Singh v. Holder

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.

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.

I.

As a preliminary matter, I do not believe that 8 U.S.C. § 1158(b)(l)(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)(l)(B)(i). The one-year 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. Cardozar-Fonseca, 480 U.S. 421, 427-28, 107 S.Ct. 1207, 94 L.Ed.2d 434 *993(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 This provision, like § 1158(b)(l)(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)(l)(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 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)(l)(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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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).

*994II.

However, even applying 8 U.S.C. § 1158(b)(l)(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.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)(l)(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 989; Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. 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 989. 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 § 1158(b)(l)(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 *995The 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)(l)(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 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 “determinen 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, 112 S.Ct. 1351, 117 L.Ed.2d 593 (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 cannot reasonably obtain it.” This exception follows the “must be provided” language, and is stated, again, in the present and future tenses, not the past *996tense. 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)(l)(B)(ii) would not require the IJ to hold two hearings. See Maj. Op. at 990-91 (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 991 n. 13.5

Thus, neither the majority’s interpretation of § 1158(b)(l)(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)(l)(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)(l)(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 *997F.3d 448, 450 (9th Cir.1999). As a result, to the extent Congress’s intent in drafting § 1158(b)(l)(B)(ii) is not quite 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. 371, 381, 125 S.Ct. 716, 160 L.Ed.2d 734 (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 reasons” 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)(l)(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 *998the 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, 108 S.Ct. 1392, 99 L.Ed.2d 645 (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 interpretations 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 eases in the event § 1158(b)(l)(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)(l)(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 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)(l)(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)(l)(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 pro*999cedural 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 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 applicants 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 991, 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)(l)(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 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 *1000detention, 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 him.” Maj. Op. at 990. 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 ID and the asylum application form do not provide sufficient notice of the corroboration that an IJ ultimately chooses to require.11 These are general statements, divorced from the individualized, sequential assessment contemplated by § 1158(b)(l)(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 990-91. But the asylum officer’s referral does not indicate whether Singh introduced at his asylum *1001interview 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

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 “[evidence 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.

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 *1002you 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 compelled 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 rea*1003sonable to expect.” Maj. Op. at 990 (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 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 “[persecutors 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 990, 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.