FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NIRMAL SINGH, 

Petitioner, No. 08-70434

v. Agency No.  A099-330-446 ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

July 8, 2009—Seattle, Washington

Filed April 19, 2010

Before: Diarmuid F. O’Scannlain, Andrew J. Kleinfeld and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge O’Scannlain;

Dissent by Judge Berzon

5727
COUNSEL

Taranjeet Kaur Buttar, Buttar & Cantor, LLP, Tukwila, Washington, argued the cause for the petitioner. Patrick Cantor,

Buttar & Cantor, LLP, Tukwila, Washington, was on the

brief. 

Rebecca Ariel Hoffberg, U.S. Department of Justice, Washington, District of Columbia, argued the cause for the responi

5730 SINGH v. HOLDER
dent. Gregory Katsas, Assistant Attorney General, Civil Division, U.S. Department of Justice, Washington, District of

Columbia; William C. Peachey, Assistant Director, Office of

Immigration Litigation, U.S. Department of Justice, Washington, District of Columbia; and Mona Maria Yousif, Civil

Division, U.S. Department of Justice, Washington, District of

Columbia, were on the brief.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether an immigration judge properly

required corroborating evidence from an otherwise credible

witness in an asylum hearing.

I

A

Nirmal Singh is an Indian citizen and former resident of

that nation’s Punjab state. Singh maintains that as a result of

his political activities and affiliation, he was arrested and tortured on four occasions. According to Singh, after his fourth

confrontation with authorities, a police officer told him: “If

you want to save your life, leave India.” Singh claims that

shortly thereafter, he took the officer’s advice and fled to

Canada. Singh asserts that he arrived in Canada, using a false

passport, on October 10, 2004. He says he stayed there for ten

days before entering the United States without inspection on

October 20, 2004. In the fall of 2005, Singh filed for asylum.1

1Singh contends that he filed for asylum on October 13, 2005, within

one year from his alleged date of entry into this country (October 20,

2004). He submits his asylum application as proof, noting that the time

stamp on the application reads October 13, 2005. That date, however, is

crossed out by hand, and a date of November 14, 2005, is stamped next

SINGH v. HOLDER 5731
B

On January 18, 2006, Singh was issued a Notice to Appear.

At his hearing before an Immigration Judge (“IJ”), Singh conceded his removability and sought asylum, withholding of

removal, and protection under the Convention Against Torture.

The IJ rejected Singh’s request for asylum as untimely

filed. Though he made no adverse credibility finding, the IJ

found Singh’s testimony insufficient to establish his last date

of entry into the United States “by clear and convincing evidence.” In so ruling, the IJ noted that Singh had provided no

documentation corroborating his claim that he entered this

country on October 20, 2004.2 Without an established date of

entry, Singh could not prove that he filed his application

“within 1 year after the date of [his] arrival in the United

States.” 8 U.S.C. § 1158(a)(2)(B). 

Singh appealed to the Board of Immigration Appeals

(“BIA”), which likewise concluded that his application was

time-barred because he had failed to establish his date of

entry. Quoting the text of 8 U.S.C. § 1158(b)(1)(B)(ii), the

BIA explained that such section “specifically provides that, in

determining whether an asylum applicant has met his burden

to it. Singh claims this indicates that when he first submitted the application, it contained a defect which had to be remedied. According to Singh,

November 14 is the date he resubmitted the application after correcting the

error.

2The IJ also based his time-bar ruling on the date stamp issue, see supra

note 1, concluding that Singh’s asylum application was filed on November

14, 2005. Thus, even if Singh had established his date of entry as October

20, 2004, his application would still be untimely. 

However, the Board of Immigration Appeals affirmed the IJ on the

ground that Singh failed to corroborate his arrival date. In reviewing this

petition, “we consider only the grounds relied upon” by the BIA. See

Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam). 

5732 SINGH v. HOLDER
of proof, the trier of fact may require an applicant to ‘provide

evidence that corroborates otherwise credible testimony.’ ”

Ultimately, the BIA held that Singh’s failure to provide such

evidence was fatal to his application.

Singh timely petitioned this court for review.

II

We only address the timeliness of Singh’s application in

this opinion.3 Singh contends that for various reasons, the BIA

improperly concluded that he failed to meet the one-year

deadline. The government counters by asserting that this court

has no jurisdiction to review the BIA’s time-bar ruling, and,

in the alternative, that Singh’s application was properly found

to be untimely.

A

We must first assess whether we have jurisdiction to review

the BIA’s timeliness determination. “Any alien who is physically present in the United States . . . irrespective of such

alien’s status, may apply for asylum . . . .” 8 U.S.C.

§ 1158(a)(1). However, an alien can only avail himself of this

provision if he “demonstrates by clear and convincing evidence that the application has been filed within 1 year after

the date of the alien’s arrival in the United States.” Id.

§ 1158(a)(2)(B). Section 1158(a)(3) states that “[n]o court

shall have jurisdiction to review any determination of the

Attorney General under [section 1158(a)(2)(B)].” Read

together, these provisions appear to deprive this court of jurisdiction over determinations that an alien failed to file his

application within one year of entering this country. See

Hakeem v. INS, 273 F.3d 812, 815 (9th Cir. 2001) (“Thus,

3Singh’s request for withholding of removal and relief under the Convention Against Torture is addressed in a memorandum disposition filed

concurrently with this opinion. 

SINGH v. HOLDER 5733
under section 1158(a)(3), we lack jurisdiction to review the

IJ’s determination that [the applicant] failed to file his asylum

application within one year of his arrival in the United

States.”).

[1] Nonetheless, “the Real ID Act of 2005 restores [our]

jurisdiction over ‘constitutional claims or questions of law.’ ”

Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007) (per

curiam) (quoting Fernandez-Ruiz v. Gonzales, 410 F.3d 585,

587 (9th Cir. 2005)); see also 8 U.S.C. § 1252(a)(2)(D)

(“Nothing in . . . any other provision of this chapter . . . which

limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law

raised upon a petition for review filed with an appropriate

court of appeals in accordance with this section.”). Legal

questions include questions of statutory construction and

“questions involving the application of statutes or regulations

to undisputed facts, sometimes referred to as mixed questions

of fact and law.” Ramadan, 479 F.3d at 650. Thus, to secure

jurisdiction, we must determine whether Singh has raised a

question of statutory construction or a question involving the

application of a provision of law to “undisputed facts.”

[2] Singh’s argument is legal, not factual. He claims that

because his testimony was deemed credible, the agency committed a legal error by requiring corroboration. In his view,

credible testimony is necessarily sufficient to meet the clear

and convincing standard, and corroboration cannot be

required. Because this is a legal argument about how to construe 8 U.S.C. § 1158(b)(1)(B)(ii), and not a factual argument

about whether the evidence in his case proved his date of

entry, we have jurisdiction to review it.4

4The government asserts that we lack jurisdiction because Singh’s date

of entry is not an “undisputed” fact. If Singh’s challenge involved a mixed

question of law and fact, such arguments would be persuasive. See Ramadan, 479 F.3d at 650 (explaining that mixed questions of law and fact

involve “the application of statutes or regulations to undisputed facts”).

We conclude, however, that insofar as Singh claims the agency employed

the wrong burden of proof by requiring corroboration, he raises a “pure”

question of law. 

5734 SINGH v. HOLDER
B

Singh claims that the IJ had no authority to require corroborating evidence from a credible witness. If the IJ does possess

such authority, we must then determine if it was properly

exercised in this case.

1

[3] In the past, “[i]t [was] well established in this circuit

that the BIA may not require independent corroborative evidence from an asylum applicant who testifies credibly in support of his application.” Kataria v. INS, 232 F.3d 1107, 1113

(9th Cir. 2000); see also, e.g., Singh v. Gonzales, 491 F.3d

1019, 1025 (9th Cir. 2007) (same); Kaur v. Ashcroft, 379 F.3d

876, 889-90 (9th Cir. 2004) (same); Ladha v. INS, 215 F.3d

889, 901 (9th Cir. 2000) (“[A]n alien’s testimony, if unrefuted

and credible, direct and specific, is sufficient to establish the

facts testified without the need for any corroboration.”), overruled on other grounds by Abebe v. Mukasey, 554 F.3d 1203,

1208 (9th Cir. 2009) (en banc).

[4] With respect to asylum applications filed after May 11,

2005,5 however, this is no longer true. As we have previously

held in Aden v. Holder, “Congress abrogated these holdings

in the REAL ID Act of 2005.” 589 F.3d 1040, 1044 (9th Cir.

2009). It is still true that credible testimony can, in some circumstances, sustain the applicant’s burden of proof. See 8

U.S.C. § 1158(b)(1)(B)(ii) (“[T]he 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

5REAL ID Act of 2005, Pub. L. No. 109-13, § 101(h)(2), 119 Stat. 231,

305; Oyekunle v. Gonzales, 498 F.3d 715, 717 (7th Cir. 2007) (“For aliens

who applied for asylum after May 11, 2005[, the REAL ID Act] in effect

codifies the [corroboration] rule . . . .”). 

SINGH v. HOLDER 5735
applicant is a refugee.”). But the Act further provides that

‘[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.” Id. Thus, credible testimony may be sufficient to

satisfy the applicant’s burden of proof, but the Act also

enables the trier of fact to require something more. Uncorroborated testimony is sufficient only if “(1) the applicant’s testimony is credible; (2) the applicant’s testimony is persuasive;

and (3) the applicant’s testimony refers to facts sufficient to

demonstrate refugee status. Credible testimony is not by itself

enough.” Aden, 589 F.3d at 1044. To the extent our prior

decisions hold to the contrary, they are superseded by the

REAL ID Act. Id.

[5] Thus, in the case at hand, Singh is correct that insofar

as the IJ made no adverse credibility finding, we must credit

him as truthful. See Kataria, 232 F.3d at 1113. We need not

accept all facts to which he testifies as true, however. Aden,

589 F.3d at 1045. After the REAL ID Act, “the IJ may, in

determining whether it satisfies the applicant’s burden of

proof, ‘weigh the credible testimony along with other evidence of record.’ ” Id. at 1044 (quoting 8 U.S.C.

§ 1158(b)(1)(B)(ii)). “Congress has installed a bias toward

corroboration in the statute to provide greater reliability.” Id.

at 1045. Thus, we must conclude that the IJ possessed the

authority to require corroborating evidence.

2

Our conclusion that the IJ may require corroborating evidence despite credible testimony does not end the matter,

however. Singh contends that because he “could not reasonably be expected to provide proof of when he entered the

United States . . . . [t]he BIA and the IJ committed error in

[their] application of the REAL ID Act as it pertains to

[him].” As we conclude that the IJ properly demanded corrob5736 SINGH v. HOLDER
orating evidence despite Singh’s otherwise credible testimony, we reject Singh’s contention.

We note at the outset that we do not write on a clean slate

as we interpret section 1158(b)(1)(B)(ii). The BIA has interpreted this section as codifying its preexisting corroboration

requirements. See In re J-Y-C-, 24 I & N Dec. 260, 263

(B.I.A. 2007). “When reviewing an agency’s interpretation of

its governing statute, we follow the two-step framework

famously set forth in Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984).”

Marmolejo-Campos v. Holder, 558 F.3d 903, 908 (9th Cir.

2009) (en banc). Precedential BIA decisions interpreting the

Immigration and Nationality Act fall under this rubric. Id. at

908-09 (citing United States v. Mead Corp., 533 U.S. 218,

233 (2001)); see also Ramos-Lopez v. Holder, 563 F.3d 855,

858-59 (9th Cir. 2009) (“Generally, we accord Chevron deference where there is binding agency precedent on-point (either

in the form of a regulation or a published BIA case).” (internal quotation marks, alternation, and citation omitted)).6

We thus consider “whether Congress has directly spoken to

the precise question at issue.” Chevron, 467 U.S. at 842. “If

the intent of Congress is clear, that is the end of the matter;

for the court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.” Id. at 842-43.

If the statutory provision at issue “is ‘silent or ambiguous,’

however, we may not supply the interpretation of the statute

we think best . . . , but must limit ourselves to asking ‘whether

the agency’s answer is based on a permissible construction of

the statute.’ ” Marmolejo-Campos, 558 F.3d at 908 (quoting

Chevron, 467 U.S. at 843).

6The BIA decided the case at hand in an unpublished order. However,

it relied upon its interpretation of section 1158(b)(1)(B)(ii) as detailed in

In re J-Y-C-, 24 I. & N. Dec. 260 (B.I.A. 2007). “[W]e apply Chevron deference regardless of whether the order under review is the precedential

decision itself or a subsequent unpublished order that relies upon it.”

Marmolejo-Campos, 558 F.3d at 911. 

SINGH v. HOLDER 5737
[6] With section 1158(b)(1)(B)(ii), Congress has expressly

empowered the IJ to require corroborating evidence even

when the applicant has provided otherwise credible testimony.

Should the applicant fail to offer corroboration, the IJ may

conclude that despite the applicant’s credible testimony, he

has failed to meet his burden of demonstrating that he is entitled to asylum relief. Accordingly, the IJ’s conclusion that

Singh’s uncorroborated testimony was insufficient to carry his

burden to prove his date of entry was proper.

[7] Our dissenting colleague contends that the IJ erred by

failing to give Singh notice that his testimony required corroboration before concluding that he had failed to meet this

burden. According to the dissent, section 1158(b)(1)(B)(ii)

mandates a three-step process.7 Dissent at 5748-49. In the first

step, an IJ must determine whether an applicant’s uncorroborated testimony is insufficient to carry his burden. In the second step, the IJ must identify the portions of the applicant’s

testimony that require corroboration. In the third step, the IJ

must give the applicant an opportunity to provide that corroboration or an explanation for its absence. This interpretation

is belied by the statute’s text, which omits any reference to

such a procedure. As we explained in Aden v. Holder, by

enacting section 1158(b)(1)(B)(ii), Congress has made immigration litigation more like other litigation, where parties with

7

In addition, the dissent asks us to bifurcate another part of the IJ’s analysis. Although section 1158(b)(1)(B)(ii) provides the standard under

which an IJ assesses an asylum applicant’s credibility, the dissent argues

that the IJ should have evaluated the credibility of Singh’s claim that he

filed his asylum application within a year of entering the United States

under 8 U.S.C. § 1229a(c)(4)(B). Dissent at 5746-48. We disagree. Under

the dissent’s approach, which was neither raised nor briefed by the parties,

an IJ would be forced to assess an asylum applicant’s credibility with

respect to threshold matters (such as his date of entry) under section

1229a(c)(4)(B) and assess his credibility with respect to substantive matters (such as his well-founded fear of persecution) under section

1158(b)(1)(B)(ii). We see no evidence that the REAL ID Act bifurcates an

IJ’s credibility determination in this way, and accordingly reject this interpretation. 

5738 SINGH v. HOLDER
the burden of proof ordinarily provide whatever corroboration

they have when presenting their case in chief. 589 F.3d at

1045. Thus, just as a plaintiff in a car accident case provides

the body shop invoice and his medical records to corroborate

his damages claims, an applicant in an asylum case is now

expected to provide evidence corroborating the factual assertions underlying his claim for relief. See id. Thus, while the

statute permits an IJ to give an applicant notice that his testimony requires corroboration, it does not require that he do so.

See Rapheal v. Mukasey, 533 F.3d 521, 530 (7th Cir. 2008).

We accordingly reject the dissent’s interpretation.

Moreover, we are not at liberty simply to impose the dissent’s interpretation of the statute on the BIA. Even if the statute were ambiguous, we would only need to determine

“whether the agency’s [interpretation] is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843.

Because the BIA has exercised its authority to interpret section 1158(b)(1)(B)(ii), its decision “governs if it is a reasonable interpretation of the statute—not necessarily the only

possible interpretation, nor even the interpretation deemed

most reasonable by the courts.” Entergy Corp. v. Riverkeeper,

Inc., 129 S. Ct. 1498, 1505 (2009).

The BIA has held that by “adding the provisions regarding

corroboration, Congress intended to codify the BIA’s corroboration standards” contained in In re S-M-J-. In re J-Y-C-, 24

I. & N. Dec. at 263 (internal quotation marks, alterations, and

citation omitted); see also Rapheal, 533 F.3d at 527 (concluding that the REAL ID Act “codified” the corroboration rule of

In re S-M-J-).8 These standards state that “where it is reason8The BIA relied heavily on legislative history to reach this result. See

In re J-Y-C-, 24 I. & N. Dec. at 263 (citing H.R. Rep. No. 109-72, at

165-66 (2005) (Conf. Rep.)). The conference report cited by the agency

quotes extensively from In re S-M-J-, and expresses the desire that “the

standards in Matter of S-M-J- . . . will guide the BIA and the courts in

interpreting” section 1158(b)(1)(B)(ii). See H.R. Rep. No. 109-72, at 166.

SINGH v. HOLDER 5739
able to expect corroborating evidence,” the applicant should

provide either the evidence “or an explanation of why she did

not provide [it].” In re S-M-J-, 21 I. & N. Dec. 722, 725

(B.I.A. 1997). Therefore, “ ‘an asylum applicant should provide documentary support for material facts which are central

to his or her claim and easily subject to verification . . . . The

absence of such corroborating evidence can lead to a finding

that an applicant has failed to meet [his] burden of proof.’ ”

In re J-Y-C-, 24 I. & N. Dec. at 263 (alterations in original)

(quoting In re S-M-J-, 21 I. & N. Dec. at 725-26). As this “is

certainly a plausible interpretation of the statute,” Entergy

Corp., 129 S. Ct. at 1505, it is entitled to deference.

[8] Accordingly, where it is reasonable to expect an applicant to provide documentary support for material facts which

are central to his claim and easily subject to verification, the

applicant should provide either the evidence or an explanation

of why she did not provide it. See In re J-Y-C-, 24 I. & N.

Dec. at 263 (citing In re S-M-J-, 21 I. & N. Dec. at 725-26);

see also Balachandran v. Holder, 566 F.3d 269, 273 (1st Cir.

2009) (“[I]t was reasonable to expect [the applicant] to secure

corroboration from his family in Canada.”); Krishnapillai v.

Holder, 563 F.3d 606, 619 (7th Cir. 2009) (“[There was] no

error in the Immigration Judge’s expectation that [the applicant] produce additional evidence to corroborate his account

of past persecution. . . . It was not unreasonable for the judge

to look for corroboration from [the applicant’s] wife in particular . . . .”); Sandie v. Att’ Gen., 562 F.3d 246, 252 (3d Cir.

2009) (“[A]n applicant for asylum must provide reliable evidence to corroborate testimony when it is reasonable to expect

corroborating evidence and there is no satisfactory explanation for its absence. It is reasonable to expect corroboration

for testimony that is central to an applicant’s claim and easily

subject to verification.” (citation omitted)); Khan v. Mukasey,

541 F.3d 55, 58 (1st Cir. 2008) (“Where the alien’s testimony

is not itself compelling the absence of easily obtainable corroborating documentation can be the final straw. The BIA

correctly recognized that a lack of corroborating evidence

5740 SINGH v. HOLDER
could be fatal to [the applicant’s] case.” (internal quotation

marks and citation omitted)).

As we explained above, this does not mean asylum applicants must provide corroborating evidence to carry their burden of proof: credible testimony alone may still suffice. See

Aden, 589 F.3d at 1044. However, as the IJ maintains “substantial leeway” to require corroboration—the absence of

which “ ‘can lead to a finding that an applicant has failed to

meet [his] burden of proof’ ”—applicants are well advised to

provide it. See In re J-Y-C-, 24 I. & N. Dec. at 263 (quoting

In re S-M-J-, 21 I. & N. Dec. at 725-26); see also Aden, 589

F.3d at 1044-45. We also stress that corroboration may only

be required where “it is reasonable to expect” such evidence.

Aden, 589 F.3d at 1044-45. IJs are not to place unreasonable

demands on an asylum applicant.9Id.

[9] Turning to the case at hand, we have little difficulty

concluding that because an essential element of all asylum

claims is that they be “filed within 1 year” of the alien’s

arrival in the United States, 8 U.S.C. § 1158(a)(2)(B), an

applicant’s date of entry is a “ ‘material’ ” fact “ ‘central’ ” to

his claim, In re J-Y-C-, 24 I. & N. Dec. at 263 (quoting In re

S-M-J-, 21 I. & N. Dec. at 725-26). This is the sort of fact

which is “ ‘easily subject to verification,’ ” whether by some

form of official documentation or by supporting documents of

a more informal variety, i.e., affidavits or letters from family,

friends, or traveling companions. Id. Travelers typically accumulate paper as they move, such as receipts from gas stations,

9Although Singh himself raises no constitutional arguments, the dissent

claims that the BIA’s interpretation of the statute raises Fifth Amendment

concerns. Dissent at 5753-54. Although we have previously expressed due

process concerns when an IJ demanded corroborating evidence but did not

provide an asylum applicant with an opportunity to produce that evidence,

see Marcos v. Gonzales, 410 F.3d 1112, 1118 n.6 (9th Cir. 2005), we do

not believe those concerns are implicated here. The statute provides an

asylum applicant with sufficient notice that an IJ may require corroboration of his testimony even if he is credible. 

SINGH v. HOLDER 5741
motels, and restaurants, and often take snapshots providing

dating information, and reaching a refuge from persecution

might well generate a particular desire to preserve souvenirs

of arrival. Accordingly, it is eminently “reasonable to expect”

an applicant to provide some corroborating evidence of his

date of entry. In re S-M-J-, 21 I. & N. Dec. at 725.

[10] This is especially true in the case at hand, where

Singh was explicitly informed by an immigration officer that

he had failed to establish his date of entry and that his lack of

corroborating documents contributed to that failure. The need

for adequate documentation was further emphasized by the IJ

at an initial hearing, when he advised Singh’s counsel “to

bring whatever documents in the original form that he has to

court with him.”

10 Yet in response to queries from opposing

counsel during his testimony before the IJ, Singh admitted to

having no documents to corroborate his claim that he entered

this country on October 20, 2004.11 Singh made the same

admission to this court.

In any case, “the REAL ID Act clearly states that corroborative evidence may be required, placing immigrants on

notice of the consequences for failing to provide corroborative

evidence.” Rapheal v. Mukasey, 533 F.3d 521, 530 (7th Cir.

2008).

To hold that a petitioner must receive additional

notice from the IJ and then an additional opportunity

to provide corroborative evidence before an adverse

ruling, would necessitate two hearings—the first to

decide whether such corroborating evidence is

10This statement was immediately preceded by a reference to the “one

year bar.” A fuller understanding of the context is obscured by an “(Indiscernible)” notation in the record. 

11Singh initially claimed to have a letter corroborating his date of entry.

That letter says nothing about when he entered the United States; it only

indicates that he stayed at a particular temple in India in August 2004.

5742 SINGH v. HOLDER
required and then another hearing after a recess to

allow the alien more time to collect such evidence.

Id. We agree with the Seventh Circuit that “[t]his would add

to the already overburdened resources of the [Department of

Homeland Security], and such an approach would seem

imprudent where the law clearly notifies aliens of the importance of corroborative evidence.” Id.

[11] As Singh admitted that he had no documents to corroborate his date of entry, it was his burden to provide “an

explanation of why [ ]he did not provide such . . . evidence.”

In re S-M-J-, 21 I. & N. Dec. at 725; see also id. at 730

(“Further, the applicant has not provided any explanation for

the lack of information on these issues.”).12 Aside from his

bald assertion that he “could not reasonably be expected to

provide proof of when he entered the United States,” however, the record is devoid of any indication from Singh as to

why he was unable to corroborate such a basic fact. Contrary

to his contention, “[t]here is nothing in the nature of [Singh’s]

claims that would compel us to find that corroborating evidence was unavailable to him.” Eke v. Mukasey, 512 F.3d

372, 381 (7th Cir. 2008); Chhay v. Mukasey, 540 F.3d 1, 7

(1st Cir. 2008) (“Nothing offered by the petitioner compels us

to conclude that . . . she could not readily have obtained some

corroborating evidence as to her claimed party member12We note that the Third Circuit has cited its own decision in Abdulai

v. Ashcroft, 239 F.3d 542 (3d Cir. 2001) (interpreting In re S-M-J-), to

require the IJ to give the applicant notice of what aspects of his testimony

require corroboration and the opportunity to explain the absence of such

evidence. See, e.g., Sandie, 562 F.3d at 253. Such requirements are in tension with the fact that Congress has placed the burden of proof on the

applicant in asylum proceedings. 8 U.S.C. § 1158(b)(1)(B). Morever, neither In re S-M-J- nor Abdulai contain language to that effect. The requirements of In re S-M-J- have been described above. See supra pp. 5739-42.

Abdulai only states that when handing down its opinion, the BIA must

identify, for purposes of judicial review, the particular “aspects of [the

applicant’s] testimony it would have been reasonable to expect him to

have corroborated.” 239 F.3d at 554. 

SINGH v. HOLDER 5743
ship.”); cf. 8 U.S.C. § 1252(b)(4) (“No court shall reverse a

determination made by a trier of fact with respect to the availability of corroborating evidence . . . unless the court finds . . .

that a reasonable trier of fact is compelled to conclude that

such corroborating evidence is unavailable.”). Establishing

one’s date of entry does not require, for example, “corroboration from [a] persecutor,” In re S-M-J-, 21 I. & N. Dec. at

725, or documentation from an unfriendly government, cf.,

Khan, 541 F.3d at 58. As we discussed above, various “different kinds of materials might have served as corroborating evidence” of Singh’s date of entry; “it was [his] failure to

present” such material or an explanation for its absence “that

undermined his case in the IJ’s eyes.” Eke, 512 F.3d at 381.

[12] Without either corroborating evidence of Singh’s date

of entry or an explanation for this deficiency, we have no

choice but to conclude that the IJ did not err in barring

Singh’s application as untimely.13

III

Accordingly, Singh’s petition for review with respect to his

asylum claim is

DENIED.

BERZON, J., dissenting:

I respectfully dissent from the majority’s conclusion that

the Board of Immigration Appeals (“BIA”) properly interpreted and applied the appropriate corroboration provision in

this case.

13We note that nothing prevents an applicant from requesting “a continuance to obtain the [corroborating] materials” or “mov[ing] to reopen the

record to supply corroboration.” Chhay, 540 F.3d at 7 n.2. Singh did neither. 

5744 SINGH v. HOLDER
Nirmal Singh came to this country by crossing the U.S.-

Canadian border in a car, without inspection. So he has no airplane ticket stub or border crossing record to prove when he

came. Still, it was Singh’s burden to prove, and by “clear and

convincing evidence,” that he filed his asylum application

within a year of his arrival. 8 U.S.C. § 1158(a)(2)(B).

Singh testified to a date of arrival and gave some background facts concerning his departure from India which were

consistent with that date. He also introduced a document confirming that he had not left India before late August or September 2004, thereby corroborating to some degree his arrival

date but not with enough specificity to prove that the date he

ostensibly filed his asylum application, October 13, 2005, was

within a year after his arrival.

The IJ understandably developed a concern that without

some further corroboration there was not “clear and convincing” evidence of Singh’s arrival date. But the IJ never

expressed that concern to Singh. He did not ask Singh

whether he could provide further corroboration, suggest what

it might be, and, if Singh had no such evidence available, ask

why not. It is far from obvious that any further corroboration

of Singh’s trek across the border was available: Someone who

crosses the border illegally generates no official record of

having done so, and one unfamiliar at that point with our asylum law would have no reason to keep receipts of purchases

or places of accommodation.

The procedural details of the new corroboration requirements thus become critical here: May the immigration judge

fault an alien after the fact for failing to provide corroboration

of otherwise credible testimony? Or does the REAL ID Act

require some notice that the IJ will require corroboration and

an opportunity to explain why none is available if it is not?

My disagreement with the majority centers on these questions.

SINGH v. HOLDER 5745
I.

As a preliminary matter, I do not believe that 8 U.S.C.

§ 1158(b)(1)(B)(ii) applies to the one-year filing requirement

at issue in Singh’s case. Section 1158(b) addresses the manner

in which an asylum applicant can sustain his burden of proof

“to establish that [he] is a refugee, within the meaning of section 1101(a)(42)(A).”

1

 8 U.S.C. § 1158(b)(1)(B)(i). The oneyear bar, 8 U.S.C. § 1158(a)(1), was adopted by the Illegal

Immigration Reform and Immigrant Responsibility Act of

1996, Pub. L. No. 104-208, 110 Stat. 3009-546, and is not

part of the long-standing substantive definition of who qualifies as a “refugee.” See I.N.S. v. Cardoza-Fonseca, 480 U.S.

421, 427-28 (1987) (discussing the definition of “refugee” in

§ 1101(a)(42) as added by the Refugee Act of 1980, 94 Stat.

102).

Instead, it is 8 U.S.C. § 1229a(c)(4)(B) that applies to

Singh’s claim that he satisfied the one-year filing requirement.2

1Section 1101(a)(42)(A) in turn defines a “refugee” as 

any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any

country in which such person last habitually resided, and who is

unable or unwilling to return to, and is unable or unwilling to

avail himself or herself of the protection of, that country because

of persecution or a well-founded fear of persecution on account

of race, religion, nationality, membership in a particular social

group, or political opinion[.] 

2Section 1229a(c)(4)(B) provides: 

(B) Sustaining burden 

The applicant must comply with the applicable requirements to

submit information or documentation in support of the applicant’s application for relief or protection as provided by law or

by regulation or in the instructions for the application form. In

evaluating the testimony of the applicant or other witness in support of the application, the immigration judge will determine

whether or not the testimony is credible, is persuasive, and refers

to specific facts sufficient to demonstrate that the applicant has

5746 SINGH v. HOLDER
This provision, like § 1158(b)(1)(B)(ii), was added to the

Immigration and Nationality Act by the Real ID Act of 2005,

Pub. L. No. 109-13, 119 Stat. 231. In language similar but not

identical to § 1158(b)(1)(B)(ii), § 1229a(c)(4)(B) sets the

standard for sustaining an applicant’s burden that he has “satisfie[d] the applicable eligibility requirements” for “relief or

protection from removal.”

3

 § 1229a(c)(4)(A). Asylum is one

such form of relief from removal, and the one-year filing

requirement is an “applicable eligibility requirement[ ]” for

relief. 

So § 1229a(c)(4)(B) is the provision actually here applicable. As I note later, it differs in some ways that could possibly

satisfied the applicant’s burden of proof. In determining whether

the applicant has met such burden, the immigration judge shall

weigh the credible testimony along with other evidence of record.

Where the immigration judge determines that the applicant

should provide evidence which corroborates otherwise credible

testimony, such evidence must be provided unless the applicant

demonstrates that the applicant does not have the evidence and

cannot reasonably obtain the evidence. 

3That 8 U.S.C. § 1229a(c)(4)(B) applies to the one-year bar determination is confirmed by another statutory provision, 8 U.S.C. § 1231(b)(3)(C).

In the latter section, Congress directly incorporated the § 1158(b)(1)(B)(ii)

asylum corroboration standard as the standard applicable to withholding

of removal, but did so only for determination of “whether an alien has

demonstrated that the alien’s life or freedom would be threatened” based

on membership in a protected group. Section 1229a(c)(4)(B), therefore,

acts as the catchall provision for non-persecution related eligibility

requirements applicable to asylum and withholding of removal and

requirements for other forms of relief, such as relief under the Convention

Against Torture. (In Shrestha v. Holder, this Court applied an adverse

credibility determination, based in part on the corroboration standard

found in § 1158(b)(1)(B)(ii), to a claim for relief under the Convention

Against Torture. See 590 F.3d 1034, 1047-49 (9th Cir. 2010). The Shrestha court did not explain why it proceeded in this fashion, but it apparently thought, erroneously, that § 1158(b)(1)(B) and § 1229a(c)(4) are

identical. See id. at 1040. As we are not dealing with a CAT claim, Shrestha’s error in this regard does not affect this case.) 

SINGH v. HOLDER 5747
matter to the outcome of this case from the provision the BIA

applies and the majority discusses. Also, the recent BIA precedent on which the majority relies in the alternative dealt

with § 1158(b)(1)(B)(ii), not § 1229a(c)(4)(B). See Matter of

J—Y—C—, 24 I. & N. Dec. 260, 263, 265-66 (BIA 2007). No

deference based on Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984), can be

applicable to this case unless and until the BIA in a published

opinion interprets the statute that does apply here. See

Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir.

2009) (en banc). 

I would remand to the BIA for application of the correct

legal provision. See Azanor v. Ashcroft, 364 F.3d 1013, 1021

(9th Cir. 2004).

II.

However, even applying 8 U.S.C. § 1158(b)(1)(B)(ii) as

does the majority, I would hold that the BIA did not correctly

interpret and apply it to Singh’s claim.4 In my view, the language of the provision contemplates that an IJ will perform a

sequential analysis in assessing the strength of an applicant’s

testimony, any corresponding need for corroborating evidence, and the reasons requested corroborating evidence is

unavailable if it is. That sequence must proceed as follows:

First, the IJ must determine whether an applicant’s testimony

meets the applicant’s standard of proof. If not, an IJ may

require corroborating evidence. Second, the IJ must give an

applicant notice of the specific facts for which further corroboration is needed. Third, if no such corroboration is produced,

an IJ must provide the applicant an opportunity to explain on

the record why this evidence is not reasonably available. See

Toure v. Att’y Gen. of U.S., 443 F.3d 310, 323-24 (3d Cir.

4

I note in the remainder of this opinion when 8 U.S.C.

§ 1158(b)(1)(B)(ii) differs from § 1229a(c)(4)(B) in a way potentially pertinent to Singh’s claim. 

5748 SINGH v. HOLDER
2006) (vacating and remanding a post-REAL ID Act case

where the IJ did not provide an applicant “with notice and an

opportunity to present an explanation” for the absence of corroborating evidence and the IJ did not indicate she expected

such evidence until her oral ruling). Because the IJ did not

perform this analysis in Singh’s case, I respectfully dissent.

The majority treats § 1158(b)(1)(B)(ii) as permitting an IJ

to require corroborating evidence without making such a

threshold determination and, apparently, to do so with only

the broadest of notice and without inviting an opportunity to

explain why additional corroboration is unavailable. The

majority reaches this interpretation of the statute by assuming,

without deciding, that the statute is ambiguous, and holding

that if it is, we must grant Chevron deference to the BIA’s

interpretation of this provision, announced in Matter of J—Y

—C—, 24 I. & N. Dec. 260 (BIA 2007). See Maj. Op. at 5739;

Chevron, 467 U.S. at 842-43. Matter of J—Y—C—, the majority says, precludes my sequential reading of

§ 1158(b)(1)(B)(ii) because it made clear that the REAL ID

Act codified the “corroboration rule” of Matter of

S—M—J—, 21 I. & N. Dec. 722 (BIA 1997). See Maj. Op. at

5939-40. Under the “corroboration rule,” in the majority’s

view, applicants should expect that their failure to produce

corroboration satisfactory to the IJ for any fact on which they

rely in their application or their testimony could be grounds

for denial of asylum.

As I discuss below, the plain language of the provision

compels a conclusion opposite to that of the majority. In the

alternative, any ambiguity in the statutory language must be

read in light of due process concerns, precluding Chevron deference to the BIA as to the procedural questions. Moreover,

neither Matter of J—Y—C— nor Matter of S—M—J— directly

controls the question whether an IJ must provide notice to an

applicant of which portions of his application require corroboration and an opportunity to explain the absence of such evidence. As a result, even to the limited extent that

SINGH v. HOLDER 5749
§ 1158(b)(1)(B)(ii) admits of ambiguity, granting Chevron

deference to these precedential BIA decisions is of no assistance in resolving the question before us.

A.

The language of § 1158(b)(1)(B)(ii) provides in full:

(ii) Sustaining burden

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 testimony, such evidence must be provided unless the

applicant does not have the evidence and cannot reasonably obtain the evidence. 

Our circuit interpreted this provision in Aden v. Holder,

589 F.3d 1040 (9th Cir. 2009). Aden left open the question

whether § 1158(b)(1)(B)(ii) required “notice of [an applicant’s] need for [corroboration] and time to provide it,” as the

IJ in that case did continue the proceedings after identifying

for the petitioner the fact for which he would require corroboration. Id. at 1043. Moreover, Aden did not examine whether

an IJ is required to develop the record and enunciate his reasoning with respect to why desired corroborating evidence is

reasonably available. See id. at 1045-46. 

I therefore turn directly to the language of the statute. Contrary to the majority’s conclusion, the relevant language

5750 SINGH v. HOLDER
clearly establishes a sequential process: First, an IJ is to “determin[e] whether the applicant has met the applicant’s burden” and in doing so may “weigh the credible testimony along

with other evidence of record.” “Where”—which in this context is equivalent to “if” or “when,” see BRYAN A. GARNER, A

DICTIONARY OF MODERN LEGAL USAGE 928 (2d ed. 1995)—the

IJ in conducting this weighing is not fully persuaded by the

applicant’s “otherwise credible testimony,” he may “determine[ ] that the applicant should provide evidence that corroborates” the testimony. (Emphasis added.) The statute does

not use the term “should have provided,” in the present perfect tense, which would signal that the applicant could be

faulted after the fact for not having provided corroboration.

See United States v. Wilson, 503 U.S. 329, 333 (1992)

(“Congress’ use of a verb tense is significant in construing

statutes.”). Use of the word “should” thus expresses an imperative upon the applicant to provide further corroboration to

meet the applicant’s burden once the IJ identifies areas where

additional corroboration is needed. Moreover, necessarily

implicit in the future-oriented “should” construction is notice

to the applicant of the IJ’s determination.

The statutory language then continues in this vein, requiring that if the IJ determines that the applicant “should” provide corroborating evidence, then “such evidence must be

provided . . . .” (Emphasis added.) Again, and critically,

“must be provided” is conditional on the IJ’s determination

that corroborating evidence should be provided; it therefore

speaks to the future, seen from the perspective of the time the

IJ identifies the need for additional evidence, not the past. The

statute does not use “must have been provided” or some other

“backward looking” formulation. And again, the “must be

provided” future-oriented locution signals a requirement that

the applicant be informed of what is required. 

Finally, the statute provides an exception: the applicant

need not produce evidence corroborating otherwise credible

evidence if the applicant “does not have the evidence and canSINGH v. HOLDER 5751
not reasonably obtain it.” This exception follows the “must be

provided” language, and is stated, again, in the present and

future tenses, not the past tense. So the statute contemplates

a sequence in which the IJ first decides whether the applicant

“should” provide corroboration, and the applicant then has an

opportunity, if he does not provide it, to explain that he then

“does not have it and cannot”—not “was unable to”—

“reasonably obtain it.” The “cannot reasonably obtain it”

phrase is, once again, necessarily future-oriented. Why would

it matter whether the applicant “can”—now—obtain the information unless he is to be given the chance to “obtain it”? So

in this respect as well the language suggests a sequential process in which an applicant is to be given an opportunity to

comply rather than faulted—retrospectively and without

notice—for not bringing forward additional evidence he was

never told was needed. 

My plain reading of § 1158(b)(1)(B)(ii) would not require

the IJ to hold two hearings. See Maj. Op. at 5742-43 (quoting

Rapheal v. Mukasey, 533 F.3d 521, 530 (7th Cir. 2008)).

Rather, the sequential analysis would be a procedural protection, requiring an IJ to make a threshold determination that an

applicant’s otherwise credible testimony cannot alone meet

his burden before the IJ imposes further corroboration

requirements. If—as the majority contends—the need for such

evidence is generally foreseeable, most applicants will likely

have sought such corroboration before the hearing. So, once

corroboration is required, an applicant will most often explain

then and there why such evidence is unavailable, rather than

seeking a continuance. In other cases, an applicant may

request a continuance once he is on notice that a certain type

of corroboration, unexpected before his hearing, will be

required. That possibility is one that the majority concedes

under its reading of the statute. See Maj. Op. at 5744 n.13.5

5The majority also notes that “nothing prevents” an applicant from

requesting a motion to reopen to provide corroboration at a later time.

5752 SINGH v. HOLDER
Thus, neither the majority’s interpretation of

§ 1158(b)(1)(B)(ii) nor my own would automatically either

require or foreclose a second hearing.

B.

As I recount above, in my view the language of

§ 1158(b)(1)(B)(ii) is absolutely clear as to the sequential

analysis in which an IJ must engage. It is not as clear in

requiring notice to the alien and an opportunity to explain the

absence of corroboration—although, as I have explained,

those requirements are necessarily implicit in the sequence set

out. But even were I to agree that the majority’s alternative

reading of § 1158(b)(1)(B)(ii) as excluding notice and opportunity to explain requirements is a plausible interpretation of

an ambiguous statute, I could not so conclude in the face of

the due process concerns that interpretation creates. I would

instead apply the canon of constitutional avoidance, which

offers an alternative route to my reading of the provision and

eliminates any concern about deference to the BIA’s case law

—which, as I discuss below, is not contrary to my interpretation anyway. 

REAL ID changed the standards governing application for

asylum but did not affect the vitality of our Fifth Amendment

due process case law. That law requires a “full and fair hearing” in deportation proceedings. Campos-Sanchez v. I.N.S.,

164 F.3d 448, 450 (9th Cir. 1999). As a result, to the extent

Congress’s intent in drafting § 1158(b)(1)(B)(ii) is not quite

Maj. Op. at 5744 n.13. However, an alien must show that evidence presented with a motion to reopen was not “available and could not have been

discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).

As a result, if an IJ decides to require corroboration and finds that such

evidence was reasonably obtainable at the time of the initial hearing, the

BIA is highly unlikely to grant a motion to reopen. Such a reality underscores the need for notice of the need for corroboration once the IJ decides

to require it. 

SINGH v. HOLDER 5753
clear, “we are governed by the canon of constitutional avoidance, which requires a statute to be construed so as to avoid

serious doubts as to the constitutionality of an alternate construction.” Nadarajah v. Gonzales, 443 F.3d 1069, 1076 (9th

Cir. 2006). Applying this “tool for choosing between competing plausible interpretations of a statutory text, [which] rest[s]

on the reasonable presumption that Congress did not intend

the alternative which raises serious constitutional doubts,”

Clark v. Martinez, 543 U.S. 370, 381 (2005), reinforces my

conclusion that the REAL ID Act requires notice to the applicant that the IJ is requiring evidence corroborating his credible testimony and, if the applicant does not provide the

requested evidence, an opportunity to explain why he does not

have it and cannot obtain it. 

We have found a due process violation where the BIA did

not tell an alien “that his credibility was questionable, or that

any discrepancies appeared to exist[ ] nor . . . ask[ ] [him] to

explain any such perceived discrepancies” before making an

adverse credibility finding.6 Campos-Sanchez, 164 F.3d at

450; see also Abovian v. I.N.S., 219 F.3d 972, 978 (9th Cir.

2000). Moreover, due process requires “specific, cogent rea6Campos-Sanchez v. I.N.S., 164 F.3d 448 (9th Cir. 1999), like Abovian

v. I.N.S., 219 F.3d 972 (9th Cir. 2000), and Mendoza Manimbao v. Ashcroft, 329 F.3d 655 (9th Cir. 2003), considered a petition for review filed

before the adoption of 8 C.F.R. § 1003.1(d)(3)(I)(c), which limits to clear

error the BIA’s review of an IJ’s factual determinations. See Board of

Immigration Appeals: Procedural Reforms to Improve Case Management,

67 Fed. Reg. 54,902 (Aug. 26, 2002) (codified at 8 C.F.R.

§ 1003.1(d)(3)(i)), 54,905 (codified at § 1003.3(f)); see also Mendoza

Manimbao, 329 F.3d at 661 (discussing the import of § 1003.1(d)(3)(i) in

the context of credibility determinations). Because the BIA can no longer

review an IJ’s factual findings de novo, sufficient notice and an opportunity to explain inconsistencies must now be provided by the IJ. Consistently with this analysis, in Shrestha v. Holder, this Court relied on pre2002 case law that required the BIA to give specific reasons for an adverse

credibility determination in support of Shrestha’s conclusion that an IJ

must do the same, even after REAL ID. See 590 F.3d 1034, 1042 (9th Cir.

2010) (citing Castillo v. I.N.S., 951 F.2d 1117, 1121 (9th Cir. 1991)). 

5754 SINGH v. HOLDER
sons” for concern about an applicant’s credibility; “boilerplate

notice that [an alien’s] credibility is at issue would fall

short[.]” Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 662

(9th Cir. 2003) (alteration omitted). The rule that an IJ must

provide such explicit and specific reasoning for an adverse

credibility determination remains unchanged by REAL ID.

See Shrestha v. Holder, 590 F.3d 1034, 1042-43 (9th Cir.

2010).

At a minimum, then, our prior holdings suggest a serious

possibility that an IJ would deprive an alien of due process if

the IJ did not give an alien providing credible testimony specific notice as to the kind of corroborating evidence required

and an opportunity to explain on the record why he could not

provide it.

We have also specifically indicated that a demand for

immediate presentation of corroborating evidence, identified

as necessary only at an applicant’s hearing, would raise serious due process concerns “by depriving [the applicant] of his

guarantee of a reasonable opportunity to present evidence on

his behalf . . . .” Marcos v. Gonzales, 410 F.3d 1112, 1118 n.6

(9th Cir. 2005). There is no reason this constitutionally based

observation should be affected by the REAL ID Act either. I

would therefore hold that the language of § 1158(b)(1)(B)(ii)

must be read to avoid this serious concern by adopting an

understanding of the latent ambiguities that alleviates the constitutional concerns unless that interpretation “ ‘is plainly contrary to the intent of Congress.’ ” Oregon v. Ashcroft, 368

F.3d 1118, 1125 (9th Cir. 2004) (quoting Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council,

485 U.S. 568, 575 (1988)). 

I note as well that the constitutional avoidance approach

would eliminate any basis for deference to the BIA’s statutory

construction if the BIA’s construction is different from one

reached applying that approach, because “[t]he balance of

expertise . . . shifts against judicial deference to agency interSINGH v. HOLDER 5755
pretations when a constitutional line is about to be crossed.”

Williams v. Babbitt, 115 F.3d 657, 662 (9th Cir. 1997).

“When agencies adopt a constitutionally troubling interpretation, . . . we can be confident that they not only lacked the

expertise to evaluate the constitutional problems, but probably

didn’t consider them at all.” Id. But, as it turns out, the BIA’s

construction of the corroboration provision is not in fact different from the construction dictated by the constitutional

avoidance approach, so the deference issue just doesn’t arise.

C.

Matter of J—Y—C— and Matter of S—M—J— did not

decide the procedural issues with respect to which the majority purports to defer to those two cases in the event

§ 1158(b)(1)(B)(ii) is ambiguous. As a result, even if this statutory provision is in some respects ambiguous and principles

of constitutional avoidance do not apply, there is simply no

need to defer to these off-point BIA opinions.

Matter of J—Y—C—, 24 I. & N. Dec. 260, is certainly not

contrary to my due process-sensitive interpretation. It does

not address the procedural standards inherent in the language

of § 1158(b)(1)(B)(ii) and so does not merit deference on

these questions. 

In Matter of J—Y—C—, an IJ found an asylum applicant

not credible and also “noted that the respondent failed to produce corroborative documentary or testimonial evidence that

was reasonably available to him.” Id. at 261. On appeal of the

denial of the application, the BIA did not address whether the

applicant was or should have been given any notice of what

corroborating evidence was ultimately required, nor did it discuss whether the IJ offered the applicant an opportunity to

explain why the evidence was not available.7 Instead, the BIA

7The J—Y—C— opinion indicates that the applicant attempted to

explain the absence of specific corroborating evidence, suggesting that he

5756 SINGH v. HOLDER
simply listed three pieces of corroborating evidence that

should have been introduced but were not and stated that the

applicant “ha[d] not shown that such information was unavailable to him, as required by the [REAL ID] Act.” Id. at 265-66.

As such J—Y—C— is a purely substantive interpretation of

§ 1158(b)(1)(B)(ii). It does not address any procedural question or consider the statutory language in a procedural light,

and so is not at odds with my analysis of the statutory language of § 1158(b)(1)(B)(ii) as setting out a mandatory procedural sequence.

Nor are we bound to defer to Matter of J—Y—C—’s more

general conclusion that Congress codified the BIA’s earlier

precedent of Matter of S—M—J—, 21 I. & N. Dec. 722, when

it passed the REAL ID Act. S—M—J— did not consider any

particular statutory language or focus on procedural questions.

My conclusions regarding the new corroboration provision’s

procedural requirements turn on the precise language used

and not on broad generalizations concerning legislative intent.

Moreover, even if we were to defer to Matter of

S—M—J—, to the extent that case has implications for the

procedure for requiring corroboration after REAL ID, it supports rather than contradicts my conclusion. In Matter of S—

M—J—, the BIA recognized that an applicant claiming a fear

of future persecution could be credible and yet fail to meet her

burden of proof. As a result, it held, an applicant could be

required to “provide background evidence so that her claim

can be evaluated in the broader context of the conditions of

her country.” Id. at 731. Moreover, it stated:

[W]e also expect general corroborating evidence,

from a reliable source, of persecution of persons in

may have had some notice of what evidence the IJ sought and an opportunity to contest its requirement. See 24 I. & N. Dec. at 265-66 (“The

respondent first claimed that [the absence of statements from family to

corroborate his claim] was because [his relatives] were illiterate but later

indicated that he never sought such documents [from them].”). 

SINGH v. HOLDER 5757
circumstances similar to an applicant where such

information is readily available. In the example of

the union vice-president, for example, we would

expect general information that union members in

her country faced persecution. However, specific

documentary corroboration of an applicant’s particular experiences is not required unless the supporting

documentation is of the type that would normally be

created or available in the particular country and is

accessible to the alien, such as through friends, relatives, or co-workers.

Id. at 726. Although it is clear from this and other language

in S—M—J— that the BIA offered prescriptive guidance

about the types of corroborating information that an applicant

should bring to be secure in his application, the opinion does

not resolve whether an IJ must consider the strength of an

applicant’s testimony before requiring additional corroborating evidence, or whether the IJ must provide notice to the

applicant of what kind of additional evidence is necessary. 

As to providing an applicant with an opportunity to explain

the absence of corroborating evidence, S—M—J— states that

an IJ “must ensure that the applicant’s explanation [for why

corroborating evidence is unavailable] is included in the

record.” Id. at 724. Thus, contrary to the Majority’s assertion,

Maj. Op. at 5743-44, S—M—J— clearly requires an IJ to

develop the record with regard to whether corroborating evidence is available and if not, why not.

III.

In light of my understanding of the statute, I conclude that

the IJ did not correctly apply § 1158(b)(1)(B)(ii) to Singh’s

claim. I have no grievance with the IJ’s initial decision to look

to corroborating evidence in this case, even given Singh’s presumption of credibility,8

 particularly given the high, “clear

8Because the IJ did not make an adverse credibility finding with respect

to any portion of Singh’s testimony, Singh is afforded a “rebuttable pre5758 SINGH v. HOLDER
and convincing” evidence burden of proof on the applicant

with respect to the one-year bar. However, I would hold that

the IJ erred by not giving Singh notice that the letter Singh

introduced as corroboration for the one-year filing requirement was insufficient or that the IJ was requiring something

more. The IJ also erred by not developing the record enough

for us meaningfully to review whether additional corroborating evidence was reasonably available.

“Common sense establishes that it is escape and flight, not

litigation and corroboration, that is foremost in the mind of an

alien who comes to these shores fleeing detention, torture and

persecution.” Senathirajah v. I.N.S., 157 F.3d 210, 216 (3d

Cir. 1998). As a result, as the BIA recognized in Matter of S

—M—J—, “[i]t is hardly possible for a refugee to ‘prove’

every part of his case . . . .” 21 I. & N. Dec. at 725 (quoting

Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining

Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, ¶ 203, at 48 (1992)).

Where, as here, an IJ nonetheless is not fully satisfied that the

alien’s own credible testimony satisfies his burden of proof,

it will rarely be self-evident what kind of evidence would be

sufficient or whether that evidence is reasonably available. On

my reading of the statute, the alien must be told, at least in

general terms, what sort of corroboration the IJ is looking for

and given the chance to explain why it is not available if it is

not.

A.

The majority maintains that Singh had sufficient notice in

this case because the IJ told Singh’s counsel “to bring whatever documents in the original form that he has to court with

sumption of credibility on appeal.” 8 U.S.C. § 1158(b)(1)(B)(iii). The government has not attempted to rebut that presumption. 

SINGH v. HOLDER 5759
him.” Maj. Op. at 5742. But the IJ’s surrounding comments

make plain that the IJ wanted documents to corroborate

Singh’s identity, not a document indicating Singh’s date of

entry.9

In any event, such a vague instruction cannot pass muster

as notice in the context of Singh’s detailed application,10 just

as the general language of REAL IDand the asylum application form do not provide sufficient notice of the corroboration

that an IJ ultimately chooses to require.11 These are general

9The IJ stated: 

Okay, Mr. Ketter, again, please advise your client to bring

whatever documents in the original form that he has to court with

him. He has some time before the issuance, or before the case is

set for the actual merits hearing, that is going to be just about a

month. In [sic] Indian Consulate has a web site, which indicates

that lost or stolen passports can be replaced, or the temporary

travel documents can be issued in as little as, I believe five days

notice, and they can be issued on the grounds for evidence such

a[s] school documents, driving licenses, and so forth. Frequently

the same documents that are given to the Immigration Court, his

identity documents, are the documents the Indian Government

will receive, and issue their [sic] own document. 

So that being said, take a look at the web site, if you think it

is appropriate, and if not, have your client bring whatever documents he has. . . . 

(Emphasis added). 

10Among other facts alleged in Singh’s asylum application, Singh specified twelve dates on which important events occurred, several instances of

torture and the specific places at which the torture took place, the names

of locations where Singh sought medical treatment, and several attempts

by Singh’s family and himself to seek refuge in other specified locations.

11The I-589 application, which Singh completed, advised that he

“should attach documents evidencing the general conditions in the country

from which you are seeking asylum or other protection and the specific

facts on which you are relying to support your claim. If this documentation is unavailable or you are not providing this documentation with your

application, please explain why in your responses to the following questions.” 

5760 SINGH v. HOLDER
statements, divorced from the individualized, sequential

assessment contemplated by § 1158(b)(1)(B)(ii). 

The majority also notes that the asylum officer, when

declining to grant asylum, indicated that Singh failed to establish his entry within one year of applying for asylum, seeing

that assessment as adequate to advise Singh of the need for

corroborating evidence of his arrival in the United States. See

Maj. Op. at 5742. But the asylum officer’s referral does not

indicate whether Singh introduced at his asylum interview a

copy of the letter from Nainital upon which he relied as corroboration for his claim before the IJ, nor do we have a transcript of what Singh said or was told during his interview with

an asylum officer. 

Moreover, immigration court proceedings are, as a general

matter, entirely independent of proceedings before an asylum

officer. An asylum officer may grant asylum but not deny it,

8 C.F.R. § 1208.14(c)(1), and any refusal to grant asylum is

considered entirely de novo by an IJ in removal proceedings,

Singh v. Gonzales, 403 F.3d 1081, 1086 n.2 (9th Cir. 2005).

An asylum officer’s advice when refusing to grant asylum

therefore cannot be controlling in removal proceedings as a

basis for denying asylum.12

12The statutory provision that the BIA and majority should have applied

to Singh’s claim, 8 U.S.C. § 1229a(c)(4)(B), provides even stronger support for the conclusion that an IJ must make a determination on the record

that an applicant’s testimony alone is not sufficient to satisfy the applicant’s burden before requiring corroborating evidence. Compare 8 U.S.C.

§ 1229a(c)(4)(B) (“In evaluating the testimony of the applicant or other

witness in support of the application, the immigration judge will determine

whether or not the testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant has satisfied the

applicant’s burden of proof.”) with 8 U.S.C. § 1158(b)(1)(B)(ii) (“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.”). 

SINGH v. HOLDER 5761
Moreover, Singh submitted with respect to the one-year bar

a document that corroborated, to some extent, his date of

entry. In addition to several documents regarding country

conditions in India, Singh provided eleven documents to corroborate the facts to which he testified and his identity, or to

demonstrate his efforts to obtain such corroboration. Among

these documents was a letter from the head of a temple in

Nainital, India, confirming that Singh stayed at the temple for

nearly a month in August 2004 before leaving for Delhi. 

Singh contended that this letter corroborated his date of

entry in October 2004. While not confirming the precise date,

the letter did strengthen—and in that sense corroborate—

Singh’s testimony, by showing that the earliest Singh could

have arrived in the United States was September 2004, after

his stay in Nainital. See BLACK’S LAW DICTIONARY 596 (8th

ed.) (defining “corroborating evidence” as “[e]vidence that

differs from but strengthens or confirms what other evidence

shows”). The letter was also consistent with Singh’s detailed

testimony, in which he indicated that he was arrested on

August 14, 2004, by the authorities in India, went to Nainital

in August 2004 for one month, and then went to Delhi, where

he stayed for thirty days before leaving India.

At no time did the IJ ask any questions to follow up on the

need for corroboration or to indicate that the letter from the

temple was insufficient to corroborate Singh’s testimony.

Only after closing the record did the IJ explain to Singh:

You traveled to Canada on a false passport in

someone else’s name, and we do not have any documentation from Canada of when you arrived. You

entered the United States without inspection, so we

have no record of when you entered this country, and

this issue was raised at the Asylum Office, and they

also found that you had not proven when you entered

the country. 

5762 SINGH v. HOLDER
Now you have a document from the Gurdwar in

India. Sir, just listen right now. This is not a discussion. You have a document from a Gurdwar before

you left India, but that does not prove when you

came into the United States. So I do not find that you

filed a timely application. (Emphasis added.) 

It is therefore clear that the IJ did not indicate until after the

close of evidence that the letter Singh introduced, which did

to some degree corroborate Singh’s testimony, was insufficient, nor did the IJ give Singh an opportunity to explain the

absence of additional corroborating evidence. The IJ therefore

erred. See Toure, 443 F.3d 310.

B.

Nor did the IJ give Singh an opportunity to explain why he

could not reasonably provide other evidence corroborating his

date of entry. As a result, we have no basis upon which to

determine whether the IJ substantively erred in requiring such

evidence here. See Chukwu v. Att’y Gen. of U.S., 484 F.3d

185, 192 (3d Cir. 2007) (noting that a court reviewing an IJ’s

decision to require corroborating evidence “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”); see also Ghaly v.

I.N.S., 58 F.3d 1425, 1430 (9th Cir. 1995) (requiring the BIA

to “provide a comprehensible reason for its decision sufficient

for [the Court] to conduct [its] review and to be assured that

the petitioner’s case received individualized attention”). That

such an explicit determination is required for review is supported by the language of 8 U.S.C. § 1252(b)(4), the applicable judicial review provision, which directs that “[n]o court

shall reverse a determination made by a trier of fact with

respect to the availability of corroborating evidence, as

described in section 1158(b)(1)(B) [or] 1229a(c)(4)(b) . . .

unless the court finds . . . that a reasonable trier of fact is comSINGH v. HOLDER 5763
pelled to conclude that such corroborating evidence is unavailable.”13 (Emphasis added.)

Nowhere in the IJ’s oral ruling or in the merits hearing

transcript did the IJ make a determination that additional corroborating documents were reasonably available to Singh.14

Thus, we have no way of determining why the IJ thought corroborating evidence of Singh’s entry, beyond what Singh

already produced, was reasonably available, if he did. And the

BIA’s opinion does nothing to alleviate this problem. 

The majority fills this gap by adopting what appears to be

a per se rule that corroboration of date of entry is “easily subject to verification” and “eminently reasonable to expect.”

Maj. Op. at 5741-42 (internal quotation omitted). I very much

doubt that the REAL ID Act corroboration provisions, dependent as they are on IJ determinations and weighing of facts,

permit court-imposed, across-the-board rules of this kind. But

13This standard has been described as a “heightened” one, Shrestha v.

Holder, 590 F.3d at 1047, which it is as compared with our earlier standard regarding the availability of corroborating evidence. The new statutory standard of review regarding corroboration is the same, though, as

that used to review other factual findings. See 8 U.S.C. § 1252(b)(4)(B)

(providing that “administrative findings of fact are conclusive [on a court

reviewing an order of removal] unless any reasonable adjudicator would

be compelled to conclude to the contrary”). 

14Precisely where the burden falls with regard to the availability of additional corroborating documents may depend on whether 8 U.S.C.

§ 1158(b)(1)(B)(ii) or § 1229a(c)(4)(B) applies. Compare 8 U.S.C.

§ 1158(b)(1)(B)(ii) (“Where 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.”) with 8 U.S.C.

§ 1229a(c)(4)(B) (“Where the immigration judge determines that the

applicant should provide evidence which corroborates otherwise credible

testimony, such evidence must be provided unless the applicant demonstrates that the applicant does not have the evidence and cannot reasonably

obtain the evidence.”). As the IJ in Singh’s case made no determination

regarding the availability of corroborating documents, he erred regardless

of the applicable statutory provision. 

5764 SINGH v. HOLDER
even if there are some circumstances that admit of such

edicts, this per se rule cannot stand. It would have the effect

of rendering asylum unobtainable for most people who enter

without inspection, as Singh’s circumstances illustrate. 

Singh stated that he had given his real passport to an agent

before leaving India and “snuck across the border” into the

United States. Just as “[p]ersecutors are hardly likely to provide their victims with affidavits attesting to their acts of persecution,” Bolanos-Hernandez v. I.N.S., 767 F.2d 1277, 1285

(9th Cir. 1984), so smugglers are hardly likely to offer a

receipt for their services. In some cases, asylum seekers might

immediately meet family or friends in the United States who

can later attest to their time of arrival, but many will arrive

alone and encounter only strangers on their first days in the

country. They may be transported or provided lodging by the

smugglers, who, again, are unlikely to provide receipts or be

available to testify. And, although asylum seekers may on

occasion take buses or stay in public places of lodging upon

their arrival, they are unlikely to know American asylum law

sufficiently well to hoard receipts so they can later prove their

date of entry. Most of them surely will not “take snapshots”

during their journey and collect “souvenirs,” Maj. Op. at

5742, as the majority naively envisions. The majority’s supposition that an illegal entry is “easily subject to verification”

is, in short, fanciful.

* * * * *

For these reasons, I would grant Singh’s petition and

remand to the BIA to decide the case under the proper statutory provision. Alternatively, I would remand with instructions to consider whether the IJ’s holding can be sustained on

any alternative ground raised before the BIA, and if not, to

remand to the IJ to provide Singh with an indication of the

sort of corroboration required and an opportunity to provide

it or to explain on the record why he cannot. I therefore

respectfully dissent.

SINGH v. HOLDER 5765