On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A088-515-143.
The opinion of the court was delivered by: Kleinfeld, Circuit Judge
Argued and Submitted February 12, 2009 -- Pasadena, California.
Before: Andrew J. Kleinfeld, Carlos T. Bea and Sandra S. Ikuta, Circuit Judges.
We address corroboration in this asylum case under the REAL ID Act.
Abdirisaq Hassan Aden entered the United States from Mexico at the San Ysidro, California, port of entry. He conceded removability and, with the help of counsel, applied for asylum. He presented himself as a Somalian from a minority clan who feared persecution from the two dominant clans.
His account of Somalian life is horrific. He testified that he is from the Bilisyar (or Biliser) subclan of the Wardey clan, though he also stated that the name of his clan was WarduyAli or Madaheweyne. In 2003, when Hassan was fourteen, Hawiye men invaded the family home, and while he hid under the bed, they raped one of his sisters and abducted a woman who was visiting. The Hawiye men got Hassan Aden out from under the bed, pointed a gun at him and threatened to kill him, and beat him with a metal pole. Another time, Hawiye men accused him of spying for the Darod clan and beat him into unconsciousness. The Hawiye beat him again at a Hawiye militia checkpoint when he could not come up with a sufficient bribe.
Three of Hassan Aden's brothers (he had ten siblings and seven half-siblings) were killed, one by a bomb, one accused by Hawiye men of spying for the Darod, one at a Hawiye militia checkpoint. Hassan Aden and his father decided that he should leave Somalia, though Hassan Aden's family and also his wife remain there. His father sold eight of his fifteen cows and paid $4,180 to a Hawiye smuggler who got him out of Mogadishu to Dubai, then Mexico, where he came across the U.S. border.
The Immigration Judge was skeptical of Hassan Aden's account. He doubted that Hassan Aden was the impoverished illiterate from a mud hut that he testified he was because photographs found in Hassan Aden's possession showed him looking affluent in clothes that would go fine in America, and one showed him with a book with English on the cover, in which Hassan Aden testified that he wrote accounts when he traveled to the village to sell the family's produce. (Hassan Aden explained that his father wrote the words, he could read but not write words, and he wrote only numbers.) Hassan Aden also testified that he learned English by watching movies on video cassette, which added to the IJ's suspicion that Hassan Aden's family was not poor as he claimed.
The IJ doubted that Hassan Aden was as bereft of English as he said for another reason, that he sometimes answered the questions before the translator translated them. Importantly, as relates to Hassan Aden's asylum claim, the IJ was skeptical of Hassan Aden's story that he hid but was found, and that all the men in his family ran away leaving the women to the Hawiye.
Most centrally, the IJ doubted that there was such a clan as the Bilisyar or Wardey, because none of the country materials produced by either side mentioned either name, and he doubted that Hassan Aden was a member of the claimed clan. Hassan Aden's claim for asylum was that he was persecuted on account of being a member of the Bilisyar subclan of the Wardey clan. Because of his doubts, the IJ continued the hearing and requested that Hassan Aden produce corroboration regarding existence of the clan and Hassan Aden's membership in it. At the resumed hearing, Hassan Aden produced three things that he said he had obtained by calling the Somali community in San Diego, which in turn contacted the Somali community in Minneapolis. All three are unsworn documents from Minneapolis labeled "affidavit," one saying that Abdirisaq "Hussein Adan" was a member of the Wardaa clan, the other two saying that they had personal knowledge of the Wardey-Ali clan and the Bilisyar subclan, because they had lived in the Lower Juba region near Goobweyo (where Hassan Aden had testified he was from). The IJ remained unsatisfied, because none of the three writers claimed to know Hassan Aden and no anthropological or other country evidence from scholarly sources was produced to show that the Bilisyar or Wardey clans actually existed.
The IJ denied Hassan Aden's application for asylum and withholding of removal under the Convention Against Torture. The IJ specifically declined to make any adverse credibility determination, but held that Hassan Aden's failure to produce adequate corroboration for his ...