Rapheal, Colcer v. Mukasey, Michael B.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-1391

C OLCER R APHEAL,

a/k/a A SHLEY A MBER M ANNING,

Petitioner,

v.

M ICHAEL B. M UKASEY, Attorney

General of the United States,

Respondent.

____________

On Petition for Review of an Order

of the Board of Immigration Appeals.

No. A99-024-532

____________

A RGUED N OVEMBER 2, 2007—D ECIDED JULY 2, 2008

____________

Before M ANION, R OVNER, and E VANS, Circuit Judges.

M ANION, Circuit Judge. Colcer Rapheal sought asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”). An Immigration Judge (“IJ”)

denied Rapheal’s petitions, finding that she was not

credible and that without any evidence to corroborate

her claims of persecution and torture, she failed to estab-

lish a right to relief. Rapheal appealed to the Board of

Immigration Appeals (“Board”), and the Board affirmed

based solely on the lack of corroborative evidence. Because

2 No. 07-1391

Rapheal’s hearing before the IJ did not conform to statu-

tory requirements, we grant the petition for review and

remand for a new hearing.

I.

Colcer Rapheal is a native and citizen of Liberia. On

January 6, 2006, Rapheal flew from Germany to the United

States and illegally entered the United States in Chicago,

using a false United States passport issued to “Ashley

Amber Manning.” Rapheal initially claimed that she

was Manning and presented both a passport and a

driver’s license in Manning’s name. Only after immigra-

tion officers spoke with the real Manning by phone did

Rapheal admit that the passport was false. Rapheal, who

had been living in Nigeria and was also a citizen of

Nigeria based on her marriage to a Nigerian, then told

immigration officials that she was afraid to return to

Nigeria.

After the airport interview, on January 25, 2006, the

Department of Homeland Security (“DHS”) issued Rapheal

a Notice to Appear (“NTA”), charging her with

removability as an alien who sought to procure admis-

sion to the United States by fraud or willful misrepre-

sentation of a material fact, and falsely representing her-

self to be a United States citizen. Rapheal admitted to

removability, and the IJ found Rapheal removable as

charged and designated Germany, or alternatively

Liberia, as the country of removal.

Rapheal then applied for asylum, withholding of re-

moval, and CAT relief. On March 1, 2006, the IJ held a

hearing via video conference, at which Rapheal pre-

sented evidence and testified in support of her petitions.

No. 07-1391 3

Rapheal stated that her father, Michael Rapheal, was a

well-known doctor for former Liberian President Charles

Taylor and was “very active” in his regime in Liberia. This

conflicted with a handwritten notation added to a typed

immigration form stating that Rapheal’s maiden name

was Colcer Kocoker. The signature “Rapheal” appears

next to the added handwritten notation, as it does at the

end of the form. Rapheal also claimed that her family

was well known in Liberia as supportive of Taylor because

her father and mother often appeared in newspaper

photographs along with Taylor. Rapheal further testi-

fied that rebels blamed her father for acting as a voodoo

doctor for Taylor, using his skills to help Taylor “use

voodoo to trick and charm” Liberians, and that she was

forced to flee Liberia after the rebels murdered her

family and seriously injured her.

After fleeing Liberia, Rapheal went to a refugee camp

in Nigeria. Rapheal testified that while at the refugee

camp she was raped multiple times by camp guards and

when she resisted, the guards hit and burned her with a

metal rod. Rapheal also testified that a guard at the

camp cut her thumb off so that she could have a “taste of

the pain” that Taylor caused the Nigerian people. She

later married a Nigerian, John Clifford Bernard, whom

she had met at the camp, and together they had two

children. Bernard was murdered and then her children

were killed in a fire. Rapheal claims the fire was pur-

posely set by Nigerian government agents because of her

husband’s political activities.

The IJ found that Rapheal was not credible because

she had earlier told immigration officers that her maiden

name was Kocoker. Although Rapheal testified that she

had never heard the name Kocoker before, the IJ found

4 No. 07-1391

her testimony not credible given that she had signed the

earlier statement listing her maiden name as Kocoker. The

IJ determined that the inconsistencies relating to her

name and identity went to the heart of her claim that

she would be harmed in Liberia because the “vast major-

ity” of her claim “rests on her assertion that the Rapheal

name is well-known as a supporter of Charles Taylor.”

Further, the IJ noted that Rapheal had failed to submit

any corroborative evidence relating to her identity, her

parents’ identity, her husband’s identity, or evidence that

the Rapheal family was well-known in Liberia. Addition-

ally, the IJ found that she did not provide any explana-

tion for her lack of corroborative evidence. The IJ then

denied Rapheal asylum, withholding of removal, and CAT

relief because under the REAL ID Act she did not meet

“her burden of proof through credible, consistent testi-

mony or a combination of testimony and corroboration.” IJ

Decision at 27. The IJ ordered Rapheal removed to Ger-

many, with an alternate order of removal to Liberia.

Rapheal appealed to the Board. The Board dismissed

Rapheal’s appeal, concluding that the IJ properly found

that Rapheal failed to meet her burden of proof for

asylum, withholding of removal, and CAT relief because

“she did not provide corroborative evidence and could

have done so . . . .” Board Decision at 2. The Board con-

cluded that it need not reach the issue of Rapheal’s credi-

bility because Rapheal was not entitled to relief given

her lack of corroborative evidence. Rapheal petitions

this court for relief.

II

Rapheal petitioned for asylum, withholding of removal,

and CAT relief. In order to qualify for asylum, Rapheal

No. 07-1391 5

must show that she meets the statutory definition of

“refugee.” Tapiero de Orejuela v. Gonzales, 423 F.3d 666,

671 (7th Cir. 2005). A refugee is defined as an individual

who is unwilling to return to her native country “because

of persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a

particular social group, or political opinion.” 8 U.S.C.

§ 1101(a)(42). Even if a petitioner qualifies as a refugee,

asylum is still a discretionary decision. Angoucheva v.

INS, 106 F.3d 781, 788 (7th Cir. 1997). Conversely, a peti-

tion for withholding of removal must be granted if “the

alien’s life or freedom would be threatened . . . because

of the alien’s race, religion, nationality, membership in a

particular social group, or political opinion.” Firmansjah v.

Gonzales, 424 F.3d 598, 604-05 (7th Cir. 2005). However, to

establish entitlement to withholding of removal “the

applicant must demonstrate a ‘clear probability’ that he

or she will face persecution in the country to which he

or she will be removed.” Id. at 605. The “clear probability”

standard requires an applicant to show that it is “more

likely than not” that she will be subject to persecution

if returned to her native country, a more stringent test

than the standard for establishing eligibility for asylum.

Id. The standard for CAT relief differs: “Relief under the

CAT does not have to be on account of membership in

a social group or political opinion to qualify for relief.”

Pavlyk v. Gonzales, 469 F.3d 1082, 1090 (7th Cir. 2006).

However, to obtain relief under the CAT, Rapheal must

establish that it is more likely than not that if removed

she will be subject to torture. Boyanivskyy v. Gonzales, 450

F.3d 286, 292 n.3 (7th Cir. 2006).

On appeal, Rapheal does not distinguish between her

claims for asylum, withholding of removal, or CAT relief

6 No. 07-1391

(“petitions”). Rather, she asserts that the Board erred in

denying all of her petitions based on her failure to pro-

vide corroborating evidence. In making this argument,

Rapheal initially contends that our review is limited to the

Board’s rationale (and not the IJ’s) because the Board

issued its own free-standing opinion, as opposed to

adopting or supplementing the opinion of the IJ. Rapheal

is correct that “[w]hen the [Board] issues its own opin-

ion rather than adopting or merely supplementing the

opinion of the IJ, this court’s task is to review only the

opinion of the [Board].” Moab v. Gonzales, 500 F.3d 656, 659

(7th Cir. 2007). Conversely, “where the [Board’s] decision

merely supplements the opinion of the IJ, ‘the IJ’s opinion,

as supplemented by the [Board’s] opinion, becomes the

basis for review.’ ” Id. (quoting Liu v. Ashcroft, 380 F.3d 307,

311 (7th Cir. 2004)). The government counters that the

Board’s decision was a single-member decision, issued

pursuant to 8 C.F.R. § 1003.1(e)(5),1 that affirmed in part

1

Section 1003.1(e)(5) provides: “Other decisions on the merits

by single Board member. If the Board member to whom an

appeal is assigned determines, upon consideration of the merits,

that the decision is not appropriate for affirmance without

opinion, the Board member shall issue a brief order affirming,

modifying, or remanding the decision under review, unless the

Board member designates the case for decision by a three-

member panel under paragraph (e)(6) of this section under

the standards of the case management plan. A single Board

member may reverse the decision under review if such reversal

is plainly consistent with and required by intervening Board

or judicial precedent, by an intervening Act of Congress, or by

an intervening final regulation. A motion to reconsider or to

reopen a decision that was rendered by a single Board member

(continued...)

No. 07-1391 7

and supplemented in part the IJ’s decision, and thus we

review the IJ’s decision as supplemented by the Board.

There is nothing in the text of the Board’s decision to

indicate whether it was issued pursuant to § 1003.1(e)(5) or

was a three-member panel decision issued pursuant to

§1003.1(e)(6). In the final analysis, though, as explained

below, our decision would be the same whether we

were reviewing the Board’s decision only or the IJ’s

decision as supplemented by the Board. However, in the

future the Board should exercise greater care in identi-

fying whether its decision is intended to be a stand-alone

decision or rather a supplement to the IJ’s decision.

That brings us back to Rapheal’s claim that the Board

erred in requiring her to provide corroborative evidence.

More specifically, Rapheal claims that the Board could

not require her to provide corroborative evidence with-

out making an explicit credibility finding. In support of

her argument, Rapheal cites Gontcharova v. Ashcroft, 384

F.3d 873, 877 (7th Cir. 2004). In that case, this court estab-

lished a three-part inquiry for reviewing a Board’s denial

of asylum based on the lack of corroboration. Specifically,

this court held that if the Board denies asylum based on

the lack of corroboration, the agency’s explanation

should include “(1) an explicit credibility finding; (2) an

explanation of why it is reasonable to expect additional

corroboration; and (3) an account of why the petitioner’s

explanation for not producing that corroboration is

inadequate.” Id. Rapheal argues that the Board’s decision

1

(...continued)

may be adjudicated by that Board member unless the case is

reassigned to a three-member panel as provided under the

standards of the case management plan.”

8 No. 07-1391

must be reversed because it did not satisfy the mandate

of Gontcharova.

Rapheal’s reliance on Gontcharova is misplaced because

Congress has since enacted the REAL ID Act of 2005,

which amended the law regarding credibility and corrobo-

ration for asylum and withholding of removal cases. Our

decision in Gontcharova came before passage of the REAL

ID Act and interpreted a predecessor regulation, 8 C.F.R.

§ 208.13(a). Gontcharova, 384 F.3d at 876. That regulation

provided that for purposes of establishing eligibility for

asylum, “[t]he testimony of the applicant, if credible, may

be sufficient to sustain [her] burden of proof without

corroboration.” 8 C.F.R. § 208.13(a). Prior to the REAL ID

Act, the Board interpreted the phrase “may be sufficient”

in § 208.13(a) “to mean that the applicant’s testimony,

though credible, will not always be sufficient.” Gontcharova,

384 F.3d at 876 (emphasis in original). More specifically,

in Matter of S-M-J, 21 I. & N. Dec. 722, 725 (BIA 1997),

the Board adopted the corroboration rule that provides

that under § 208.13(a), “where it is reasonable to expect

corroborating evidence for certain alleged facts per-

taining to specifics of an applicant’s claim, evidence

should be provided . . . [or] an explanation should be

given as to why such information was not presented.”

Gontcharova, 384 F.3d at 876 (quoting Matter of S-M-J, 21

I. & N. Dec. at 725).

We explained in Gontcharova that the Board’s interpreta-

tion of § 208.13(a) is not the only one possible, and then

explained the then-existent circuit split: The Second and

Third Circuits endorsed the Board’s interpretation of the

regulation, while the Ninth Circuit interpreted the reg-

ulation as meaning that it “does not require corrobora-

tive evidence . . . from applicants for asylum and with-

No. 07-1391 9

holding of deportation who have testified credibly.”

Gontcharova, 384 F.3d at 876 (quoting Ladha v. INS, 215 F.3d

889, 899 (9th Cir. 2000)). We then noted in Gontcharova

that “[w]e have expressed skepticism about the use of the

corroboration rule to discount otherwise credible testi-

mony.” Id. at 877. However, rather than rejecting the

Board’s corroboration rule out of hand, we held that “[i]n

order that we may review its application, . . . an IJ must

explain his use of it,” and set forth the three-step inquiry

noted above. Id. at 877.

The REAL ID Act, however, codified the corroboration

rule, overriding any judicial skepticism of the Board’s

interpretation of § 208.13(a) expressed in Gontcharova.

Specifically, the REAL ID Act provides that “[w]here 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.” 8 U.S.C. § 1158(b)(1)(B)(ii). The REAL ID Act,

thus, changed the framework for reviewing cases in which

the Board rejects a petition for asylum based on the lack of

corroborating evidence. See Eke v. Mukasey, 512 F.3d 372,

381 (7th Cir. 2008) (noting that “[t]he Real ID Act changed

the landscape for our review of this type of claim,” namely

claims that the IJ erred in requiring corroborating evi-

dence). Under the REAL ID Act, if the fact-finder deter-

mines that an applicant should provide corroborating

evidence, corroborating evidence is required unless the

applicant cannot reasonably obtain that evidence. More-

over, under the REAL ID Act, corroborating evidence

may be required even if the applicant is credible. 8 U.S.C.

§ 1158(b)(1)(B)(ii). By codifying the corroboration rule,

Congress removed any doubt as to the validity of that

rule. Thus, the Gontcharova three-part test, established

10 No. 07-1391

for purposes of assessing the validity of the INS’s de-

batable interpretation of the corroboration rule, no

longer controls.

Although Gontcharova no longer controls, given the

nature of the Board’s ruling (along with the IJ’s to the

extent we consider it), we conclude that, in this case, the

Board needed to consider Rapheal’s credibility before

ruling on the need for corroborative evidence. That is

because in ruling that Rapheal needed to provide cor-

roborative evidence (given the conflicting documents in

the record), the Board treated Rapheal as if she were

not credible. The Board did this, though, without first

reviewing the IJ’s credibility finding. Specifically, the

Board stated that although Rapheal’s father’s name is

Michael Rapheal, Rapheal had told the asylum officer

that her maiden name was “Kocoker.” The Board added

that Rapheal’s signature appeared on the immigration

form by a handwritten notation that her maiden name

was “Kocoker.” Rapheal, however, testified before the IJ

that she had never heard of the word Kocoker and had

told the immigration officials that her maiden name was

Rapheal and had also told them that there were mis-

takes on the immigration form, which they had promised

to correct. Had the Board found Rapheal credible, that

would mean that the immigration officials had incor-

rectly noted Kocoker as Rapheal’s maiden name, and

the disparity would not serve as a basis for requiring

corroborative evidence. Similarly, to the extent we con-

sider the IJ’s decision, the IJ’s holding that Rapheal must

provide corroborative evidence was directly tied to the IJ’s

finding that she was not credible. Specifically, after thor-

oughly analyzing Rapheal’s petitions, the IJ concluded:

The respondent indicates that the only basis for her

mistreatment is that (sic) her family’s notoriety and

No. 07-1391 11

association with the former government of Charles

Taylor. I have previously found that the respondent’s

evidence relating to a nexus between alleged harm

and her family connection is not credible. The respon-

dent’s testimony on that issue was inconsistent and not

corroborated. The respondent’s uncorroborated inconsis-

tent testimony fails to meet the burden that it is more

likely than not that she would be tortured on that

basis as well.

IJ Decision at 28 (emphasis added).

This passage, along with the reasoning the IJ em-

ployed throughout its opinion, makes clear that the IJ

determined that corroborative evidence was required

because Rapheal was not credible. This is not a case of the

IJ ruling alternatively, i.e., holding that even if Rapheal

were credible, her petition would be denied because of the

lack of corroborative evidence. Similarly, in analyzing the

need for corroborative evidence, the Board also noted the

discrepancy between Rapheal’s current testimony and the

immigration forms—which Rapheal claims contained

errors. While the REAL ID Act provides that the govern-

ment may require corroborative evidence even if the

petitioner is credible, it also provides that “[t]he testimony

of the applicant may be sufficient without corroboration,

but only if the applicant’s testimony is credible, is persua-

sive and refers to specific facts.” 8 U.S.C. § 1158(b(1)(B)(ii).

Thus, if the Board (or IJ) had found Rapheal’s testimony

credible, Rapheal might not have been required to provide

corroboration. Yet on appeal, the Board bypassed the

credibility finding, while presenting the conflicting facts as

if she were not credible. The credibility finding was also

inextricably intertwined with the IJ’s ruling on the need

for corroborative evidence. Accordingly, before relying on

12 No. 07-1391

disputed evidence about what Rapheal had said her

maiden name was, the Board needed to determine whether

Rapheal was credible.

Rapheal also claims that the Board erred in denying her

petitions because it was unreasonable for the Board to

expect her to present corroborative evidence of her

father’s relationship with Charles Taylor. The IJ also

believed that Rapheal needed to provide evidence to

corroborate her identity, given the conflicting evidence

concerning Rapheal’s name, maiden name, and hus-

band’s name. Rapheal maintains that there was no way

for her to provide corroborative evidence in the form of

newspaper articles or other documentary support to

show her father’s relationship with Taylor, given that

she was fleeing for her life and did not have time to

accumulate old newspaper articles. She adds that given

the chaos in Liberia, such evidence is not available.

Rapheal further claims that she could not obtain corrobo-

rating evidence while detained in the United States;

however, if detention in the United States was sufficient

for finding such evidence unavailable, corroborating

evidence could rarely be required. Rapheal has the bur-

den of proof in asylum cases, see 8 U.S.C. § 1158(b)(1)(B)(I),

and thus must prove that corroborative evidence is not

reasonably available. Yet in this case, Rapheal did not

present any evidence to the IJ indicating that she at-

tempted to obtain corroborative evidence, either per-

sonally or with the assistance of others. In fact, when the

IJ asked whether any corroborating evidence existed, this

exchange occurred:

Q: Now ma’am, you had testified that your father

was well-known in Liberia. Is that correct?

A: Yes, sir.

No. 07-1391 13

Q: And ma’am, if he is so well-known in Liberia, why

have you not been able to present anything to me,

to show that he was well-known in Liberia?

A: Because I didn’t leave home in peaceful home.

I didn’t left home with peace.

Q: Well, is there any information anywhere in the

media regarding your family in Liberia?

A: I wouldn’t know. I wouldn’t know.

While Rapheal offered a plausible explanation for why

she did not bring corroborating evidence with her when

she fled, Rapheal’s response that she “wouldn’t know”

whether there was any information anywhere in the

media regarding her family indicated that she did not

make any attempt to obtain corroborative evidence.

Moreover, during the hearing before the IJ, Rapheal did

not claim that she attempted to locate corroborative

evidence, nor did she indicate that such evidence would

be unavailable. Under these circumstances, and given

that the burden of proof is on Rapheal, we cannot say

that the IJ or the Board erred in holding that corrobo-

rating evidence was reasonably attainable. See 8 U.S.C.

§ 1252(b)(4) (“No court shall reverse a determination

made by a trier of fact with respect to the availability of

corroborating evidence . . . unless the court finds . . . that

a reasonable trier of fact is compelled to conclude that

such corroborating evidence is unavailable.”).2

2

It is reasonable to believe that Liberian libraries or the

newspaper publishers themselves retain older newspapers, or

universities in other parts of the world that study Liberia

maintain a collection of Liberian newspapers or television

(continued...)

14 No. 07-1391

Rapheal responds that before ruling against her for

failing to produce corroborative evidence, the IJ needed

to warn her of the need for such evidence and that the

IJ’s failure to do so violated her due process rights. Initially

we note that because on appeal Rapheal continues to

maintain that it would be impossible to obtain any cor-

roborative evidence, the IJ’s failure to warn her could not

prejudice her. In any event, Rapheal did not raise this

issue before the Board. “Although petitioners generally

do not have to exhaust due process claims administra-

tively, they must raise such claims below when alleging

procedural errors correctable by the BIA.” Sharashidze v.

Gonzales, 480 F.3d 566, 570 (7th Cir. 2007). Had Rapheal

raised this issue before the Board it could have, if appro-

priate, remanded the case to the IJ. Therefore, we lack

jurisdiction to review her claim. See 8 U.S.C. § 1252(d)(1)

(noting that a court may review an agency’s final order

only if the alien has exhausted all administrative rem-

2

(...continued)

broadcasts. Likewise, it is possible that Rapheal could obtain

some evidence to corroborate her and her family’s identity

and other aspects of her testimony. In noting these possibilities,

we are fully cognizant that documentation in disordered nations

and Third World nations is not “as regular, multicopied, and

ubiquitous . . . as in the United States.” Hor v. Gonzales, 421

F.3d 497, 501 (7th Cir. 2005). However, Rapheal bears the burden

of showing that corroborative evidence is not reasonably

obtainable and she must do more than just say, in effect,

I couldn’t get any supporting evidence. Moreover, as noted

below, see infra at 22-23, corroborative evidence is the only

hope for Rapheal if the IJ finds that she is not credible and, thus,

there is a need for Rapheal to explore every possible avenue

for corroborative evidence.

No. 07-1391 15

edies as of right). Finally, we add that the REAL ID Act

clearly states that corroborative evidence may be required,

placing immigrants on notice of the consequences for

failing to provide corroborative evidence. See 8 U.S.C.

§ 1158(b)(1)(B)(ii) (“Where the trier of fact determines

that the applicant should provide evidence that corrobo-

rates otherwise credible testimony, such evidence must be

provided unless the applicant does not have the evidence

and cannot reasonably obtain the evidence.”). To hold

that a petitioner must receive additional notice from the

IJ and then an additional opportunity to provide corrobo-

rative evidence before an adverse ruling, would neces-

sitate two hearings—the first to decide whether such

corroborating evidence is required and then another

hearing after a recess to allow the alien more time to

collect such evidence. This would add to the already

overburdened resources of the DHS, and such an ap-

proach would seem imprudent where the law clearly

notifies aliens of the importance of corroborative evidence.

Normally, at this point we would remand the case to the

Board to rule on Rapheal’s credibility, and then based on

the Board’s credibility holding, to rule anew on the need

for corroborative evidence. However, in this case, Rapheal

also argues that the hearing before the IJ violated her

due process and statutory rights. Specifically, Rapheal

argues that the IJ violated her due process and statutory

rights by holding the hearing on her petitions via video

conference, as opposed to in person. Accordingly, we

must now determine whether Rapheal is entitled to a

new hearing before the IJ.

In arguing that her due process rights were violated,

Rapheal first argues, in effect, that 8 C.F.R. § 1003.25(c) is

facially unconstitutional. See Appellant Brief at 30 (“[T]he

16 No. 07-1391

use of video conferencing in removal proceedings denies

aliens seeking asylum a meaningful opportunity to effec-

tively present their case. Accordingly, this court should

declare that 8 C.F.R. § 1003.25(c) is unconstitutional

because it infringes upon aliens’ right to due process.”)

Section 1003.25(c) provides:

Telephonic or video hearings. An Immigration Judge

may conduct hearings through video conference to the

same extent as he or she may conduct hearings in

person. An Immigration Judge may also conduct a

hearing through a telephone conference, but an evid-

entiary hearing on the merits may only be conducted

through a telephone conference with the consent of

the alien involved after the alien has been advised of

the right to proceed in person or, where available,

through a video conference, except that credible fear

determinations may be reviewed by the Immigration

Judge through a telephone conference without the

consent of the alien.

8 C.F.R. § 1003.25(c).

Congress specifically authorized proceedings by means

of a video conference. See 8 U.S.C. § 1229a(b)(2)(A)(iii). “In

cases claiming due process violations in immigration

proceedings, we recently have reminded petitioners that

proceedings which meet the statutory and regulatory

standards governing the conduct of removal hearings, as a

general rule, comport with due process.” Alimi v. Gonzales,

489 F.3d 829, 834 (7th Cir. 2007). Only where Congress has

“adopted some specific rule that is open to constitutional

doubt” would it “be necessary (and appropriate) to con-

sider constitutional claims.” Rehman v. Gonzales, 441 F.3d

506, 508 (7th Cir. 2006). Rapheal has not shown any

doubt about the constitutionality of hearings via video

No. 07-1391 17

conference. No court has ever held that Congress has

violated the due process clause by authorizing removal

hearings to proceed via video conference. See Eke, 512

F.3d at 382. In fact, the Fourth Circuit found that a

video conference hearing satisfied the due process re-

quirement set forth in Mathews v. Eldridge, 424 U.S. 319,

333-34 (1976), and provided the petitioner with an “oppor-

tunity to be heard at a meaningful time and in a mean-

ingful manner,” even though the three-hour hearing “was

plagued by communication problems.” See Rusu v. INS,

296 F.3d 316, 319, 324 (4th Cir. 2002).3 In short, Rapheal’s

facial challenge to the constitutionality of video

conferencing fails because Congress authorized such

proceedings and those proceeding provide an adequate

opportunity to be heard in a meaningful manner and at

a meaningful time. See Mathews, 424 U.S. at 333-34.

Rapheal also challenges the use of video conferencing in

her case (i.e., an as-applied challenge), claiming that

the video conference proceedings prevented her from

having an opportunity to be heard in a meaningful man-

ner. Rapheal’s as-applied argument does not challenge

the validity of the statutes and procedures that governed

her removal proceeding. “We have remarked before on

the tendency of flabby constitutional arguments to dis-

place more focused contentions. . . . Aliens should stick

with claims based on the statutes and regulations unless

they believe that one of these rules violates the Constitu-

tion or that lacunae in the rules have been filled with

defective procedures.” Rehman, 441 F.3d at 508-9. Because

3

This court in Eke also rejected a due process challenge to

video conferencing, albeit by concluding that there was no

prejudice. Eke, 512 F.3d at 383.

18 No. 07-1391

Rapheal’s as-applied challenge (as opposed to her facial

challenge) is not based on a claim that the rules them-

selves violate the Constitution, the appropriate focus is

not on constitutional principles, but on the statutory

procedures established for removal procedures, see Rehman,

441 F.3d at 509, which Rapheal also challenges.

First, Rapheal argues that the use of video confer-

encing violated her statutory right to legal representation.

Section 1229a(b)(4)(A) defines the statutory right at issue,

providing: “In proceedings under this section, under

regulations of the Attorney General-(A) the alien shall have

the privilege of being represented, at no expense to the

Government, by counsel of the alien’s choosing who is

authorized to practice in such proceedings.” 8 U.S.C.

§ 1229a(b)(4)(A). Rapheal claims the use of video con-

ferencing interfered with her ability to consult with

her attorney because her attorney was forced to either be

with her at the distant site, or be in the courtroom

where she would have superior access to evidence and

the ability to confer with the court and opposing counsel.

Rapheal also claims that the video conference arrange-

ment prevented her from conferring confidentially with

her attorney.

Although attorneys might not like having to choose

between sitting beside their clients or before the IJ, under

either scenario the alien receives the benefit of legal

representation. Moreover, there is nothing in the record

in this case to indicate that the video conferencing inter-

fered with Rapheal’s attorney’s representation. To the

contrary, the transcript of the hearing demonstrates that

Rapheal was ably represented. Rapheal counters that the

video conferencing prevented her from consulting confi-

dentially with her attorney. However, neither Rapheal

No. 07-1391 19

nor her attorney at any time during the hearing re-

quested to talk in private. Therefore, Rapheal cannot

now complain that she was prevented from conferring

confidentially with her attorney. Accordingly, under the

circumstances of this case we conclude that Rapheal’s

statutory right to legal representation was not violated.

Rapheal also argues that the video conference prevented

the government from contemporaneously transferring

documents between the detention facility and the court-

room and left her without an opportunity to review the

evidence against her. Again, although Rapheal presents

this as both a constitutional and statutory challenge, as

we have said, “[t]here is no need to invoke the Constitu-

tion when the immigration statute itself guarantees a

fair hearing.” Kadia v. Gonzales, 501 F.3d 817, 824 (7th Cir.

2007). In this case, the statutory right is found in 8 U.S.C.

§ 1229a(b)(4)(B), which provides that “the alien shall

have a reasonable opportunity to examine the evidence

against the alien, to present evidence on the alien’s own

behalf, and to cross-examine witnesses presented by the

Government.”

Whether a video conference allows aliens a reasonable

opportunity to examine the evidence against them will

depend on the circumstances. In most cases, documents

can be properly examined from afar by the alien. Or those

documents might not be material to the case or the IJ’s

decision. 4 In this case, however, the Record of Sworn

Statement (“Immigration Report”) was material to

Rapheal’s case, and the IJ relied on it in finding Rapheal

4

Of course, the government could always arrange to have

a second set of documents available at the distance-site for

review by the alien.

20 No. 07-1391

not credible. The Immigration Report was a summary

prepared by immigration officials of what Rapheal told

them during their questioning of her, and the Immigra-

tion Report contained a handwritten notation listing

Rapheal’s maiden name as Kocoker. Although Rapheal

testified that she never heard the name Kocoker, the IJ

found that Rapheal was not credible because the Immigra-

tion Report indicated that she had earlier told immi-

gration officers that her maiden name was Kocoker.

Thus, the Immigration Report proved highly relevant to

Rapheal’s case and the IJ’s decision. Rapheal claims that

given the weight the IJ placed on this handwritten nota-

tion, she should at least have had the opportunity to re-

view the document, but was unable to do so because of

her remote location. While the transcript in this case

reflects references made to the Immigration Report,

nowhere does it indicate that Rapheal was actually able to

see the document. Moreover, the record contains only a

written transcript of the proceedings, so we have no video

recording to determine whether Rapheal was shown the

Immigration Report, and if so, whether she was able to

adequately view the document. Under these circumstances,

we must conclude that the IJ denied Rapheal her rights

under 8 U.S.C. § 1229a(b)(4)(B) to a reasonable opportunity

to examine evidence used against her.5

5

Rapheal also claims that the government violated her statu-

tory right to a “reasonable opportunity to present evidence on

[her] own behalf.” 8 U.S.C. § 1229a(b)(4)(B). At the video

conference hearing, Rapheal presented testimony from a

doctor who treated her and she testified on her own behalf.

While there were some sections of the proceedings where

Rapheal’s testimony was incomprehensible, it appears the

(continued...)

No. 07-1391 21

The government argues that Rapheal’s due process

claims (reframed above in their proper statutory form) fail

because she cannot prove prejudice. To succeed on a claim

that she did not receive a fair hearing, Rapheal must

demonstrate prejudice. Hussain v. Keisler, 505 F.3d 779,

781 (7th Cir. 2007). We have explained that prejudice

means that the lack of a fair hearing “actually had the

potential for affecting the outcome” of the proceedings. See

Kuciemba v. INS, 92 F.3d 496, 501 (7th Cir. 1996) (internal

citation omitted).

In this case, although Rapheal’s attorney did not object

to the admission of the document, during the hearing

Rapheal testified that there were mistakes on the form

and that she had told the immigration officers of those

mistakes and that they had promised to correct them. Yet

at the hearing, Rapheal did not have an opportunity to

review the Immigration Report or the handwritten nota-

tion listing her maiden name as “Kocoker” or what pur-

ported to be her signature next to the notation. Rapheal’s

review of the Immigration Report and her testimony after

reviewing the Immigration Report has the potential for

affecting the IJ’s view of her credibility and in turn the

outcome of this case.6 Accordingly, Rapheal is entitled to

5

(...continued)

difficulty flowed from the speed of Rapheal’s testimony (as the

IJ and her attorney had to request several times that she

slow down), rather than the video conference technology. In

any event, we have reviewed the entire transcript and con-

clude that the video conference did not interfere with Rapheal’s

ability to present evidence on her own behalf.

6

The Immigration Report included Rapheal’s signature on

page two next to the handwritten notation stating her maiden

(continued...)

22 No. 07-1391

a new hearing. Of course, at the new hearing, the IJ

might nonetheless find Rapheal not credible, but that

will only be after Rapheal has received the statutory

rights guaranteed her by Congress.

In closing, we note that because the government denied

Rapheal a hearing that conformed to her statutory rights,

she is entitled to a new hearing and at that new hearing

there is no reason that Rapheal cannot provide any corrob-

orating evidence she has been able to obtain. While, on

appeal, her attorney claimed there was no way to obtain

corroborating evidence, we have posited some possible

avenues of inquiry. If none pans out, then Rapheal could at

least testify about her efforts to obtain corroborating

evidence. Alternatively, on remand after a new hearing, the

IJ may find Rapheal credible and that there is no need for

corroborative evidence or that corroborative evidence is

unavailable based on additional evidence of Rapheal’s

attempts to locate such evidence. However, if the IJ

again finds that Rapheal is not credible, without corrob-

orative evidence she will be unable to succeed on her

claims for relief. See 8 U.S.C. § 1158(b)(1)(B)(ii) (“The

testimony of the applicant may be sufficient to sustain the

6

(...continued)

name as “Kocoker.” Rapheal’s signature also appeared at the

end of the Immigration Report, where she verified that her

answers are “true and correct” and that the “statement is a

full, true and correct record of my interrogation.” The Immigra-

tion Report then states that Rapheal initialed each page of the

statement and the corrections noted on pages six and seven.

However, as noted above, Rapheal also initialed page two of

the statement next to the addition of “Kocoker” as her maiden

name.

No. 07-1391 23

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.”). Finally, we note that although video

conferencing is available and satisfies constitutional and

statutory standards, in this case the government’s decision

to hold a video conference seems strange because the

government had to transport Rapheal a greater distance

to participate in the video conferencing than the distance

it would have had to bring her to attend the hearing

live before the IJ. On remand, we encourage the IJ

to consider anew Rapheal’s request for an in-person

hearing, given the logistics involved in this case.7

III.

Congress authorized the use of video conferencing for

immigration hearings and, facially, this authorization

comports with the requirements of due process. While

Rapheal also presents an as-applied due process chal-

lenge, those claims are properly considered as challenges

to the claimed denials of her statutory rights. The use of

video conferencing, even though it separates attorneys

from their clients, does not violate the statutory right to

representation and, in this case, did not deny Rapheal

her right to representation. The hearing also provided

7

On appeal, Rapheal also argues that the IJ abused its discre-

tion in denying her an in-person hearing. We need not reach

this issue, however, because we are remanding the case for a

new hearing and on remand the IJ may exercise its discretion

differently.

24 No. 07-1391

Rapheal with a reasonable opportunity to present evidence

on her own behalf. However, from the record in this

case, we conclude that Rapheal did not have a chance to

review the Immigration Report admitted against her. Given

the significance the IJ placed on the handwritten nota-

tion of “Kocoker” in the Immigration Report, remand is

required to allow Rapheal to review that document and to

testify following her review of the document. On remand,

because Rapheal is entitled to a new hearing that comports

with statutory requirements, Rapheal is free to present

any corroborative evidence she has obtained. The IJ is

also free to judge her credibility and the need for corrobo-

rative evidence, as consistent with the evidence presented

at the new hearing. We G RANT the petition for review and

R EMAND for proceedings consistent with this opinion.

USCA-02-C-0072—7-2-08