

For the Second Circuit

August Term, 2021

No. 19-3124-ag

MAURICIO DAGOBERTO PINEL-GOMEZ, J. L. P-E.,

Petitioners,

v.

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent.

On Petition for Review of a Final Order of

Removal of the Board of Immigration Appeals 

ARGUED: MAY 18, 2022

DECIDED: NOVEMBER 2, 2022

Before: KEARSE, JACOBS, and NARDINI, Circuit Judges.

An immigration judge (“IJ”) (Aviva L. Poczter, Immigration 

Judge) denied Petitioner Mauricio Dagoberto Pinel-Gomez’s 

application for asylum, withholding of removal, and protection under 
2

the Convention Against Torture based on Pinel-Gomez’s failure to 

adequately corroborate his claim with documentary evidence. The 

Board of Immigration Appeals (“BIA”) affirmed. Petitioners argue

that the BIA was unduly deferential to the IJ’s determination that 

corroboration was required. We hold that the BIA reviews de novo an 

IJ’s determination under 8 U.S.C. § 1158(b)(1)(B)(ii) that an applicant 

should provide additional evidence that corroborates otherwise 

credible testimony, because that is not a finding of fact. In contrast, 

the BIA reviews for clear error an IJ’s finding as to whether an 

applicant does not have and cannot reasonably obtain such 

corroborating evidence because that is a finding of fact. Because the 

BIA properly applied these standards of review here, we DENY the 

petition for review.

HAROLD A. SOLIS, Make the Road New 

York, Brooklyn, NY, for Petitioners.

JOHN F. STANTON (Jessica E. Burns, on the 

brief), Office of Immigration Litigation, 

Civil Division, U.S. Department of Justice, 

Washington, D.C. (Ethan P. Davis, Acting 

Assistant Attorney General, Civil Division, 

Washington, D.C., on the brief), for Merrick 

B. Garland, United States Attorney General, 

for Respondent.

WILLIAM J. NARDINI, Circuit Judge:

An applicant seeking asylum carries the burden of establishing 

his eligibility for relief. In some instances, an immigration judge (“IJ”) 
3

may determine that an applicant’s credible testimony, standing alone, 

is enough to meet that burden. In others, an IJ may determine that an 

applicant must provide corroborating evidence because the 

applicant’s testimony, although credible, is not sufficient on its own. 

Once an IJ decides that such corroborating evidence is necessary, the 

applicant must provide it unless he “does not have the evidence and 

cannot reasonably obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii). 

The case before us concerns the standards that the Board of 

Immigration Appeals (“BIA”) must apply when reviewing the IJ’s 

determinations on these issues.

The Department of Justice has promulgated regulations that 

govern the BIA’s jurisdiction over IJ decisions in removal and asylum 

proceedings. 8 C.F.R. § 1003.1(b)(3), (9). The regulations provide that

the BIA must review an IJ’s findings of fact, including credibility 

determinations, for clear error. 8 C.F.R. § 1003.1(d)(3)(i). By contrast, 

the BIA reviews de novo all other issues in appeals from IJ decisions, 
4

including questions of law, discretion, and judgment. Id. 

§ 1003.1(d)(3)(ii). 

An IJ first determines whether corroborating evidence is 

needed; and if corroboration is required and is not produced, the IJ 

determines whether corroborating evidence was possessed by or 

reasonably available to the applicant. We have not previously 

decided which standard the BIA is to apply to which determination. 

We conclude that the IJ’s initial determination—that an applicant 

“should provide” corroborating evidence, 8 U.S.C. 

§ 1158(b)(1)(B)(ii)—is not a factual finding. We therefore hold that the 

BIA reviews that determination de novo. The IJ’s subsequent 

determination as to whether an applicant “does not have the evidence

and cannot reasonably obtain the evidence,” id.—i.e., as to the 

existence of circumstances that Section 1158 provides will excuse him 

from providing corroboration—is a factual finding that the BIA 

reviews only for clear error. 
5

Because we conclude that the BIA here properly applied these

standards of review, we DENY the petition for review.

I. Background

Mauricio Dagoberto Pinel-Gomez and his minor son, J. L. P-E.

(together, “Petitioners”), are natives and citizens of Honduras. They

left Honduras in April 2016 and entered the United States without 

inspection that May. The United States Department of Homeland 

Security (“DHS”) charged Petitioners as subject to removal under 

section 212(a)(6)(A)(i) of the Immigration and Nationality Act 

(“INA”). 8 U.S.C. § 1182(a)(6)(A)(i). Pinel-Gomez conceded that he 

was removable but applied for asylum under section 208A of the INA, 

8 U.S.C. § 1158, withholding of removal under section 241(b)(3) of the 

INA, 8 U.S.C. § 1231(b)(3), and withholding of removal under the 

Convention Against Torture (“CAT”), U.N. Convention Against 

Torture and Other Cruel, Inhuman or Degrading Treatment or 

Punishment, Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 
6

51, at 197, U.N. Dec. A/39/51, 1465 U.N.T.S 85. He named his son as a 

derivative beneficiary.1 

Pinel-Gomez sought relief on two theories: First, he alleged

that he experienced past persecution in Honduras on account of his 

political opinion—that the Mara 18 gang threatened to kill him and 

his son for his refusal to pay the “tax” they demanded of residents 

who lived in Pinel-Gomez’s hometown, Santa Elena. According to 

Pinel-Gomez, his refusal to pay the tax was a direct challenge to the 

gang’s authority, as he expressed to a Mara 18 member that Santa 

Elena did not belong to the gang and that the gang had no right to his 

money, which he earned working in lemon fields and used to support 

his family. Second, he feared that if he returned to Honduras he 

1 In addition to his derivative claims for relief, J. L. P-E. also conceded removability 

and asserted independent claims for asylum, withholding of removal, and CAT relief 

based on his membership in a particular social group—children of Mauricio Pinel-Gomez. 

The IJ denied these claims and the BIA affirmed, concluding that the son’s claim was based 

on the same factual basis, and failed for the same lack of corroborating documents, as his 

father’s claim. We agree that both petitioners’ claims rise and fall on Pinel-Gomez’s failure 

to supply corroborating evidence. Accordingly, we focus on Pinel-Gomez’s claims, which 

are also dispositive with respect to his son.
7

would experience future persecution at the hands of Mara 18 on 

account of his membership in a particular social group—Hondurans 

who have reported gang activity to law enforcement. Pinel-Gomez 

claimed that Mara 18 continued to threaten him on the streets of Santa 

Elena on his way to or from work and, eventually, sent threatening 

notes to his home. Not only would Mara 18 kill him and his son if he

did not pay the tax, but the gang would kill them if he reported their

threats to the Honduran authorities. Pinel-Gomez claimed that, on 

March 30, 2016, he reported Mara 18’s threats to the justice of the 

peace of criminal matters in Choluteca, Honduras. He later feared

that Mara 18 found out about his report, and that the gang would kill 

him and his son if they were to return to Honduras.

Pinel-Gomez submitted three documents to corroborate his 

claim for relief. First, he provided a copy of a record dated May 30, 

2016, and signed by the secretary of the justice of the peace in 

Choluteca, verifying the existence of a complaint filed by Pinel-
8

Gomez in March 2016 about Mara 18’s threats. Second, he submitted

a letter from his friend stating that Pinel-Gomez fled Honduras 

because of threats he received from Mara 18 for his refusal to pay the 

“war tax”; that upon Pinel-Gomez’s departure from Honduras, Mara 

18 destroyed his home during their search for him; and that the friend 

was hospitalized after he was beaten by Mara 18 members looking for 

information on Pinel-Gomez’s whereabouts. Lastly, he 

submitted evidence summarizing the conditions in Honduras.

At a February 12, 2018, hearing, IJ Aviva L. Poczter denied 

Petitioners’ applications for asylum, withholding of removal, and 

CAT relief. The IJ’s oral decision found Pinel-Gomez credible “in the 

sense that his testimony was internally consistent.” But the IJ

determined that his testimony was “inconsistent with one of only two 

pieces of personalized corroborating evidence directly relating to [his] 

claim“—that is, the record of Pinel-Gomez’s March 2016 complaint of 

threats by Mara 18. Pinel-Gomez, the IJ said, was unable to explain 
9

why the report signed by the justice of the peace was dated May 30

when Pinel-Gomez had testified to receiving it on March 30. The IJ 

also gave no weight to the letter from Pinel-Gomez’s friend, as it did 

not specify where Pinel-Gomez and the friend lived and was 

unaccompanied by any documentation of the friend’s identity. 

Finally, the IJ concluded that although Pinel-Gomez had argued that 

he lacked the opportunity to get necessary supporting documents, 

such as proof of his address and verification of his friend’s identity, 

his explanations did “not mean that the document[s were] not 

reasonably available had [they] been properly requested from local 

authorities.” CAR 119.

Petitioners submitted a timely appeal to the BIA. On 

September 18, 2019, the BIA dismissed Petitioners’ appeal. See Matter 

of Mauricio Dagoberto Pinel-Gomez, J. L. P-E., Nos. A208 991 867/866 

(B.I.A. Sept. 18, 2019), aff’g Nos. A208 991 867/866 (Immigr. Ct. N.Y.C. 

Feb. 12, 2018). The BIA affirmed the IJ’s determination that 
10

Petitioners did not meet their burden of proof for asylum, 

withholding of removal, or CAT protection given Pinel-Gomez’s 

failure to provide documentary evidence to corroborate his otherwise 

credible testimony. This issue was dispositive of Petitioners’ claims. 

Pinel-Gomez and his son now petition for review of the 

agency’s denial of their claims for relief.

II. Discussion

Petitioners raise only one argument on appeal: that the BIA 

applied an unduly deferential standard of review to the IJ’s 

determinations that corroborating evidence was required and that 

such evidence was reasonably obtainable. We review questions of 

law de novo, including whether the BIA applied the correct standard 

in its review of an IJ decision. See Alvarado-Carillo v. INS, 251 F.3d 44, 

49 (2d Cir. 2001) (“[W]hen the situation presented is the BIA’s 

application of legal principles to undisputed facts, rather than its 

underlying determination of those facts or its interpretation of its 
11

governing statutes, our review of the BIA’s asylum and withholding 

of deportation determinations is de novo.” (internal quotation marks 

omitted)).

A. Statutory and regulatory framework

Pinel-Gomez bears the burden of proving his eligibility for 

asylum, 8 U.S.C. § 1158(b)(1)(B), statutory withholding of removal, 8 

U.S.C. § 1231(b)(3)(C), and CAT protection, 8 C.F.R. § 1208.16(c)(2). 

“Asylum and withholding of removal are two alternative forms of 

relief” under the INA that are both “available to an alien claiming that 

he will be persecuted, if removed back to his native country.” Wei 

Sun v. Sessions, 883 F.3d 23, 27 (2d Cir. 2018). There are, however, 

salient differences between the two. Liang v. Garland, 10 F.4th 106, 112 

(2d Cir. 2021). Significantly, “while withholding of removal is 

automatically granted to all eligible applicants, the choice of whether 

to grant asylum is ultimately left to the discretion of the Attorney 

General.” Id.
12

To qualify for asylum, an applicant must show that he is a 

“refugee”—that is, he “is unable or unwilling to return to [his home 

country] because of [past] persecution or a well-founded fear of 

[future] persecution on account of race, religion, nationality, 

membership in a particular social group, or political opinion.” 8 

U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i). To establish a “wellfounded fear,” an applicant must demonstrate “a subjective fear of 

future persecution that is objectively reasonable.” Liang, 10 F.4th at 

112. Where an alien shows that he has endured past persecution, “a 

well-founded fear of future persecution is presumed, and it becomes 

the government’s burden to rebut that presumption.” Id. 

To qualify for withholding of removal, an applicant must show 

a “clear probability of persecution, i.e., [that] it is more likely than not 

that the alien would be subject to persecution.” Wei Sun, 883 F.3d at 

27 (internal quotation marks omitted). Because the “clear 

probability” standard for statutory withholding of removal is more 
13

demanding than the “well-founded fear” standard for asylum, “an 

applicant who fails to establish eligibility for asylum fails to establish 

eligibility for withholding of removal.” Id. at 28.

Finally, to qualify for CAT relief, an applicant must show “that 

it is more likely than not that he or she would be tortured if removed 

to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). A

“CAT claim may be established using different evidence and theories 

than the alien’s claims under the INA.” Paul v. Gonzales, 444 F.3d 148, 

155 (2d Cir. 2006). But where an applicant’s CAT claim and claims 

under the INA are all based on the same evidence and theories, “a 

petition for CAT relief may fail because of an adverse credibility 

ruling rendered in the asylum” or statutory withholding of removal 

context. Id. at 157.

An applicant’s credible testimony, standing alone, may be

sufficient to establish a claim for asylum, “but only if [he] satisfies the 

trier of fact that [his] testimony is credible, is persuasive, and refers to 
14

specific facts sufficient to demonstrate that the applicant is a refugee.” 

8 U.S.C. § 1158(b)(1)(B)(ii). In some cases, an applicant must provide 

corroborating evidence because the applicant’s testimony, although 

credible, is not sufficient on its own.

The decision of whether to require corroborating evidence is 

made in the first instance by the IJ. Under 8 U.S.C. § 1158(b)(1)(B)(ii), 

“[w]here the trier of fact 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 the evidence.”2 An IJ may 

deny a claim for relief based on the applicant’s failure to provide 

2 The standards under § 11158(b)(1)(B)(ii) for asylum claims also apply for 

withholding of removal under section 241 of the INA, 8 U.S.C. § 1231. 8 U.S.C. 

§ 1231(b)(3)(C) (“[T]he trier of fact that shall determine whether the alien has sustained the 

alien’s burden of proof, and shall make credibility determinations, in the manner described 

in clauses (ii) and (iii) of section 1158(b)(1)(B) of this title.”). The standard for CAT claims 

is set out in regulations issued by the Attorney General pursuant to section 2242 of the 

Foreign Affairs Reform and Restructuring Act of 1998. Pub. L. No. 105–277, Div. G, Title 

XII, § 2242, 112 Stat. 2681–822, 8 U.S.C. § 1231 note (2000); see also Regulations Concerning 

the Convention Against Torture, 64 Fed. Reg. 8478 (1999); 8 C.F.R. § 1208.16(c) (“Eligibility 

for withholding of removal under the Convention Against Torture.”).
15

reasonably obtainable corroborating evidence. In doing so, the IJ 

must “(1) point to specific pieces of missing evidence and show that 

it was reasonably available, (2) give the applicant an opportunity to 

explain the omission, and (3) assess any explanation given.” Wei Sun, 

883 F.3d at 31.

B. BIA review of an IJ’s determination that corroboration 

is required

When an IJ rejects an applicant’s claims based on a lack of 

corroboration, that decision has two components. First, the IJ 

determines that an applicant “should provide evidence that 

corroborates otherwise credible testimony.” 8 U.S.C. 

§ 1158(b)(1)(B)(ii). Second, once the IJ determines that corroborating 

evidence is necessary, the IJ must determine whether it is in the 

applicant’s possession or the applicant could reasonably obtain it. Id. 

We address the standard of review that the BIA must apply to each of 

these two determinations in turn.
16

1. IJ determination that corroborating evidence is 

required

The parties agree, as do we, that the BIA reviews de novo the

threshold determination that corroborating evidence is required. An

IJ who finds an applicant’s testimony credible may still decide that 

the testimony falls short of satisfying the applicant’s burden of proof, 

either because it is unpersuasive or because it did not include 

“specific facts sufficient to demonstrate that the applicant is a 

refugee.” See 8 U.S.C. § 1158(b)(1)(B)(ii) (permitting an IJ to require 

evidence to corroborate “otherwise credible testimony”). The 

petitioner argues that the decision to require corroborating evidence 

is a legal determination about whether the applicant’s credible 

testimony is sufficient to meet his burden to establish eligibility for 

relief. Petitioners’ Br. at 22; see Alom v. Whitaker, 910 F.3d 708, 712 (2d 

Cir. 2018) (“When determining whether established facts are 

sufficient to meet a legal standard, the BIA has an obligation to 

conduct an independent evaluation of the evidence in the record 
17

under a de novo standard of review.”). The Government contends 

that the decision to require additional corroborative evidence is an 

exercise of the IJ’s discretion. 

The BIA reviews all decisions of an IJ de novo except the IJ’s 

findings of fact, see 8 C.F.R. § 1003.1(d)(3)(i)–(ii), and we are satisfied 

that the decision to require corroborating evidence is not a factual 

finding. We therefore need not decide whether the IJ’s decision to 

require corroboration is a legal or discretionary determination 

because the BIA must review that decision de novo in either case. To

be sure, an IJ may need to make factual determinations to conclude 

that an applicant has not carried his burden even given his credible 

testimony. And although the BIA may not set aside an IJ’s assessment 

of an applicant’s credibility absent clear error, 8 

C.F.R. § 1003.1(d)(3)(i), the ultimate decision on whether a particular 

applicant must provide corroborating evidence is not a purely factual 

inquiry. Cf. Alom, 910 F.3d at 712 (“Where the [BIA] reviews a mixed 
18

question of law and fact, the [BIA] will defer to the factual findings of 

the immigration judge unless clearly erroneous, but the [BIA] retain 

their independent judgment and discretion . . . regarding the review 

of pure questions of law and the application of the standard of law to 

those facts.” (internal quotation marks and alterations omitted)). We 

therefore hold that the IJ’s decision to require corroborating evidence 

to support otherwise credible testimony is subject to de novo review

by the BIA.

2. IJ determination that corroborating evidence is in 

the applicant’s possession or reasonably obtainable

Second, once an IJ has decided that corroborating evidence is 

needed, the applicant must provide it unless he “does not have the 

evidence and cannot reasonably obtain” it. 8 U.S.C. § 1158(b)(1)(B)(ii). 

The parties disagree on the standard that the BIA must apply when 

reviewing an IJ’s decision about whether corroborating evidence is 

reasonably obtainable.

Petitioners assert that de novo review applies because “an IJ’s 
19

corroboration analysis raises a mixed question of fact (whether the IJ 

is correct that certain evidence was available) and law (whether it 

would be reasonable to expect an applicant to obtain that missing 

evidence).” Petitioners’ Br. at 16. The Government contends that the 

deferential clear error standard applies because an IJ’s determination 

about whether an applicant possesses or can reasonably obtain certain 

corroborating evidence is a factual issue.3

As Petitioners concede, the initial determinations an IJ must 

3 To support its view, the Government relies on the language of 8 U.S.C. 

§ 1252(b)(4). See Gov’t Br. at 24. That section provides that a court may not “reverse a 

determination made by a trier of fact with respect to the availability of corroborating 

evidence.” 8 U.S.C. § 1252(b)(4). Because a “trier of fact” determines whether 

corroborating evidence is available, the Government contends, such a determination must 

be a purely factual question. Although we agree that the reasonable obtainability of 

corroborating evidence is a question of fact, we decline to adopt the Government’s 

rationale for two reasons. First, Section 1252(b)(4) governs only judicial review of agency 

decisions. See id. § 1252(b)(4) (“No court shall reverse a determination made by a trier of 

fact with respect to the availability of corroborating evidence” (emphasis added)). In 

contrast, the internal agency standards of review that the BIA applies when reviewing 

decisions of an IJ are established by regulation. See 8 C.F.R. § 1003.1. Second, we are not 

persuaded that all decisions left to a “trier of fact” as that term is used in § 1252 must be

factual findings. Indeed, 8 U.S.C. § 1158(b)(1)(B)(ii), which is incorporated by reference 

into § 1252(b)(4), leaves to the “trier of fact” the question of whether an applicant has met 

his burden of proof. Such a determination—that certain facts are sufficient to meet a legal 

standard—is a question of law that the BIA reviews de novo. Alom, 910 F.3d at 712. 

Accordingly, we decline to draw the inference from 8 U.S.C. § 1252(b)(4) that the 

Government urges. 
20

make at this step are plainly factual. First, the IJ must determine 

whether the applicant has corroborating evidence in his possession 

but has failed to submit it. 8 U.S.C. § 1158(b)(1)(B)(ii). Next, if the 

applicant does not possess the evidence, the IJ must determine if such 

evidence is available at all—whether reasonably or not. If a particular 

type of document is simply not kept in the applicant’s home country, 

then an applicant cannot be required to provide it. These issues 

present binary, inarguably factual questions subject to review for 

clear error. Still, Petitioners assert, even if the literal availability of 

evidence is a factual question, whether an applicant can “reasonably 

obtain” evidence that is hypothetically available is a question of law. 

We disagree. 

We have emphasized that “[w]hat is ‘reasonably available’ 

differs among societies and, given the widely varied and sometimes 

terrifying circumstances under which refugees flee their homelands, 

from one asylum seeker to the next.” Jin Shui Qiu v. Ashcroft, 329 F.3d 
21

140, 153 (2d Cir. 2003), overruled on other grounds by Shi Liang Lin v. 

U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007).4 Thus, reasonableness 

in the context of the availability of corroborating evidence is a factbound, case-specific inquiry. An IJ must make specific findings about 

an applicant’s explanation for the failure to provide corroborating 

evidence, considering any information about the applicant’s country 

of origin, the circumstances under which the applicant left the 

country, and the applicant’s subjective understanding of whether and 

how the evidence could be obtained. See, e.g., Matter of Y-I-M-, 27 I. & 

N. Dec. 724, 732 (B.I.A. 2019) (“The applicant was given an 

opportunity to explain the lack of corroboration, but the Immigration 

Judge did not find his explanations to be persuasive.”). 

Because the inquiry arises only when an applicant has not 

furnished adequate evidence beyond their own testimony, an IJ 

4 Although the REAL ID Act is of somewhat recent vintage—enacted in 2005—“the 

corroboration standard under the REAL ID Act closely tracks our pre-REAL ID Act case 

law.” Wei Sun, 883 F.3d at 28. We may thus consider our earlier decisions to evaluate the 

nature of the IJ’s inquiry.
22

generally determines whether additional evidence was reasonably 

obtainable based primarily on that testimony. Thus, once an IJ 

determines that corroborating evidence was literally available, her 

assessment of whether the applicant could reasonably obtain it turns 

on her assessment of the believability of an applicant’s explanation 

for the failure to provide it. See Cao He Lin v. U.S. Dep’t of Justice, 428 

F.3d 391, 401 (2d Cir. 2005) (“To turn down a refugee candidate for 

want of sufficient corroboration, the adjudicator must (a) identify the 

particular pieces of missing, relevant documentation, and (b) show 

that the documentation at issue was reasonably available to the 

petitioner. The IJ must also assess the applicant’s reasons for not 

furnishing the corroboration at issue.” (internal quotation marks, 

alteration, and citation omitted)). Credibility is a quintessential 

factual determination. See 8 C.F.R. § 1003.1(d)(3)(i).

We acknowledge that deciding what is “reasonable” may 

present a question of fact in some legal contexts and a question of law 
23

in others. Compare First Nat. Bank v. Pipe & Contractors' Supply Co., 273 

F. 105, 108 (2d Cir. 1921) (“If the contract specifies no time, as in the 

present case, a reasonable time is implied by law, and what is such 

reasonable time is a question of law.”), with Sherkate Sahami Khass 

Rapol (Rapol Const. Co.) v. Henry R. Jahn & Son, Inc., 701 F.2d 1049, 1051 

(2d Cir. 1983) (“What is a reasonable time is generally a question of 

fact for the jury.” (internal quotation marks and alterations omitted)). 

See also United States v. Ekwunoh, 12 F.3d 368, 370 (2d Cir. 1993) (noting 

that a district court’s sentencing determination about what was 

“reasonably foreseeable” to a criminal defendant was a factual 

finding subject to review for clear error). In such cases, the IJ’s 

determination of whether evidence is reasonably obtainable turns 

entirely on factual issues—in most cases, the IJ’s assessment of the 

applicant’s credibility. Accordingly, we hold that an IJ’s 

determination about whether an applicant can “reasonably obtain”

corroborating evidence is a finding of fact that the BIA reviews for 
24

clear error.

C. The BIA’s application of the correct standards of 

review

Finally, we consider whether the BIA in this case properly 

applied the standards articulated above. We conclude that the BIA 

did apply the proper standards to the IJ’s decision, and that it applied 

those standards correctly. 

With respect to the threshold inquiry—whether the IJ properly 

concluded that Pinel-Gomez should provide additional corroborating 

evidence—Petitioners argue that the BIA failed to apply de novo 

review. Petitioners assert that the BIA improperly deferred to the IJ’s 

corroboration analysis, thereby failing to evaluate whether PinelGomez could satisfy his burden absent additional evidence. We 

disagree.

Petitioners point to nothing in the BIA’s decision indicating that 

the BIA did not apply de novo review to the initial question of whether 

Pinel-Gomez should provide corroborating evidence. The BIA made
25

clear that it would “review the findings of fact, including the 

determination of credibility, made by the Immigration Judge under 

the ‘clearly erroneous’ standard,” and that it would “review all other 

issues, including issues of law, discretion, or judgment, under the de 

novo standard.” CAR at 3 (quoting 8 C.F.R § 1003.1(d)(3)(i)). The BIA 

identified the three pieces of evidence that Pinel-Gomez submitted

and evaluated whether, given that evidence, he should provide 

additional corroborating evidence. And where the BIA considered 

the factual determinations that informed the IJ’s conclusions, it was 

explicit that it was employing a different standard of review. 

Next, in considering whether Pinel-Gomez could reasonably 

obtain corroborating evidence and was therefore required to provide 

it, the BIA concluded that the IJ “determined, without clear error, that 

the respondent did not provide an adequate explanation as to the 

availability of the evidence, and therefore, did not corroborate an 

essential element of his claim.” Id. at 4 (emphasis added). As 
26

Petitioners note, in evaluating the IJ’s decision, the BIA erroneously 

cited the statute governing judicial review. See CAR at 4. But the BIA 

plainly applied the correct standard, even if it cited the wrong 

statutory section. The erroneous citation does not alter our conclusion

that the BIA correctly reviewed for clear error the IJ’s finding on the 

adequacy of Pinel-Gomez’s explanation for why he could not 

reasonably obtain corroborating documents such as records relating 

to his home ownership, his friend’s identity, or Pinel-Gomez’s 

physical presence in Santa Elena. We therefore conclude that the 

BIA’s application of the de novo and clear error standards of review, 

respectively, was proper. 

III. Conclusion

In sum, we hold as follows:

(1) The BIA reviews de novo an IJ’s determination under 8 

U.S.C. § 1158(b)(1)(B)(ii) that an applicant should 

provide additional evidence that corroborates otherwise 
27

credible testimony.

(2) The BIA must review for clear error an IJ’s finding as to 

whether an applicant does not have and cannot 

reasonably obtain such corroborating evidence, because 

that is a finding of fact that determines whether he is 

excused from producing it.

(3) The BIA properly applied de novo review to the IJ’s 

request for corroborating evidence and properly 

reviewed for clear error the IJ’s finding that Pinel-Gomez 

failed to produce requested evidence that he could 

reasonably have obtained.

For the foregoing reasons, we DENY the petition for review.