Interim Decision #3303

Interim Decision #3303

In re S-M-J-, Applicant

Decided January 31, 1997

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) General background information about a country, where available, must be included in the

record as a foundation for an applicant’s claim of asylum and withholding of deportation.

(2) Where the record contains general country condition information and an applicant’s claim

relies primarily on personal experiences not reasonably subject to verification, corroborating documentary evidence of the asylum applicant’s particular experience is not required;

but where it is reasonable to expect such corroborating evidence for certain alleged facts

pertaining to the specifics of an applicant’s claim, such evidence should be provided or an

explanation should be given as to why such information was not presented. Matter of Dass,

20 I&N Dec. 120 (BIA 1989); Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987),

clarified.

(3) The Immigration and Naturalization Service should play an active role in introducing evidence regarding current country conditions.

(4) Although the burden of proof is not on the Immigration Judge, if background evidence is

central to an alien’s claim and the Immigration Judge relies on the country conditions in

adjudicating the alien’s case, the source of the Immigration Judge’s knowledge of the particular country must be made part of the record.

FOR APPLICANT: Jeannette Freeman, Esquire, Atlanta, Georgia

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Grace A. Sease, Assistant

District Counsel

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA,

HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, MATHON, and

GUENDELSBERGER, Board Members. Concurring Opinion: ROSENBERG, Board

Member.

HEILMAN, Board Member:

The applicant, a citizen of Liberia, has timely appealed from the Immigration Judge’s decision dated June 7, 1995, denying asylum and withholding of

exclusion and deportation. The sole issue on appeal is whether the applicant

is eligible for those forms of relief. The record will be remanded.

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I. FACTS

According to the applicant’s affidavit attached to her Request for Asylum

in the United States (Form I-589), in 1989, when the Liberian Government

was overthrown, the applicant was living in Zaire. She had been living there

since 1987 with her uncle, who had been appointed the Liberian ambassador

to Zaire. She remained in Zaire until 1991, when she was evacuated to the

United States through the assistance of the American Embassy in Zaire, and

she was granted parole until March 29, 1992.

The applicant indicated that in 1990, while living in Zaire, she saw on television on the Cable News Network that the area where she used to live in

Liberia, including her father’s house, had been burned down. She indicated

that her father’s house had been singled out and burned. She said that her

father was the governor of the Vai tribe in Liberia and stated, “I’m scared if I

go back to Liberia I might be affected too.” She indicated that although the

Vai tribe, of which she is a member, has not had any trouble with the Liberian

Government, she feared that members of other tribes might seek to harm her

because of her father’s position. The applicant has not spoken to either of her

parents since 1989 and does not know their whereabouts. The applicant also

testified that “Prince Anderson” is her brother-in-law and that she fears

repercussions as a result of her relationship to him.

Before we turn to the review of the applicant’s case, we set out the analysis

which we apply in determining whether an asylum applicant has met his or

her burden of proof.

II. EVIDENTIARY REQUIREMENTS

Although we recognize that the burden of proof in asylum and withholding of deportation cases is on the applicant, we do have certain obligations

under international law to extend refuge to those who qualify for such relief.

See United Nations Convention Relating to the Status of Refugees, July 28,

1951, 189 U.N.T.S. 150. Congress incorporated the international obligation

into domestic United States law when it enacted the withholding of deportation provision of the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102,

prohibiting the refoulement of refugees. Going beyond the nonrefoulement

provision, Congress also established asylum as a discretionary form of relief

for those who could meet a lesser standard of proof. See section 208 of the

Immigration and Nationality Act, 8 U.S.C. § 1158 (1994). Because this

Board, the Immigration Judges, and the Immigration and Naturalization Service are all bound to uphold this law, we all bear the responsibility of ensuring that refugee protection is provided where such protection is warranted by

the circumstances of an asylum applicant’s claim. Further, in light of the

bifurcated process experienced by many asylum applicants, whereby applicants begin with a nonadversarial approach at a Service Asylum Office and

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move to a more “adversarial” proceeding before an Immigration Judge, a

cooperative approach in Immigration Court is particularly appropriate.

A. The Role of the Alien

1. Evidence of General Country Conditions

The burden of proof is on an applicant to establish her asylum claim.

8 C.F.R. § 208.13(a) (1996). We held in Matter of Dass, 20 I&N Dec. 120

(BIA 1989), that an alien’s own testimony may in some cases be the only evidence available, and it can suffice where the testimony is believable, consistent, and sufficiently detailed to provide a plausible and coherent account of

the basis of the alien’s alleged fear. See also Matter of Mogharrabi, 19 I&N

Dec. 439, 446 (BIA 1987). Similarly, the regulations indicate that “[t]he testimony of the applicant, if credible in light of general conditions in the applicant’s country of nationality or last habitual residence, may be sufficient to

sustain the burden of proof without corroboration.” 8 C.F.R. § 208.13(a).

Implicit in these statements is an assumption that the adjudicator will have

some background information against which to measure an applicant’s

claim. In order to determine if an alien’s claim is “credible in light of general

conditions in the applicant’s country,” 8 C.F.R. § 208.13(a), or “plausible,”

Matter of Dass, supra, at 124, 125, an adjudicator must understand the general country conditions. Therefore, general background information about a

country, where available, must be included in the record as a foundation for

the applicant’s claim. This point bears emphasis because many applicants,

such as the applicant here, seek to rely solely on their testimony without

either offering any background information or explaining its absence.

Because the burden of proof is on the alien, an applicant should provide

supporting evidence, both of general country conditions and of the specific

facts sought to be relied on by the applicant, where such evidence is available. Matter of Dass, supra, at 124. If such evidence is unavailable, the applicant must explain its unavailability, and the Immigration Judge must ensure

that the applicant’s explanation is included in the record. Moreover, general

country condition information may be necessary to support an applicant’s

testimony where the alien’s claim is based on allegations which may be independently verified. “[W]hen the basis of an asylum claim becomes less

focused on specific events involving the respondent personally and instead is

more directed to broad allegations regarding general conditions in the

respondent’s country of origin, corroborative background evidence that

establishes a plausible context for the persecution claim (or an explanation

for the absence of such evidence) may well be essential.” Matter of Dass,

supra, at 125. As we indicated in Dass, this position is consistent with the

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 para.

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42, at 12 (Geneva, 1992) (“Handbook”), which notes that an “applicant’s

statements cannot, however, be considered in the abstract, and must be

viewed in the context of the relevant background situation." The Handbook

summarizes the role of the asylum applicant, stating that he or she should do

the following:

(i) Tell the truth and assist the examiner to the full in establishing the facts of his case.

(ii) Make an effort to support his statements by any available evidence and give a satisfactory explanation for any lack of evidence. If necessary he must make an effort to procure

necessary evidence.

(iii) Supply all pertinent information concerning himself and his past experience in as much

detail as is necessary to enable the examiner to establish the relevant facts. He should be

asked to give a coherent explanation of all the reasons invoked in support of his application

for refugee status and he should answer any questions put to him.

Id. para. 205(a)(i)-(iii), at 48-49.

The Handbook recognizes that:

[a]fter the applicant has made a genuine effort to substantiate his story there may still be a

lack of evidence for some of his statements . . . . [I]t is hardly possible for a refugee to

“prove” every part of his case . . . . It is therefore frequently necessary to give the applicant

the benefit of the doubt.

Id. para. 203, at 48. The Handbook recommends, however, that the benefit of

the doubt only be given “when all available evidence has been obtained and

checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must

not run counter to generally known facts.” Id. para. 204, at 48.

2. Evidence to Support the Alien’s Particular Claim

Where the record contains general country condition information, and an

applicant’s claim relies primarily on personal experiences not reasonably

subject to verification, corroborating documentary evidence of the asylum

applicant’s particular experience is not required. Unreasonable demands are

not placed on an asylum applicant to present evidence to corroborate particular experiences (e.g., corroboration from the persecutor). However, where it

is reasonable to expect corroborating evidence for certain alleged facts pertaining to the specifics of an applicant’s claim, such evidence should be provided. That is, an asylum applicant should provide documentary support for

material facts which are central to his or her claim and easily subject to verification, such as evidence of his or her place of birth, media accounts of large

demonstrations, evidence of a publicly held office, or documentation of medical treatment. If the applicant does not provide such information, an explanation should be given as to why such information was not presented. For

example, if an applicant claims persecution based on her activities as

vice-president of a union for 2 years, she should provide some corroborating

evidence indicating that she held the office of vice-president or an explanation of why she did not provide such corroborating evidence. The absence of

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such corroborating evidence can lead to a finding that an applicant has failed

to meet her burden of proof.

We point this out to clarify Matter of Mogharrabi, supra, in which we first

stated that an “alien’s own testimony . . . can suffice where the testimony is

believable, consistent, and sufficiently detailed to provide a plausible and

coherent account of the basis for his fear." Id. at 445. We further stated in

Matter of Mogharrabi:

Where the country at issue in an asylum case has a history of persecuting people in circumstances similar to the asylum applicant’s, careful consideration should be given to that fact

in assessing the applicant’s claims. A well-founded fear, in other words, can be based on

what has happened to others who are similarly situated. The situation of each person, however, must be assessed on its own merits.1

Id. at 446.

Consequently, we also expect general corroborating evidence, from a reliable source, of persecution of persons in circumstances similar to an applicant where such information is reasonably 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.

Although the burden of proof in establishing a claim is on the applicant,

the Service and the Immigration Judge both have a role in introducing evidence into the record.

B. The Role of the Service

The Service, of course, should also play a significant role at the asylum

hearing. The trial attorney may call witnesses and should present evidence to

support any argument it makes regarding the applicant’s eligibility for

asylum or withholding of deportation. See 8 C.F.R. §§ 236.3(c)(4),

242.17(c)(4)(iv) (1996). Such evidence should be used to examine an applicant regarding his or her claim. The more background information the Service has about the applicant’s country, the more thorough and intelligent the

examination will be.

If the Service opposes a grant of asylum, independent evidence to support

its opposition often is critical. Such an approach would not only be effective

at the hearing; it would also enable the Board to better evaluate an asylum

1 We note that this standard contemplates the introduction of evidence regarding similarly

situated persons to support an individual claim of persecution. This situation is distinct from the

use of evidence of the persecution of similarly situated persons to establish a well-founded fear

of persecution where there is no claim of individualized persecution, i.e., in a pattern or practice

claim. See 8 C.F.R. § 208.13(b)(2)(i).

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applicant’s claim from the record developed at the hearing. For example, if

we find on appeal that an asylum applicant has met her burden of proof and is

otherwise eligible for asylum and the Service had failed to provide any evidence to counter her claim, we would find no basis for denying the asylum

application.

Moreover, as we noted above, the Service has an obligation to uphold

international refugee law, including the United States’ obligation to extend

refuge where such refuge is warranted. That is, immigration enforcement

obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done. In that regard, the handbook for trial

attorneys states that “[t]he respondent should be aided in obtaining any procedural rights or benefits required by the statute, regulation and controlling

court decision, of the requirements of fairness.” Handbook for Trial Attorneys § 1.3 (1964). See generally Freeport-McMoRan Oil & Gas Co. v.

FERC, 962 F.2d 45, 48 (D.C. Cir. 1992)(finding astonishing that counsel for

a federal administrative agency denied that the A.B.A. Code of Professional

Responsibility holds government lawyers to a higher standard and has obligations that “might sometimes trump the desire to pound an opponent into

submission”); Reid v. INS, 949 F.2d 287 (9th Cir. 1991)(noting that government counsel has an interest only in the law being observed, not in victory or

defeat).

As a general matter, therefore, we expect the Service to introduce into evidence current country reports, advisory opinions, or other information

readily available from the Resource Information Center.

C. The Role of the Immigration Judge

Thus far, we have emphasized the need for the parties to introduce supporting documents into the record. We note, however, that even after the parties have had an opportunity to introduce supporting documents into the

record, the Immigration Judge may be left with an inadequate record.

Although the burden of proof is not on the Immigration Judge, if background

information is central to an alien’s claim, and the Immigration Judge relies on

the country conditions in adjudicating the alien’s case, the source of the

Immigration Judge’s knowledge of the particular country must be made part

of the record. The Act states that in deportation and exclusion proceedings,

an Immigration Judge “shall administer oaths, present and receive evidence,

interrogate, examine, and cross-examine the alien or witnesses.” Section

242(b) of the Act, 8 U.S.C. § 1252(b)(1994) (emphasis added); see also section 236 of the Act, 8 U.S.C. § 1226 (1994). Thus, the statute specifically recognizes that the presentation of evidence is a proper function of an

Immigration Judge.

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The regulations also require that an Immigration Judge seek evidence in

cases where the Immigration Judge receives an application for asylum that

has not been referred by an asylum officer. The Immigration Court “shall forward a copy to the Department of State pursuant to § 208.11.” 8 C.F.R.

§§ 236.3(b), 242.17(c)(3). “At its option, the Department of State may provide detailed country conditions information addressing the specific conditions relevant to eligibility for refugee status . . . .” 8 C.F.R. § 208.11(a)

(1996).

Moreover, in order to fully explain the reasons for the decision, the Immigration Judge should consider background evidence. A decision rendered by

the Immigration Judge in deportation proceedings “shall also contain a discussion of the evidence pertinent to any application made by the respondent

[for asylum or withholding of deportation] and the reasons for granting or

denying the request.” 8 C.F.R. § 242.18(a) (1996). An adverse decision in an

asylum case “will state why asylum or withholding of deportation was

denied.” 8 C.F.R. §§ 236.3(d), 242.17(c)(5). Further, “[a]ny such information relied upon by an immigration judge in deciding a claim for asylum or

withholding of deportation shall be made part of the record . . . .” 8 C.F.R.

§ 208.11(a). We recognize that over time, Immigration Judges will accumulate significant knowledge from their experience involving the conditions in

numerous countries. However, any evidence relied upon by the Immigration

Judge must be included in the record so that the Board can meaningfully

review any challenge to the Immigration Judge’s decision on appeal.2

Background evidence often is particularly important to an Immigration

Judge’s credibility determination. As previously noted, an adjudicator must

have general background information about a country in order to determine if

an asylum applicant’s testimony is “credible in light of general conditions in

the applicant’s country,” 8 C.F.R. § 208.13(a), or “plausible,” Matter of

Dass, supra, at 124, 125. In other words, in the ordinary case, credibility

determinations must not be made in a vacuum.

Thus, in considering a persecution claim, an adjudicator must consider the

testimony against the background information. Cases have arisen, however,

where an Immigration Judge first considers testimony as a discrete portion of

the record and, at that point, makes a “credibility” determination. After that is

done, the Immigration Judge considers the background information and separately weighs that evidence. In such circumstances, it has not been unusual

for an Immigration Judge to determine that testimony is “credible” in the

same decision with a subsequent discussion of the background information

2 The

Board, of course, has the authority to take administrative notice under certain

circumstances. See, e.g., Kaczmarczyk v. INS, 933 F.2d 588, 593-94 (7th Cir.), cert. denied, 502

U.S. 981 (1991); de la Llana-Castellon v. INS, 16 F.3d 1093, 1096 (10th Cir. 1994).

Nevertheless, the Board is not required to independently take administrative notice of relevant

country conditions, particularly where the alien does not provide any such evidence. Fisher v.

INS, 79 F.3d 955 (9th Cir. 1996); Liu v. Waters, 55 F.3d 421, 427 (9th Cir. 1995).

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containing findings that are in conflict with the testimony. Adverse credibility determinations are appropriately based on inconsistent statements, contradictory evidence, and inherently improbable testimony; and where these

circumstances exist in view of the background evidence on country conditions, it is appropriate for an Immigration Judge to make an adverse credibility determination on such a basis. See generally Artiga-Turcios v. INS, 829

F.2d 720, 723 (9th Cir. 1987); Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th

Cir. 1986) (regarding discrediting factors); Matter of B-, 21 I&N Dec. 66

(BIA 1995). Testimony is not a discrete, self-contained unit of evidence

examined and weighed without context; it is part of the body of evidence

which is intertwined and considered in its totality. Although we recognize

that an Immigration Judge can make an adverse credibility determination

independent of country condition information, e.g., based on inconsistent

statements, we find that general country condition information is essential for

an Immigration Judge’s evaluation of an applicant’s credibility. Immigration

Judges, therefore, should place general country condition information into

evidence.

We note, however, that there may be instances in which an Immigration

Judge finds an applicant to be credible, but finds that she has failed to meet

her burden of proof. For example, it may be that an applicant’s testimony is

plausible in light of general country condition information, but that it is

overly general. In such a case, we would find that the applicant had failed to

meet the required burden of proof, but an adverse credibility determination

would not be appropriate.

Although not binding on Immigration Judges, various guidelines for asylum adjudicators recommend the introduction of evidence by the adjudicator.

For example, the Handbook states: “[W]hile the burden of proof in principle

rests on the applicant, the duty to ascertain and evaluate all the relevant facts

is shared between the applicant and the examiner.” Handbook, supra, para.

196, at 47. The role of the asylum adjudicator is to “[e]nsure that the applicant

presents his case as fully as possible and with all available evidence.” Id.

para. 205(b)(i), at 49.

Similarly, the Basic Law Manual, prepared by the Asylum Division and

Office of the General Counsel of the Service for its asylum officers, recognizes the need for an asylum adjudicator to acquire information on the general country conditions. U.S. Dept. of Justice, INS, The Basic Law Manual,

U.S. Law and INS Refugee/Asylum Adjudications (1994). It states that “[t]he

asylum officer should be fully familiar with the reports and country profiles

developed by the INS Resource Information Center, with the Department of

State’s Country Reports of Human Rights Practices for the country being

considered and with reports from Amnesty International and other reputable

organizations, including academic institutions.” Id. at 100.

Therefore, in adjudicating an application for asylum, the Immigration

Judge ordinarily should state for the record how the testimony or other

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evidence presented comports with the background information relating to the

specific claim. If no such information is in the record, we expect the Immigration Judge to explain how the testimony has been assessed and how its

plausibility or implausibility has been established without such information.3

III. APPLICATION OF EVIDENTIARY REQUIREMENTS TO

APPLICANT’S CASE

A. The Applicant Failed to Provide Sufficient Supporting Evidence

We find that the applicant has not provided sufficient evidence to meet her

burden of proof. See 8 C.F.R. § 208.13. We note preliminarily that the applicant has not provided any general information about country conditions in

Liberia, nor has she explained whether such evidence is unavailable. Consequently, there is no background information against which to judge her

claim. For example, the record does not contain information about the Vai

tribe, such as who might seek to harm members of the tribe. There is not even

independent evidence to indicate that the tribe exists. The applicant also did

not provide information as to who “Prince Anderson” is, what role he played

in Liberia, or why anyone affiliated with him might be targeted. In fact, the

applicant has not identified any faction or tribe who might have an inclination

to persecute those affiliated with Prince Anderson or the Vai tribe. See Matter of Mogharrabi, supra. Further, the applicant has not provided any explanation for the lack of information on these issues. We note that the applicant

attached an affidavit to her Form I-589 in which she provides background

information about Liberia, such as where it is located, how it was founded,

and how political tensions in the country developed. However, general information about the history or political climate in a country should, where available, be provided through corroborative background evidence such as

country reports provided by a credible source or an expert witness. See Matter of Dass, supra, at 125. The applicant is not an expert witness.

Regarding the aspects of the applicant’s testimony that involve her own

personal experience, we find that the applicant has failed to satisfy her burden of submitting evidence that is sufficiently detailed to provide a coherent

account of the basis of her fear. See Matter of Dass, supra, at 124; Matter of

Mogharrabi, supra. The applicant’s testimony was general and did not provide additional details about, for example, her experience as a Vai tribe member. Further, she has not indicated how her alleged persecutor could become

aware of her tribal affiliation, her father’s political position, or her relationship to Prince Anderson. Moreover, the information in the applicant’s

3 As we noted above, the burden of proof is on an applicant to establish her asylum claim. We

do not intend our analysis regarding the roles of the Service and the Immigration Judge to shift

this burden. If the Service and the Immigration Judge do not carry out their roles, the applicant

does not prevail by default.

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affidavit does not provide additional detail about specific events in which she

was involved. An asylum applicant’s own testimony, whether in the form of

in-court testimony or an affidavit, should focus on the particular circumstances of her case. Consequently, the applicant has failed to satisfy her burden of presenting testimony that is believable, consistent, and sufficiently

detailed to provide a plausible and coherent account of the basis for her fear.

See Matter of Dass, supra; Matter of Mogharrabi, supra.

Although we find that the applicant has not met her burden of proof, we do

not find that she is incredible. The evidentiary standard set out above and in

Matter of Dass, supra, requires that the applicant provide background evidence so that her claim can be evaluated in the broader context of the conditions in her country. Even if an alien is found to be credible, if there is no

context within which to evaluate her claim, she has failed to meet her burden

of proof because she has not provided sufficient evidence of the foundation

for her claim. A failure of proof is not a proper ground per se for an adverse

credibility determination. The latter finding is more appropriately based

upon inconsistent statements, contradictory evidence, and inherently

improbable testimony. See Artiga-Turcios v. INS, supra; Damaize-Job v.

INS, supra; Matter of B-, supra.

The applicant correctly points out on appeal that an alien applying for asylum based on a well-founded fear of persecution shall not be required to provide evidence that she would be singled out individually for persecution if

she establishes that there is a pattern or practice in her country of persecution

of persons similarly situated to the applicant on account of one of the enumerated grounds of a group in which the applicant claims membership. 8 C.F.R.

§ 208.13(b)(2)(i).

The applicant claims that she is identified with Charles Taylor through her

father’s former position as governor of Vai and through her brother-in-law’s

position as a supporter of Taylor. The applicant has not provided evidence to

meet the regulatory requirements for a pattern or practice claim, however.

First, the applicant has not provided evidence to indicate that there is a pattern or practice of persecution of Taylor supporters in Liberia. See 8 C.F.R.

§ 208.13(b)(2)(i)(A). Secondly, the applicant has not established that she is

similarly situated to persons being persecuted in Liberia. See 8 C.F.R.

§ 208.13(b)(2)(i)(B). For example, assuming arguendo that there is a pattern

or practice of persecution of Taylor supporters in Liberia, the applicant has

not established how her father is linked to Taylor, or what Prince Anderson’s

role in support of Taylor has been. It is not clear whether either of her relatives is identifiable as a Taylor supporter, and, as discussed above, it is not

clear whether the applicant’s association with her father and brother-in-law is

identifiable.

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B. The Service and the Immigration Judge Failed

to Provide Background Evidence About Liberia

Preliminarily, we note that the Service trial attorney questioned the applicant regarding her testimony, but did not introduce any evidence to contradict

the applicant’s claim or to suggest it is implausible.

Similarly, the Immigration Judge in the instant proceeding did not present

or receive objective evidence against which the applicant’s claim could be

measured. We note that although the Immigration Judge indicated that he had

“considered the State Department advisory [opinion],” the only report from

the Department of State’s Bureau of Human Rights and Humanitarian

Affairs in the record relates to Zaire, not Liberia. In fact, the February 3,

1995, request from the Immigration Court to the Bureau of Human Rights

and Humanitarian Affairs reflected the applicant’s nationality as “Zaire.”

Although the applicant indicated that she had lived in Zaire, she never indicated that she has any legal status there, and she is a citizen of Liberia. Further, the Bureau of Human Rights and Humanitarian Affairs submission does

not indicate that it reviewed the applicant’s application from the standpoint

of her being a native and citizen of Liberia. The additional material attached

to its response suggests that such was not the case. It may be that the Immigration Judge considered a report from the State Department regarding the

country conditions in Liberia, but no such report was specifically identified

or made a part of the record.

The Immigration Judge concluded that the applicant “fears going back to

her country because there is a very active civil war raging there.” He further

noted that “there’s no showing that she would be anymore at risk than any

other citizen in Liberia.” The Immigration Judge appears to have evaluated

the applicant’s claim in light of his knowledge of country conditions in Liberia, but the record does not provide us with the basis for that knowledge. Consequently, in considering the applicant’s appeal, it is difficult for us to

evaluate the propriety of the Immigration Judge’s conclusions.

IV. CONCLUSION

Under ordinary circumstances, we would be inclined to dismiss the applicant’s appeal based on her failure to meet her burden of proof. However, the

regulations provide that applications for asylum must be forwarded to the

Department of State for review and possible comment. See 8 C.F.R.

§§ 208.11, 236.3(b), 242.17(c)(3). In addition, the regulations require that

country conditions information “relied upon by an immigration judge . . .

shall be made part of the record and the parties shall be provided an opportunity to review and respond to such information prior to the issuance of a decision.” 8 C.F.R. § 208.11(a). In this case, where the request to the Department

of State referenced the wrong country of nationality, where its response only

included information relevant to Zaire, where the Immigration Judge relied

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on information not included in the record, and where the only country report

in the record is for the wrong country, we will remand the record for further

proceedings at which these deficiencies can be corrected and the application

for asylum further considered. The parties should be provided the opportunity to present any further evidence regarding the applications for asylum and

withholding of deportation, or to explain its absence.

Accordingly, the following order will be entered.

ORDER:

The record is remanded to the Immigration Judge for

further proceedings consistent with the foregoing opinion.

CONCURRING OPINION: Lory D. Rosenberg, Board Member

I respectfully concur.

Our decision today is intended to clarify and provide notice to the applicant and guidance to the Immigration and Naturalization Service and the

Immigration Judge of our expectations concerning the parties’ responsibility

for the production of evidence and the creation of a record in asylum hearings. In particular, we address both the need for documentation of general

country conditions which must be included in the record “as a foundation for

the applicant’s claim,” Matter of S-M-J-, 21 I&N Dec. 722, 724 (BIA 1997),

or where relied on by the Immigration Judge, and a requirement that certain

supporting evidence specific to the applicant’s claim should be provided

when it is available.

Perhaps what is most important about this decision is what we are not

holding. Nowhere do we propose that an asylum seeker is presumed to be

fabricating her claim or otherwise to lack credibility. Figeroa v. INS, 886

F.2d 76 (4th Cir. 1989) (emphasizing that the fact an applicant is an alien

does not mean the Board is entitled to presume he is a liar). In addition, we do

not presume that certain forms of supporting evidence of material facts “easily subject to verification,” Matter of S-M-J-, supra, at 725, are readily available in the case of every applicant or necessarily required for the alien to

satisfy her burden of proof. In other words, there is no presumption that an

asylum applicant’s testimony is to be treated as other than truthful, and there

is no presumption that the “absence of such corroborating evidence” alone

supports a finding that “an applicant has failed to meet her burden of proof.

Id. at 726.

While I concur in the instant decision, I write separately to elaborate on

these matters, which I consider vital to the application of this decision in

practice.

I. ASYLUM CONSIDERATIONS

With the advantage of computer technology, television news, and film,

which have made our study of history and current events more accessible, we

can easily envision the situation of one forced to flee her country. We can see

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the poverty, the political repression, the exploitation, the corruption, the religious intolerance, or the ethnic divisions which gave rise to the conflict that

escalated to the point where the applicant or a family member was persecuted

or is likely to be persecuted. Perhaps she has been forced to sever all ties with

family, tribe, friends, and co-workers, leaving her country and those she

knew and loved behind. She now may be in a situation and environment

totally foreign to her, only to find that the conditions which motivated her

flight have deteriorated even further, and that she has lost contact with or

become separated from associates or family members.

It is also possible to have a different vision: to see this same person as an

opportunist, who would perpetrate a fraud. In that case we see a person who,

through technology and other sources, has heard about asylum in the United

States and who is using our laws simply to gain access to a life in our country,

at our expense. She knows that we can never fully verify her testimony or

ascertain the validity of her supporting documentation. No one likes to be

fooled or played for a fool. Moreover, as the administrative body charged

with ultimately determining these claims, we are responsible to see that the

asylum system is not abused, but is extended fairly to qualifying asylum

seekers. Given the potential for deceit, and our legitimate desire to protect the

integrity of the process, how do we determine whether this person really warrants our protection?

The unique circumstances of the refugee or asylum seeker among other

potential noncitizens applying for a legitimate status in the United States

under our immigration laws is not a matter of controversy. Various provisions of congressional enactments, including the language of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, Division C

of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”), recognize and give

deference to the circumstances of refugees and asylum seekers. See, e.g., section 242B(e) of the Immigration and Naturalization Act, 8 U.S.C. § 1252b(e)

(1994), currently in force, where Congress exempts asylum seekers from

statutory bars to relief imposed on other aliens who failed to appear at a properly scheduled deportation hearing or to depart following a grant of permission to leave voluntarily; see also sections 304(a)(3), 306(a)(2) of the

IIRIRA, (to be codified at 8 U.S.C. §§ 1230(b)(7),(c)(6)(C)(ii),

1252(a)(2)(B)(ii)); 61 Fed. Reg. 18,900, 18,905 (1996) (to be codified at

8 C.F.R. § 3.2(c)(3)(ii)).

At the Board level, as the author of today’s opinion recognized some years

ago,

the purpose of the asylum provision would be better served by abandoning the fixation with

the manner in which the asylum applicant arrived . . . . The asylum provisions are humanitarian in their essence and indeed recognize that the forces which impel persons to seek

refuge may be so overwhelming that the “normal” immigration laws cannot be applied in

their usual manner.

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Matter of Pula, 19 I&N Dec. 467, 476 (BIA 1987) (Heilman, concurring)

(citing the United Nations Convention and Protocol Relating to the Status of

Refugees, the “international agreement which the asylum provisions implement”). While the concurring Board Member there referred to substantive

considerations concerning an alien’s manner of entry, his statement is no less

applicable to the procedural standards which we impose on the asylum applicant with regard to his or her burden of proof.

II. BURDEN OF PROOF

With these considerations in mind, I turn to the imposition of the burden of

proof in the immigration laws as applied in their “usual manner.” Matter of

Pula, supra, at 476. The approach we have taken is to place the burden of

proof on the applicant to prove, by evidence which in some cases may consist

only of her credible testimony, past persecution or a reasonable fear of persecution. INS v. Cardoza Fonseca, 480 U.S. 421 (1987). In fact, as we explain

in our opinion, placing the burden on the applicant for protection in this way

is consistent with international law. However, in so placing the burden, it is

important to note our recognition of the essential role played by the “benefit

of the doubt.” See 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 paras. 203, 204, at 48 (Geneva, 1992) (“Handbook”).

In concurring in this opinion, I do not understand it to increase the applicant’s burden. I understand our decision to clarify both Matter of

Mogharrabi, 19 I&N Dec. 439 (BIA 1987), and Matter of Dass, 20 I&N Dec.

120 (BIA 1989), earlier decisions in which we addressed the asylum applicant’s burden of proof, to better allocate the burden and to specify our expectation that an applicant either provide, or offer an explanation for the absence

of, supporting documentation related to “material facts which are central to

his or her claim and easily subject to verification.” Matter of S-M-J-, supra,

at 725.

We recognize that evidentiary considerations in asylum cases must be

judged by standards which take into account the situation of the asylum

seeker. For example, the United States Court of Appeals for the Ninth Circuit

recognized that “omitting a corroboration requirement may invite those

whose lives of freedom are not threatened to manufacture evidence . . . . But

the imposition of such a requirement would result in the deportation of many

people whose lives genuinely are in jeopardy.” Bolanos-Hernandez v. INS,

767 F.2d 1277, 1285 (9th Cir. 1984) (emphasis added)(stating that persecutors are not likely to provide their victims with evidence of their motives); see

also Matter of S-M-J-, supra, at 725.

The concept of the responsibility for establishing a record being shared by

both the parties and the Immigration Judge is especially appropriate in the

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context of asylum adjudications, where we are carrying out international

obligations, as codified by Congress, to provide refuge to those facing actual

or feared persecution. Our imposition on the parties and the Immigration

Judge alike of the responsibility to provide evidence of general conditions

where available or relied upon, while a practical change, is not particularly

controversial as a matter of law. It is consistent with the regulations generally

and with the specified role contemplated for the adjudicator of an asylum

application. See, e.g., 8 C.F.R. § 208.1(a) (1996) (stating this part shall apply

to all applicants for asylum whether before an asylum officer or an Immigration Judge); 8 C.F.R. § 208.12 (1996)(stating that the adjudicator may rely on

information from a variety of sources ranging from the Department of State

to credible international organizations or academic institutions).

An allocation of the asylum applicant’s burden, which looks to the submission of supporting evidence as a reasonable adjudicatory aid intended to

facilitate a reasoned and fair decision, is consistent, both with the current regulations and with those currently proposed by the Attorney General to implement the provisions of the IIRIRA. See 8 C.F.R. § 208.13(a) (1996), which

holds that testimony which is credible in light of general conditions may sustain an applicant’s burden; see also Matter of S-M-J-, supra, at 3. By contrast,

however, imposition of a higher burden absolutely requiring such evidence

would conflict, not only with established case law, but also with regulations

promulgated by the Attorney General which we do not have the authority to

supersede. Matter of Ponce De Leon, 21 I&N Dec. 154 (BIA 1996).

As we have stated only recently, credibility concerning individual fears or

events particular to the individual applicant is not diminished or called into

question by the absence of corroboration; unrefuted and credible testimony

alone is perfectly adequate to satisfy the applicant’s burden of proof of a

threat. Matter of H-, 21 I&N Dec. 337, 340 (BIA 1996). The courts have

affirmed our acknowledgment that an applicant’s burden can be met once

general background information places the applicant’s consistent and coherent testimony in context. See Sotelo-Aquije v. Slattery, 17 F.3d 33, 36 n.2 (2d

Cir. 1994) (finding the suggestion of an extra requirement of corroboration

excessive where the Board found credible testimony which was supported by

general documentary evidence), rev’d on other grounds, 62 F.3d 54 (2d Cir.

1995); see also Sotel-Aquije v. Slattery, 62 F.3d 54, 56-57 (2d Cir. 1995). In

addition, any inferences drawn concerning the implausibility of factual

allegations must themselves be supported by substantial evidence.

Aguilera-Cota v. INS, 914 F.2d 1375, 1381 (9th Cir. 1990).

Thus, our opinion should not be read to impose upon the individual asylum applicant the necessity of providing more than her credible testimony to

satisfy her burden, if that is all that is available. To the contrary, what I understand the Board to restate is our understanding that testimony which is

“believable, consistent and sufficiently detailed” alone will suffice to satisfy

the alien’s burden under certain circumstances. Matter of Mogharrabi,

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supra, at 445; see also Cardoza-Fonseca v. INS, 767 F.2d 1448, 1453 (9th

Cir. 1985) (noting that establishment of objective facts through testimony

alone does not make them any less objective), aff’d, 480 U.S. 421 (1987).

What we are clarifying is that, as a general rule, where corroborating evidence is available, particularly evidence which is documentary in nature or

otherwise objective, it should be provided, as it is useful in substantiating the

applicant’s claim.

A. The Practical Disabilities of the Applicant

Observance of our international obligations, which one might presume

would involve primarily humanitarian considerations, unfortunately has

come to include a significant policing function. At the same time, we cannot

allow this factor to overcome our awareness that real victims of persecution

very often have little available to them in the way of supporting evidence, testimonial or documentary, to support their claims. See Plateros-Cortez v. INS,

804 F.2d 1127 (9th Cir. 1986); Bolanos-Hernandez v. INS, supra; Margano

v. Pilliod, 299 F.2d 217 (7th Cir. 1962) (holding an applicant requesting

political asylum is entitled to considerable latitude in presenting evidence),

cert. denied, 370 U.S. 924 (1962); see also Matter of Pula, supra (Heilman,

concurring); Matter of Joseph, 13 I&N Dec. 70, 74 (BIA 1968) (stating that

the applicant must have a “reasonable opportunity to present his proofs for

the stakes are high”); Matter of Silhasle, 11 I&N Dec. 533 (BIA 1960)

(acknowledging that the applicant’s testimony must be accorded the most

careful and objective evaluation). Moreover, our decision states clearly that

we do not place unreasonable demands on the asylum applicant to corroborate personal experiences not reasonably subject to verification. Matter of

S-M-J-, supra, at 725.

In addition, we should realize that a good portion of the peoples of the

world remain semi-literate and may adhere to different cultural norms, which

may affect how an asylum applicant recounts events, seeks or obtains corroboration, or explains the inability to provide supporting documentation. Confronted with an adversary process, many individuals may have difficulty

presenting corroborating evidence that satisfies the standards we employ

without expert and effective legal representation. See Castro-O’Ryan v. INS,

847 F.2d 1307 (9th Cir. 1988). In addition, an accurate, verbatim interpretation of testimony presented at the hearing is essential; and not only is the skill

level of an interpreter a significant factor, but the political and psychological

dynamics which flow from the introduction of a third party into the asylum

hearing may be relevant in assessing the record.

Even more critical, we must understand that many asylum seekers are confined in Service detention. Do the rules of the institution allow such an individual to make an overseas telephone call without money, on credit? Can she

even place such a call at all? May such an individual contact her family by

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letter and manage to receive a response before her hearing actually takes

place? Even if the applicant is able to communicate with her family, how can

they provide her with the information or corroboration which she needs without endangering themselves?

And even if the applicant has the freedom and finances to obtain such corroborating evidence, can she seek and receive it within the time we set for her

hearing? I recall a time, when I was a lawyer in pro bono practice, when long

after I submitted his application, my client finally received information on

tissue-thin paper, tucked into a false front of an international air letter which

his co-worker had unsealed and re-glued to protect it from being intercepted

by the authorities of his country. We must be careful to consider when impediments attendant to the asylum applicant’s situation have prevented the

orderly or even the timely presentation of evidence that would corroborate

the material facts which may be central to a specific claim. In the vast majority of cases, where internally credible testimony is provided, both the practical disabilities experienced by many asylum applicants, and the Handbook‘s

recognition that no refugee is likely to be able to prove every aspect of her

claim, favor our extending the benefit of the doubt in determining whether

the applicant has met her burden.

B. The Service’s Access to Evidence

In Matter of Vivas, 16 I&N Dec. 68 (BIA 1977), we held that while the

Service has the burden of proof in a deportation case to establish

deportability by evidence which is clear, unequivocal, and convincing, a

respondent may be required to go forward with evidence when the Service

has made a prima facie case and the respondent has better control or knowledge of the evidence. In that case, the Board stated specifically that the rule

enunciated, shifting the burden of going forward with evidence to the party

not bearing the burden of proof, is not new to either criminal or civil proceedings. See, e.g., United States v. Fleishman, 339 U.S. 349 (1950); see also

Campbell v. United States, 365 U.S. 85 (1961); Government of Virgin Islands

v. Lake, 362 F.2d 770 (3d Cir. 1966); Rhay v. Browder, 342 F.2d 345 (9th Cir.

1965).

We recognized that this principle should apply, in particular, when a party

is under a “serious practical handicap.” Matter of Vivas, supra, at 70. It is difficult to imagine a more comparable situation than the asylum context, where

it is the applicant’s burden to establish a well-founded fear of persecution.

See INS v. Cardoza-Fonseca, supra. Therefore, I view the Service’s responsibility in these proceedings to require not only the production of evidence

pertaining to general country conditions, but to require that the Service provide any other evidence, either within its possession or readily accessible,

which supports the contentions made by the applicant. Matter of S-M-J-,

supra, at 730 n.3.

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As I read the law, what this means in the context of our opinion today, is

that when a respondent has provided straightforward and uncontradicted testimony which establishes a prima facie claim of persecution warranting a

grant of asylum, as well as a reasonable contention that she cannot provide

corroborating documentation, the burden should shift to the Service. At this

point, as the majority explains, the Service should present any evidence it

has, supporting or contradicting the applicant’s asylum claim. If the Service

does not refute the claim made by the applicant, then it would appear that,

even in the absence of specific documentation corroborating claims related to

identity, membership or official status, or medical attention, the applicant has

satisfied his or her burden of proof. Id. at 726-727.

III. CREDIBILITY CONSIDERATIONS

Thus, we confront the centrality of testimonial credibility in asylum determinations. Should we believe the foreigner? How do we assist the legitimate

asylum seeker and weed out those cases in which claims or representations

made in support of claims are fraudulent? What criteria are appropriate in

assessing this aspect, which so often goes to the outcome of an asylum claim?

We have stated that credible testimony, alone, may satisfy the applicant’s

burden, but that the absence of corroborating evidence related to material

facts central to the applicant’s claim “can lead to a finding that an applicant

has failed to meet her burden of proof.” Matter of S-M-J-, supra, at 726. Two

aspects of this evaluation are especially critical. One is how we determine the

credibility of the applicant’s testimony generally. The other is how we judge

the “reasonableness” of our expectation that corroborating evidence is available, and how we determine the “reasonableness” of an asylum applicant’s

explanation for failing or being unable to provide such evidence.

In my view, we should avoid any predisposition against believing the

applicant who may be unable to obtain supporting documentation at all, or

who manages to submit documents which corroborate only part of her contentions. I stress that while the burden of proof is borne by the asylum applicant, our law does not include a presumption that an applicant is

unbelievable. If as adjudicators we intentionally or subjectively approache an

asylum applicant and presume an individual to be a liar rather than a truth

teller, we violate not only our duty to be impartial, but we abrogate the statute

and regulations which govern our adjudications.

A. Applications Involving Common Claims or

Unfamiliar Contentions

Although an asylum application calls for an individual adjudication, our

knowledge or lack of knowledge of external factors may affect the adjudication. In this we must allow the benefit of the doubt, as opposed to cynicism, to

prevail. It is more reasonable to conclude, for example, that a similarity in the

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content of claims substantiates the reality of the claimed persecution than to

conclude that an applicant’s story is fabricated. Bolanos-Hernandez v. INS,

supra. Similarly, the unique character of a claim which raises unfamiliar contentions is not a sufficient basis to disbelieve otherwise internally consistent

testimony.

History has demonstrated that some of the most offensive, inhumane, and

intolerable forms of discrimination, abuse, and torture were those which the

international community either failed to acknowledge or could not bring

itself to admit until long after such abuses resulted in persecution which decimated populations. For example, there are some, even today, who continue to

insist that the Holocaust, in which millions of Jews, gypsies, homosexuals,

and communists were interned and murdered by the Nazis, simply never

occurred.

The possibility that an individual adjudicator may not be familiar with the

particular organization to which the applicant claims to belong, or with the

particular history in the country of persecution affecting religious, ethnic,

tribal, political or other prejudice or strife, or with the relevance of geography

or other circumstances which underlie the situation narrated by the applicant,

is no measure by which to judge credibility. When the applicant has made a

genuine effort to substantiate her story, and there is no reason to question the

applicant’s credibility, the applicant should be given the “benefit of the

doubt.” Handbook paras. 203, 204, at 48.

B. Internal Consistency of Application and Testimony

Comparison of an application in English (from a non-English-speaking

and often semi-literate applicant) with testimony presented in court with the

assistance of an interpreter is, in my view, an ineffective and often unfair

measure of credibility. See Osorio v. INS, 99 F.3d 928 (9th Cir. 1996).

Instead, the application should be considered as a component part of the

applicant’s evidence, viewed on the record as a whole. Matter of Fefe, 20

I&N Dec. 116 (BIA 1989) (emphasizing that testimony which may add to or

elaborate on the information provided in the application is appropriate and

reasonable).

While prior statements typically are acceptable means for challenging

present testimony, in the asylum context these applications are often prepared by well-meaning friends, family, or religious or community advocates,

who may fail to probe for details, misunderstand or even embellish information given, and never read the content of the application back verbatim to the

applicant. Equally as common is the question and answer approach generally

undertaken by notaries, unauthorized practitioners, and some attorneys who

approach the asylum application process as a source of high-volume income.

Clearly, application of the law “as usual” is not appropriate. Matter of Pula,

supra, at 476.

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Furthermore, the often traumatic circumstances giving rise to asylum

applications commonly result in information coming out seriatim rather than

the entire claim being presented in one piece. In particular, studies of gender

based claims have revealed that “[w]omen applicants may have difficulty

speaking about past experiences that are personally degrading, humiliating or

culturally unacceptable” and that “because of the very delicate and personal

issues arising from sexual abuse, some women claimants may understandably have inhibitions about disclosing past experiences to male interviewers”

or through male interpreters. Coven, U.S. Dep’t of Justice, Considerations

for Asylum Officers Adjudicating Asylum Claims from Women 5 (1995); see

also Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).

The point of an inquiry or review is never to isolate or seize upon technical

inconsistencies between the written application and oral testimony in order to

justify a denial of asylum. In keeping with our recognition that our government has a duty to uphold international law, Matter of S-M-J-, supra, at 723,

727, it is rather to seek to elicit detail that establishes a reasonable likelihood

of persecution and satisfies the applicant’s burden.

C. Evaluation of Supporting Documentation

What constitutes corroboration establishing a plausible story or what is no

more than merely self-serving evidence may be more in the eye of the

beholder than in the ability of an asylum applicant to document her claim.

The cynical adjudicator who believes that any document can be, and probably is, fabricated will not only reject those documents determined by an official forensic laboratory to be conclusively fraudulent. Any handmade piece

of “official,” but homemade stationary or other paper of lesser quality than

the business letterhead to which we in the United States are accustomed, can

be subject to doubt. The adjudicator who may erroneously perceive his or her

job as being to repel the majority of asylum seekers, notwithstanding the controlling statute, regulations, and case law, can readily conclude that, if they

cannot be rejected as fabricated, letters or other documentation from family,

doctors, religious leaders, or organizational leaders should be dismissed as

self-serving. Damaize-Job v. INS, 787 F.2d 1332 (9th Cir 1986); see also

Kahassi v. INS, 16 F.3d 323, 326 (9th Cir. 1994) (holding that credibility

could be evaluated favorably when the applicant’s testimony was based on

what she learned as a child since there is a distinct difference between providing such a description and reciting a fabricated story). Thus, the mere requirement of documentation is no guarantee that an adjudicator will be satisfied

that a claim is both real and legitimate.

It is critical to understand the anomaly created by the concept of

“self-serving documentation.” The fact that such evidence may advance an

applicant’s cause does not mean it is not admissible or entitled to due weight.

See Dawood-Haio v. INS, 800 F.2d 90, 96 (6th Cir. 1986). It was error for an

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Immigration Judge to find a witness unbelievable merely because his testimony helped his cause. Jang Man Cho v. INS, 669 F.2d 936, 940 n.6 (4th Cir.

1982); see also Matter of Mazar, 10 I&N Dec. 79, 81 (BIA 1962). Furthermore, it would be nonsensical to so hold, as such an approach would achieve

only the “anomalous and unfair result” of accepting as true that part of an

alien’s testimony that undermines his case, while rejecting that which supports it. Henry G. Watkins, Credibility Findings in Deportation Proceedings: ”Bear[ing] Witness Unto The Truth," 2 Geo. Immigr. L.J. 231, 259

(1988) (citing Navia-Duran v. INS, 568 F.2d 803, 807 (1st Cir. 1977) (stating

that an adjudicator’s reliance on a portion of the testimony that undermines a

claim may indicate acceptance of the veracity of all of the testimony)).

D. Reasonable Explanation for Unavailable Documentation

In our decision today we have set forth two “reasonableness” determinations that need to be made in assessing the adequacy of the asylum applicant’s evidence. One is whether it is reasonable to expect that the applicant’s

personal experiences are easily subject to verification. The other is whether

in such a case, the explanation given by an asylum applicant for failing to

provide such documentation is a reasonable one. In making these “reasonableness” determinations we should be guided by the standard we employ in

related credibility assessments. However, if we are reluctant to base our decision on the merits solely on otherwise consistent and credible testimony of an

applicant for asylum, will we accept her equally straightforward (but uncorroborated) explanation of the unavailability of supporting documentation?

The federal courts have not been shy in recognizing the often

unsupportable subjective and conjectural conclusions periodically drawn by

adjudicators. Certainly, we have not demonstrated consistently an ability to

reasonably judge individual events occurring outside our own society. For

example, a finding that it was “astonishing” that after being chased and shot

at by guerrillas, and then beaten by the same guerrillas, an applicant was

released rather than killed, does not set forth a specific cogent reason to disbelieve the applicant. Mosa v. Rogers, 89 F.3d 601, 605 (9th Cir. 1996);

Lopez-Reyes v. INS, 79 F.3d 908 (9th Cir. 1996) (finding a Guatemalan who

was released by his torturers not incredible because he was not killed);

Turcios v. INS, 821 F.2d 1396, 1399 (9th Cir. 1987); see also Nasseri v. INS,

34 F.3d 723, 725 (9th Cir. 1994), overruled on other grounds, Fisher v. INS,

79 F.3d 955 (9th Cir. 1996); Perez-Alvarez v. INS, 857 F.2d 23, 24 (1st Cir.

1988) (adopting concurring opinion of Board Member which stated that in

considering claims of persecution it is “highly advisable to avoid assumptions about how other societies operate”); Matter of D-V-, 21 I&N Dec. 77

(BIA 1993) (finding that despite the Immigration Judge’s conclusion that

further harm was ”pure speculation," a Haitian woman subjected to gang rape

was known to agents of persecution and could be harmed again).

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These considerations are no less relevant in determining the reasonableness of obtaining verification of a claimant’s personal experiences, or the

unavailability of supporting evidence of those claims, than they are to assessing the fundamental credibility of an applicant’s testimony concerning persecution. Adjudicators are regularly faced with difficult determinations of fact

and of law as applied to those facts. Indeed, this may in part underlie our clarifying today the applicant’s responsibility to provide objective documentation, or to submit a reasonable explanation for being unable to provide it. We

should take the utmost care not to import the understandable desire to achieve

certainty or remove doubt in our decisions into the further adjudication we

establish here today. Our evaluation under this decision of what constitutes a

“reasonable explanation,” again, must rely upon our openness to that explanation untarnished by any adverse presumption.

IV. CONCLUSION

Given our holding today, the fact that an applicant may be in a position to

offer more supporting evidence that may make his or her claim more persuasive is not to say that in some cases simple testimony may not be perfectly

adequate to satisfy the burden of proof. Ultimately, establishing eligibility

for asylum cannot turn on the satisfaction of a rigid and technical evidentiary

formula. Our responsibility is to extend protection to those who demonstrate

by even a significant degree less than a preponderance of the evidence a possibility of persecution on a ground recognized in the Act. Cardoza-Fonseca

v. INS, supra. Under the law of the Supreme Court, the federal courts, and

this Board, the absence of corroborating evidence alone should not be

dispositive. What is dispositive is whether the applicant has set forth the subjective and objective elements of a fear of persecution on a protected ground

that is plausible in light of existing country conditions.

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