In Re L-a-c-: a Pragmatic Approach to the Burden of Proof and Corroborating Evidence in Asylum Proceedings

ARTICLES

IN RE L-A-C-: A PRAGMATIC APPROACH TO THE

BURDEN OF PROOF AND CORROBORATING

EVIDENCE IN ASYLUM PROCEEDINGS

PATRICK J. GLEN*

TABLE OF CONTENTS

INTRODUCTION ......................................... 2

I. THE BURDEN-OF-PROOF AND CORROBORATION REQUIREMENTS

BEFORE THE REAL ID ACT OF 2005 . . . . . . . . . . . . . . . . . . . . . . 5

A. The Statutory and Regulatory Framework Governing

Asylum Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. The Board of Immigration Appeals’ Approach to the Burden

of Proof and Corroborating Evidence . . . . . . . . . . . . . . . . 8

C. Corroboration in the Courts of Appeals.............. 11

II. THE REAL ID ACT OF 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

III. INTERPRETING THE REAL ID ACT CORROBORATION PROVISION . . . . 19

A. Initial Decisions: Competing Conceptions of Plain Meaning 19

B. In re L-A-C-: Ambiguity and a Pragmatic Approach to

Corroboration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

* Adjunct Professor, Georgetown University Law Center; Senior Litigation Counsel, Office of

Immigration Litigation, Civil Division, United States Department of Justice. The views and opinions

expressed in this Article are the author’s own and do not necessarily represent the views of the

Department of Justice or any component thereof. © 2021, Patrick J. Glen.

1

C. To Defer, or not to Defer? In re L-A-C- in the Courts of

Appeals ..................................... 25

D. Assessing the Conflict. . . . . . . . . . . . . . . . . . . . . . . . . . . 28

IV. ASSESSING IN RE L-A-C- UNDER CHEVRON................. 31

A. Plain Meaning or Ambiguous? .................... 31

B. The Board’s Pragmatic Interpretation of Section 1158(b)(1)

(B)(ii) is Reasonable............................ 40

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

INTRODUCTION

The burden of proof is a linchpin of litigation, “dictat[ing] who must pro-

duce evidence and ultimately persuade the fact-finder on which elements of

the case.”

1

For instance, “if the plaintiff has the burden of proof, he loses if

no evidence is introduced that X occurred; if the defendant has the burden of

proof, he loses unless evidence is introduced that X did not occur.”

2

The pur-

pose of the burden of proof is to “induce parties to provide information, start-

ing usually with plaintiffs.”

3

As has been observed,

The basic function of the burden of proof is to allocate among the liti-

gants the task of gathering and presenting evidence in the case. In an

adversary system in which the court lacks independent investigatory

powers, the court relies on the parties to inform it about the facts of the

case. The burden of proof is the instrument for allocating the job of fact

gathering to one or the other party.

4

So conceived, the burden of proof actually consists, in the normal course,

“of both the burden of production and the burden of persuasion.”

5

The “bur-

den of persuasion” refers to “the notion that if the evidence is evenly bal-

anced, the party that bears the burden of persuasion must lose,” while the

1. Kevin M. Clermont, Death of Paradox: The Killer Logic Beneath the Standards of Proof, 88

NOTRE DAME. L. REV. 1061, 1118 (2013).

2. Bruce L. Hay & Kathryn E. Spier, Burdens of Proof in Civil Litigation: An Economic Perspective,

26 J. LEGAL STUD. 413, 415 (1997); see Bruce L. Hay, Allocating the Burden of Proof, 72 IND. L.J. 651,

654 (1997) (“[T]he burden of proof is a default rule instructing the court what to do if neither party

presents the evidence. If the plaintiff has the burden of proof, she loses if no evidence is presented; if the

defendant has the burden, he loses if no evidence is presented.”).

3. Tamar Frankel, Presumptions and Burdens of Proof as Tools for Legal Stability and Change, 17

HARV. J. L. & PUB. POL’Y 659, 762 (1994).

4. Hay, supra note 2, at 654.

5. Lawrence B. Solum, Originalism and Constitutional Construction, 82 FORDHAM L. REV. 453, 518

n.213 (2013); see Kenneth S. Abraham, Self-Proving Causation, 99 VA. L. REV. 1811, 1839 (2013)

(“Conventionally understood, the term ‘burden of proof’ refers, at the least, to the burden of persuasion,

although it may include both the burden of production and the burden of persuasion.”).

2 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 35:1

“burden of production” refers to “a party’s obligation to come forward with

evidence to support its claim.”

6

Although somewhat distinct, these burdens

are also closely interrelated; “parties will have satisfied a production burden

when they have presented evidence from which a reasonable fact finder could

conclude that the burden of persuasion has been satisfied.”

7

In other words,

“[t]he party bearing the burden of production loses if she fails to come for-

ward with evidence sufficient to induce a reasonable fact finder to rule in her

favor—even if her opponent remains silent,” whereas “[t]he party bearing the

burden of persuasion loses if the totality of both parties’ evidence leaves the

fact finder in equipoise regarding who should prevail.”

8

Congress has statutorily allocated the burden of proof for immigration pro-

ceedings. The Government has the burden of proving that an alien, who was

previously admitted to the United States, is deportable.

9

However, the alien

bears the burden of proof in most other contexts: to establish admissibility or

that she was previously lawfully admitted,

10

to demonstrate statutory eligibil-

ity for any forms of relief or protection sought,

11

and to establish that an

ultimate exercise of discretion is warranted where discretionary relief is

sought.

12

Thus, the allocation specified by Congress includes both a burden

of persuasion and a burden of production.

13

Congress also incorporated spe-

cific provisions regarding the burden of proof, and what applicants must

adduce to meet that burden, in the asylum statute. Congress placed the burden

of proof on the applicant for asylum and provided that testimony alone may

be sufficient to meet that burden in certain circumstances, but otherwise pro-

vided the immigration judge with broad discretion to require additional cor-

roborating evidence for each claim.

14

In practice, how does this burden operate? After the hearing on the applica-

tion has closed, and the immigration judge is considering all the evidence,

may the adjudicator determine that, the applicant failed to provide sufficient

evidence to establish her claim even if she testified credibly? Where no

6. Dir., Office of Workers’ Comp. Programs v. Greenwich Collieries, 512 U.S. 267, 272 (1995) (cit-

ing James Thayer, EVIDENCE AT THE COMMON LAW 355–384 (1898)).

7. Michael S. Pardo, The Nature and Purpose of Evidence Theory, 66 VAND. L. REV. 547, 565

(2013); see David S. Schwartz, A Foundation Theory of Evidence, 100 GEO. L.J. 95, 127 (2011) (“The

burden of production in litigated cases requires that a claimant must produce evidence sufficient to sup-

port a finding under the applicable burden of persuasion on every element of his claim.”).

8. Chris Williams Sanchirico, A Primary-Activity Approach to Proof Burdens, 37 J. LEGAL STUD.

273, 273–74 (2008).

9. See 8 U.S.C. § 1229a(c)(3); 8 C.F.R. § 1240.8(a) (2020).

10. See 8 U.S.C. § 1229a(c)(2); 8 C.F.R. § 1240.8(b)–(c).

11. See 8 U.S.C. § 1229a(c)(4)(A)(i); 8 C.F.R. § 1240.8(d).

12. See 8 U.S.C. § 1229a(c)(4)(A)(ii); 8 C.F.R. § 1240.8(d).

13. See 8 U.S.C. § 1229a(c)(3)(A) (“No decision on deportability shall be valid unless it is based

upon reasonable, substantial, and probative evidence.”); 8 U.S.C. § 1229a(c)(3)(B)–(C) (citing evidence

to establish criminal convictions); see also 8 U.S.C. § 1229a(c)(4)(B) (“The applicant must comply with

the applicable requirements to submit information or documentation in support of the applicant’s applica-

tion for relief or protection as provided by law or by regulation or in the instructions for the application

form.”).

14. See 8 U.S.C. § 1158(b)(1)(B)(i)–(ii); 8 C.F.R. § 1208.13(a) (2020); see also 8 U.S.C. § 1229a(c)

(4)(B).

2020] IN RE L-A-C-: A PRAGMATIC APPROACH 3