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appealtestimonyaffidavitasylumcredibility
statutetestimonyaffidavitwillasylum

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Sibanda v. Holder

Facts

Lucy Sibanda fled Zimbabwe after her husband died, fearing that her brother-in-law would enforce a tribal custom that deemed her his property and would attempt to rape her. Despite her credible testimony about past attacks and her attempts to seek help from family and police, she faced hostility and indifference. The immigration judge denied her asylum application, citing a lack of corroborating evidence, which led to her appeal to the Board of Immigration Appeals.

Sibanda testified that she had married her husband, Aaron Sibanda, in 1984. Aaron paid Sibanda's father a bride-price to marry her, as prescribed by the customs of both their tribes, the Ndebele and the Shona. His payment of money and goods, valued at 5,000 Zimbabwean dollars (a considerable sum at the time), effected the transfer of Sibanda from her father to him and his family. One term of this transfer was that, in the event of his death, she would become the property of her husband's family. That provision was triggered when Aaron died in 2002. His brother, Major Takaza Sibanda (whose title appears to reflect a previous military role) demanded his 'property.'

Issue

Did the immigration judge and the Board of Immigration Appeals properly assess the availability of corroborating evidence for Sibanda's asylum claim?

The principal question in the petition before us is whether the IJ and the Board properly considered and applied the part of the statute we have highlighted.

Rule

Under 8 U.S.C. 1158(b)(1)(B)(ii), an immigration judge may require corroborating evidence unless the applicant cannot reasonably obtain it.

The statute 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) (emphasis added); see Raghunathan v. Holder, 604 F.3d 371, 379 (7th Cir. 2010); Krishnapillai v. Holder, 563 F.3d 606, 618 (7th Cir. 2009).

Analysis

The court found that the immigration judge and the Board unreasonably demanded corroborating evidence that was not available to Sibanda. Given the hostility from her family and the police's refusal to assist her, it was unreasonable to expect her to provide letters or affidavits from those who sided with her brother-in-law. The absence of eyewitnesses and the lack of police reports further supported the conclusion that corroboration was not reasonably obtainable.

The answer, we conclude, is yes. Under the circumstances, Sibanda could not be expected to furnish a supporting 'letter or affidavit' from her own family or tribe. Her brothers and the local chief both have sided with Major Sibanda, and so they have no reason to help her elude him through asylum. See Zhang v. Gonzales, 434 F.3d 993, 999 (7th Cir. 2006) (holding that an affidavit from an applicant's wife was unavailable where the applicant credibly testified that his wife was hostile to him).

Conclusion

The Seventh Circuit granted Sibanda's petition for review and remanded the case for further proceedings, emphasizing the need for a careful assessment of her credibility and the availability of corroborating evidence.

We therefore grant the petition for review and remand to the agency for further proceedings.

Who won?

Lucy Sibanda prevailed in the case as the court found that the immigration judge and Board of Immigration Appeals had unreasonably required corroborating evidence that was not available to her.

The Board assumed, and so will we, that Sibanda is credible. We thus turn immediately to the question whether the record compels the conclusion that (more) corroborating evidence was not reasonably available. The answer, we conclude, is yes.

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