A recent decision by the Ninth Circuit reveals how attorney error can destroy an alien’s asylum case.

In Singh v. Holder, No. 08-70434 (9th Cir. April 19, 2010), the Ninth Circuit concluded that an IJ may require corroborating evidence even where an alien has testified credibly.  In the underlying case, the question before the IJ was whether Mr. Singh had filed for asylum within one year of his arrival in the United States (in general, an alien who does not file for asylum within one year of arriving in the U.S. is ineligible for asylum).  The IJ found that Mr. Singh testified credibly about his arrival date in the U.S., but the IJ concluded that Mr. Singh had failed to prove his entry date by “clear and convincing” evidence because he did not submit any additional evidence of his entry date.

The Ninth Circuit found that the IJ could require corroboration of the entry date.  The Court held:

With section 1158(b)(1)(B)(ii) [the REAL ID Act], 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.

This result is not that surprising.  The REAL ID Act, which went into effect on May 11, 2005, provides that, “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.”  In Singh, the Court concluded that evidence corroborating Mr. Singh’s entry date was readily available:

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.  Travelers typically accumulate paper as they move, such as receipts from gas stations, 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

While I am not sure I agree that people fleeing persecution “typically accumulate paper as they move,” Mr. Singh should at least have tried to get evidence concerning his entry.  Had he made an effort to obtain corroboration, he would likely have satisfied the REAL ID Act’s requirement to either obtain the evidence or demonstrate that the evidence is not reasonably available.

The REAL ID Act went into effect in 2005.  According to the Ninth Circuit decision, the IJ informed Mr. Singh’s counsel at an initial hearing to obtain evidence concerning the date of entry.  Either Mr. Singh’s attorney asked his client for the evidence or he did not.  If he asked and Mr. Singh failed to make any effort to obtain the evidence, then Mr. Singh is to blame for the loss.  If the attorney failed to instruct Mr. Singh to get evidence, then the attorney is to blame.