Ayub Luziga v. Attorney General United States ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 17-2444
______
AYUB JUMA LUZIGA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
______
On Petition for Review from an
Order of the Board of Immigration Appeals
(Agency No. A205-947-666)
Immigration Judge: Roxanne C. Hladylowycz
______
Argued June 17, 2019
Before: AMBRO, RESTREPO and FISHER, Circuit Judges.
(Filed: September 5, 2019)
Khary Anderson [ARGUED]
University of Pennsylvania
School of Law
3400 Chestnut Street
Philadelphia, PA 19104
Joseph P. Archie
Nicolas A. Novy
Dechert
2929 Arch Street
18th Floor, Cira Centre
Philadelphia, PA 19104
Counsel for Petitioner
Jennifer R. Khouri [ARGUED]
Tim Ramnitz
Chad A. Readler, Acting Assistant Attorney General
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
______
OPINION OF THE COURT
______
FISHER, Circuit Judge.
An Immigration Judge (IJ) decided, and the Board of
Immigration Appeals (BIA) agreed, that Petitioner Ayub
Luziga is ineligible for withholding of removal under the
Immigration and Nationality Act (INA) and the Convention
Against Torture (CAT) because he was convicted of a
“particularly serious crime,” and that he is not entitled to
deferral of removal under the CAT because he failed to carry
2
his burden of proof. Luziga requests our review, arguing that
the IJ and BIA made two legal errors. First, Luziga argues that
the IJ and BIA misapplied the framework for making
particularly serious crime determinations, a framework the
BIA itself has established in its precedential opinions. Second,
Luziga argues that the IJ failed to observe the rule we
articulated in Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.
2001), requiring immigration judges to notify a noncitizen in
removal proceedings that he is expected to present
corroborating evidence before finding that failure to present
such evidence undermines his claim. We agree that the IJ and
BIA erred in these respects; therefore, we will grant Luziga’s
petition for review, vacate the underlying order, and remand.1
I.
Ayub Luziga, a native of Tanzania, was lawfully
admitted to the United States as a visitor twenty years ago. He
later applied and was approved for a student visa but eventually
fell out of lawful status. In 2014, he was arrested and indicted
for wire fraud in violation of 18 U.S.C. § 1343 and conspiracy
to commit the same in violation of 18 U.S.C. § 1349. The
Government alleged that from 2007 to 2008, Luziga, his then-
wife, Annika Boas,2 and fellow Tanzanians conspired to
“fraudulently secure residential mortgage loans funded by
federally-insured financial institutions by causing materially
1
The Court wishes to express its gratitude to a recent
graduate of the University of Pennsylvania Law School, Khary
Anderson, and his supervising lawyers, Joseph Patrick Archie
and Christopher J. Mauro of Dechert LLP, for their excellent
pro bono representation of the Petitioner in this matter.
2
The record indicates that Luziga and Boas were in divorce
proceedings in October 2015. Their current marital status is not
reflected in the record.
3
false statements to be made during the loan application and
approval process.” Certified Administrative Record (C.A.R.)
1026-28.
Luziga pleaded guilty to the conspiracy charge and was
sentenced to twenty-one months’ imprisonment. His conduct
caused losses between $400,000 and $1,000,000, and he
personally received checks totaling at least $54,863.11. He was
ordered to pay restitution of almost $1,000,000.
Luziga cooperated in the investigation of his co-
conspirators and testified against his wife, who was convicted
and sentenced to twenty-seven months’ imprisonment. While
Luziga prepared to testify, prosecutors asked him about the
location of Mrisho Nzese, who had been convicted for his role
in the conspiracy but fled the country. They also wanted Luziga
to ask his stepfather, a police commissioner and the chief of
INTERPOL in East Africa, to help return Nzese to the United
States. News of the investigation and Luziga’s cooperation
with prosecutors spread through the Tanzanian community in
the United States and abroad.
While Luziga was serving his sentence, the Department
of Homeland Security (DHS) ordered him removed by final
administrative order. See 8 U.S.C. § 1228(b). However,
because Luziga expressed a reasonable fear of returning to
Tanzania, DHS referred him to the Executive Office for
Immigration Review (EOIR) for removal proceedings, where
he requested withholding of removal under the INA and the
CAT, and deferral of removal under the CAT. See 8 C.F.R.
4
§ 208.31. At Luziga’s individual hearing,3 the IJ heard part of
his testimony before deciding that his conspiracy conviction
was a conviction for a particularly serious crime, making him
ineligible for withholding of removal under the INA, 8 U.S.C.
§ 1231(b)(3)(B)(ii), and the CAT, 8 C.F.R. § 1208.16(d)(2).
The IJ allowed the hearing to proceed on the issue of deferral
of removal under the CAT.
In support of his request for deferral of removal, Luziga
explained that he feared torture and testified that his parents-
in-law threatened to “make sure that [he] suffer[s]” in Tanzania
and said he “would never even survive a day in Africa.” C.A.R.
472-73. Luziga understood this to mean that they would kill
him. Nzese, the co-conspirator who had fled the United States,
made similar threats. Luziga learned of Nzese’s threats from
two sources. First, he received a letter from a friend reporting
that “the other guy who went [to Tanzania],” who Luziga
believed to be Nzese, blamed Luziga for trying to bring him
back to the United States. C.A.R. 509-10, 974. Second, a friend
of his then-wife who “[hung] out [at] a lot of parties in
Tanzania” with Nzese, C.A.R. 501, wrote to Luziga warning
him of Nzese’s threats. Annika’s friend also testified
telephonically in support of Luziga’s request for relief from
removal.
Luziga testified that his parents-in-law and Nzese could
act on threats with assistance from Tanzanian officials, or at
least with impunity. He claimed that Nzese is the nephew of
3
The hearing where parties are afforded the opportunity to
make opening and closing statements, present and object to
evidence, and present and cross-examine witnesses before an
IJ is known as the “individual calendar hearing.” U.S. Dep’t of
Justice, Office of the Chief Immigration Judge, Immigration
Court Practice Manual, § 4.16 (2019).
5
Tanzania’s former president. And he believed that his father-
in-law, Nicholas Boas, knew “top level” officials through his
work.4 C.A.R. 477. Luziga believed that another co-
conspirator’s father was a retired general. Luziga testified that,
in his experience, connections with Tanzanian officials shield
perpetrators of violence from criminal culpability. He
described a time when his friend, whose grandfather was a
member of parliament, shot a bus driver without any criminal
consequence. Luziga feared that his parents-in-law and Nzese
could do the same to him. Though his own stepfather occupied
a position of prominence, Luziga feared this would not suffice
to protect him due to his stepfather’s fragile health and waning
influence, among other things.
The IJ found that Luziga testified in a “forthright and
frank fashion,” C.A.R. 445, and made no adverse credibility
determination. In the absence of an explicit adverse credibility
determination, we assume that the noncitizen testified credibly.
Camara v. Att’y Gen., 580 F.3d 196, 201 (3d Cir. 2009).
Luziga also presented the testimony of an expert
witness, Professor Ned Bertz, an associate professor at the
University of Hawaii with expertise in Tanzanian “history . . .
encompass[ing] politics[,] culture[,] religion[,] ethnicity[,] and
current events, as well as issues of crime [and] violence.”
C.A.R. 521-22. Professor Bertz validated Luziga’s fears,
testifying that in Tanzania “[p]eople with government contacts
have the ability . . . to enact violence against other individuals
if they so choose.” C.A.R. 530. And while Professor Bertz
could not verify the alleged connection between Nzese and the
4
The exact nature of Luziga’s father-in-law’s work with the
government is unclear. Luziga testified that his father-in-law
had a government contract and gave speeches, but he was not
aware of the nature of these speeches.
6
former president, he confirmed that the former president was
directly involved in the selection of the current president and
that Nzese appeared to be an influential member of the same
political party.
After the close of evidence and counsel’s final remarks,
the IJ announced her opinion and decision. She first addressed
her particularly serious crime determination, explaining that
Luziga’s conviction for participation in a fraud scheme that
resulted in losses of nearly $1,000,000 constituted a
particularly serious crime under Third Circuit precedent and
calling Luziga’s criminal pre-sentencing report “quite
dispositive.” C.A.R. 432-33. She accordingly found Luziga
ineligible for withholding of removal under the INA and the
CAT and pretermitted those applications.
Addressing Luziga’s request for deferral of removal, the
IJ decided that Luziga had not carried his burden of proof. She
accepted that there had been threats against him, but
highlighted what she saw as shortcomings in his evidence. She
said there was “absolutely no showing whatsoever that either
Mrisho Nzese or [Luziga]’s parents-in-law have the capacity
somehow to cause [his] torture.” C.A.R. 446. She stated there
was “no proof” that Luziga’s parents-in-law and Nzese had
government connections: “[O]ther than one individual so
opining, and [Luziga] also opining that [Nzese] is the nephew
of the ex-president[,] . . . [t]here is no independent
corroborative information supplied on this issue, and that
causes the issue to fail under the burden of proof standard.” Id.Even assuming Luziga’s co-conspirators’ government
connections, she found that Luziga did not satisfy his burden
of proof on the nexus between torture and government action
or culpable inaction because “the suggestion that the ex-
president would . . . do something unlawful to vindicate []
Nzese, is supported by nothing at all on the record other than
7
some opining by [the] expert . . . and [Luziga]’s own opinions
about that”; and “there is nothing to substantiate” that Luziga’s
parents-in-law could torture him with the acquiescence of the
government. C.A.R. 446-47. Finally, she found that “[t]here is
absolutely nothing to substantiate [Luziga]’s contention that
his own stepfather . . . would be unable to protect [him].”
C.A.R. 447. The IJ found these failures of proof dispositive of
Luziga’s claim.
Luziga appealed to the BIA5 and argued that the IJ erred
in her particularly serious crime determination because, while
precedent requires a two-step analysis, the IJ had “skipped the
preliminary step to determine whether the elements of federal
wire fraud bring ‘the crime into a category of particularly
serious crimes.’” C.A.R. 28 (citing In re N-A-M-, 24 I. & N.
Dec. 336, 342 (B.I.A. 2007)). He also argued that the IJ clearly
erred in finding that he had failed to present corroborating
evidence, erroneously required corroborating evidence when
he had credibly testified to the details of his claim, and failed
to find that additional corroborating evidence was readily
available such that its absence could be held against him.
The BIA agreed with the IJ and dismissed the appeal.
To the IJ’s particularly serious crime determination, it added
that the IJ applied the correct legal standard and that “the nature
of [Luziga]’s crime, as measured by the elements of the
offense, i.e., participation in a scheme to defraud victims of
nearly $1,000,000, brings [his] crime within the range of a
particularly serious offense” under BIA and Third Circuit
precedent. C.A.R. 2-3. Thus, the BIA held that the IJ “properly
considered the nature and scope of [Luziga’s] crime, the
5
Luziga’s appeal involved several intermediate steps, which
are not relevant to our review of the issues presented in the
petition.
8
sentence imposed, and the circumstances and underlying facts”
in making that determination. C.A.R. 3. Luziga timely filed a
petition for review with this Court.
II.
The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3).
We have jurisdiction to review final orders of removal under 8
U.S.C. § 1252. Noncitizens petition for review “with the court
of appeals for the judicial circuit in which the immigration
judge completed the proceedings.” 8 U.S.C. § 1252(b)(2). In
this case, the IJ entered her appearance over proceedings in
York, Pennsylvania from Arlington, Virginia. A panel of this
Court previously noted that venue is proper where an IJ sitting
outside our Circuit appears by video conference within our
Circuit. See Angus v. Att’y Gen., 675 F. App’x 193, 196 n.4 (3d
Cir. 2017) (addressing venue where the IJ conducted a hearing
in York by video conference from Arlington and explaining
that venue under §1252(b)(2) is “non-jurisdictional”) (quoting
Khouzam v. Att’y Gen., 549 F.3d 235, 249 (3d Cir. 2008)).
Neither party has challenged venue, which—we now hold—is
appropriate in this Court.
We usually review the BIA’s opinion as the agency’s
“final order.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.
2005).6 However, “[w]hen, as here, the BIA affirms an IJ’s
decision and adds analysis of its own, we review both the IJ’s
and the BIA’s decisions,” Martinez v. Att’y Gen., 693 F.3d 408,
411 (3d Cir. 2012), referring to the BIA’s opinion “generally”
and to the IJ’s opinion “when necessary.” Quao Lin Dong v.
Att’y Gen., 638 F.3d 223, 229 n.1 (3d Cir. 2011).
6
The “agency” is the EOIR, an agency within the
Department of Justice that includes the BIA, 8 C.F.R.
§ 1003.0(a), and immigration courts, id. § 1003.9(a).
9
Our review is restricted by statute. Pursuant to the
administrative exhaustion requirement, 8 U.S.C. § 1252(d)(1),
a petitioner may present an issue to this Court only if he or she
has “first raise[d] [it] before the BIA or the IJ.” Joseph v. Att’y
Gen., 465 F.3d 123, 126 (3d Cir. 2006). While we prefer that a
petitioner unambiguously articulates his argument to the
agency, our exhaustion policy is liberal: if the petitioner
“makes some effort, however insufficient,” that puts the
agency on notice of a straightforward issue, the requirement is
satisfied. Id. (quoting Yan Lan Wu v. Ashcroft, 393 F.3d 418,
422 (3d Cir. 2005)). We are further limited by the prohibition
against review of final removal orders for noncitizens
convicted of aggravated felonies, 8 U.S.C. § 1252(a)(2)(C),
and the prohibition against review of matters entrusted to the
Attorney General’s discretion, id. § 1252(a)(2)(B)(ii).7
We have jurisdiction to review constitutional and legal
questions, id. § 1252(a)(2)(D), such as “[w]hether an IJ applied
the correct legal standard.” Alaka v. Att’y Gen., 456 F.3d 88,
103 (3d Cir. 2006); see also Nkomo v. Att’y Gen., 930 F.3d 129,
135 (3d Cir. 2019) (“We have jurisdiction to review claims that
the [BIA] misapplied its precedents.”). We review legal
questions and the application of law to fact de novo with
appropriate deference to the BIA’s reasonable interpretation of
the INA. Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.
2008) (citing Chevron U.S.A. Inc. v. Nat. Res. Def. Council,
7
Section 1252(a)(2)(B)(ii) only prohibits our review of
matters specifically delegated to the Attorney General’s
discretion. See Kucana v. Holder, 558 U.S. 233, 251 (2010)
(explaining the correct interpretation of § 1252(a)(2)(B)(ii) in
light of “the presumption favoring judicial review of
administrative action”); see also Yusupov v. Att’y Gen., 518
F.3d 185, 195 n.15 (3d Cir. 2008).
10
Inc., 467 U.S. 837, 842-43 (1984)).8 If, upon review, we “take
issue with the application of law” to the case, “we will defer to
the authority granted an agency by Congress and remand . . .
for the appropriate consideration.” Quao Lin Dong, 638 F.3d
at 228.
III.
A. Withholding of Removal and Particularly Serious Crime
Determinations
Luziga’s first challenge to the agency’s final order is
that the IJ and BIA erred in deciding that his conviction for
conspiracy to commit wire fraud is a conviction for a
“particularly serious crime,” making him ineligible for
withholding of removal.
Withholding of removal is a mandatory form of relief
that prevents removal of a noncitizen to a country where that
individual’s life or freedom would be threatened because of
race, religion, nationality, membership in a particular social
group, or political opinion. 8 U.S.C. § 1231(b)(3)(A);
Ghebrehiwot v. Att’y Gen., 467 F.3d 344, 351 (3d Cir. 2006).
Withholding of removal is also available under the CAT for
those who establish that it is more likely than not that they will
be tortured if removed. 8 C.F.R. § 1208.16(c). A noncitizen
seeking relief under the CAT does not need to connect the
prospect of torture with “any protected status,” such as race,
religion, or a particular social group. Silva-Rengifo v. Att’y
Gen., 473 F.3d 58, 64 (3d Cir. 2007).
8
We owe deference to the BIA only when it acts “in the
exercise of congressionally-delegated authority to make rules
carrying the force of law,” meaning “unpublished, single-
member BIA decisions are not entitled to Chevron deference.”
Mahn v. Att’y Gen., 767 F.3d 170, 173 (3d Cir. 2014).
11
Withholding of removal, though generally mandatory
for those who meet the criteria, is not available to individuals
who have been convicted of a “particularly serious crime.” 8
U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2). An
aggravated felony is a particularly serious crime per se if it
resulted in a “term of imprisonment of at least 5 years.” 8
U.S.C. § 1231(b)(3)(B). For other offenses, the Attorney
General, or the BIA in its exercise of delegated adjudicatory
authority, Kucana, 558 U.S. at 239, decides whether an offense
is particularly serious. 8 U.S.C. § 1231(b)(3)(B).9
Though § 1231(b)(3)(B) directs immigration
adjudicators to decide whether an offense is particularly
serious, the INA is “silent” about how the determination should
be made. Chong v. INS, 264 F.3d 378, 387 (3d Cir. 2001). In
the BIA’s first attempt at filling this gap, it stated that “an exact
definition of a ‘particularly serious crime’” could not be given.
Matter of Frentescu, 18 I. & N. Dec. 244, 247 (B.I.A. 1982).
However, it provided general guidance: sometimes offenses
are or are not “particularly serious crimes” on their face, but
most of the time the determination is made on a “case-by-case”
basis, taking into consideration “such factors as [1] the nature
of the conviction, [2] the circumstances and underlying facts
9
Particularly serious crime determinations are not among
the matters specifically delegated to the Attorney General’s
discretion, and therefore we review them de novo. Denis v.
Att’y Gen., 633 F.3d 201, 214 n.18 (3d Cir. 2011) (citing Alaka,
456 F.3d at 101–02). We had previously held that only
aggravated felonies could be particularly serious crimes.
Alaka, 456 F.3d at 104-05. We recently reconsidered that
holding as a full court. Bastardo-Vale v. Att’y Gen., No. 17-
2017 (3d Cir. Aug. 12, 2019) (en banc). Luziga concedes that
his conspiracy conviction is an aggravated felony.
12
of the conviction, [3] the type of sentence imposed, and, most
importantly, [4] whether the type and circumstances of the
crime indicate that the alien will be a danger to the
community.” Id. Over time, the Frentescu factors evolved: the
BIA eliminated the “separate determination to address whether
the alien is a danger to the community,” In re N-A-M-, 24 I. &
N. Dec. 336, 342 (B.I.A. 2007) (citing Matter of Carballe, 19
I. & N. Dec. 357 (B.I.A. 1986)), and moved away from
focusing on the sentence imposed as a “dominant factor” in the
determination. Id. at 343.10
Then, in N-A-M-, the BIA incorporated the Frentescu
factors into a two-step analysis and articulated the current legal
standard for particularly serious crime determinations. First,
adjudicators consider whether the elements of an offense
“potentially bring the crime into a category of particularly
serious crimes.” 24 I. & N. Dec. at 342.11 If not, then “the
individual facts and circumstances of the offense are of no
consequence, and the alien would not be barred from a grant of
withholding of removal.” Id. at 342. If, however, the elements
10
Though Frentescu was rendered inapplicable in many
cases when Congress amended the INA in 1990 and linked
particularly serious crimes to aggravated felonies, id. at 339-
40, the BIA eventually “revived the Frentescu case-by-case
analysis,” Blandino-Medina v. Holder, 712 F.3d 1338, 1347
(9th Cir. 2013) (citing In re L-S-, 22 I. & N. Dec. 645, 649
(B.I.A. 1999) (en banc)), after intervening legislation restored
some of the Attorney General’s discretion. For a thoughtful
review of this history, see L-S-, 22 I. & N. Dec. at 649-51.
11
In N-A-M-, the BIA also reasserted that adjudicators may
make particularly serious crime determinations solely on the
elements of a crime. Id. at 342-43. Elements-only
determinations are outside the scope of this case.
13
do “potentially bring the offense within the ambit of a
particularly serious crime,” then an adjudicator may make the
determination by considering “all reliable information[,] . . .
including the conviction records and sentencing information,
as well as other information outside the confines of a record of
conviction.” Id.
Before N-A-M-, we deferred to the Frentescu analysis
because it was reasonable. Chong, 264 F.3d at 388 (holding
that the BIA’s interpretation of § 1231(b)(3)(B) “guides and
channels the Attorney General’s discretion[,] . . . thereby
helping to ensure that the Attorney General does not make [the
‘particularly serious crime’] determination in an arbitrary or
inconsistent manner”) (citing L-S-, 22 I. & N. Dec. at 651
(holding “[w]e will . . . employ Frentescu” for aggravated
felonies with a sentence of fewer than five years)). Then, we
deferred to the analysis announced in N-A-M-. Denis v. Att’y
Gen., 633 F.3d 201, 214-16 (3d Cir. 2011) (noting that N-A-M-
“provided more clarity as to the evidence that may be
considered in deciding whether an offense is particularly
serious”).
Luziga, like the noncitizen in Denis, committed an
aggravated felony that was not a particularly serious crime per
se. The IJ and BIA therefore had to decide whether he had
committed a particularly serious crime. Luziga argues that the
IJ and BIA failed to correctly apply the analysis articulated in
N-A-M-, skipping right over the preliminary consideration of
elements. He is correct: the agency should have applied the N-
A-M- analysis, but from the record it is clear that both the IJ
and BIA failed to apply N-A-M- correctly.
The BIA began its particularly serious crime analysis by
approving of the IJ’s application of the “proper legal standard.”
C.A.R. 2. However, when the IJ made the particularly serious
crime determination, she failed to first consider the elements
14
of Luziga’s offense. In her preliminary determination, she
focused on the loss amount of up to $1,000,000, found our
decision in Kaplun v. Attorney General controlling,12 and
announced that Luziga would be barred from withholding of
removal. When the IJ addressed the particularly serious crime
determination for a second time in her opinion, she explained
that the case “clearly [fell] under the rubric of [Kaplun],”
emphasized her reliance on the facts and circumstances in the
pre-sentencing report and plea agreement, and found that
Luziga’s participation in the conspiracy involved not only
monetary loss, but also identity theft. C.A.R. 432-35. She made
no reference to the elements of Luziga’s offense, that is “(1)
two or more persons entered the unlawful agreement charged
in the Superseding Indictment [the conspiracy]; and (2)
[Luziga] knowingly and willfully became a member of that
conspiracy.” C.A.R. 197 (Luziga Plea Agreement). To the
extent that the BIA decided that the IJ correctly applied the
12
In Kaplun v. Attorney General, which was decided before
we approved of the N-A-M- framework, we found no error in
the BIA’s determination that the noncitizen’s securities fraud
conviction with losses of almost $900,000 constituted a
particularly serious crime. 602 F.3d 260, 267-68 (3d Cir.
2010). The Attorney General argues that, by citing Kaplun, the
agency performed the first step in N-A-M-. However, mere
citation to Kaplun is insufficient for us to draw that inference,
and we are not at liberty to “supply the basis for [an agency]
decision where appropriate reasons are not set forth by the
administrative agency itself.” Wang v. Att’y Gen., 423 F.3d
260, 271 (3d Cir. 2005). Moreover, our decision in Kaplun
does not dictate that aggravated felony financial crimes must
potentially fall within the ambit of particularly serious crimes.
15
proper legal standard for the particularly serious crime
determination, it erred.
The BIA’s added analysis did not fix this error. Though
it cited N-A-M- and even stated that it would consider the
“elements” of Luziga’s offense, the BIA listed as “elements”
specific offense characteristics such as loss amount. C.A.R. 2-
3 (“[T]he nature of the applicant’s crime, as measured by the
elements of the offense, i.e., participation in a scheme to
defraud victims of nearly $1,000,000, brings the applicant’s
crime within the range of a particularly serious offense.”). That
is, rather than considering the elements of conspiracy to
commit wire fraud, the BIA described a hybrid of the elements
and facts of Luziga’s conviction. The BIA’s failure to correctly
apply its own precedent for the particularly serious crime
determination, to which we have consistently deferred,
requires remand for “appropriate consideration.” Quao Lin
Dong, 638 F.3d at 228. On remand, the agency should first
determine whether the elements of Luziga’s offense potentially
fall within the ambit of a particularly serious crime. Only then
may it proceed to consider the facts and circumstances
particular to Luziga’s case.
B. Deferral of Removal and Corroboration Determinations
Luziga’s second challenge to the agency’s final order is
that the IJ failed to notify him that he was expected to present
corroborating evidence regarding the likelihood that he would
be tortured in Tanzania before she denied his request for CAT
deferral.
Deferral of removal under the CAT is a last-resort form
of relief that is “like an injunction” in that, “for the time being,
it prevents the government from removing the person in
question, but it can be revisited if circumstances change.”
Wanjiru v. Holder, 705 F.3d 258, 264 (7th Cir. 2013). It does
not give a noncitizen any legal status and it can be terminated
16
at any time. 8 C.F.R. § 1208.17. But for removable noncitizens
facing a likelihood of torture and no other avenues of relief, it’s
better than nothing.
To demonstrate entitlement to this form of relief, a
noncitizen must prove that there is a greater likelihood than not
that he will be tortured in the country to which he will be
removed, id., “by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity.” Id. § 1208.18(a)(1). “Acquiescence” of an
official is defined as when a “public official, prior to the
activity constituting torture, [has] awareness of such activity
and thereafter breach[es] his or her legal responsibility to
intervene to prevent such activity.” Id. § 1208.18(a)(7). It is not
limited to situations where officials have “actual knowledge”
of torture but includes “willful blindness.” Silva-Rengifo, 473
F.3d at 65, 68 (citing Zheng v. Ashcroft, 332 F.3d 1186, 1194
(9th Cir. 2003)).
As with asylum or withholding of removal, noncitizens
seeking deferral of removal bear the burden of proof. Mulanga
v. Ashcroft, 349 F.3d 123, 133 & n.6 (3d Cir. 2003) (citing 8
C.F.R. § 208.16(c)(2)); see also 8 C.F.R. § 1208.17. A
noncitizen may carry his burden with credible testimony alone.
8 C.F.R. § 1208.16(c)(2). However, corroborating evidence
may be required when it is reasonable to expect it, such as for
“facts [that] are central” to a claim and easily verified. Chukwu
v. Att’y Gen., 484 F.3d 185, 192 (3d Cir. 2007). Before
requiring corroborating evidence, i.e., deciding that “failure to
corroborate undermines” a claim, an IJ must follow the
Abdulai inquiry. Saravia v. Att’y Gen., 905 F.3d 729, 736 (3d
Cir. 2018). The inquiry demands that an IJ requiring
corroboration first:
(1) [identify] . . . the facts for which ‘it is
reasonable to expect corroboration;’ (2) [inquire]
17
as to whether the applicant has provided
information corroborating the relevant facts;
and, if he or she has not, (3) [analyze] whether
the applicant has adequately explained his or her
failure to do so.
Id. (citing Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.
2001)). Where an IJ fails to “develop [a noncitizen applicant’s
testimony] in accord with the Abdulai steps” and “hold[s] the
lack of corroboration against [the] applicant,” we vacate and
remand. Chukwu, 484 F.3d at 192. We strictly enforce this rule.
For example, in Saravia we remanded for a new determination
where the IJ asked the noncitizen “why he had not submitted
corroborating evidence,” instead of asking “whether he could
not corroborate his testimony” and providing an opportunity to
do so. 905 F.3d at 738–39.
Luziga argues that he never received notice or an
opportunity to provide corroborating evidence before the IJ
faulted him for failing to corroborate his CAT deferral claim.13
Before we address the merits of his argument, we must first
address whether Luziga adequately exhausted the issue to
permit our review. See 8 U.S.C. § 1252(d)(1).
Before the BIA, Luziga argued that the IJ failed to find
that corroborating evidence beyond what he had provided was
“readily available” such that failure to produce it could be held
against him. C.A.R. 43. He also questioned the correctness of
13
Luziga also argues that the IJ overlooked corroborating
evidence he did provide. Overlooking corroborating evidence
in the record is an error at step two of the Abdulai inquiry.
Because we will remand for a new corroboration
determination, the IJ will have an opportunity to address any
corroborating evidence already in the record.
18
the IJ’s corroboration findings, calling them “clearly
erroneous.” C.A.R. 39-40. Under our liberal exhaustion policy,
see Yan Lan Wu, 393 F.3d at 422, this is adequate. Luziga was
not required to unambiguously raise the IJ’s failure to follow
the three steps of the Abdulai inquiry as long as he “place[d]
the Board on notice of a straightforward issue being raised on
appeal.” Id. In questioning the correctness of the IJ’s
corroboration determination, Luziga put the BIA on notice of
an error in that determination.
The BIA agreed with the IJ’s decision on Luziga’s CAT
deferral claim without adding analysis, so we review the IJ’s
decision. Zhang, 405 F.3d at 155. The record clearly shows that
the IJ did not perform the Abdulai inquiry before announcing
her decision.14 She never asked Luziga whether he could
provide further corroborating evidence of his claim, or, if he
could not, whether he had an explanation for his inability to do
so. This error requires remand for a new corroboration
determination, see Toure v. Att’y Gen., 443 F.3d 310, 323 (3d
Cir. 2006), unless, as the Attorney General argues,
“corroboration was not determinative [of] [Luziga’s] CAT
claim,” Respondent’s Br. 31.
In her opinion, the IJ held that Luziga failed to carry his
burden of proof to demonstrate entitlement to CAT deferral,
saying that Luziga had “not met his burden of proof of
establishing the elements of his claim.” C.A.R. 446. The IJ then
pointed to Luziga’s failure to provide corroborating evidence,
remarking that “[a]s far as Mrisho Nzese is concerned, there is
14
DHS counsel asked several questions about corroboration
during proceedings. However, it is the adjudicator’s duty to
address corroboration by going through the Abdulai inquiry if
she plans to find corroboration determinative. See Chukwu,
484 F.3d at 192.
19
no proof other than one individual so opining, and [Luziga]
also opining that he is the nephew of the ex-president[;] [t]here
is no independent corroborative information supplied on this
issue, and that causes the issue to fail under the burden of proof
standard.” Id. (emphasis added). And further, “[w]ith respect
to the suggestion that the ex-president would, even if he is
related to Mrisho Nzese, do something unlawful to vindicate
Mrisho Nzese, is supported by nothing at all on the record other
than some opining by this expert . . . and [Luziga]’s own
opinions about that.” Id. The IJ also stated that there was no
evidence corroborating Luziga’s testimony that his friend shot
a bus driver, his stepfather couldn’t protect him, and his
parents-in-law and Nzese could torture him with the
acquiescence of public officials.
The Attorney General argues that, though the IJ
discussed corroboration, she ultimately denied Luziga’s
request for deferral because of his failure to satisfy the “burden
of persuasion.”15 The Attorney General asserts that the IJ noted
the facts Luziga failed to corroborate, but ultimately accepted
those facts for purposes of argument and was nevertheless
unpersuaded that Tanzanian officials would acquiesce in
Luziga’s torture.
We are unconvinced. The IJ emphasized Luziga’s
failure to corroborate throughout her opinion, and while she
indicated that she would assume that Luziga had been
threatened and that Nzese is in fact the nephew of the former
president, she explained that, even assuming those facts,
Luziga had failed to carry his burden of proof on the nexus
between the possibility that his feared assailants would torture
15
Oral Argument at 22:40-23:05, available at
https://www2.ca3.uscourts.gov/oralargument/audio/17-
2444AyubJumaLuzigav.AttyGenUSA.mp3.
20
him and government acquiescence. C.A.R. 447-48 (explaining
that CAT relief requires acquiescence of a public official, and
deciding “[t]here is absolutely, completely[,] no evidence of
this at all”). The rub is that Luziga credibly testified that
Tanzanian officials acquiesce in harm perpetrated by people
with government connections, particularly when he testified
about his friend shooting a bus driver with impunity because
his grandfather had been a member of parliament. Moreover,
he provided an expert who testified to the same effect based on
his study of Tanzanian history and society. See C.A.R. 530
(“People with government contacts have the ability,
essentially, to enact plans, to enact violence against other
individuals if they so choose.”). Thus, a failure to prove
acquiescence must not have been due to a lack of credible
testimony on the issue. And if Luziga’s failure on the burden
of proof was not due to a lack of credible testimony, the only
other possibility is that the IJ found Luziga failed to produce
corroborating evidence.
There is nothing inherently wrong with that—IJs may
require corroboration of central aspects of a claim that can be
easily verified or demand an explanation for the absence of
reasonably available corroborating evidence. Chukwu, 484
F.3d at 192. In fact, we have observed that we “typically” see
the Abdulai inquiry “come[] into play” in just this type of
situation: where the “petitioner has testified, apparently
credibly, about the facts giving rise to [his] claim, but the IJ
believes it would be ‘reasonable’ for [him] to have
corroboration of one or more facts, such that [the IJ] imposes
an obligation on [him] to produce corroboration in order to
meet [his] burden.” Quao Lin Dong, 638 F.3d at 231. The
demand is not the problem; what we prohibit is failing to notify
the noncitizen of an unspoken expectation and then penalizing
him for failing to meet it. The IJ held Luziga’s failure to
21
produce corroborating evidence against him without first
giving him notice and an opportunity to provide the evidence
or explain its absence, as Abdulai requires. That is precisely the
kind of “‘gotcha’ conclusion[]” that led this Court to vacate
and remand in Saravia. 905 F.3d at 738-39. Therefore, we must
remand for a new corroboration determination.
IV.
In light of the foregoing errors, we will grant Luziga’s
petition for review, vacate the underlying order, and remand
this case for further proceedings consistent with this opinion.
22