Ren v. Holder

Under the Real ID Act of 2005, an immigration judge’s adverse credibility determination must be supported by substantial evidence in light of the totality of the circumstances. Additionally, when corroborative evidence is required by an immigration judge under the Real ID Act the “applicant must be given notice of the corroboration required, and an opportunity to either provide that corroboration or explain why he cannot do so.”

Yaogang Ren sought “asylum, withholding of removal, and protection under the Convention Against Torture (‘CAT’).” He testified, with some minor inconstancies about dates, that he was subject to religious persecution in China. The immigration judge (IJ) notified Ren that evidence corroborating his claims of religious persecution in China and religious practice in the U.S. was required to meet the burden of proof. The case was continued for five months to allow Ren to produce the evidence. Ren did not produce the requested evidence and gave no explanation for his failure to do so. The IJ held (1) that Ren’s testimony was not credible because of the inconsistencies, and (2) even if Ren’s testimony was credible he failed to meet his burden of proof because he did not present the requested evidence or explain why the requested evidence could not be obtained. The Ninth Circuit reasoned that the IJ mischaracterized Ren’s testimony and that the inconstancies noted by the IJ were trivial. The Court also reasoned that, with respect to requiring corroborative evidence, the text of the Real ID Act focuses on future conduct “that follows the IJ’s determination, not precedes it.” The Ninth Circuit held (1) that given the “totality of the circumstance” the “IJ’s adverse credibility determination is not supported by substantial evidence,” and (2) “that Ren received adequate notice and an opportunity to respond to the IJ’s request for corroborative evidence, that he failed to provide such evidence or any explanation as to why it was unavailable, and that the IJ was not compelled to conclude that Ren met his burden of proof without the corroborating evidence that she requested.” REVERSED in part and AFFIRMED in part.