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 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”) 2 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, 3 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. …
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