Dia v. Atty Gen USA

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
12-22-2003
Dia v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 02-2460
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Volume 1 of 2
PRECEDENTIAL
Filed December 22, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2460
SAIDOU DIA,
Petitioner
v.
JOHN ASHCROFT,
Attorney General of the United States,
Respondent
On Petition for Review of an Order of Removal from
the Board of Immigration Appeals
U.S. Department of Justice
Executive Office for Immigration Review
(BIA No. A78-514-349)
Argued February 3, 2003
Before: SLOVITER, RENDELL and STAPLETON,
Circuit Judges.
Reargued En Banc May 28, 2003
Before: SCIRICA, Chief Judge, SLOVITER, NYGAARD,
ALITO, ROTH, McKEE, RENDELL, BARRY, AMBRO,
FUENTES, SMITH, BECKER and STAPLETON,
Circuit Judges.
(Filed: December 22, 2003)
2
Brett S. Deutsch [ARGUED]
Cindy Warner
Orrick, Herrington & Sutcliffe
666 Fifth Avenue
New York, NY 10103
Counsel for Petitioner
Christopher C. Fuller
Allen W. Hausman
John M. McAdams, Jr.
Greg D. Mack [ARGUED]
U.S. Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
Nadine K. Wettstein [ARGUED]
American Immigration Law
Foundation
918 F Street, N.W., 6th Floor
Washington, DC 20004
Counsel for Amicus-appellant,
American Immigration Law
Foundation
Steven J. Kolleeny
Four Times Square, Room 48-328
New York, NY 10036-6522
Counsel for Amicus-appellant, The
Lawyers Committee for Human
Rights (“Lawyers Committee”)
3
OPINION OF THE COURT
TABLE OF CONTENTS
I. THE STREAMLINING REGULATIONS ................... 5
A. Background ................................................... 6
B. Statutory and Regulatory Scheme ................. 7
C. Constitutional Challenges .............................. 11
II. THE AGENCY’S DENIAL OF RELIEF .................... 28
A. Dia’s Testimony ............................................. 28
B. Burden and Standard of Review ................... 32
C. The Immigration Judge’s Decision ................. 38
1. Past Persecution ...................................... 41
2. Procurement of a Passport and Visa ....... 49
3. Future Persecution .................................. 56
III. CONCLUSION ....................................................... 59
Judge Rendell filed the opinion of the Court in which Chief
Judge Scirica and Judges Nygaard, Barry, Fuentes, and
Smith joined. Judge Alito filed an opinion concurring as to
Part I and dissenting as to Part II in which Judges Sloviter
and Roth joined. Judge Stapleton filed an opinion
dissenting as to Part I, in which Judges Ambro and Becker
joined. Judge McKee filed an opinion dissenting as to Part
I and concurring as to Part II.
RENDELL, Circuit Judge.
In 2001, the Immigration and Naturalization Service (INS)
charged Saidou Dia, a native of the Republic of Guinea,
with removability for illegal entry into the United States.
Dia conceded removability but applied for relief, seeking
asylum, withholding of removal, and relief under the United
Nations Convention Against Torture, and Other Cruel,
Inhuman or Degrading Treatment or Punishment.1 Dia
1. The basic law underlying Dia’s substantive claims is clear. The
Attorney General has the discretion to grant Dia asylum if he meets the
definition of “refugee” as defined in the Immigration and Nationality Act,
8 U.S.C. § 1101 et seq. (INA), i.e., he is unable or unwilling to return to
his home country “because of persecution or a well-founded fear of
4
alleged that he had been, and would be, persecuted in
Guinea due to his actual and imputed political opinions.
The Immigration Judge (IJ) rejected Dia’s allegations,
finding that she was “not convinced that [Dia] has suffered
past persecution” or that Dia would be persecuted and/or
killed if he returned to Guinea. The IJ based her conclusion
solely on her determination that Dia was not credible. Dia
appealed to the Board of Immigration Appeals (BIA), which
summarily affirmed the IJ’s decision under its streamlining
regulations. This petition for review followed. Our
jurisdiction arises under 8 U.S.C. § 1252.
Two issues are before the court for consideration en banc:
First, we will review whether the streamlining
regulations promulgated by the Attorney General are either
inconsistent with the INA, or violative of Dia’s due process
rights under the Fifth Amendment. See U.S. Const. amend.
V.
Second, we will review the adverse credibility
determination made by the Immigration Judge and
summarily affirmed by the BIA.
As to the first issue, we determine that the streamlining
regulations are valid.
As to the second issue, however, we conclude that the
IJ’s analysis of Dia’s credibility was based on reasoning
that was at best unexplained and at worst speculative.
Accordingly, it was not supported by substantial evidence.
persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). To
qualify for withholding of removal, Dia must show that, if deported, there
is a “clear probability” that he will be persecuted on account of a
specified ground — here, political opinion — if returned to his native
country. See Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003); 8
C.F.R. § 208.16(b). To qualify for relief under the United Nations
Convention Against Torture, and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, 23 I.L.M.
1027 (CAT), see 8 C.F.R. § 208.17 (2002), Dia must prove that he is
more likely than not to be tortured in the country of removal.
Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003) (citing 8
C.F.R. §§ 208.16(c)(2) & (4)).
5
We will grant the petition for review, vacate the order,
and remand to the BIA to give the IJ the opportunity to
explain or bolster her analysis.
I. THE STREAMLINING REGULATIONS
In upholding the IJ’s determination denying Dia relief
from removal, the BIA did not issue an opinion, but,
instead, issued an “affirmance without opinion” (AWO)
under its streamlining regulations. See 8 C.F.R. § 3.1(a)(7)
(2002). The streamlining regulations have recently been the
subject of many unsuccessful attacks. See, e.g., Khattak v.
Ashcroft, 332 F.3d 250, 253 (4th Cir. 2003) (rejecting the
argument that the regulations are “impermissibly
retroactive”); Albathani v. INS, 318 F.3d 365, 377 (1st Cir.
2003) (rejecting a due process challenge); Capital Area
Immigrants’ Rights Coalition v. United States Dep’t of
Justice, 264 F. Supp. 2d 14, 39 (D.D.C. 2003) (rejecting a
challenge under the Administrative Procedure Act). Dia,
with able support of amici, broadly attacks the streamlining
regulations on two grounds: (1) as inconsistent with the
INA; and (2) as violative of his due process rights.
A. Background
The Supreme Court has “ ‘long recognized the power to
expel or exclude aliens as a fundamental sovereign
attribute exercised by the Government’s political
departments largely immune from judicial control.’ ” Fiallo
v. Bell, 430 U.S. 787, 792 (1977) (quoting Shaughnessy v.
United States ex rel. Mezei, 345 U.S. 206, 210 (1953)). With
limited exceptions, Congress, in the INA, charges the
Attorney General “with the administration and enforcement
of [the INA] and other laws relating to the immigration and
naturalization of aliens.” 8 U.S.C. § 1103(a)(1) (2002).
Pursuant to this power, Congress has mandated that the
Attorney General “shall establish such regulations; . . .
issue such instructions; and perform such other acts as he
deems necessary for carrying out his authority under [the
INA].” 8 U.S.C. § 1103(a)(3) (2002). Congress has further
authorized that “[t]he Attorney General may provide by
regulation for any other conditions or limitations on the
6
consideration of an application for asylum not inconsistent
with this Act.” 8 U.S.C. § 1158(d)(5)(B) (2002).
The Attorney General has delegated to the BIA many of
his responsibilities under the immigration laws, see 1
Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr,
Immigration Law and Procedure § 3.02[1] (rev. ed. 2003)
(stating that the BIA “exercises so much of the Attorney
General’s authority under the immigration and nationality
laws as the Attorney General may delegate to it”), and has
further delegated supervision of the BIA to the Department
of Justice’s Executive Office of Immigration Review. Id. The
BIA, established by regulation, has existed in various
guises and has held various responsibilities since 1922. Id.
at § 3.05[1]. Initially, immigration laws were enforced by the
Secretary of Labor, under whose supervision the
administrative immigration appellate body was known as
the “Board of Review.” Id. After Congress transferred the
responsibility for immigration enforcement to the Attorney
General in 1940, the Board of Review was renamed the
Board of Immigration Appeals. In its present form, the BIA
has been described as “a quasi-judicial body with
exclusively appellate functions.” Id.
The Attorney General promulgated the streamlining
regulations in 1999 when the Board was faced with a
crushing caseload, the number of cases having increased
exponentially in a little over a decade. See Executive Office
of Immigration Review: Board of Immigration Appeals
Streamlining, 64 Fed. Reg. 56,135, 56,136 (Oct. 18, 1999)
(to be codified at 8 C.F.R. pt. 3). See generally Board of
Immigration Appeals: Procedural Reforms to Improve Case
Management, 67 Fed. Reg. 54,878, 54,878-79 (Aug. 26,
2002) (to be codified at 8 C.F.R. pt. 3). Under the
regulations, “the Chairman [of the BIA] may designate
certain categories of cases as suitable for review” by
designated Board members “who are authorized to affirm
decisions of Immigration Judges . . . without opinion.” 8
C.F.R. § 3.1(a)(7)(i) (2002). The single BIA member to whom
the case is assigned may affirm an IJ’s decision in a single
sentence without an opinion if he or she determines that
the result was correct, and that “(A) the issue on appeal is
squarely controlled by existing Board or federal court
7
precedent and does not involve the application of precedent
to a novel fact situation; or (B) the factual and legal
questions raised on appeal are so insubstantial that three-
Member review is not warranted.” 8 C.F.R. § 3.1(a)(7)(ii)
(2002).2 Each AWO is exactly the same. It reads: “The
Board affirms, without opinion, the results of the decision
below. The decision is, therefore, the final agency
determination. See 8 C.F.R. § 3.1(a)(7)(iii) (2002); see also
Executive Office of Immigration Review: Board of
Immigration Appeals Streamlining, 64 Fed. Reg. at 56,137-
38 (“The decision rendered below will be the final agency
decision for judicial review purposes . . . . [T]he Immigration
Judge’s decision becomes the decision reviewed.”). Such an
order does not necessarily imply approval of all of the
reasoning of the IJ’s decision, but does signify that the
reviewing Board member considered that any errors by the
IJ were harmless or immaterial. Id. If the single BIA
member decides that the decision is inappropriate for
affirmance without an opinion, the case is assigned to a
three-member panel for review and decision. 8 C.F.R.
§ 3.1(a)(7)(iv) (2002). That panel, however, is also authorized
to determine that a case should be affirmed without an
opinion. Id.B. Statutory and Regulatory Scheme
We are “confronted [with] questions implicating an
agency’s construction of the statute which it administers.”
INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999) (citation
and internal quotation marks omitted). For this reason, we
apply the principles of deference described in Chevron
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842 (1984). See Aguirre-Aguirre, 526 U.S. at 424 (“It is clear
that principles of Chevron deference are applicable to this
statutory scheme.”). We initially ask whether “the statute is
silent or ambiguous with respect to the specific issue” we
confront. Chevron, 467 U.S. at 843. If it is, “the question for
the court is whether the agency’s answer is based on a
2. Since the time of Dia’s appeal to the BIA, the streamlining regulations
have been moved to a different section of chapter 8 of the Code of
Federal Regulations. See 8 C.F.R. § 1003.1(a)(7).
8
permissible construction of the statute.” Id. at 843; see also
Aguirre-Aguirre, 526 U.S. at 424. In doing so, we bear in
mind that “judicial deference to the Executive Branch is
especially appropriate in the immigration context where
officials ‘exercise especially sensitive political functions that
implicate questions of foreign relations.’ ” Aguirre-Aguirre,
526 U.S. at 425 (quoting INS v. Abudu, 485 U.S. 94, 110
(1988)); see also Abdulrahman v. Ashcroft, 330 F.3d 587,
597 (3d Cir. 2003) (quoting this section of Aguirre-Aguirre);
Abdulai v. Ashcroft, 239 F.3d 542, 551 (3d Cir. 2001)
(acknowledging “the narrow scope of our review” under
such circumstances).
The streamlining regulations easily pass the first step of
the Chevron inquiry. The INA “is silent . . . with respect to”
streamlined administrative appeals. Chevron, 467 U.S. at
843. The next question is whether the streamlining of
administrative appeals “is based on a permissible
construction of the statute.” Id. If, as Dia contends, the
streamlining regulations are inconsistent with the INA, they
certainly are not based on a permissible construction of the
statute. So, we must look at what the INA says regarding
the BIA in particular, and administrative appeals in general.3
In so doing, we can discern nothing in the INA with which
the streamlining regulations are inconsistent. See Abdulai,
239 F.3d at 555 (“[N]othing in the INA specifically requires
the Board to explain its decisions.”). In fact, the INA says
nothing whatsoever regarding the procedures of an
administrative appeal, or, for that matter, any other
procedures employed by the BIA.
3. We look at the INA at the time of Dia’s appeal to the BIA. The INA was
amended by the Homeland Security Act of 2002, Pub. L. No. 107-296,
§ 471, 116 Stat. 2135, 2192, 2205 (Nov. 25, 2002), which, on March 1,
2003, transferred the functions of the INS to various bureaus, the one
dealing with asylum cases being the Bureau of Citizenship and
Immigration Services within the Department of Homeland Security. See
generally 1 Gordon, Mailman, & Yale-Loehr, Immigration Law and
Procedure 1:SA1-1-2. The functions of the Executive Office for
Immigration Review continue to reside in the Department of Justice,
under the direction of the Attorney General. Because of the status of the
agency at the time this case was submitted, and for ease of reference,
this opinion refers to the agency as the INS or merely as the “agency.”
9
As Dia points out, the INA refers to the BIA in its
“definitions” section, in connection with its definition of the
term “order of deportation.”4 8 U.S.C. § 1101(a)(47)(A)
(2002). The relevant provision reads, in pertinent part:
The [“order of deportation”] shall become final upon the
earlier of (i) a determination by the Board of
Immigration Appeals affirming such order; or (ii) the
expiration of the period in which the alien is permitted
to seek review of such order by the Board of
Immigration Appeals.
8 U.S.C. § 1101(a)(47)(B) (2002). Under this provision, an
order of deportation is not “final” until either the BIA has
passed on it, or the time for seeking BIA review has expired.
The statute also provides that the statutory right to judicial
review of orders of deportation is only available for a “final
order.” 8 U.S.C. § 1252(b)(9) (2002); Gao v. Ashcroft, 299
F.3d 266, 271 (3d Cir. 2002). Based on these two
provisions, Dia argues that the BIA at the relevant time was
an entity provided for by statute, and no longer existed
solely by regulation.
But even assuming that the BIA could not be eliminated
without statutory authorization, we are hard pressed to
conclude much more from the definitional statement at
§ 1101(a)(47)(B). It says absolutely nothing about
procedures to be employed by the BIA, or the right to, or
manner of, review generally; it only speaks to review by the
BIA and its “affirming” the “order” of deportation. 8 U.S.C.
§ 1101(a)(47)(B). Based on the fact that § 1101(a)(47)(B)
contains the only mention of the BIA in the INA, it seems
clear that Congress has left all procedural aspects of the
BIA, especially how it hears cases, entirely to the Attorney
General’s discretion. Id.
4. The provision reads in whole part:
The term “order of deportation” means the order of the special
inquiry officer, or other such administrative officer to whom the
Attorney General has delegated responsibility for determining
whether an alien is deportable, concluding that the alien is
deportable or ordering deportation.
8 U.S.C. § 1101(a)(47)(A).
10
The statute’s references to an “administrative appeal” do
not alter this conclusion. Only two statutory provisions of
the INA reference the term “administrative appeal.” These
provisions mandate that the procedure established for
applying for asylum
shall provide that —
. . .
(iii) in the absence of exceptional circumstances, final
administrative adjudication of the asylum application,
not including administrative appeal, shall be completed
within 180 days after the date an application is filed;
(iv) any administrative appeal shall be filed within 30
days of a decision granting or denying asylum, or
within 30 days of the completion of removal
proceedings before an immigration judge under section
1229a of this title, whichever is later.
8 U.S.C. § 1158(d)(5)(A)(iii) & (iv) (2002) (emphasis added).
Although these provisions contemplate some type of an
administrative appeal in connection with applications for
asylum, they fail to provide any guidance as to the
procedural trappings of that appeal.
Similarly unpersuasive is Dia’s citation to 8 U.S.C.
§ 1229a(c)(4), which provides:
If the immigration judge decides that the alien is
removable and orders the alien to be removed, the
judge shall inform the alien of the right to appeal that
decision and of the consequences for failure to depart
under the order of removal, including civil and criminal
penalties.
Id. (emphasis added). Even if we were to assume that this
provision contemplates that an alien will have the
opportunity for an administrative appeal, neither this
provision nor any other provision of the INA references the
procedural requirements of an administrative appeal or
outlines a scheme inconsistent with the streamlining
regulations. Instead, it only speaks generally of an
“administrative appeal” and “the right to appeal,” and of the
BIA only in the context of a “final” order. To conclude from
11
this language in the INA that the streamlining regulations
are not a “permissible construction of the statute” under
Chevron, 467 U.S. at 843, would require a sizable leap that
we cannot make. The Supreme Court has forcefully
emphasized that “[a]bsent constitutional constraints or
extremely compelling circumstances the administrative
agencies should be free to fashion their own rules of
procedure and to pursue methods of inquiry capable of
permitting them to discharge their multitudinous duties.”
Vermont Yankee Nuclear Power Corp. v. Natural Res. Def.
Council, Inc., 435 U.S. 519, 543 (1978) (citation and
internal quotation marks omitted). This “basic tenet of
administrative law,” id., has even more force in the
immigration context where our deference is especially great.
See Abdulai, 239 F.3d at 552 (“In light of the INA’s
enormously broad delegation to the Attorney General, we
would be extremely reluctant to hold that his interpretation
is unreasonable.”); see also 1 Gordon, Mailman, & Yale-
Loehr, Immigration Law and Procedure § 3.02[2] (“[T]he
theory of the [INA] is that all responsibility to enforce or
administer the immigration laws is vested in the Attorney
General, and that she may delegate or assign any of such
powers in any manner she deems appropriate.”). We
therefore hold that, in promulgating the streamlining
regulations, the Attorney General did not run afoul of the
INA.5
C. Constitutional Challenges
Dia next attacks the streamlining regulations as a
deprivation of his constitutional right to due process under
the Fifth Amendment.6 See U.S. Const. amend. V. We have
plenary review over constitutional challenges to
immigration procedures. Abdulrahman, 330 F.3d at 597.
We agree with our sister courts of appeals that have passed
5. A fortiori, we reject Dia’s argument that the INA requires the BIA to
conduct de novo review on appeal.
6. Dia suggests that his argument is tailored only to address how the BIA
applied the streamlining regulations to him. However, his attack is broad
and not based on any specifics of his case. Therefore, we view his due
process challenge as a facial challenge to the procedures.
12
on this issue and conclude that the streamlining
regulations do not violate the Due Process Clause of the
Constitution. See Denko v. INS, 2003 WL 22879815, at *8
(6th Cir. Dec. 8, 2003); Falcon Carriche v. Ashcroft, 2003
WL 22770121, at *3 (9th Cir. Nov. 24, 2003); Georgis v.
Ashcroft, 328 F.3d 962, 967 (7th Cir. 2003); Mendoza v.
United States Att’y Gen., 327 F.3d 1283, 1288 (11th Cir.
2003); Soadjede v. Ashcroft, 324 F.3d 830 (5th Cir. 2003);
Albathani, 318 F.3d at 377.
The basic elements of due process in this context are
clear. Although “the Fifth Amendment entitles aliens to due
process of law in deportation proceedings,” Reno v. Flores,
507 U.S. 292, 306 (1993), due process is “flexible and calls
for such procedural protections as the particular situation
demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972);
see also Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996)
(“Precisely what minimum procedures are due under a
statutory right depends on the circumstances of the
particular situation.”). The due process afforded aliens
stems from those statutory rights granted by Congress and
the principle that “[m]inimum due process rights attach to
statutory rights.” Marincas, 92 F.3d at 203; see also
Meachum v. Fano, 427 U.S. 215, 226 (1976). Our concern,
then, is whether the streamlining regulations afford aliens
such as Dia their minimum due process rights. See
Albathani, 318 F.3d at 375 (stating that an unadmitted
alien present in the United States has only “limited” due
process rights); see also Anwar v. INS, 116 F.3d 140, 144
(5th Cir. 1997) (“Due process challenges to deportation
proceedings require an initial showing of substantial
prejudice.”). In making this assessment, we look to see if
the process at issue fits with the notion that “[t]he
fundamental requirement of due process is the opportunity
to be heard at a meaningful time and in a meaningful
manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)
(citation and internal quotation marks omitted) (emphasis
added).
Dia bases his primary due process argument on
statements we made in Abdulai, where we expounded on
this “ ‘fundamental requirement of due process’ ” articulated
in Mathews. Abdulai, 239 F.3d at 549 (quoting Mathews,
13
424 U.S. at 333). In Abdulai, the BIA had issued a two-page
per curiam opinion that contained a “terse” application of
Board precedent to the specific facts of Abdulai’s case. Id.
at 547. Abdulai argued, inter alia, that in so doing, “the BIA
denied him due process by failing to make an individualized
determination of his interests.” Id. at 549.
We began our analysis of Abdulai’s due process argument
by noting that, in the context of the adjudication of claims
for relief from removal such as the one before us, due
process “requires three things.” Id. at 555. “An alien: (1) is
entitled to ‘factfinding based on a record produced before
the decisionmaker and disclosed to’ him or her; (2) must be
allowed to make arguments on his or her own behalf; and
(3) has the right to ‘an individualized determination of his
[or her] interests.’ ” Id. (quoting Llana-Castellon v. INS, 16
F.3d 1093, 1096 (10th Cir. 1994) (citation omitted)). Of
these three requirements, Abdulai dealt solely with the
third requirement, an “individualized determination.” In
turn, Dia contends that, by issuing an AWO pursuant to
the streamlining regulations, the BIA deprived him of his
due process right to an “individualized determination” of his
interest as that right was recognized in Abdulai.
Although we ultimately concluded in Abdulai that there
was no due process violation because we found that the
BIA had in fact made an “individualized determination” of
Abdulai’s application, id. at 550, Dia seizes on what we said
as we reasoned toward that conclusion. One such comment
was that we had previously “suggested that the BIA denies
due process to an alien when it ‘act[s] as a mere rubber-
stamp.’ ” Id. (quoting Marincas, 92 F.3d at 202 n.7). We also
noted that “the question for due process . . . is simply
whether the Board made an individualized determination of
Abdulai’s interests.” Id. (emphasis added). Dia argues that
these observations require that we invalidate the
streamlining regulations.
Dia, however, takes our statements in Abdulai out of
context. We made those statements in connection with
Abdulai’s argument that the BIA had not “acknowledg[ed]
or address[ed] any of his arguments.” Id. at 549. In Abdulai,
we necessarily reviewed the BIA’s opinion, because the BIA
had issued an opinion and the petitioner focused his
14
arguments on that opinion. Id. at 548. We therefore made
the statements in Abdulai in the context of a situation in
which the BIA had chosen to speak — thus forcing the
reviewing court to examine the BIA’s reasoning — but had
done so in a way that caused us to question whether the
BIA had carefully reviewed the specific matter before it. See
Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997) (“We have
authority to review only an order of the BIA, not the IJ,
unless the IJ’s decision has some impact on the BIA’s
decision.”). The situation here is very different; the BIA did
not opine on its own, but, instead, referred us to the IJ’s
decision.
Contrary to Dia’s suggestion, in Abdulai we did not
impose a requirement that in all instances the BIA must
indicate that it made an individualized determination of the
claim for relief. In fact, we noted our approval of decisions
of other courts of appeals that have upheld the BIA’s right
to “ ‘simply state that it affirms the IJ’s decision for the
reasons set forth in that decision.’ ” Abdulai, 239 F.3d at549 n.2 (quoting Chen v. INS, 87 F.3d 5, 7 (1st Cir. 1996)).
We also made clear that “[t]here are some situations in
which a court of appeals effectively reviews an IJ’s decision,
but [that Abdulai’s was] not one of them.” Id. One of those
situations arises, we noted, when the BIA “defers” to the IJ.
Id. In that situation, “a reviewing court must, as a matter
of logic, review the IJ’s decision to assess whether the BIA’s
decision to defer was appropriate.” Id.; see also
Abdulrahman, 330 F.3d at 591. And so, here, where the
BIA directs us to the opinion and decision of the IJ who
originally assessed Dia’s application, we review the IJ’s
opinion.
Dia, nonetheless, also insists that the streamlining
regulations violate his right to an “individualized
determination” because they specifically state that an AWO
does not necessarily imply approval of all of the reasoning
of the IJ’s decision. See 8 C.F.R. § 3.1(a)(7)(iii) (2002). But
he fails to articulate why or how this is so. We are unaware
of any requirement, let alone any constitutional
requirement, that an agency adjudicator must commit to
writing or otherwise verbalize his or her reasoning, where,
as here, the agency has directed us to an opinion for
15
review. In Dia’s case, the due process right to an
“individualized determination” was accorded to Dia at the IJ
level, where the IJ “reasoned” her decision, and the BIA
gave the result its imprimatur pursuant to its regulations.
Certainly, the BIA could have articulated its reasons for
affirming the IJ’s order, but just because it had the power
to do so, does not mean the Constitution required it to
exercise that power.7 See Abdulai, 239 F.3d at 549 n.3
(“Having the power to do something and being required to
do it are not the same thing.”).
Equally unavailing is amici’s argument that “fundamental
rule[s] of administrative law” enunciated by the Supreme
Court in SEC v. Chenery Corp., 332 U.S. 194, 196-97
(1947), support Dia’s argument that the BIA’s failure to
adopt the reasoning of the IJ, in accordance with the
streamlining regulations, violated his constitutional right to
due process. In fact, we believe that Chenery actually
supports the opposite conclusion. In Chenery, the Court
emphasized a “simple but fundamental rule of
administrative law . . . that a reviewing court, in dealing
with a determination or judgment which an administrative
agency alone is authorized to make, must judge the
propriety of such action solely by the grounds invoked by
the agency.” Id. at 196 (emphasis added). The “corollary” of
this rule is that the basis of an administrative action “must
be set forth with such clarity as to be understandable.” Id.The Court therein was concerned with ensuring that a
7. In fact, we see the summary affirmance process in the streamlining
regulations to be little different from the process employed by our court
by which we have summarily affirmed rulings of the district court. See
3d Cir. Internal Operating Procedures § 10.6. In the past, we often
affirmed via “judgment orders,” with no mention of whether or not we
agreed with the reasoning provided by the district court. Indeed, the
parties, and, at times, the Supreme Court were left to guess on what
grounds we affirmed. It is well-established, however, that this procedure
is constitutional. See Furman v. United States, 720 F.2d 263, 264 (2d
Cir. 1983) (“There is no requirement in law that a federal appellate
court’s decision be accompanied by a written opinion.”); United States v.
Baynes, 548 F.2d 481, 482 (3d Cir. 1977) (holding that an affirmance by
judgment order without an opinion did not constitute a denial of due
process of law); see also Fed. R. App. P. 36(a)(2) (outlining the procedure
for entering a judgment “rendered without opinion”).
16
reviewing court may “test” administrative action. Id. Under
the streamlining regulations, this requirement is met. The
BIA clearly “invokes” the IJ’s opinion as the grounds on
which the agency’s decision rests; we thus “judge the
propriety” of the IJ’s action in order to “test” the agency’s
action. As the Court of Appeals for the First Circuit said:
[Petitioner and Amici] both overlook the plain language
of Chenery, which refers to agencies in their entirety,
not individual components of agencies. Here, the
relevant agency — the INS — has presented a
statement of reasons for its decision, albeit from the IJ
rather than the BIA. Chenery does not require that this
statement come from the BIA rather than the IJ.
Albathani, 318 F.3d at 377; see also Nagi El Moraghy v.
Ashcroft, 331 F.3d 195, 206 (1st Cir. 2003) (“The provision
of reasons in the IJ’s opinion satisfies the requirement in
SEC v. Chenery Corp., 332 U.S. 194, 196-97 (1946), that
administrative agencies set forth with clarity the basis for
their decisions, and the AWO procedure did not prevent
there being meaningful review.” (citation omitted));
Dominguez v. Ashcroft, 336 F.3d 678, 680 (8th Cir. 2003)
(stating that “the opinion of the immigration judge is
sufficient to satisfy th[e] requirement” in Chenery Corp. that
“an agency must set out the basis of its decision”).
Dia asserts three other ways in which the AWO violated
his due process right: it denied him “meaningful review”; it
prevented our court from providing meaningful review; and
it was not “fair.” Although Dia does not match these due
process arguments with any of the three-requirements for
due process we outlined in Abdulai, they appear to be
variations on his theme that the issuance of an AWO
denied him of his right to an “individualized determination.”
Regardless of their label, we reject these contentions as
well.
Dia’s claim that the AWO denied him his so-called “due
process right to meaningful review” lacks substance. Dia
specifically maintains that he has the right to meaningful
review by the BIA. Other than pointing generally to the Due
Process Clause, however, Dia does not identify the source
of this alleged right. We are unaware of any authority
17
supporting a due process right to “meaningful review” by an
administrative appellate body.
The “right to meaningful review” that Dia alleges is clearly
distinguished from “[t]he fundamental requirement of due
process [that] is the opportunity to be heard at a
meaningful time and in a meaningful manner,” Mathews,
424 U.S. at 333, that we discussed above. The
“meaningfulness” requirement of Mathews pertains to “the
opportunity to be heard” and the “manner” in which one is
heard, not to a review by an administrative appellate body.
Id. Moreover, any recognized right to “meaningful review,”
as we note more fully in the margin, has been confined to
the context of review by federal courts, and not extended to
review by an administrative appellate body.8 See also, e.g.,
Awolesi v. Ashcroft, 341 F.3d 227, 232 (3d Cir. 2003) (“In
order for us to be able to give meaningful review to the
BIA’s decision, we must have some insight into its
reasoning.”); Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d
8. See, e.g., Dickinson v. Zurko, 527 U.S. 150, 162 (1999) (“The APA
requires meaningful review; and its enactment meant stricter judicial
review of agency factfinding than Congress believed some courts had
previously conducted.”); Salve Regina Coll. v. Russell, 499 U.S. 225, 234
(1991) (“Although some might say that this Court has not spoken with
a uniformly clear voice on the issue of deference to a district judge’s
determination of state law, a careful consideration of our cases makes
apparent the duty of appellate courts to provide meaningful review of
such a determination.”); United States v. Mendoza-Lopez, 481 U.S. 828,
837-38 (1987) (stating that “there must be some meaningful review of
[an] administrative proceeding” where a determination made therein will
“play a critical role in the subsequent imposition of a criminal sanction”
and that, “at the very least that where the defects in an administrative
proceeding foreclose judicial review of that proceeding, an alternative
means of obtaining judicial review must be made available . . . .”
(citations omitted)); Int’l Bhd. of Teamsters v. United States, 431 U.S.
324, 376 (1977) (“We observe only that when the court exercises its
discretion in dealing with the problem of laid-off employees in light of the
facts developed at the hearings on remand, it should clearly state its
reasons so that meaningful review may be had on appeal.”); Fein v.
Selective Serv. Sys. Local Bd. No. 7, Yonkers, N.Y., 405 U.S. 365, 380
(1972) (“The rationale is that some statement of reasons is necessary for
‘meaningful’ review of the administrative decision when the registrant’s
claim has met the statutory criteria or has placed him prima facie within
the statutory exemption, and his veracity is the principal issue.”).
18
Cir. 2003) (“When deficiencies in the BIA’s decision make it
impossible for us to meaningfully review its decision, we
must vacate that decision and remand so that the BIA can
further explain its reasoning.”). Quite clearly, “[a]n alien
has no constitutional right to any administrative appeal at
all,” Albathani, 318 F.3d at 376; see also Guentchev v. INS,
77 F.3d 1036, 1037 (7th Cir. 1996), and, therefore, no
constitutional right to a “meaningful” administrative appeal.
Nor are we persuaded by Dia’s related argument that the
streamlining regulations — or, their “opaque” nature, as
amici describe them — prevent us as a court of appeals
from engaging in a meaningful review of the agency’s
actions. See Simmons v. Beyer, 44 F.3d 1160, 1169 (3d Cir.
1995) (stating that due process requires that a guaranteed
“appellate procedure must furnish the components
necessary for meaningful review”). We cannot agree with
amici’s claim that “the summary affirmance process
impermissibly strips the federal courts of the ability to
properly review critical agency action.” The streamlining
regulations in no way restrict our ability to review the
agency’s denial of relief from removal. An agency, not a
particular administrative appellate body, must set forth the
basis for its order with sufficient specificity to permit
meaningful review by this court. See Albathani, 318 F.3d at
377. Here, as we discuss in the next section, we have no
doubt as to the basis for the agency’s decision as put forth
for review by the BIA. The BIA presents for our review the
reasoning and decision of the IJ as that of the Attorney
General. See Executive Office of Immigration Review: Board
of Immigration Appeals Streamlining, 64 Fed. Reg. at
56,137-38.
All that is required for our meaningful review is that the
agency — as represented by an opinion of the BIA or IJ —
put forth a sufficiently reasoned opinion. See Mendoza, 327
F.3d at 1289 (“[T]he meaningful review of the INS’s
removability determination is not precluded by the brevity
of the BIA’s summary affirmance decision because an
appellate court ‘will continue to have the IJ’s decision and
the record upon which it is based available for review.’ ”
(quoting Albathani, 318 F.3d at 377)). While in many
instances knowing the BIA’s reasoning might prove helpful
19
to our review, the BIA’s failure to express it does not
amount to a constitutional violation. Neither the
Constitution nor Congress guarantee a de novo review by
the BIA, Abdulai, 239 F.3d at 549 n.3, nor do they
guarantee a right to a fully reasoned opinion by the BIA.
And, as we have noted, we see no constitutional
significance in the fact that an AWO does not necessarily
imply approval of all of the reasoning of the IJ. We are able
to meaningfully review the final determination of the
agency, and, in this context, that is all that due process
requires.
We are similarly unmoved by Dia’s argument that the
streamlining regulations violate basic due process
requirements of “fairness.” See Bridges v. Wixon, 326 U.S.
135, 154 (1945) (“Meticulous care must be exercised lest
the procedure by which he is deprived of that liberty not
meet the essential standards of fairness.”). We have made
clear that “[w]hen Congress directs an agency to establish
a procedure, . . . it can be assumed that Congress intends
that procedure to be a fair one.” Marincas, 92 F.3d at 203.
What is “fair” within the context of immigration
proceedings, however, need not always measure up to the
requirements of fairness in other contexts, especially
because “[a]liens only have those statutory rights granted
by Congress.” Id.; see also Mathews v. Diaz, 426 U.S. 67,
79-80 (1976) (“In the exercise of its broad power over
naturalization and immigration, Congress regularly makes
rules that would be unacceptable if applied to citizens.”).
We find nothing “unfair” in a constitutional sense about
the INS’s streamlining procedures. An applicant retains a
full and fair opportunity to make his case to the IJ, and has
a right to review of that decision by the BIA, and then by
a court of appeals. See Guentchev, 77 F.3d at 1038 (“The
combination of a reasoned decision by an administrative
law judge plus review in a United States Court of Appeals
satisfies constitutional requirements.”); cf. Zubeda, 333
F.3d at 480 (“Justice requires that an applicant for asylum
or withholding of deportation be afforded a meaningful
opportunity to establish his or her claim.”); Abdulrahman,
330 F.3d at 596 (stating that an alien threatened with
deportation has a right to a “full and fair hearing”). The fact
20
that the review is done by one member of the BIA and that
the decision is not accompanied by a fully reasoned BIA
decision may be less desirable from the petitioner’s point of
view, but it does not make the process constitutionally
“unfair.” Neither Dia nor amici has provided any reason for
us to conclude otherwise.
Our dissenting colleagues who disagree on this point
would strike down the regulations, contending that they
alter an established administrative scheme under the INA.
However, upon further scrutiny, it becomes clear that
Judge Stapleton is not really taking issue with the
regulations as a perversion of the statute or even agency
practice, but rather as a violation of principles of judicial
review that we have espoused in our case law.9 Admittedly,
the regulations will cause us to review cases affirmed by
the Board without opinion. But, they do not force us to
venture “through the looking glass” (like Alice in
Wonderland), because we have the IJ’s reasoning and the
record necessary to exercise our function of review. We
have always required that the review process be a
meaningful one, aided by a reasoned opinion from the
agency.10 We do not today cast that principle aside. Rather,
we hold that when the issue before us is the validity of an
agency’s regulations establishing its procedures, unless
they violate Congressional dictates or give rise to a due
process violation, the regulations must stand, especially
where, as here, Congress has specifically delegated the
power to establish procedures by regulation.11
9. While arguing that we should not give Chevron deference to the
streamlining regulations, Judge Stapleton’s reasoning does not really
track Chevron, as he is not decrying the agency’s interpretation of the
law. Rather, he is decrying the agency’s establishment of a process that,
he believes, runs counter to principles of judicial review. This is not a
Chevron analysis.
10. See Abdulai, 239 F.3d at 555 (“the availability of judicial review
necessarily contemplates something for us to review”).
11. See Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council,
Inc., 435 U.S. 519, 524-25 (1978) (“[T]his Court has for more than four
decades emphasized that the formulation of procedures was basically to
be left within the discretion of the agencies to which Congress had
confided the responsibility for substantive judgments. In FCC v.
21
Furthermore, Judge Stapleton’s dissent focuses on a
perceived “inability to review” in the abstract, doing a
disservice to, and seemingly ignoring, what we have done
and will continue to do in reviewing, in a meaningful
manner, the cases that come to us from the BIA. When,
after scouring the record, we are still unable to determine
the agency’s reasoning, we have remanded to the BIA for
further explanation.12 In actuality, these regulations do not
prevent us from adhering to the very principles that Judge
Stapleton’s dissent contends are being abandoned. Today
we face no such “inability to review” in this case, as we can
clearly review, and are reviewing, what the agency did
without the aid of the BIA’s particular take on the matter.13
Thus, there is no basis for a blanket declaration of
invalidity, or a declaration that the regulations are invalid
as applied here.
Accordingly, we hold that the Attorney General’s
implementation of the streamlining regulations and the
BIA’s issuance of an AWO in this case did not violate either
the INA or the Constitution.
II. THE AGENCY’S DENIAL OF RELIEF
We now turn to Dia’s substantive attack on the Attorney
Schreiber, 381 U.S. 279, 290 (1965), the Court explicated this principle,
describing it as ‘an outgrowth of the congressional determination that
administrative agencies and administrators will be familiar with the
industries which they regulate and will be in a better position than the
federal courts or Congress itself to design procedural rules adapted to
the peculiarities of the industry and the tasks of the agency involved.’ ”).
12. See Awolesi, 341 F.3d at 229 (suggesting that “we might scour the
record for supporting evidence” in cases “in which the BIA affirmed the
decision of the IJ without explanation”).
13. Judge Stapleton points to Ezeagwuna v. Ashcroft, 325 F.3d 396 (3d
Cir. 2002), as a good example of the conundrum we could face, but
there, the BIA had raised and decided the case based on an issue not
relied upon by the IJ. We disagreed with the BIA’s view of the issue, and
actually had to undo what the BIA had done. The BIA’s opinion was a
diversion, not a help, in our reasoning, which, in the end, focused
exclusively on the record and the IJ’s analysis.
22
General’s denial of his claim for relief from removal. As
outlined above, when the BIA issues an AWO under the
streamlining regulations, we review the IJ’s opinion and
scrutinize its reasoning. Because Dia’s credibility was the
basis on which the IJ rested her decision to deny relief, the
sole issue before us is that credibility determination. In
addressing this issue, we first will detail Dia’s testimony
before the IJ, augmenting it with details from the
administrative record. We then will discuss our standard of
review. Lastly, we will apply that standard of review to the
IJ’s opinion, explaining why we must vacate it.
A. Dia’s Testimony
Dia, an ethnic Fula, was born in Selouma, Dinguiraye,
Guinea. He has had only two years of education, has a
limited ability to read and write, and does not speak
English. He joined the Rassemblement du Peuple de Guineé
(“Rally of the People of Guinea Party” or “RPG”) in 1998, at
the age of twenty-two. His father had been a member of the
RPG before his death in 1997. Dia worked in the field
rallying support for RPG’s imprisoned leader, Alpha Conde
— a member of parliament and a candidate in the 1998
presidential election — and monitored voting polls to help
prevent election fraud. The Country Report for Guinea
assembled by the U.S. Department of State — included in
the administrative record — reveals a country in a state of
turmoil. Guinea’s political system appears “deeply flawed”
and its human rights record even worse. See U.S.
Department of State, 2000 Country Reports on Human
Rights Practices: Guinea (Feb. 2001) (hereinafter “Country
Report”). The Country Report states:
The Government’s human rights record was poor;
although there were some improvements in a few areas
serious problems remained in others. The
Government’s tight and sometimes partisan control of
the electoral process both in the 1998 presidential
election and the deeply flawed June municipal
elections; its refusal to create an independent electoral
oversight mechanism; and its prohibition of
nongovernmental broadcast media, effectively restricted
citizens’ right to change their government. Major
23
human rights abuses include: Extrajudicial killings;
disappearances; use of torture, beatings and rape by
police and military personnel; and police abuse of
prisoners and detainees. Soldiers, police, and civilian
militia groups killed, beat, and raped citizens, as well
as refugees from Sierra Leone and Liberia. Security
forces used arbitrary arrest and detention. Members of
the security forces committed abuses with impunity.
. . . Violence and societal discrimination against
women, prostitution of young girls, female genital
mutilation (FGM), ethnic discrimination and interethnic
violence, child labor, reports of trafficking of women
and children, and vigilante actions by victims or others
persisted.
Id. This report is important because the picture it paints
provides a background against which to assess Dia’s
credibility. See Nagi El Moraghy, 331 F.3d at 204 (stating
that State Department reports “provide a context for
assessing the credibility of a petitioner’s case . . . ,
depending on whether or not they corroborate the
petitioner’s tale”); see also Zubeda, 333 F.3d at 477(“Official as well as unofficial country reports are probative
evidence and can, by themselves, provide sufficient proof to
sustain an alien’s burden under the INA.”).
Dia testified that the problems that directly affected him
began on November 22, 2000. At that time, he was
approached in his home in Nzerekore, Guinea, by a man
named Bangora, who was the chief of his neighborhood,
and two other men, who asked him to join the Guinean
military to fight Liberian and Sierra Leonean rebels fighting
in Guinea. When Dia refused to join the military, Bangora
and the other men accused Dia of sympathizing with the
rebels. Dia testified that he refused to join the military
because members of the military had killed his father and
he feared they wanted to kill him as well.14 He also testified
that the three men associated the RPG with the rebels,
knew that Dia belonged to the RPG, and “wanted to create
some problems for [him] so that they could accuse [him] of
14. In her opinion, the IJ wrongly stated that the rebels had killed Dia’s
father.
24
something.” He told the IJ that he believed that Bangora
and the two men knew he would not join them because
members of the RPG, such as Dia, oppose the government
and, thus, refuse to give it aid.
Later that day, Dia, concerned for his welfare, went to his
uncle’s home outside of town to seek advice. Apparently,
his uncle was not at his home and Dia waited three days
until his uncle finally returned. After the two consulted,
Dia’s uncle agreed to return with Dia to town to talk to
Bangora. When they arrived, Dia discovered his home
burned to the ground.15 Eventually, he found his wife, who
was bruised, and daughter at his in-laws’ home. In
response to questions about her bruises, Dia’s wife told him
that, on November 24, about twenty-five military men had
come to their home searching for Dia, and, upon finding
that Dia was not home and hearing Dia’s wife’s claim not
to know where Dia was, the men beat and raped her and
burned the house. The men told his wife that Dia was
aiding the rebels so that Conde could be released. After
consulting with his wife who pled with him to flee the
country, Dia decided not to talk with Bangora and to flee
from the village, leaving her and their child behind.
For four months, Dia remained in Guinea, living at the
home of his friend, Abdoulaye Sow.16 Sow eventually made
arrangements for Dia to secure a new Guinean passport
and a U.S. visa with his “friend who was a person who
ma[de] arrangement[s] for people who want to travel.” Dia
gave the man his old passport and six photographs. Dia did
not learn either the man’s name or how the man procured
the documents. The man told Dia to tell U.S. immigration
officials that he went to work in Italy as a “tomato picker”
and was on his way to Honduras to work on a ship. The
man gave Dia a new Guinean passport, a U.S. visa, “a letter
packet” ostensibly supporting the story that he worked in
Italy, and an airline ticket. Dia paid the man 2 million
Guinean francs (about $1000 U.S.). Dia also secured the
services of a Guinean policeman to help him pass through
15. It is not clear whether all or only part of his home was destroyed.
16. Sow is referred to as “Ableso” in the hearing transcript.
25
the police roadblocks. Dia paid that officer 300,000
Guinean francs (about $150 U.S.).
Upon his arrival in the U.S., Dia attempted to enter the
country using the story that the smuggler recommended.
The INS official, noticing that Dia did not have a ticket to
go to Honduras, did not believe his story. The INS then
sought to remove Dia. Dia conceded removability, but
sought relief from deportation based on asylum,
withholding of removal, and relief under the CAT. Dia was
twenty-six years old at the time of his hearing before the IJ.
Represented by counsel, and speaking in Fulani through an
interpreter, he testified at the hearing and called a
handwriting expert to support his story that the visa and
passport did not contain his handwriting. The IJ issued a
written opinion, denying relief because she found that Dia
was not credible. As mentioned, the BIA, through a single
member of the Board, affirmed without opinion pursuant to
8 C.F.R. § 3.1(a)(7) (2002).
B. Burden and Standard of Review
An alien has the burden of supporting his claim for relief
from removal. An alien’s credibility, by itself, may satisfy
his burden, or doom his claim. Gao, 299 F.3d at 272(“Aliens have the burden of supporting their asylum claims
through credible testimony. Testimony, by itself, is
sufficient to meet this burden, if ‘credible.’ ” (quoting
8 C.F.R. § 208.13(a)) (citation omitted)); see also Mulanga v.
Ashcroft, 2003 WL 22683042, at *7 (3d Cir. Nov. 14, 2003)
(stating that an applicant’s credible testimony “may be
sufficient to sustain the burden of proof without
corroboration”). The IJ here concluded that Dia was not
credible based on “the inconsistencies in Dia’s testimony
and its overall implausibility.” This adverse credibility
determination — fatal to Dia’s claim — was a finding of
fact. See Gao, 299 F.3d at 272; see also Mulanga, 2003 WL
22683042, at *6; Secaida-Rosales v. INS, 331 F.3d 297, 307
(2d Cir. 2003) (“Generally, courts have treated credibility
questions in deportation proceedings as questions of fact
. . . .”).
We review the agency’s findings of fact under the
standard found in the Illegal Immigration Reform and
26
Immigrant Responsibility Act of 1996, Pub. L. No. 104-208,
div. C, 110 Stat. 3009 (enacted April 1, 1997) (IIRIRA or
“Reform and Responsibility Act”), which provides:
[T]he administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled
to conclude to the contrary.
8 U.S.C. § 1252(b)(4)(B).
Since the enactment of the Reform and Responsibility
Act, various courts of appeals, including our court, have
read this standard to require that the agency support its
findings with substantial evidence, as articulated by the
Supreme Court in INS v. Elias-Zacarias, 502 U.S. 478, 481-
84 (1992).17 There, the Court framed the standard as
follows:
The BIA’s determination that Elias-Zacarias was not
eligible for asylum must be upheld if “supported by
reasonable, substantial, and probative evidence on the
record considered as a whole.” 8 U.S.C. § 1105a(a)(4).
It can be reversed only if the evidence presented by
Elias-Zacarias was such that a reasonable factfinder
would have to conclude that the requisite fear of
persecution existed. NLRB v. Columbian Enameling &
Stamping Co., 306 U.S. 292, 300 (1939).
Id. at 481. And, in the case relied upon by the Court in
Elias-Zacarias for that principle, the Court stated:
17. See, e.g., Alvarez Santos v. INS, 332 F.3d 1245, 1254 (9th Cir. 2003)
(citing Elias-Zacarias, 502 U.S. at 481, for the proposition that the court
must “uphold the BIA’s decisions if they are supported by reasonable,
substantial and probative evidence in the record”); Albathani, 318 F.3d
at 372 (same); Nyirenda v. INS, 279 F.3d 620, 623 (8th Cir. 2002)
(same); Mansour v. INS, 230 F.3d 902, 905 (7th Cir. 2000) (same); see
also Lukwago v. Ashcroft, 329 F.3d 157, 167 (3d Cir. 2003); Amanfi v.
Ashcroft, 328 F.3d 719, 724-25 (3d Cir. 2003); Rivera-Jimenez v. INS,
214 F.3d 1213, 1216 n.4 (10th Cir. 2000) (“[N]o federal court has held
that this statutory provision modifies the substantial evidence standard
previously applied.”). For its part, the Supreme Court has continued to
refer to the standard of review language from Elias-Zacarias, in spite of
the modified description of the standard in the subsequently-enacted
IIRIRA. See INS v. Ventura, 537 U.S. 12, 15 (2002) (quoting Elias-
Zacarias, 502 U.S. at 481 n.1).
27
Substantial evidence is more than a scintilla, and must
do more than create a suspicion of the existence of the
fact to be established. “It means such relevant evidence
as a reasonable mind might accept as adequate to
support a conclusion,” . . . and it must be enough to
justify, if the trial were to a jury, a refusal to direct a
verdict when the conclusion sought to be drawn from
it is one of fact for the jury.
Columbian Enameling & Stamping Co., 306 U.S. at 300(citation omitted).
Our court has explicitly stated that “[t]he Reform and
Responsibility Act codifies the language the Supreme Court
used in Elias-Zacarias to describe the substantial evidence
standard in immigration cases.”18 Sevoian v. Ashcroft, 290
18. In response to our request for their views on the matter, the parties
and amici, in their submissions to the en banc court, stated that they
agree with our view that § 1252(b)(4)(B) codified Elias-Zacarias. Scholars
have agreed with this view as well. See 8 Gordon, Mailman, & Yale-
Loehr, Immigration Law and Procedure, § 104.13 (stating that
§ 1252(b)(4)(B) “essentially codified the standard set forth in INS v. Elias-
Zacarias and should have little practical consequence”); Lenni B.
Benson, The New World of Judicial Review of Removal Orders, 12 Geo.
Immigr. L.J. 233, 239 (1998) (concluding that the standard currently set
forth in § 1252(b)(4)(B) is “simply a new way of saying the same thing
Congress wrote in former INA § 106 [8 U.S.C. § 1105(a)(a)(4)]”); see also
Pamela Goldberg, Analytical Approaches in Search of Consistent
Application: a Comparative Analysis of the Second Circuit Decisions
Addressing Gender in the Asylum Law Context, 66 Brook. L. Rev. 309,
317 n.66 (2000) (“As in the pre-1996 law, this standard [§ 1252(b)(4)(B)]
has been construed to mean that the circuit court must examine the
record to determine whether the conclusions reached by the agency are
supported by substantial evidence.”). While the fact that the current
version of the standard does not contain a reference to substantial
evidence (as did the previous version) is curious, we will not read into
this omission a substantive change in this well-established standard. See
Dewsnup v. Timm, 502 U.S. 410, 419-20 (1992) (refusing “to effect a
major change in pre-Code practice that is not the subject of at least
some discussion in the legislative history”); see also United Sav. Ass’n of
Tex. v. Timbers of Linwood Forest Assocs., Ltd., 484 U.S. 365, 380 (1988)
(“a major change in the existing rules would not likely have been made
without specific provision in the text of the statute, . . . it is most
improbable that it would have been made without even any mention in
the legislative history.”).
28
F.3d 166, 171 (3d Cir. 2002). The substantial evidence
standard has historically been, and continues to be, the
standard governing the relationship between administrative
agencies and courts of review.19
The application of the substantial evidence standard is
well-established. See, e.g., Allentown Mack Sales & Serv.,
Inc. v. NLRB, 522 U.S. 359, 366-67 (1998) (indicating that
the substantial evidence test requires court to decide
“whether on this record it would have been possible for a
reasonable jury to reach the Board’s conclusion”); FTC v.
Indiana Fed’n of Dentists, 476 U.S. 447, 545 (1986) (noting
that the substantial evidence test requires court to “accept
Commission’s findings of fact if they are supported by ‘such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion’ ”). Thus, the question
whether an agency determination is supported by
substantial evidence is the same as the question whether a
reasonable fact finder could make such a determination
based upon the administrative record. If a reasonable fact
finder could make a particular finding on the administrative
record, then the finding is supported by substantial
evidence. Conversely, if no reasonable fact finder could
make that finding on the administrative record, the finding
is not supported by substantial evidence.
Thus, where we review an IJ’s credibility determination,
we must ask whether the determination is supported by
evidence that a reasonable mind would find adequate. We
19. Indeed, the history of the standard in the administrative context is
evident from the Supreme Court’s citation in Elias-Zacarias to Columbian
Enameling & Stamping Co., 306 U.S. at 300, which predated Elias-
Zacarias by over fifty years. See 502 U.S. at 481. In addition, the
substantial evidence standard itself has a long history of application to
our review of administrative proceedings under the INA. See 75 Stat. 651(1961); see also 8 U.S.C. § 1229a(c)(3)(A) (2003) (“[N]o decision of
deportability shall be valid unless it is based upon reasonable,
substantial, and probative evidence.”); 66 Stat. 210 (1952) (same); 8
U.S.C. § 1252(b)(7) (2003) (setting forth the substantial evidence
standard for district court review of a defendant’s claim of nationality as
a challenge to an order of removal stemming from a violation of 8 U.S.C.
§ 1253(a)). See generally Woodby v. INS, 385 U.S. 276, 281-82 (1966)
(discussing the standard of judicial review then found in the INA).
29
look at an adverse credibility determination to ensure that
it was “appropriately based on inconsistent statements,
contradictory evidences, and inherently improbable
testimony . . . in view of the background evidence on
country conditions.” In re S-M-J- (Interim Decision), 21 I. &
N. Dec. 722 (BIA 1997). Where an IJ bases an adverse
credibility determination in part on “implausibility” as the
IJ did here, such a conclusion will be properly grounded in
the record only if it is made against the background of the
general country conditions. See Gao, 299 F.3d at 278-79;
see also He v. Ashcroft, 328 F.3d 593, 603 (9th Cir. 2003).
Therefore, “[w]hile we defer to the IJ on credibility
questions, that deference is expressly conditioned on
support in the record,” Nagi El Moraghy, 331 F.3d at 205,
and “[d]eference is not due where findings and conclusions
are based on inferences or presumptions that are not
reasonably grounded in the record.” Id. at 202 (citation and
internal quotation marks omitted); see also Abdulrahman,
330 F.3d at 597 (stating that “substantial deference” to a
finding is to be “afforded . . . where it is grounded in
evidence in the record”). To this end, it is clear that
“[a]dverse credibility determinations based on speculation
or conjecture, rather than on evidence in the record, are
reversible,” Gao, 299 F.3d at 272, and that an IJ must
support her adverse credibility findings with “specific[,]
cogent reasons.” Id. at 276; Abdulrahman, 330 F.3d at 597;
see also Secaida-Rosales, 331 F.3d at 307 (“When an IJ
rejects an applicant’s testimony, the IJ must provide
‘specific, cogent’ reasons for doing so.”); He, 328 F.3d at
595 (“[T]he IJ and BIA must offer a ‘specific, cogent reason
for any stated disbelief.’ ” (quoting Hartooni v. INS, 21 F.3d
336, 342 (9th Cir. 1994))).
If the IJ’s conclusion is not based on a specific, cogent
reason, but, instead, is based on speculation, conjecture, or
an otherwise unsupported personal opinion, we will not
uphold it because it will not have been supported by such
relevant evidence as a reasonable mind would find
adequate. In other words, it will not have been supported
by substantial evidence. Guided by this examination of our
principles of deference regarding an IJ’s credibility
determination, we conclude that the IJ’s determination here
fails this test.
30
C. The Immigration Judge’s Decision
The IJ rejected numerous aspects of Dia’s testimony, as
well as the entire testimony of Dia’s expert handwriting
witness. For purposes of our analysis, we will divide the
testimony rejected by the IJ into three areas: past
persecution, the circumstances surrounding Dia’s
procurement of a passport and visa, and future
persecution. Dia insists that the IJ’s findings of fact
underpinning the adverse credibility determination as to
each of these categories of testimony are not supported by
evidence in the record, and are not otherwise sufficient to
support the conclusions reached by the IJ.20 We must,
therefore, examine the IJ’s analysis and reasons put forth
in order to determine whether she based the adverse
credibility determination on substantial evidence. Doing so,
we find that the IJ’s conclusions do not flow in a reasoned
way from the evidence of record and are, at times, arbitrary
and conjectural in nature. Repeatedly, we are left
wondering how the IJ reached the conclusions she has
drawn. Her opinion consists not of the normal drawing of
intuitive inferences from a set of facts, but, rather, of a
progression of flawed sound bites that gives the impression
that she was looking for ways to find fault with Dia’s
testimony.
Accordingly, we find that the IJ’s adverse credibility
determination is not supported by substantial evidence in
the administrative record, and we will remand for the IJ to
either state, or seek, the necessary foundation to augment
her opinion.
Before reviewing the specific aspects of the IJ’s ruling
that we find troubling, however, it is appropriate that we
note our agreement with the view expressed by Judge Alito
that asylum cases are difficult ones — for us, as well as for
immigration judges. And, as Judge Alito points out, some
leeway must be given to the administrative arbiters to draw
inferences based on common sense and logic as well as on
20. Dia bears the burden of establishing eligibility for relief from removal.
8 C.F.R. § 208.13 (regarding asylum); Mendoza, 327 F.3d at 1287(regarding withholding of removal); 8 C.F.R. § 208.16 (regarding the
CAT).
31
personal experience and background knowledge gained
from exposure to certain situations.
However, perhaps because of the difficult nature of these
types of cases, and the critical importance of resolving them
properly — for the stakes are very high indeed — the
soundness of the basis of the decision making, even if
experiential or logical in nature, must be apparent. The
process of drawing inferences cannot be left to whim, but
must withstand scrutiny.21
Here, we are presented with a unique setting in which, as
we will catalog, the inferences drawn and conclusions
reached are in some instances non sequiturs, and in
others, counterintuitive. The flow of the reasoning process
appears to break down as the IJ, repeatedly, draws an
unreasonable conclusion from a fact susceptible to differing
interpretations. Numerous such instances do not, as the
dissent suggests, add up to a totality of circumstances that
supports a finding that Dia’s testimony was not credible.
Rather, they are an aggregation of empty rationales that
devolve into an unsupported finding of adverse credibility.
Moreover, rather than standing our standard “on its head,”
as the dissent suggests, our appropriate insistence on
“substantial evidence” upholds that standard by requiring
that there be a sound basis — whether supplied by the
record evidence or by background knowledge — to support
the IJ’s findings.22
21. We also agree with Judge Alito that an IJ is free to assess
plausibility. Yet the very law review article that he uses to support the
permissibility of drawing inferences is skeptical of plausibility, noting
that it is “a highly uncertain standard. ‘Sure, that makes sense’ . . . [is]
hardly [a] reaction[ ] by which a complex patchwork of past events may
be stitched together with confidence.” H. Richard Uviller, Credence,
Character, and the Rules of Evidence: Seeing Through the Liar’s Tale,
42 Duke L.J. 776, 784 (1993). This skepticism surely applies when the
reaction is “that doesn’t make sense.” We must be vigilant to ensure that
when an IJ’s conclusion is based on the implausibility of testimony, the
IJ provides at least some insight into why he or she finds that testimony
implausible.
22. Judge Alito makes no reference to the need for “substantial
evidence,” but, instead, applies the “no reasonable adjudicator” standard
32
Here, the conclusions of the IJ are more puzzling than
plausible, more curious than commonsense. Judge Alito
suggests that if we refuse to defer to the IJ’s reasoning
here, we would gut the substantial evidence standard. To
the contrary, we suggest that to require sound reasoning
breathes life into that standard.
We do not, as Judge Alito implies, conclude that the IJ
was bound to find Dia credible. Rather, we recognize the
possibility that the IJ’s conclusions might ultimately be the
correct ones. However, we cannot affirm the IJ’s findings
and conclusions on the record presented to us, as the
reasons she does provide in support of her decision do not
logically flow from the facts she considered. Accordingly, we
conclude that the best course is to remand for further
explanation by the IJ as to the basis for her various
conclusions.
1. Past Persecution
We first address the various parts of Dia’s testimony
regarding past persecution that the IJ rejected. We begin
with a statement made by the IJ that foretells many of the
errors that also infect other parts of her opinion: the IJ’s
rejection of Dia’s testimony that, in her words, “members of
the Guinean police are actively looking for him.” The IJ
rejected this testimony as not credible for two reasons: “this
conclusion . . . is, in fact, contrary to the evidence in the
to restrict our review of the IJ’s adverse credibility determination to the
situation in which all reasonable adjudicators would affirmatively find
Dia to be credible. We have not applied the statutory standard in this
manner. See Mulanga, 2003 WL 22683042, at *10-*12 (finding
alternative plausible explanations for “inconsistencies” in an applicant’s
testimony where the IJ did not “articulate a foundation for her disbelief,”
and rejecting the IJ’s credibility determination as not supported by
substantial evidence); Gao, 299 F.3d at 272-73 (indicating that while the
substantial evidence standard is highly deferential, we may reverse
where adverse credibility determinations appear to be based on
speculation, conjecture, or minor inconsistencies alone). We suggest that
to read the “no reasonable adjudicator” standard in a way that does
away with the need for “substantial evidence” not only guts the statutory
standard, but ignores our precedent.
33
Record of Proceedings”; and “this conclusion [was] not
supported by any documentation in the Record of
Proceedings.” On examination, these reasons for rejecting
Dia’s testimony are patently inadequate.
The IJ’s conclusion that Dia’s testimony that “members of
the Guinean police are actively looking for him . . . [was]
contrary to the evidence in the Record of Proceedings” is
based on a misreading of Dia’s testimony. Dia did not
testify that the police were after him, but, rather that the
military was after him. Even assuming that the IJ
concluded that the police in Guinea necessarily would be
looking for a man wanted by the military, there is nothing
in the record, nor any reasoning set forth by the IJ in her
opinion, to support that conclusion. In fact, the Country
Report depicts a country where the military, as well as the
civilian militias, act independently from the formal
government.
Even more troubling is the fact that, considering the
testimony as the IJ presented it — i.e., that the police were
after Dia — the IJ’s rejection of this testimony still is not
explained, nor does it have any basis in the record. The IJ
stated, rhetorically, that she “question[ed] how [Dia] was
able to procure a police stamp if he was actively being
sought by the police.” But Dia explained how. He testified
that a policeman helped him bypass the police and that
Sow’s friend had procured the police stamp. The IJ
dismissed this testimony as “unconvincing,” but failed to
say why or point to any evidence that contradicted this
testimony. Absent a reason such as implausibility or
inconsistency based in the record, or that Dia’s demeanor
in some way led her to question his veracity, the IJ should
not have summarily dismissed Dia’s testimony on this point.23
23. We note that the IJ did not rely on her personal observations of Dia’s
demeanor or any other observations to which we must accord an even
greater degree of deference. See Aguilar-Solis v. INS, 168 F.3d 565, 570-
71 (1st Cir. 1999) (“[A] witness’s demeanor is often a critical factor in
determining his veracity.”); In re A- S- (Interim Decision), 21 I. & N. Dec.
1106 (BIA 1998) (stating that, since an Immigration Judge is in the
unique position to observe the testimony of an alien, a credibility finding
which is supported by a reasonable adverse inference drawn from an
alien’s demeanor generally should be accorded a high degree of
deference, especially where such inference is supported by specific and
cogent reasons for doubting the veracity of the substance of the alien’s
testimony), cited in Rusu v. INS, 296 F.3d 316, 323 (4th Cir. 2002).
34
We are perplexed by the IJ’s rejection of Dia’s explanation
that a Guinean policeman helped him cross the police
border for 300,000 Guinean francs (about $150). The IJ
stated that she “question[ed] why this policeman would risk
his reputation, not to mention, his life, to assist the
respondent, a wanted political opponent, evade detection by
the police . . . for the equivalent of $150 United States
Dollars.” This conclusion is not explained, and appears to
be pure conjecture. It is not only not based on the record,
but, in fact, it contravenes key parts of it. The Country
Report confirms that Guinean police extort money from
citizens at road blocks and that corruption at road
checkpoints is widespread and “systematic.” In addition,
figures contained in the record show that $150 U.S. is
nearly a quarter of the per capita GDP in Guinea for 1999,
a sum likely tempting to a policeman in a poor country
replete with corruption within its police force.
As for the IJ’s reference to a lack of “supporting
documentation” in the record that “members of the
Guinean police are actively looking for” Dia, the IJ failed to
explain what type of “documentation in the Record” she
expected or required. We cannot imagine how Dia could
have provided documentary support for the fact that the
military (or the police as the IJ stated) was after him. At
most, an applicant must provide corroborating evidence
only when it would be reasonably expected. See In re S-M-J-
(Interim Decision), 21 I. & N. Dec. 722 (BIA 1997). As we
have cautioned:
It is obvious that one who escapes persecution in his
or her own land will rarely be in a position to bring
documentary evidence or other kinds of corroboration
to support a subsequent claim for asylum. It is equally
obvious that one who flees torture at home will rarely
have the foresight or means to do so in a manner that
will enhance the chance of prevailing in a subsequent
court battle in a foreign land. Common sense
establishes that it is escape and flight, not litigation
and corroboration, that is foremost in the mind of an
alien who comes to these shores fleeing detention,
torture and persecution. Accordingly, corroboration is
not required to establish credibility. The law allows one
35
seeking refugee status to “prove his persecution claim
with his own testimony if it is credible.”
Senathirajah v. INS, 157 F.3d 210, 215-16 (3d Cir. 1998)
(quoting Mosa v. Rogers, 89 F.3d 601, 604 (9th Cir. 1996)).
Dia was not in a position to corroborate his testimony in
this regard. See Qui v. Ashcroft, 329 F.3d 140, 153-54 (2d
Cir. 2003) (“Unless the BIA anchors its demands for
corroboration to evidence which indicates what the
petitioner can reasonably be expected to provide, there is a
serious risk that unreasonable demands will inadvertently
be made . . . . What is (subjectively) natural to demand may
not . . . be (objectively) reasonable.”).
In any event, the IJ failed to acknowledge, let alone
adhere to, the parameters that we have adopted regarding
such corroboration. In Abdulai, we recognized that, under
certain circumstances, the BIA may require corroboration,
and we found the three-part inquiry that the BIA has
developed in this respect to be consistent with the INA.
According to this inquiry, we require the following from an
IJ: “(1) an identification of the facts for which ‘it is
reasonable to expect corroboration;’ (2) an inquiry as to
whether the applicant has provided information
corroborating the relevant facts; and, if he or she has not,
(3) an analysis of whether the applicant has adequately
explained his or her failure to do so.” Abdulai, 239 F.3d at
554 (quoting In re S-M-J-, 21 I. & N. at 725). Here, the IJ
failed to analyze whether Dia adequately explained his
failure to present corroborating evidence.
In fact, it appears that the IJ actively discouraged — if
she did not indeed prohibit — Dia from presenting such
evidence. At one of the hearings, Dia’s counsel told the IJ
that Dia had been “trying to contact friends or family to
substantiate his case. And over the weekend, a friend of his
faxed a letter to [counsel’s] office, which [counsel] had only
obtained on Monday and [ ] had to get translated.” The IJ
then marked it for “identification purposes only.” At the end
of that hearing, the IJ made clear that she was skeptical of
Dia’s claims and “need[ed] more information.” But, when
Dia’s counsel stated that he understood and noted that he
was “somewhat encouraged that over the weekend, [he was]
able to make contact with this friend who sent the fax,” the
36
IJ remarkably stated: “I’m not interested about the friend.
These friends any more . . . . I’m not going to give any
credence whatever any ‘friend’ has to say about it.” She
further made clear that her only concern after the hearing
was the authenticity of Dia’s passport and visa, and asked
the Government to provide that information. Thus, the IJ
expressed a desire for corroboration (i.e., “supporting
documentation”), then discouraged Dia from providing it,
only to criticize and penalize Dia for not providing it. Such
arbitrariness necessarily undermines the IJ’s reasoning.
In a recent case involving similar issues, we opined that
an IJ’s adverse credibility determination does not pass
muster under the substantial evidence rubric when it is not
supported by an adequate explanation of the IJ’s reasoning.
In Mulanga, 2003 WL 22683042, at *1, we encountered and
criticized the very same type of analysis that we find
problematic here. There, the IJ: 1) faulted the petitioner’s
failure to provide corroboration in a situation in which that
failure seemed quite reasonable; 2) found the petitioner’s
account — which we found plausible in light of State
Department reports — to lack “common sense,” without
further explanation; and, 3) dissuaded the petitioner from
producing evidence, the lack of which was later criticized.
Id. at *9-*11. There, too, we found a lack of substantial
evidence to support the adverse credibility determination,
and concluded that the order should be vacated and the
matter remanded for further proceedings. Id. at *12.
An even more significant aspect of Dia’s testimony
rejected by the IJ was his report that twenty-five members
of the military went to his home to find him, and, upon
realizing that Dia was not there, beat and raped his wife.
One reason the IJ gave for discrediting this story was that
Dia did not present any evidence that the men who did this
were from the military, other than hearsay of his wife. We
have two problems with this reasoning. The first is that the
IJ again failed to engage in the three-pronged analysis we
require when an IJ expects documentary evidence or
corroboration, discussed above. The second is that,
“[t]hough the hearsay nature of evidence certainly affects
the weight it is accorded, it does not affect its admissibility
in immigration [removal proceedings].” Kiareldeen v.
37
Ashcroft, 273 F.3d 542, 549 (3d Cir. 2001); cf. Ezeagwuna
v. Ashcroft, 325 F.3d 396, 406 (3d Cir. 2003) (referring to
a letter as “multiple hearsay of the most troubling kind”).
By matter-of-factly dismissing the evidence as “hearsay,”
the IJ failed to explain why it should be accorded no
weight. We submit that such seemingly reliable hearsay
evidence should not be rejected in such a perfunctory
manner.
The other reasons that the IJ proffered for rejecting this
testimony are similarly based on unsustainable grounds,
namely, pure conjecture. The IJ “question[ed] why so many
men would go to the respondent’s home searching for him,”
and stated that “[i]t seems, to th[e] Court, [ ] an unusually
large number for that purpose.” The IJ also noted that Dia
gave no explanation why the men raped his wife and stated
that “[i]t seems unlikely to th[e] Court that men who were
looking for the respondent would attack his wife.” The basis
for the IJ’s having “questioned” this testimony is not
explained, and appears speculative at best. Why would the
IJ expect Dia to know why such a large group of men were
seeking him or why they raped his wife? Twenty-five was an
“unusually large number” — compared to what, or based
on what? Without some explanation we are hard-pressed to
understand why the IJ would find it so difficult to believe
that a group of about twenty-five men would have come to
Dia’s home. Not only does this account seem consistent
with common accounts of the practice of armed groups in
war-torn countries, but the record contains documentary
evidence confirming that police and civilian militias —
groups of roving bands in large numbers — rape and attack
suspected rebel supporters, as well as civilians, often
burning and looting in the process. On what basis did the
IJ determine that these aspects of Dia’s account were
“unlikely”? Again, we are left wondering.
We also conclude that the IJ unreasonably penalized Dia
for presenting “no explanation as to why these men would
beat and rape his wife.” Dia testified that his wife told him
that they were military and that they were looking for him
because he supported the rebels. He showed a temporal
proximity between Bangora’s visit to his home and the
raping of his wife. He also testified that Bangora knew of
38
his affiliation with the RPG. So, Dia did, in fact, present
some testimony as to why the men came to his home. It
seems reasonable for Dia to believe that the militia
consisted of government soldiers or was sent by the
government. Yet, the IJ rejected this account without
explanation. It can hardly be said that Dia had an
obligation to investigate further the specific identity of the
men who he claims raped his wife and burned his home.
How could he have known this? Would not any explanation
he might offer be criticized by the IJ as a fabrication, since
surely they would not have shared their motivation with
him? There is no authority that would require Dia to
present direct evidence of the men’s motives; rather,
circumstantial evidence was sufficient. See Elias-Zacarias,
502 U.S. at 483; Navas v. INS, 217 F.3d 646, 659 n.18 (9th
Cir. 2000) (“Where police beat and threaten the spouse of a
known dissident, it is logical, in the absence of evidence
pointing to another motive, to conclude that they did so
because of the spouse’s presumed guilt by association.”). As
a result, the IJ’s conclusion in this regard, too, was
unsupported either in the record or by a commonsense
explanation.
The IJ’s disbelief of Dia’s testimony that his wife urged
him to flee the country without her also lacked foundation
in any logical reasoning or any support in the record, and
thus seems to demonstrate more speculation and
arbitrariness on the part of the IJ. Dia testified that “[his]
wife told [him] if he would really like to see her again, next
time in the future, that the best thing was for [him] to try
to just flee and try to find a place. And [he] decided to leave
her with her family members.” The IJ stated that she found
“it highly unlikely that a woman, who allegedly had just
been beaten and raped, would urge her husband to leave
her and not suggest that she accompany him out of the
country.” Why? The IJ also stated that “it appears unlikely
that a man whose wife has just been beaten and raped by
military personnel would not suggest that they flee the
country together.” Why? We can think of any number of
reasons why Dia’s wife might have urged him to leave
without her.24 The IJ failed to share any basis for her
24. For example, Dia and his wife may have determined that he could
move more quickly and elude detection more easily if he was traveling
39
conclusions and, without proper support, we cannot help
but view them as not constituting substantial evidence.25
2. Procurement of a Passport and Visa
The second general aspect of Dia’s story that the IJ
rejected dealt with the circumstances surrounding his
procurement of a passport and visa. The reasons put forth
as support for the rejection, however, do not, again, satisfy
the test for substantial evidence.
First, the IJ expressed incredulity that “a man” — i.e.,
Sow’s friend, the “smuggler” — procured a new passport
and a U.S. visa for Dia. Essentially, she concluded that the
man did not exist because she found it unbelievable that
Dia did not know the identity of a man who helped him
leave the country and to whom he “paid a large sum of
money.” In fact, during the hearing she went so far as to
dismiss Sow’s friend out of hand as an “imaginary person.”
But she did so without inquiry into this aspect of Dia’s
alone, not burdened by having to care for a wife and daughter, and that
once he was safely out of the country, he could arrange for them to join
him. Perhaps the Dias were motivated by concern for their young child,
believing that it was in their daughter’s best interest that she and her
mother remain at a relative’s home rather than go on the run with her
father. Maybe the injuries Dia’s wife sustained during her assault made
it impossible for her to travel, and the knowledge that her husband was
on his way to safety was more important to her than having him risk his
life to stay with her. It is also possible that Dia simply feared so much
for his own life that he was willing to abandon his family. The IJ rejected
Dia’s testimony without indicating any consideration of these equally
likely scenarios.
25. The Attorney General states that “one inconsistency looms large over
the record. Dia testified that when he returned to his home after visiting
his uncle, he discovered that his home had been burned, yet when he
saw his wife, she does not tell him that their home had been burned
along with her alleged report to him that she had been raped and
beaten.” The IJ, however, never mentioned this alleged inconsistency;
thus, it is not support for the IJ’s credibility determination. See Chenery,
318 U.S. at 95 (“We merely hold that an administrative order cannot be
upheld unless the grounds upon which the agency acted in exercising its
powers were those upon which its action can be sustained.”).
40
story, and, in her written opinion, she failed to articulate
why she considered it so unbelievable. What is more, as
mentioned earlier, she inconsistently asked for more
information about how Dia got the passport and visa, but
stated that Dia could not provide any supporting evidence
from any more “friends.” As it is presented in her opinion,
then, the dismissal of this aspect of Dia’s testimony
constitutes conjecture as to how the IJ believed Dia should
have acted. But it seems highly unreasonable for the IJ,
without inquiry into the underlying reasons, to assume that
Dia would have, without fail, learned Sow’s friend’s name,
given that Sow was his friend and that it was Sow, not Dia,
who dealt with the smuggler.26 Why would someone in Dia’s
position care about the smuggler’s name?
The IJ also inappropriately rejected Dia’s testimony that
he had never been to Italy. Dia testified that he was told by
Sow’s friend who procured his passport to say that he was
a tomato picker in Italy on his way to Honduras, and that
he told this story to the immigration officer at the airport.
In rejecting Dia’s testimony that he had never been to Italy,
the IJ listed a litany of reasons: the U.S. visa in Dia’s
passport was issued in Italy; the visa and passport are
“valid”; Dia’s non-immigrant visa contains a signature of
“Saidou Dia”; an INS memo to file, derived from an airport
interview, states that Dia was a “tomato picker” in Italy; the
“tomato picker” lie does not make sense because the fact
that he was a tomato picker in Italy was “not beneficial to
him as far as his intention to remain in the U.S”; Dia
possessed employment documents from Houcon Cargo
Shipping Company addressed to “Dia’s” address in Italy;
Dia’s alleged ignorance as to how these documents came to
be (and explanation that the smuggler got them for him)
was unbelievable; and because she “question[ed] how this
[shipping] company would know of an address of the
respondent in Italy unless the respondent provided an
Italian address to them.”
26. Perhaps most importantly, we fail to see why the IJ placed any
emphasis on this particular aspect of Dia’s testimony. The name of Sow’s
friend did not at all pertain to Dia’s claim for relief from removal and
Dia’s testimony on this point seemed consistent.
41
The problems with these “reasons” are manifold. As Dia
points out, the testimony and reports regarding the
passport and visa bore out the fact that the passport and
visa given him were “genuine” and seemingly issued in
Italy, but not that they were necessarily legitimately
obtained or even obtained by Dia. Dia explained
consistently how he came into possession of the “genuine”
documents and why he told the INS officials that he was a
tomato picker on his way to Honduras. Dia also points out
that, as discussed below, he presented an expert witness
who gave unrebutted testimony that the handwriting on the
documents was not Dia’s. As for the letter from the
shipping company, a purported address for Dia certainly
does not render it authentic. The existence of the address
on the letter does not mean that the address exists or that
the letter was ever mailed, or even that the cargo company
existed. In fact, to conclude that because the documents
listed an Italian address, therefore the shipping company
actually knew of Dia’s address in Italy, strikes us as
bizarre. Dia testified that he got the documents from the
smuggler and, thus, that they were totally fraudulent. The
record contains no evidence contradictory to this story, and
the IJ does not explain why it was not plausible.
Basically, the IJ seemed confused by the fact that the
documents that Sow’s friend procured for Dia could be so
good that the documents appeared genuine and that the
supporting documentation would support Dia’s Italy story.
The only evidence in the record that the IJ used to support
her conclusion was the INS memo regarding the airport
interview, which states that “[h]is last employment appears
to be as a Tomato picker while living illegally in Italy.” But,
if we are to rely on this memo, assuming it was probative,
we must do so with care.
First, we are generally skeptical of reliance on reports of
airport interviews. In Balasubramanrim v. INS, we stated
that the airport interview is usually not “valid grounds
upon which to base a finding that an applicant is not
credible.” 143 F.3d 157, 164 (3d Cir. 1998) (citation and
internal quotation marks omitted). We noted:
We do not know how the interview was conducted or
how the document was prepared. We do not know
42
whether the questions and answers were recorded
verbatim, summarized, or paraphrased. We cannot tell
from the document the extent to which [the petitioner]
had difficulty comprehending the questions, whether
questions had to be repeated, or when and how sign
language was used. Nor does the document reveal
whether [the petitioner’s] responses actually
correspond to those recorded or whether the examiner
recorded some distilled or summary version based on
his best estimation of the response.
Id. at 162; see also Mulanga, 2003 WL 22683042, at *11
(refusing to rely too heavily on the content of an airport
interview and noting that “immaterial discrepancies
between airport interviews and subsequent testimony
should not be used to make adverse credibility
determinations”); Zubeda, 333 F.3d at 477 (stating that
“[c]aution is required” when considering what weight to give
even to an asylum affidavit); Senathirajah, 157 F.3d at 216(warning against placing too much reliance on an airport
interview). Here, too, there does not appear to be any such
information. In fact, it appears that much of the memo
memorializes information not taken under oath, including
the “tomato picker” story, and that the IJ completely
disregarded the INS official’s expressed lack of certainty, as
evidenced by his use of “appears.” And, the INS official
noted that the information not taken under oath came forth
during a conversation in French, a language the official
noted Dia was only “able to converse somewhat in,” and
that Dia “asked for a Malinge interpreter for the sworn
statement.” AR237. But even more important is the fact
that, even if we take the information from the airport
interview as accurate, it does not contradict Dia’s story, but
is, in fact, consistent with it. Dia explained that the
smuggler told him a story to present to the immigration
officials in the U.S., which he clearly did. This does not
prove that Dia had lived in Italy; rather, it bolsters his
testimony that this was the story he was told to tell.
In addition, we cannot fathom why the IJ rejected the
testimony of Dia’s expert witness, Gregory McNally. McNally
testified that the signatures on the passport and visa were
not Dia’s. He came to this conclusion after comparing six of
43
Dia’s known signatures with that on Dia’s Republic of
Guinea passport and with that on Dia’s Non-Immigrant
Visa Application for the U.S. visa found in the passport.
Presumably, the purpose of the testimony was to show that,
even though the passport and visa issued in Italy were
“authentic,” they were not in fact really Dia’s because they
did not contain Dia’s actual signature. Establishing this
fact certainly would buttress Dia’s testimony that he never
went to Italy or obtained the visa and passport himself.
This testimony totally undercuts the IJ’s reasoning, and it
is especially important in that it undermines both the IJ’s
expressed skepticism that the passport and visa were not
valid and her apparent conclusion that Dia must have been
a tomato picker in Italy simply because the documents were
“genuine.” Surely she should have realized that they were
“genuine” but were not Dia’s. If her experience led her to
reject that as improbable, she should have explained her
thinking.
The IJ explained her rejection of McNally’s testimony that
the signatures on the passport and visa were not Dia’s, by
opining that handwriting analysis is too uncertain to accord
it much weight. This outright rejection of McNally’s
testimony was unfounded. McNally’s expertise was
unchallenged. McNally was trained by and worked for the
U.S. government, has testified as an expert in various
courts more than one hundred times, and belongs to two
relevant professional societies, one of which has officially
certified him an examiner of questioned documents. In his
testimony, he clearly concluded that the signatures on the
passport and visa were not Dia’s, thus lending support to
Dia’s story. McNally only qualified this conclusion by noting
that he preferred to use original documents (some of the
documents he had examined were not originals), and by
conceding that “anything is possible” with regard to
signatures.
The IJ supported her conclusion that handwriting
analysis is not probative evidence by referring to United
States v. Van Wyk, 83 F. Supp. 2d 515 (D.N.J. 1997).
However, Van Wyck does not stand for this proposition,
but, instead, deals with the admissibility of a forensic
stylistics expert’s testimony under the Federal Rules of
44
Evidence. Evidence presented in an immigration hearing
needs to be “fair,” “reliable,” and “trustworthy,” not
necessarily admissible in federal court. Ezeagwuna, 325
F.3d at 405. More importantly, we have found that “[e]xpert
testimony as to the similarities in handwriting is generally
admissible” in federal court, United States v. McGlory, 968
F.2d 309, 346 (3d Cir. 1992), and McNally’s curriculum
vitae lists dozens of courts in which he has testified as an
expert. Therefore, for this reason as well, the chief reason
articulated by the IJ for her rejection of Dia’s testimony on
this count — her conclusion that these were Dia’s
authentic documents — is not supported by coherent
reasoning or by record evidence.27
3. Future Persecution
The final area of Dia’s testimony rejected by the IJ
pertained to whether Dia would suffer future persecution if
returned to Guinea. We emphasize that we address this
aspect only to determine any errors in the IJ’s credibility
determination, not whether Dia should be found eligible for
relief from removal. With that said, the IJ’s conclusion here,
again, lacks the necessary support.
The IJ decried that “[t]here is no evidence that low-
ranking persons in the RPG are being arrested and
detained,” and noted that the only incidence of violence
involving Dia during the approximately three years after Dia
joined the RPG involved his wife, not Dia. The IJ also
expressed doubt about Dia’s testimony that the military
was pursuing him because it thought that he was helping
Alpha Conde escape from jail. She stated that it made little
sense that the military thought Dia could enable Conde to
escape, although she did not explain this further.
27. The IJ also stated that, if the signatures were not legitimate, she
could not consider the passport and visa as evidence, and Dia, in turn,
would have no documentation establishing his country of citizenship.
Even if this would have proven fatal to Dia’s claim, Dia effectively
contradicts this point by noting that the authenticity of his Guinean
nation identification card (required by the Government for all citizens) or
his RPG membership card, both submitted to the INS, have not been
questioned; therefore, he could prove his citizenship without the
questioned documents.
45
Once again, there are a number of problems with the IJ’s
fact-finding regarding this aspect of Dia’s testimony. First,
Dia did present evidence that the Government persecuted
low-ranking persons in the RPG. He testified to his own
past persecution, the rape of his wife as a means of
menacing him, and the beating of local RPG members at
the local headquarters, including the beating of Dia’s father
that resulted in death. See Baballah v. Ashcroft, 335 F.3d
981, 988 (9th Cir. 2003) (“Threats and attacks can
constitute persecution even where an applicant has not
been beaten or physically harmed . . . . Violence directed
against an applicant’s family members provides support for
a claim of persecution and in some instances is sufficient
to establish [a well-founded fear of] persecution.”). There
are also reports in the record documenting the Guinean
government’s persecution of RPG members on all levels,
including poll watchers like Dia, and a letter from the RPG
attesting to the fact that the chief of the neighborhood and
military officers attempted to force Dia to fight and that
they beat his wife. In fact, Dia points out that the IJ
actually states in her opinion that the Guinean government
had arrested demonstrators who sought the release of
Conde.28
Dia also urges that the IJ placed far too much weight on
the fact that neither Dia nor his wife was the victim of any
violence for the two years between the time Dia joined the
RPG and the alleged rape of his wife and burning of his
house, or after that time. He highlights parts of the record
that show that the persecution of RPG members “increased
significantly” in September of 2000 due to rebel attacks on
border towns such as his. He also points out that Amnesty
International reported on May 29, 2001, that the
government security forces used violence, including torture
and rape, “routinely” against members of opposition
28. The IJ’s error here appears similar to the one we discussed in Gao v.
Ashcroft, 299 F.3d 266 (3d Cir. 2002), where we rejected an IJ’s
“unsupported opinion as to how an authoritarian government operates,
including his troubling remarks that he found ‘implausible . . . the
preoccupation of Chinese authorities for someone who is a mere adjunct
to the activity that the government is trying to stop or prevent, but that
is not at all involved in it herself.’ ” Id. at 278.
46
parties, such as the RPG, and that the security forces
“continue to act with impunity.” The report stated that
“[t]he long-standing pattern of human rights violations by
the Guinean security forces is clear.” As for the four
months after the military came to his home but prior to his
flight from the country, Dia notes that he was hiding at
Sow’s home during that time. Lastly, and perhaps most
tellingly, the IJ, again, misstated Dia’s testimony. Dia never
testified that the military thought that he was helping
Conde escape prison. Rather, he testified that the military
told his wife that Dia was helping the rebels so that Conde
could be released from prison. When an IJ bases her
conclusion on an erroneous interpretation of the
testimonial and documentary evidence in the record, it
undoubtedly is not supported by substantial evidence.
In sum, the IJ’s adverse credibility determination was
based on a combination of misstatements of Dia’s
testimony, unreasonably speculative or arbitrary
conclusions, inaccurate or insufficiently explained findings
of contradictions, and an arbitrary rejection of probative
testimony. The “inconsistencies” that the IJ claimed to have
found were illusory, and the claimed “implausibility”
stemmed solely from conjecture. While we owe deference to
the IJ’s findings, our focus, and the essence of our review
function, must be on the IJ’s stated reasons. The reasoning
in the IJ’s opinion must “bear a legitimate nexus to the
finding.” Balasubramanrim, 143 F.3d at 162. We are not to
invent explanations that may justify the IJ’s conclusion.
Accordingly, we conclude that the IJ’s opinion was not
based on substantial evidence; thus, the BIA improperly
affirmed the IJ’s decision.29
29. In Abdulrahman v. Ashcroft, 330 F.3d 587 (3d Cir. 2003), we
expressed concern over similar credibility determinations made by the IJ,
but affirmed. In that case, the IJ seemingly had misread some of the
testimony, id. at 597, placed “a wholly unrealistic burden” on the
petitioner to corroborate specific testimony, id. at 598, and expressed
doubt unsupported by the record. Id. The chief differences between that
case and the one presently before us is that, despite the “troubling”
aspect of the IJ’s credibility judgment, id. at 599 (Becker, J. concurring),
the IJ engaged in “otherwise appropriate adverse credibility
determinations,” id. at 598, and that the IJ’s troubling statements often
did not pertain to the findings of facts that were crucial to the ultimate
determination.
47
III. CONCLUSION
Dia asks that we reverse the BIA and grant the relief he
seeks. But we are not finding Dia credible. Rather, we are
concluding, as we have repeatedly before, that because of
the lack of substantial evidence to support the adverse
credibility determination, we will remand in order for the
agency to further explain or supplement the record. Gao,
299 F.3d at 279. Moreover, as we have recently said: “We
will not assess [Dia’s] entitlement to relief based on the
record as we have required it to be modified by this opinion
because the agency should have the opportunity to do so.”
Ezeagwuna, 325 F.3d at 411 (citing Ventura, 537 U.S. at
17-18); see also Secaida-Rosales, 331 F.3d at 313 (stating,
under similar circumstances, that “[t]he IJ should then
reach the questions of asylum and withholding of
deportation in light of such evidence, but without regard to
its prior adverse credibility determination”); Senathirajah,
157 F.3d at 222 (remanding to BIA with instructions to
remand to IJ for decision on asylum and withholding
application, but without consideration of erroneous adverse
credibility finding reversed on appeal). Instead, we will
vacate the BIA order.30
* * *
Accordingly, we will grant the petition for review, vacate
the BIA’s order summarily affirming the IJ’s decision, and
remand to the BIA.
30. Dia also contends that the Board did not follow the streamlining
regulations when it issued an AWO in his case. The Government, in
turn, contends that we do not have authority to review whether the
Board complied with the streamlining regulations. Because we have
found that the IJ erred, we need not address this issue.
48
Volume 2 of 2
50
ALITO, Circuit Judge, with whom Judges SLOVITER and
ROTH, join, concurring in part and dissenting in part.
I join Part I of the opinion of the Court. However, because
I believe that the Court’s method of analyzing the
Immigration Judge’s credibility determination is seriously
flawed, I would deny the petition for review.
I.
Cases in which aliens seek asylum or withholding of
removal based on the likelihood or probability of
persecution if they are returned to their own countries are
among the most difficult that we face. Much is obviously at
stake, but the evidentiary record is very often meager.
Indeed, it is common for an Immigration Judge (IJ) to have
little other than the testimony of the applicant on which to
base the decision, and this presents obvious and serious
problems.
On the one hand, it is often unreasonable to demand that
asylum-seekers provide corroborating evidence regarding
their personal experiences in their home countries. Such
incidents are often not memorialized (at least not in any
records that are available to anyone outside the home
government), and aliens fleeing persecution may be lucky to
escape at all and may have no opportunity to secure any
documentary evidence that exists or to obtain statements
from witnesses who are willing to help. In addition, once
asylum-seekers reach this country, they may find it very
hard to obtain corroborating evidence. It may be difficult to
contact people at home, and persons who might assist may
be prevented by the home government from doing so or may
be reluctant to help for fear of governmental retribution.
Thus, it is often not reasonable to demand corroboration.
On the other hand, however, testimony by asylum-
seekers cannot simply be accepted without question.
Persons wishing to escape deplorable conditions that fall
short of persecution have a strong motive to fabricate tales
of persecution, and it must be recognized that such stories
are not hard to construct. An asylum-seeker may have
heard another person’s account of persecution and may
substitute himself or herself as the victim. Or an asylum
51
seeker may take an incident in which he or she was
actually involved and may exaggerate the conduct of the
military or police so as to make it reach the high standard
needed to constitute persecution.
As Professor David A. Martin, former general counsel of
the INS, has written, the government is rarely able to
conduct a field investigation of matters such as applicants’
“past political activities, or specific abuses or threats
directed against them or their families or friends.” David A.
Martin, “Reforming Asylum Adjudication: On Navigating the
Coast of Bohemia,” 138 U. Pa. Law Rev. 1247, 1280 (1990).
As a result, “[a]sylum determinations often depend critically
on a determination of the credibility of the applicant, for
she will usually be the only available witness to the critical
adjudicative facts of the case. Because that person has
substantial incentives to lie or to embroider the truth (and
few disincentives), this makes for a system vulnerable to
manipulation.” Id. at 1281-82 (footnotes omitted).1 These
two factors — the frequent unavailability of corroboration
and the ease of fabricating a persecution claim — make
determinations regarding the credibility of asylum-seekers
critically important.
In deciding how such determinations are to be made in
this country, Congress could have taken a variety of
different approaches. The approach that it chose, however,
was to entrust the responsibility for making these
important determinations to the Attorney General, with very
limited judicial participation. Specifically, we must accept a
credibility determination made by those to whom the
Attorney General’s authority has been delegated “unless
any reasonable adjudicator would be compelled to conclude
to the contrary.” 8 U.S.C. § 1252(b)(4)(B). This limited role
sometimes puts us in the uncomfortable position of
deferring to a credibility determination about which we are
skeptical. But the statute leaves us no alternative.
1. Professor Martin goes on to express his belief that most applicants are
honest, id. at 1282 — a fact that I do not question — but some
applicants may not be not truthful, and our current system relies on IJ’s
to identify those applicants.
52
II.
In analyzing the IJ’s credibility decision in this case, the
Court makes three fundamental mistakes. First, the Court
fails to recognize that it is entirely proper for a fact finder
to take into account “background knowledge” about human
behavior in assessing the plausibility of testimony. Second,
although the Court pays lip service to the very limited
standard of review that we must apply, the Court in effect
inverts that standard and refuses to sustain the IJ’s
credibility finding, not because a reasonable adjudicator
could not find that Dia lacked credibility, but because, in
the Court’s view, a reasonable fact finder could make a
contrary finding. Third, the Court errs in failing to take the
totality of the circumstances into account in reviewing the
IJ’s credibility determination. Instead, the Court focuses
one by one on specific statements that were made by Dia
and asks whether each of those statements is plausible.
The Court fails to recognize that a series of statements may,
taken together, provide a reasonable basis for finding a
witness to be incredible even if each statement standing
alone might be credible.
A.
“Background knowledge.” In assessing the credibility of
testimony, fact finders commonly ask whether the
testimony is consistent with their own understanding of
how people usually behave. Judge Weinstein uses the term
“background knowledge” to describe the “ ‘vast storehouses
of commonly-held notions about how people . . . generally
behave,’ ” and he explains that credibility determinations
may be based on such knowledge even though it is not in
the record. United States v. Shonubi, 895 F.Supp. 460, 479
(E.D.N.Y. 1995)(citation omitted).
Professor Uviller has provided a useful description of the
process used by a fact finder in deciding whether testimony
comports with such “background knowledge.” He writes:
The process by which a juror tests a story for
plausibility involves some sort of cerebral matching. A
juror juxtaposes a set of recounted actions and events
against her experience, imagination, and derived
53
intelligence concerning the behavior and reactions of
real and fictitious others: “Is this the sort of thing that
I might do in those circumstances?” “Would anyone I
know have reacted that way?” . . . . These are the sorts
of guides to plausibility on which the juror must rely.
H. Richard Uviller, “Essay: Credence, Character, and the
Rules of Evidence: Seeing Through the Liar’s Tale,” 42 DUKE
L.J. 776, 783 (1993).
Professor Uviller also explains the weaknesses of this
process:
The trouble, of course, is that frequently the cultural
context and customs of the actors in the events
recounted by the witnesses are totally alien to the
jurors seeking a plausibility match. Neither the jurors
nor anyone they are likely to know have had any
experiences comparable to those now described from
the witness stand by an adolescent drug dealer or a
professional underworld hoodlum.
Id. Nevertheless, this process of judging credibility is
employed every day in criminal and civil cases, and there is
no reason why it cannot also be used in asylum cases.2 In
other words, an IJ in an asylum case may properly judge a
2. The Court notes (Maj. Op. 31 n.21) — as have I — that this method
of judging credibility is hardly foolproof. What the Court does not
recognize, however, is that the same is true of virtually all of the other
methods of assessing credibility that are available to IJ’s. Two of the
most common methods involve assessment of demeanor and
impeachment based on prior inconsistent statements. As to demeanor,
Judge McKee’s opinion notes that the reliability of credibility
determinations based on demeanor has been challenged and that there
are special reasons for questioning this technique when the witness
testifies through an interpreter and comes from a different cultural
background. As to impeachment with prior inconsistent statements, the
Court notes the problems with undue reliance on airport statements (see
Maj. Op. 41-42), and reliance on statements made in asylum
applications and subsequent interviews may also present difficulties due
to translation problems and the volume of cases that must be processed.
In sum, virtually all of the methods of assessing credibility that are
available to IJ’s are fraught with problems, but it is nevertheless
essential that IJ’s make such assessments using the admittedly
imperfect tools that are at hand.
54
witness’s credibility by comparing that testimony to the IJ’s
background knowledge about human behavior in general
and about the behavior of those seeking entry into the
United States.
In this case, however, the Court faults the IJ for
employing this very process. As the Court notes, Dia
testified that his wife told him that about 25 soldiers had
come to their home looking for him and that, when Dia’s
wife told them that she did not know his whereabouts, the
men beat and raped her and burned the house. AR 86. Dia
stated that, at his wife’s urging, he fled the country alone,
leaving his wife and child behind. AR 86. In finding that
Dia was not credible, the IJ expressed the belief that a
woman in the position of Dia’s wife would probably not urge
her husband to leave her behind. AR 43. The IJ also
expressed the belief that a man in Dia’s position would
probably “suggest that they flee the country together.” AR
43. The IJ thus engaged in precisely the mental process
that Professor Uviller described: she compared what Dia’s
wife allegedly did (urging that her husband flee without her)
with what the IJ thought a woman in that position would
likely do, and the IJ compared what Dia did (leaving alone)
with what she thought a man in that situation was likely to
do. Because the IJ concluded that spouses in the position
of Dia and his wife would not likely behave in the way that
Dia described, the IJ found it unlikely that Dia’s story was
true.
Although the mental process in which the IJ engaged was
routine and entirely permissible, the Court rejects the IJ’s
approach. The Court criticizes the IJ for failing to explain
her reasoning (Maj. Op. 38), but the basis for her
conclusion could not be any clearer: the IJ’s “background
knowledge,” “her experience, imagination, and derived
intelligence concerning the behavior and reactions of . . .
others” told her that a woman was not likely to urge her
husband to flee alone if she had just been beaten and
raped by soldiers who were looking for him. Similarly, the
IJ’s “background knowledge” told her that a man was not
likely to leave his wife and child behind under such
circumstances. What more the Court expects the IJ to have
said on this point is a puzzle. Does the Court expect the IJ
55
to have cited to empirical evidence about how couples
generally behave when the wife has just been beaten and
raped by soldiers who are looking for the husband for
political reasons?
B.
Reversing the standard of proof. We are required to
sustain the IJ’s findings “unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B). The Court, however, repeatedly turns this
standard on its head and finds that aspects of Dia’s
testimony should have been found to be credible because a
reasonable person might have found them believable.
The Court’s evaluation of Dia’s testimony about his
decision to flee by himself is again instructive. Rejecting the
IJ’s determination that it was “unlikely” that a couple in the
position of Dia and his wife would agree that the husband
should escape alone, the Court states: “We can think of any
number of reasons why Dia’s wife might have urged him to
leave without her,” such as a belief that Dia “could move
more quickly and elude detection more easily if he was
traveling alone.” Maj. Op. at 38 & n. 23. In other words, the
Court inverts the statutory test and refuses to accept the
IJ’s finding because the Court can imagine grounds for a
contrary finding.
The Court performs the same slight of hand in evaluating
the “tomato picker” story. Although Dia testified at the
asylum hearing that he had never been in Italy (AR 102),
the INS memo regarding his interview upon arrival at JFK
Airport on March 27, 2001, reported that Dia had
apparently been employed as a tomato picker in Italy. AR
237. The memo also reported that Dia was en route to join
a ship in Honduras as an engine room technician (AR 237),
and there is documentary evidence that supports the
account in the memo. Dia had in his possession a valid
United States visa that bore his name and photo and that
had been issued in Milan. AR 225. He also possessed an
“Employment Letter” from Houcon Cargo Systems of
Rotterdam that was addressed to him at an address in
Brescia, Italy. AR 218-221. The letter stated that Dia had
56
been employed by the company for a two-year period as an
engine room technician and instructed that he was to board
a ship in Honduras by April 10, 2001. AR 218. When asked
about these documents, Dia stated that they had been
provided to him by the unnamed man who had procured
his passport, but the IJ found that account dubious. AR
44.
Instead of asking whether a reasonable adjudicator could
infer from this proof that Dia had been in Italy and had
therefore lied at the hearing, the Court postulates all sorts
of possible explanations for the evidence pointing to
residence in Italy. Dia’s statement at the airport might have
been misunderstood because of his lack of facility in
French, the language in which he spoke at that time; if Dia
did say at the airport that he had been employed in Italy,
he might have told an untruth because his statement “was
not taken under oath” and he was simply parroting what
the man who provided the documents had told him to say.
Maj. Op. at 42. Although the visa was genuine, that did not
prove that it had been “necessarily legitimately obtained.”
Id. at 41. And although the visa bore Dia’s photo, it might
have been obtained by someone else. Id. Houcon Cargo
might not exist. Id. at 41. If it does, the letter might not be
authentic. Id. The address in Brescia, Italy, might be
fictitious, and even if it is not, the letter might have found
its way into Dia’s possession without being mailed to that
address. Id. The Court concludes:
Dia testified that he got the documents from the
smuggler and, thus, that they were fraudulent. The
record contains no evidence contradictory to this story.
Id.In effect, the Court says that the IJ was bound to accept
Dia’s testimony that he had never been in Italy unless there
was conclusive proof to the contrary. If we applied this
standard to the findings that are routinely made by judges
and juries in federal litigation, few findings could be
sustained.
C.
Totality of the circumstances. In judging the credibility of
a witness’s story, a fact finder is entitled to consider
57
whether the story as a whole has the ring of truth. Suppose
that a witness asserts that something a bit out of the
ordinary happened. Since unusual things do happen, a fact
finder might credit that assertion if the witness does not
say anything else that is questionable. But suppose that
the witness goes on to assert that a whole series of unusual
things happened. At some point, the fact finder may —
reasonably — conclude that the witness’s testimony as a
whole is unbelievable.
Here, the Court rejects the IJ’s determination that Dia’s
testimony was not credible because, taking each of his
contested statements one by one, the Court finds each
plausible. Thus, the Court fault’s the IJ’s credibility finding
because, in the Court’s view, it is plausible that about 25
men would be sent to Dia’s home to look for him; it is
plausible that Dia would flee alone and leave his wife and
child behind even though his wife had been beaten and
raped by soldiers looking for him; it is plausible that Dia
was able to procure a police stamp even though the
authorities were looking for him; it is plausible that a man
whose identity Dia did not know was able to obtain for Dia
a legitimate passport and legitimate United States visa; it is
plausible that even though Dia had never been in Italy, he
would say on arriving in this country, that he had been
employed in Italy as a tomato picker; and it is plausible
that even though Dia had never been in Italy, he would
have a United States visa that was stamped as issued in
Milan and an Employment Letter addressed to him at a
place in Italy. Even if the IJ was bound to view each of
these facts as plausible — and I do not think that she was
— it does not follow that she was bound, when considering
all of these facts together, to find Dia credible.
III.
Viewing the record as a whole, I believe that a reasonable
fact finder could find that Dia’s testimony was not
believable and could deny his application on that basis.
• In light of the previously mentioned documentary
evidence and Dia’s statement at the airport, it was
reasonable for the IJ to question whether Dia told the
58
truth when he testified at the hearing that he had never
been in Italy. While this evidence may not prove
conclusively that Dia had been in Italy, it certainly
provided a reasonable basis for the IJ to infer that he
had. And if Dia lied about this point, the IJ could
reasonably doubt the truthfulness of the remainder of
his testimony.
• It was reasonable for the IJ to question Dia’s
truthfulness based on Dia’s statement that, even though
his wife had been raped and beaten by men who were
looking for him, he and his wife agreed that he should
flee alone. As explained above, the IJ’s belief about how
a couple would likely react under such circumstances is
just the sort of “background knowledge” about human
behavior that a fact finder is entitled to consider in
evaluating a witness’s credibility. Moreover, the
particular belief in question (that a couple, under the
circumstances, would not likely decide that the husband
should run away by himself) is at least reasonable. Since
Dia’s wife had allegedly been beaten and raped on one
occasion when she did not tell Dia’s pursuers where he
was, is it unreasonable to think that a couple in that
position would fear that something similar might recur if
the husband left alone and the wife was again
questioned?
• It was reasonable for the IJ to question Dia’s testimony
that about 25 men went to his house looking for him. A
reasonable adjudicator could be skeptical that so many
men would be sent to look for a single, low-ranking
person. Similarly, it was reasonable for the IJ to
question whether, as Dia testified, his alleged pursuers
would think that a low-ranking person like Dia could
help the leader of an opposition political group to
escape. And it was reasonable for the IJ to question how
Dia was able to obtain a police stamp on his passport if
the authorities were searching for him. While each of
these statements standing alone may not give rise to a
strong inference of mendacity, each statement can be
questioned, and when taken together they can
reasonably contribute to a finding that Dia was not
credible.
59
Whether I would have believed Dia if I had been given the
responsibility to make that determination I cannot say. But
viewing all of the evidence in the record and applying the
narrow standard of review prescribed by statute, I cannot
say that a reasonable adjudicator could not find Dia to be
incredible.
60
STAPLETON, Circit Judge, dissenting, with whom Judges
McKee, Ambro, and Becker join:
An applicant for asylum seeks to avoid removal to a
country where he insists he will be the victim of
persecution. In recognition of the serious consequences of
an erroneous denial of asylum, Congress, in the INA, has
given asylum seekers the right to present evidence to an
immigration judge (“IJ”), 8 U.S.C. § 1229a (2002),1 the right
to an administrative appeal of an adverse decision to the
Board of Immigration Appeals (“BIA”), 8 U.S.C. § 1229a(c)(4),2
and the right to judicial review by a Court of Appeals of a
final agency order denying asylum and directing removal. 8
U.S.C. § 1252 (2002).3
The Attorney General’s streamlining regulations direct a
single BIA member to make the final decision on whether a
denial of asylum is the “correct” decision, 8 C.F.R.
§ 1003.1(a)(7)(ii) (2002), and then instructs the Court of
Appeals to review the IJ’s explanation for his or her
disposition4 — an explanation that the BIA member
1. 8 U.S.C. § 1229a(b)(4)(B) provides that: “In proceedings under this
section, under regulations of the Attorney General—the alien shall have
a reasonable opportunity to examine the evidence against the alien, to
present evidence on the alien’s own behalf, and to cross-examine
witnesses presented by the Government . . . .”
2. 8 U.S.C. § 1229a(c)(4) states: “If the immigration judge decides that
the alien is removable and orders the alien to be removed, the judge
shall inform the alien of the right to appeal that decision and of the
consequences for failure to depart under the order of removal, including
civil and criminal penalties.”
3. 8 U.S.C. § 1252(a)(1) states: “Judicial review of a final order of removal
(other than an order of removal without a hearing pursuant to section
1225(b)(1) of this title) is governed only by chapter 158 of Title 28, except
as provided in subsection (b) of this section and except that the court
may not order the taking of additional evidence under section 2347(c) of
Title 28.”
4. See Executive Office of Immigration Review: Board of Immigration
Appeals Streamlining, 64 Fed. Reg. at 56,138 (Oct. 18, 1999) (“The
decision rendered below will be the final agency decision for judicial
review purposes . . . . [T]he Immigration Judge’s decision becomes the
decision reviewed.”).
61
expressly declines to adopt. 8 C.F.R. § 1003.1(a)(7)(iii).5 By
thus severing the final decision-maker from the agency’s
explanation for its denial, the Attorney General effectively
says to asylum seekers, “You have a right to appeal to a
Court of Appeals, but asylum may be denied and you may
be removed for reasons that are not subject to its review.”
Today, our court sanctions this perversion of judicial
review. Chevron does not require us to defer to such a
perversion, and I would decline to do so.
I.
The scheme of administrative and judicial review
established in the INA for asylum cases is a familiar one.
Comparable schemes have been before the Supreme Court
on numerous occasions, and its decisions in those cases
have articulated fundamental principles of administrative
law that govern review under such schemes. See, e.g., SEC
v. Chenery Corp., 332 U.S. 194, 196-97 (1947); Chevron
U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-
44 (1984); INS v. Orlando Ventura, 537 U.S. 12, 17 (2002).
Nothing in the INA or its legislative history suggests that
Congress intended that review in asylum cases would
depart from these well-established principles, and the
statute must be applied in light of them. I conclude that the
Attorney General’s streamlining regulations are inconsistent
with the INA scheme as so applied.
In a number of ways, the Attorney General’s reading of
the statute is more straightforward than that of the Court.
The Court begrudgingly “assume[s] [that the Act]
contemplates that an alien will have the opportunity for an
administrative appeal.” Slip Op. at 10. It does so because
Congress has expressly mandated that an IJ, upon the
entry of an order denying asylum and granting removal,
“shall inform the alien of the right to appeal that decision.”
8 U.S.C. § 1229a(c)(4). The Attorney General has no doubts
about the matter, and his streamlining regulations provide
for such an appeal. Those regulations continue to recognize
5. The order of a single BIA member “approves the result reached in the
decision below; it does not necessarily imply approval of all of the
reasoning of that decision . . . .” 8 C.F.R. § 1003.1(a)(7)(iii).
62
that, in accordance with the requirements of the statute,
there can be no final agency order until the BIA has acted
or the asylum seeker has foregone his right to appeal to the
BIA. 8 U.S.C. § 1101(a)(47)(B) (2002).6 Thus, in any case
where an appeal is taken, the final decision of the agency
subject to judicial review is that of the BIA. Moreover, the
Attorney General understands that, while the statute
substantially constrains judicial review of administrative
findings of fact,7 it contemplates de novo review by the BIA.
Even when streamlining occurs, the single BIA member,
before approving “the result reached in the decision under
review,” must determine that it “was correct.” 8 C.F.R.
§ 1003.1(a)(7)(ii). As we succinctly explained in Abdulai v.
Ashcroft, 239 F.3d 542, 548-49 (3d Cir. 2001):
Congress has granted [the federal courts] power to
review only “final order[s] of removal.” Because an alien
facing removal may appeal to the BIA as of right, and
because the BIA has the power to conduct a de novo
review of IJ decisions, there is no “final order” until the
BIA acts. Accordingly, we now expressly hold that the
“final order” we review is that of the BIA.
See also Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.
2003) (“Our power of review . . . extends only to the
decision of the BIA . . . . Therefore, only if the BIA expressly
adopts or defers to a finding of the IJ, will we review the
decision of the IJ.”); Awolesi v. Ashcroft, 341 F.3d 227, 231
(3d Cir. 2003) (“We review the decision of the BIA, not that
of the IJ.”).
The Attorney General also recognizes, as he must, that
an asylum seeker is entitled under the statute to judicial
6. 8 U.S.C. § 1101(a)(47)(B) states in part that:
The [“order of deportation”] shall become final upon the earlier of (i)
a determination by the Board of Immigration Appeals affirming such
order; or (ii) the expiration of the period in which the alien is
permitted to seek review of such order by the Board of Immigration
Appeals.
7. 8 U.S.C. § 1252(b)(4)(B) provides that, in the context of judicial review,
“the administrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.”
63
review of the agency’s final decision, and the streamlining
regulations so provide. They go on, however, to deprive the
Court of Appeals of any basis for reviewing the agency’s
final decision, to deprive the Court of the benefit of the
agency’s expertise, and to deprive the asylum seeker of de
novo review of the IJ’s fact finding. These aspects of the
streamlining regulations are at odds with the statute as
applied in light of at least two well-established principles of
administrative law.
II.
First and foremost, judicial review necessarily requires
something to review and, if the agency provides only its
result without an explanation of the underlying fact finding
and analysis, a court is unable to provide judicial review.
See SEC v. Chenery Corp., 332 U.S. 194, 196-97 (1947) (“If
the administrative action is to be tested by the basis upon
which it purports to rest, that basis must be set forth with
such clarity as to be understandable.”);8 Dunlop v.
Bachowski, 421 U.S. 560, 572 (1975); Guentchev v. INS, 77
F.3d 1036, 1038 (7th Cir. 1996) (statement of reasons is
the “norm of administrative law”). As we also explained in
Abdulai in the specific context of the INA:
[N]othing in the INA specifically requires the Board to
explain its decisions. But the availability of judicial
review (which is specifically provided in the INA)
necessarily contemplates something for us to review
8. The Court in Chenery stated that:
It will not do for a court to be compelled to guess at the theory
underlying the agency’s action; nor can a court be expected to chisel
that which must be precise from what the agency has left vague and
indecisive. In other words, “we must know what a decision means
before the duty becomes ours to say whether it is right or wrong.”
332 U.S. at 196-97 (quoting U.S. v. Chicago M., St. P. & P.R. Co., 294
U.S. 499, 511 (1935)). This, according to the Court, is a corollary to the
rule that “a reviewing court, in dealing with a determination or judgment
which an administrative agency alone is authorized to make, must judge
the propriety of such action solely by the grounds invoked by the
agency.” Id. at 196.
64
. . . . Because the BIA’s failure of explanation makes it
impossible for us to review its rationale, we grant the
petition for review, vacate the Board’s order, and
remand the matter . . . .
Abdulai, 239 F.3d at 555. While we did not cite to Chenery
for this proposition in Abdulai, our holdings with respect to
judicial review of administrative decisions clearly embrace
Chenery’s reasoning. See, e.g., N.L.R.B. v. Permanent Label
Corp., 657 F.2d 512, 532 (3d Cir. 1981) (“Requiring the
Board to articulate its reasons for imposing a bargaining
order does not represent an unwarranted judicial
interference with administrative procedure. Indeed that
requirement, as we have pointed out, stems from the
Supreme Court’s instructions in [N.L.R.B. v. Gissel Packing
Co., 395 U.S. 575 (1969)], and from fundamental rules of
administrative law.” (citing Chenery, 332 U.S. at 196-97)).9
Whenever the streamlining regulations are invoked, they
deprive a reviewing court, by their express terms, of any
basis for knowing either the findings of fact or the rationale
upon which the BIA’s denial of asylum rests and they thus
make judicial review impossible. 8 C.F.R. § 1003.1(a)(7)(iii)
requires that the BIA’s order expressly state “the Board
affirms, without opinion, the result of the decision below.”
This means that the BIA accepts only “the result” of the IJ’s
deliberations. Indeed, the regulations, in addition to
foreclosing the BIA from giving “further explanation or
reasoning,” go on to state that the effect of the BIA’s order
is to “approve . . . the result reached in the decision below”
and to disavow any implication that the approval extends
any further. The BIA’s order thus does not only fail to adopt
the findings and reasoning of the IJ, it expressly disavows
9. The proposition that judicial review requires an administrative agency
to articulate the reasoning for its decisions also follows logically from our
holding that the Attorney General’s stated reasons for granting or
denying asylum must not be “arbitrary, irrational, or contrary to law.”
Ezeagwuna v. Ashcroft, 301 F.3d 116, 126 (3d Cir. 2002) (citing
Andriasian v. INS, 180 F.3d 1033, 1040 (9th Cir. 1999)). It is difficult, if
not impossible, for a reviewing court to apply this standard to an
agency’s action if the agency has not explained why it acted as it did.
See 1 Richard J. Pierce, Jr., Administrative Law Treatise § 8.5, at 546
(4th ed. 2002).
65
endorsing those findings and that analysis. See 8 C.F.R.
§ 1003.1(a)(7)(iii) (requiring that the order to state that it
“does not necessarily imply approval of all of the reasoning
of [the IJ’s decision]”). The net and necessary result is that
the reviewing court has no findings or reasoning of the final
decision-maker to review. This result has already been
addressed in Chenery, 332 U.S. at 196-97, and Abdulai,
239 F.3d at 555, and it is rendered no less defective by
virtue of being authorized by the Attorney General’s
streamlining regulations.
In short, judicial review, by definition, necessarily
involves an explanation for the agency’s final decision.
Congress has spoken directly to the issue of whether
asylum seekers will have a right to judicial review.
Accordingly, the situation before us is simply not one in
which Chevron deference is due. See Chevron, 467 U.S. at
842-843 (“First, always, is the question whether Congress
has directly spoken to the precise question at issue. If the
intent of Congress is clear, that is the end of the matter; for
the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.”). The
Attorney General may not deprive asylum seekers of that
right by calling something judicial review even though relief
may be denied for undisclosed reasons not subject to
judicial review.
It does not help that a summary affirmance signifies
under the regulations that the BIA views “any errors in the
decisions of the Immigration Judge [as] harmless or non-
material.” In any case where the BIA disagrees with the IJ
in whole or in part, but has an alternative and independent
basis for denial, the error of the IJ will be harmless or non-
material, yet that alternative and independent basis will
never be disclosed and, accordingly, will never be exposed
to judicial review. It necessarily follows that an alien may
be denied asylum and be put in serious jeopardy for a
reason that is never exposed to judicial review.
Nor does it help that the regulations instruct the Court of
Appeals to review the fact finding and analysis of the IJ.
See Executive Office of Immigration Review: Board of
Immigration Appeals Streamlining, 64 Fed. Reg. at 56,138
(Oct. 18, 1999) (“The decision rendered below will be the
66
final agency decision for judicial review purposes . . . . [T]he
Immigration Judge’s decision becomes the decision
reviewed.”). In any case in which the BIA disagrees with the
IJ in whole or in part, but has an alternative and
independent basis for denying asylum, review of the IJ’s
fact finding and analysis is a meaningless exercise. The
Court’s suggestion that it makes no difference whether the
explanation is provided by the final decision-maker or the
IJ is reminiscent of Alice’s Wonderland. The difference is
between the asylum seeker’s having judicial review of the
reason for his removal and his having no such review.10
The Attorney General’s perversion of the judicial review
mandated by Congress is strikingly illustrated by the record
that was recently before us in Ezeagwuna v. Ashcroft, 301
F.3d 116 (3d Cir. 2002), a case that was not, but could
have been, affirmed without opinion under the streamlining
10. The Court’s opinion simply ignores the fact that the streamlining
regulations permit an asylum seeker to be removed for reasons
unexposed to judicial review. It does so with the ipse dixit: “The BIA
clearly ‘invokes’ the IJ’s opinion as the grounds on which the agency’s
decision rests; we thus ‘judge the propriety’ of the IJ’s action in order to
‘test’ the agency’s action.” Slip. Op. at 16. The Court fails to explain,
however, how a BIA order that does not “imply approval of all of the
reasoning of ” the IJ’s opinion can “clearly ‘invoke[ ]’ the IJ opinion as the
ground on which the agency’s decision rests.” Every court of appeals
that has engaged in judicial review of an IJ’s decision has done so
because the IJ’s reasoning was expressly adopted by the BIA. See Chen
v. INS, 87 F.3d 5, 7 (1st Cir. 1996) (citing cases from the Second, Fourth,
Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits, in each of which,
the BIA expressly adopted the reasoning of the IJ as its own).
Significantly, we held in Abdulai that the IJ’s opinion had not become
that of the BIA’s. 239 F.3d at 549 n.2. We came to this conclusion
because “the BIA never expressly ‘adopted’ any portion of the IJ’s opinion
or announced that it was deferring to any of the IJ’s findings.” Id.Citing Albathani v. INS, 318 F.3d 365, 377 (1st Cir. 2003), our Court’s
opinion also asserts, without explanation, that “Chenery does not require
that [the agency’s] statement [of reasons] come from the BIA rather than
the IJ.” Slip Op. at 16. Chenery makes no sense, however, unless it is
read to require that the reasons given be the reasons of the agency’s
final decision-maker. Otherwise, as I have stressed, agency action may
be taken for reasons never exposed to the Congressionally mandated
judicial review.
67
regulations. There, as here, the IJ concluded that the alien
was not credible and, accordingly, had not carried his
burden of persuasion. Id. at 123. The IJ reached this
conclusion because: (1) he found it implausible that the
alien had been abused in the manner she claimed; and (2)
the alien appeared to be giving testimony she had
rehearsed. Id. at 123-24. On appeal, the BIA found that the
record did not support the reasons given for the IJ’s
credibility decision. Nevertheless, it also found that the
alien lacked credibility and, accordingly, that the IJ had
reached the correct result. The BIA reached its conclusion
on the credibility issue for a reason different from those of
the IJ: the alien had impeached her own credibility by
submitting fraudulent documents in support of her asylum
application. The BIA accordingly ordered removal. Id. at
124-25.
On appeal, we held that the evidence the BIA relied upon
in concluding that the documents were fraudulent was
unreliable and untrustworthy and that the BIA’s reliance
upon it had violated the alien’s right to Due Process. Id. at
130.
Cases like Ezeagwuna can, consistent with the
streamlining regulations, be decided without an opinion. A
single BIA member could well have determined in good faith
that the errors of the IJ were harmless or immaterial
because the BIA member reached the same conclusion. He
could also have concluded in good faith that there was no
genuine dispute regarding the applicable law and that the
case did not involve the application of precedent to a novel
fact situation. Had a single BIA member made these
determinations and decided the case without opinion under
the streamlining regulations, we, as the reviewing court, (1)
would have been unaware of the basis for the agency’s final
decision and, accordingly, would not have had the
opportunity to vindicate the violation of the alien’s
constitutional rights; and (2) would have been unaware
that, in the expert eyes of the BIA exercising de novo
review, the fact finding done by the IJ was unacceptable
and, exercising restricted review, we might well have
allowed that fact finding to stand. Fortunately for the
asylum seeker in Ezeagwuna, her case was not streamlined
68
and her rights were vindicated. Had the streamlining
decision gone the other way, however, she might well have
been sent home to persecution without any judicial review
of the basis of the decision to deny asylum.
This case may well be one like Ezeagwuna. The BIA
member could well have viewed the grounds for the IJ’s
credibility determination as impermissibly speculative and,
accordingly, may well have relied on alternative,
undisclosed grounds. If so, Dia will have been removed for
reasons that were unexposed to judicial review.
III.
The streamlining regulations, and the Court’s sanctioning
of them, have further consequences that conflict with the
statutory scheme viewed in light of a second well-
established principle of administrative law. A reviewing
court must defer to, and must insist upon the benefit of,
the application of the agency’s expertise in the context of
the matter before it. “[A] reviewing court, in dealing with a
determination or judgment which an administrative agency
alone is authorized to make, must judge the propriety of
such action solely by the grounds invoked by the agency. If
those grounds are inadequate or improper [or unknown] the
Court is powerless to affirm the administrative action by
substituting what it considers to be a more adequate or
proper basis.” Chenery, 332 U.S. at 196. The absence of an
explanation from the agency decision-maker not only
precludes judicial review, it also deprives the Court of the
benefit of the agency’s expertise and impairs the ability of
the Court to confine itself to its intended role.
In a recent asylum case, the Court of Appeals for the
Ninth Circuit overturned an order of removal based on an
argument for asylum that had been addressed by the IJ but
not by the BIA. The argument turned on whether conditions
in Guatemala had improved to the point that no realistic
threat of persecution currently existed. The Supreme Court
held that the Court of Appeals had violated “well-
established principles of administrative law” by proceeding
“without giving the BIA the opportunity to address the
[disputed] matter in the light of its own expertise.” INS v.
69
Orlando Ventura, 537 U.S. 12, 17 (2002). The Court
explained why the Ninth Circuit Court of Appeals’s action
“seriously disregarded the agency’s legally mandated role”:
Within broad limits the law entrusts the agency to
make the basic asylum eligibility decision here in
question. In such circumstances a “judicial judgment
cannot be made to do service for an administrative
judgment.” Nor can an “appellate court . . . intrude
upon the domain which Congress has exclusively
entrusted to an administrative agency.” A court of
appeals “is not generally empowered to conduct a de
novo inquiry into the matter being reviewed and to
reach its own conclusions based on such an inquiry.”
Rather, “the proper course, except in rare
circumstances, is to remand to the agency for
additional investigation or explanation.
INS v. Orlando Ventura, 537 U.S. at 16 (citations omitted).
Just as Congress did not intend the Ninth Circuit Court
of Appeals to perform the BIA’s “legally mandated role,”
neither did it intend for our Court to address in the first
instance issues like whether Guinea is a “country where the
military, as well as civilian militias, act independently of the
federal government.” Slip Op. at 33. While our Court has
not usurped the role of the BIA as did the Ventura court, it
has permitted the agency to absolve itself, by regulation, of
the responsibility for fulfilling the BIA’s legally mandated
role. Given the Congressional mandate, our Court should
not allow this abdication of responsibility.
IV.
The Attorney General’s desire to streamline the appeals
process is understandable. Moreover, I agree with the Court
that he has been given by Congress the authority to
simplify and expedite the process before the agency. I
perceive no reason, for example, why he cannot have a
single BIA member decide a category of appeals like the one
identified in the streamlining regulation. Moreover, a single
member can clearly decide appeals by adopting the opinion
of the IJ or by adopting it with specified exceptions. What
the Attorney General may not do consistent with the INA
70
and well-established principles of administrative law is to
deprive the reviewing court of the ability to provide the
judicial review mandated by Congress. More specifically, he
cannot foreclose the BIA from explaining its decision in
some way.
Contrary to the Court’s suggestion, the Attorney
General’s streamlining scheme is not at all analogous to the
affirmance of District Court judgments by court of appeals
without an opinion. The BIA’s order is materially different
from a judgment order of a court of appeals that may be
reviewed by higher judicial authority. While an opinion of a
court of appeals may be helpful, it is not essential to the
intended operation of the federal judicial system. A court of
appeals possesses no special expertise that the Supreme
Court lacks and both courts review a court’s judgment
using the same standards of review. The INA, on the other
hand, contemplates an administrative review by an entity
which has special, relevant expertise and which will
exercise de novo review of the IJ’s findings of fact as well as
her conclusions of law. Both factors are very important in
cases like the one before us, and the Congressional scheme
cannot function as intended if the BIA does not tell us what
facts it found and what reasoning it relied upon.
V.
I would grant the petition for review and remand to the
BIA with instructions to provide an explanation of the
grounds for its decision.
71
McKEE, Circuit Judge, concurring in part and dissenting in
part.
I join Part II of the majority opinion because I agree that
we must grant the Petition for Review based upon the many
problems with the Immigration Judge’s adverse credibility
ruling that the majority explains. However, I must
respectfully dissent from Part I of the majority opinion
upholding the streamlining regulations. In my view, those
regulations should be invalidated for all of the reasons so
ably explained in Judge Stapleton’s thoughtful dissent.
I write separately because I am troubled by the majority’s
suggestion that the IJ’s flawed and unsupportable
credibility ruling could somehow have been saved if it were
based upon Dia’s demeanor rather than the substance of
his testimony. The majority notes that “the IJ did not rely
on her personal observations of Dia’s demeanor or any
other observations to which we must accord an even
greater degree of deference.” Majority Opinion at 33 n.23.
It is of course true that the law has traditionally
recognized a relationship between demeanor and credibility.
The Supreme Court has even noted that the opportunity to
observe a witness’s demeanor is embodied in the
Confrontation Clause of the Sixth Amendment. See
California v. Green, 399 U.S. 149, 158 (1970) (stating that
confrontation “permits the jury that is to decide the
defendant’s fate to observe the demeanor of the witness in
making his statement, thus aiding the jury in assessing his
credibility”).1 However, this principle has evolved in the
context of proceedings where the fact finder and witnesses
share a common culture. Fact finders who are unfamiliar
with the mannerisms and subtleties of a witness’s cultural
tradition have no advantage in assessing credibility based
upon demeanor. Moreover, to the extent that the customs
of a witness’s native land differ from the fact finder’s, the
1. See also Zilich v. Reed, 36 F.3d 317, 321 (3d Cir. 1994) (citing
Townsend v. Sain, 372 U.S. 293 (1963), as stating that “demeanor
evidence is a significant factor in adjudging credibility”); Cf. Amadeo v.
Zant, 486 U.S. 214, 223 (1988) (stating that an appellate court must give
due regard to the trial judge’s opportunity to judge the credibility of
witnesses).
72
fact finder may be at a substantial disadvantage because
he/she may misinterpret subliminal clues that mean one
thing in the fact finder’s culture, but something entirely
different in the witness’s.
Courts have addressed the extent to which ignorance
about an alien’s native land can shape conclusions. See
Senathirajah v. INS, 157 F.3d 210, 220-21 (3d Cir. 1998)
(finding that the IJ’s unsupported assumptions about the
Tamil Tigers group and the Sri Lankan government were
not an appropriate basis for her factual findings). However,
courts have not been as willing to recognize that
unfamiliarity with a witness’s cultural experience may
similarly color the intangible aspects of credibility
determinations. Moreover, case law demonstrates that even
experienced IJs who are accustomed to evaluating the
testimony of aliens are not immune from allowing their
conclusions to be colored by such cultural bias.
In Chouchkov v. INS, the Court of Appeals for the Ninth
Circuit cautioned: “It must be stressed that what sounds
peculiar in one country may be the norm in another.” 220
F.3d 1077, 1083 n.15 (9th Cir. 2000). In doing so, the court
cited Perez-Alvarez v. INS, 857 F.2d 23, 24 (1st Cir. 1988).
There, the Court of Appeals for the First Circuit
incorporated the comments of the dissenting member of the
BIA into the court’s opinion. In his dissent from the
decision of the BIA, Board Member Heilman had
proclaimed:
[T]he evidence was cut off on the apparent assumption
that [evidence of] a 10-year-old membership in a union
was too old or too stale to constitute a ground for
persecution. Perhaps this is so, but there is nothing in
the record to sustain the immigration judge’s
assumption in this regard, except perhaps his general
perception of life or political conditions in El Salvador
which may or may not be grounded in fact.
As a general rule, in considering claims of
persecution I think it highly advisable to avoid
assumptions regarding the way other societies operate.
Time and again this Board has considered appeals in
which assumptions of this nature have been proven to
73
be totally wrong, once the applicant has been given a
full hearing.
Id. (emphasis added).
In Cordero-Trejo v. INS, 40 F.3d 482, 490 (1st Cir. 1994),
the IJ based an adverse credibility determination in part
upon the fact that petitioner’s wife had signed her full name
on several letters to petitioner and she had addressed the
letters using petitioner’s formal name rather than using a
more familiar reference. The IJ believed that was suspicious
based upon his assumption that “one would normally
expect the spouse to use the more familiar form” when
addressing letters to her husband. Id. (internal quotation
marks omitted). On appeal, the court rejected the IJ’s
skepticism because “there was [no] evidence in the record
to suggest that signing a letter to a spouse residing in a
foreign country by using one’s full name is contrary to the
common practice of someone of [the petitioner’s wife’s]
cultural background.” Id.The cultural bias at the heart of the adverse ruling of the
IJ in Barapind v. Rogers, No. 96-55541, 1997 WL 267881(9th Cir. May 15, 1997) (reported at 114 F.3d 1193 as an
unpublished summary affirmance), furnishes an even more
dramatic example of the dangers of assessing credibility
across a cultural divide and also illustrates the danger of
placing too much emphasis on demeanor without
elaboration or explanation.2 There, the IJ rejected an alien’s
testimony based in part upon the IJ’s belief that the alien’s
“stoic” demeanor while testifying was inconsistent with
having been subjected to the kind of gruesome torture he
testified about in support of his asylum claim. The IJ thus
concluded that the alien’s “ ‘stoic’ ” demeanor as he testified
about torture by the Indian police was a sign that he was
lying.” Id. at *2. On appeal, the court recognized that the
2. Barapind is an unpublished opinion and is therefore of no
precedential value. See 9TH CIR. R. 36-3(a). I cite it not as relevant
precedent but as an example of the kind of cultural bias that may all too
frequently burrow its way into the mind of even a well-intentioned and
conscientious fact finder, thus undermining the fact finding process to
such an extent that factual conclusions may rest upon nothing more
substantial than the quicksand of cultural bias.
74
alien petitioner’s demeanor reflected his cultural tradition.
The court explained that “stoic acceptance of misfortune is
expected from persons of constancy and courage,” and
Sikhs had “long enjoyed the reputation of being
“ ‘unsurpassed’ as soldiers. Id. (quoting LEPEL HENRY
GRIFFIN, RANJIT SINGH 36-37 (1892)).
The IJ also doubted that the alien was 29 years old as he
testified. Based only upon her personal observation of the
alien during his testimony, the IJ “thought he looked 40.”
Id. The court quickly rejected the purported age
discrepancy as a basis for concluding that the alien was not
credible. The court stated: “We see no basis for the IJ to
have thought her own sizing up of the physical appearance
of an alien gave her a superior insight into the age of the
Sikh before her; still less do we see how her hunch showed
that Barapind was lying.” Id. The court dismissed the IJ’s
conclusion that the alien lied about his age as nothing
more than a “hunch” improperly based upon “personal
conjecture.” Id. at *2, *3. The court concluded, “[a]gain, the
inference by the IJ seems to reflect her own cultural bias.”
Id. at *2. Indeed, given the alien’s testimony that he was
subjected to torture that included applying electric shock to
various “parts of his body,” id., it would have been
surprising if he had not appeared to be older than he was.
These cases primarily exemplify tangible manifestations
of bias. However, resting factual conclusions upon
unexplained and unarticulated demeanor poses an even
greater risk of biased fact finding that can deny a petitioner
due process of law.3
3. See Deborah E. Anker, Determining Asylum Claims in the United
States, 19 N.Y.U. REV. OF LAW AND SOCIAL CHANGE 433, 451-52 (1992)
[hereinafter Anker Study] (concluding, after conducting an empirical
study of U.S. immigration court decisions, that “immigration judges
generally evaluated asylum claims without consideration of political
realities in the [petitioners’] home countries while also imposing their
own cultural and political assumptions in assessing [petitioners’]
credibility”); see also Walter Kaelin, Troubled Communication: Cross-
Cultural Misunderstandings in the Asylum-Hearing, 20 INT’L MIGRATION REV.
230, 234 (1986) (stating that cross-cultural miscommunication in
asylum hearings occurred due to the cultural relativity of words, notions,
and concepts together with the lack of consciousness of these differences
in communication).
75
For example, eye contact plays a central role in
evaluating the credibility of a witness in our own culture.
The central issue in Morales v. Artuz, 281 F.3d 55 (2d Cir.
2002), was whether the defendant’s constitutional right of
confrontation had been violated by the trial judge allowing
a key defense witness to testify while wearing sunglasses
that were so dark that the jury could not see her eyes. In
writing for a unanimous panel, Judge Newman thoughtfully
outlined the importance of the role that eye contact has
traditionally been afforded in this society.4 The analysis
began by explaining that the sunglasses created no obstacle
to the right of confrontation insofar as the Confrontation
Clause seeks to guarantee cross-examination, but
conceivably infringed on the right of confrontation to the
extent the Confrontation Clause “assures an opportunity for
the defendant, especially jurors to see the witness’s eyes in
order to consider her demeanor as an aid to assessing her
credibility . . . .” Id. at 60. The court cited several cases in
noting that “ ‘eye contact’ [is] among [the] factors aiding the
fact-finder in assessing a witness’s credibility.” Id. (quoting
Churchill v. Waters, 977 F.2d 1114, 1124 (7th Cir. 1992)).
Similarly, in Coy v. Iowa, 487 U.S. 1012, 1019 (1988), the
Court stated that the trier of fact could “draw its own
conclusions” from a witness who looked away from the
defendant while testifying.
Even assuming arguendo the presumed relationship
between such demeanor and credibility in the usual
context, I submit that the relationship is often non-existent
when the fact finder and witness are from different
cultures. Thus, while the failure to look someone in the eye
while speaking is usually interpreted as an indication of
deception by people in Western cultures, avoiding eye
contact has a very different meaning in some other
cultures. See Joanna Ruppel, The Need for a Benefit of the
Doubt Standard in Credibility Evaluation of Asylum
4. Judge Newman noted that eye contact has played a role in evaluating
“reasonable suspicion” for purposes of a Terry stop, grounds for
exercising a peremptory challenge during voir dire, reliability of criminal
confessions, remorse during sentencing, and the reasonableness of a
police officer’s conduct for purposes of evaluating probable cause to
arrest. Morales, 281 F.3d at 60 n.2 (citing cases).
76
Applicants, 23 COLUM. HUM. RTS. L. REV. 1, 12-13, 13
n.44 (1992) (quoting panelist Ira J. Kurzban, Esquire, as
saying the assumptions made about the relationship
between eye contact and credibility can be “the product of
culture and not credibility” in Annual Judicial Conferences,
Second Judicial Circuit of the United States, 115 F.R.D.
349, 440 (Sept. 4, 1986)). For example, in certain Asian
cultures, avoiding eye contact is a sign of respect, and
direct eye contact is considered inappropriate in traditional
Navajo society. See Paul R. Tremblay, Interviewing and
Counseling Across Cultures: Heuristics and Biases, 9
CLINICAL L. REV. 373, 394 (2002). A witness from a
culture where it is disrespectful to “look someone in the
eye” would naturally be expected to testify in a manner that
reflected the solemnity and respect inherent in all judicial
proceedings, including proceedings before an immigration
court. It would be very unlikely that such a witness would
maintain eye contact while answering questions out of
respect for the interrogator, the judge, and the proceedings.
Yet, this very manifestation of respect may cause the fact
finder to conclude that such a witness is not credible and
therefore view all of his/her testimony with a jaundiced eye.5
When this happens, “inconsistencies” that ought to convey
nothing more than cultural differences or the fragile
imperfections of memory can assume unwarranted
importance.
Once a fact finder begins to doubt the veracity of a
witness, it will be exceedingly difficult for even the most
compelling witness to offer testimony sufficient to sustain
his/her burden under the immigration laws. We have
recognized that aliens often have to flee their native land
with precious little documentation or corroboration.
Senathirajah, 157 F.3d at 216 (“[O]ne who flees torture at
5. I submit that this problem is not easily overcome even by skilled and
knowledgeable counsel. An attorney familiar with this dynamic and
his/her client’s cultural proclivity to avoid eye contact may try to correct
for this cultural disconnect by advising his/her client to maintain eye
contact while testifying. However, this may well only make the situation
worse because the alien will attempt to answer questions in a manner
that causes discomfort and thereby exhibit a demeanor that will
undermine the client’s credibility.
77
home will rarely have the foresight or means to do so in a
manner that will enhance the chance of prevailing in a
subsequent court battle in a foreign land.”). The alien trying
to qualify as a “refugee” or for relief under the Convention
Against Torture will therefore usually have precious little
other than his/her own testimony to take before an IJ. See
Matter of Mogharrabi, 19 I. & N. Dec. 439, 445 (B.I.A. 1987)
(“The alien’s own testimony may in some cases be the only
evidence available [to support his or her claims], and it can
suffice where the testimony is believable, consistent, and
sufficiently detailed to provide a plausible and coherent
account of the basis for his fear.”).
Moreover, cross-cultural misunderstandings about the
veracity of petitioners’ testimony can be exacerbated by
difficulty understanding the procedure and structure of
immigration proceedings. The proceedings are conducted in
English, and petitioners are generally not provided with
simultaneous translation. See Anker Study, supra note 3,
at 505-06. In addition, the structure of the hearings is not
transparent to petitioners. An empirical study of U.S.
immigration court hearings and decisions found that “the
simultaneously ambiguous and rigid structure of the
hearing and the judges [sic] perceived need to control and
limit the scope of the hearing, in many instances made it
difficult for [petitioners] to communicate intelligibly the
essential facts that formed the basis of their claims.” Id. at
515.
Furthermore, petitioners often fear government officials
because of past persecution in their native country. Cf.
Balasubramanrim v. INS, 143 F.3d 157, 163 (3d Cir. 1999)
(“[A]n arriving alien who has suffered abuse during
interrogation sessions by government officials in his home
country may be reluctant to reveal such information during
the first meeting with government officials in this
country.”); Senathirajah, 157 F.3d at 218 (stating that a
petitioner may be reluctant to disclose the breadth of his
suffering in his home country to a government official upon
arriving in the United States). This may only exacerbate the
difficulties of articulating the basis of a valid claim during
78
immigration proceedings even if the petitioner does not
exhibit the kind of demeanor that will suggest deception.6
It can not be overstated that “[c]aution is required
because of the numerous factors that might make it
difficult for an alien to articulate his/her circumstances
with the degree of consistency one might expect from
someone who is neither burdened with the language
difficulties, nor haunted by the traumatic memories, that
may hamper communication” between a government agent
and a petitioner. Zubeda v. Ashcroft, 333 F.3d at 476 (3d
Cir. 2003).
The majority’s thoughtful rejection of the IJ’s adverse
credibility determination here is yet another example of how
even experienced IJs can place too much reliance on their
own experiences in evaluating the testimony of petitioners
from very different cultures. Although the IJ’s credibility
determination here does not rest upon Dia’s demeanor, it is
no less important to note that the IJ did not properly allow
for differences between Dia’s circumstances and the IJ’s
own in evaluating Dia’s credibility. Rather, she failed to
demonstrate any awareness of the context in which Dia’s
claim arose.
6. Another barrier to understanding the demeanor of petitioners who
have experienced trauma is the likely repression of traumatic memories.
Such repression only adds to the difficulty of answering questions. Their
“detachment when recounting tragic events, sometimes perceived as an
indication of fabrication, may reflect psychological mechanisms employed
to cope with past traumatic experiences, rather than duplicity.” Ruppel,
supra, at 20; see also Zubeda v. Ashcroft, 333 F.3d 463, 477 (3d Cir.
2003). One such mechanism is post-traumatic stress disorder, a disorder
catalogued by the American Psychiatric Association in its Diagnostic and
Statistical Manual of Mental Disorders (“DSM”) as having symptoms
including “impaired memory, difficulty in concentrating and a numbing
of responsiveness to the external world.” Zubeda, 333 F.3d at 20 (citing
to the third edition of the DSM published in 1980). Various psychological
responses to torture have been noted and catalogued in the Manual on
the Effective Investigation and Documentation of Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment submitted to the
United Nations Office of the High Commissioner for Human Rights. Id. at
477 n.16.
79
For example, the majority notes that the IJ rejected Dia’s
testimony about giving a $150 bribe to a Guinean police
officer because she believed that the amount of the bribe
was too small given the level of risk the police officer
allegedly undertook on Dia’s behalf. As my colleagues point
out however, the amount of the bribe Dia said he gave is
about a quarter of the average annual per capita income in
Dia’s country. See Maj. Op. at 34. Accordingly, $150 was a
very substantial sum indeed.7 Moreover, the IJ’s rationale
assumes that the police officer actually exposed himself to
a substantial risk in accepting the bribe. A more neutral
assessment of this testimony would readily have lead to the
realization that bribery is a way of doing business in some
countries and that in such countries it is highly doubtful
that any risk attends a police officer taking a bribe. The IJ’s
failure to realize this certainly ought to give us pause before
assuming that IJs necessarily possess the kind of expertise
in evaluating testimony of aliens that would insulate their
conclusions from the bias I am concerned about. Such bias
is only masked, not eliminated, if we uphold an adverse
credibility ruling simply because we are told it rests upon
the alien’s demeanor with no further explanation.
I am, of course, aware of our limited standard of review
when we adjudicate appeals in immigration cases. See INS
v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). We have
wrestled with that narrow scope of review on more than one
occasion when troubled by credibility rulings that appeared
both unfair and unfounded. For example, we concluded
that we were forced to affirm the IJ’s ruling in Abdulrahman
v. Ashcroft, 320 F.3d 587 (3d Cir. 2003), even though the
panel was very troubled by the IJ’s findings. There, the IJ
based her rejection of Abdulrahman’s testimony on such
“inconsistencies” as his assertion that he relied upon
traditional herbal medicine administered by family
members rather than visiting a hospital following alleged
torture at the hands of government officials. 330 F.3d at
594. Given our standard of review, we were constrained to
7. Given the significance of $150 in the Guinean context, I need not
mention that a search of bribery convictions in this country would no
doubt disclose instances where officials in the United States had risked
career and liberty for $150 or less.
80
affirm and we rejected the alien’s claim of bias. However, in
doing so, we noted:
it must be added that there were places where the IJ
did go beyond the bounds of propriety to make some
additional and problematic generalized assertions of
her own. While as discussed below we are
understandably troubled by some of those comments,
in the context of the record as a whole there is
insufficient evidence to conclude that the overall
proceedings were biased in violation of Abdulrahman’s
right to due process.
330 F.3d at 595. In his concurring opinion, Judge Becker
commented on some of the more troubling aspects of the
IJ’s analysis. He explained:
The opinion of the Immigration Judge (IJ) is laden with
statements such as the following, which I find
troubling in terms of their viability as credibility
judgments:
(1) ‘The respondent testified that he was treated
with herbs, by his grandmother and mother, and told
the Court these are the way things are done in
Sudan, people do not go to the hospital as they do
here in the Western World. Again, that is not the
case, all countries all [sic] have hospitals and
doctors, however, he wish [sic] to provide this false
information regarding the medical institution about
his country, so be it.’
However, based upon available information about the
Sudan, the Respondent’s contention seems reasonable.
At all events, the basis for the IJ’s conclusion seems far
from clear; rather, it seems quite tenuous.
Id. at 599-600.
Judge Becker also cautioned:
The Immigration Judge’s statements barely cross the
line into the realm of fact finding, although Judge
Shadur [author of the opinion] is correct that, in view
of our extremely narrow standard of review, we are
constrained to view them as so doing. While I join in
81
Judge Shadur’s opinion, I write separately to highlight
these statements and to express my extreme
discomfiture with them, as they border on the cavalier.
Indeed, in my view, they come extremely close to
constituting reversible error.
Id. at 600. Judge Becker’s concurring opinion was joined by
the entire panel.
However, even given our narrow scope of review, we still
require that specific reasons be given for adverse credibility
determinations so that we can review the BIA’s decision. In
Balasubramanrim, where the BIA made its own credibility
ruling based upon the record before the IJ, we stated: “[t]he
Board should give specific reasons for its determination
that a witness is not credible. We must evaluate those
reasons to determine whether they are valid grounds upon
which to base a finding that the applicant is not credible.
The reasons must bear a legitimate nexus to the finding.”
143 F.3d at 162 (internal citations and quotation marks
omitted). See also Mulanga v. Ashcroft, 2003 WL 22683042at *6 (3d Cir. Nov. 14, 2003) (“Adverse credibility
determinations are . . . reviewed for substantial evidence.”).
We should require nothing less than “specific reasons” for
rejecting an alien’s credibility when that assessment is
based upon the alien’s demeanor while testifying. Unless we
require the IJ to explain those aspects of a witness’s
demeanor that undermine credibility, such as eye contact
or similar factors that may be culturally determined, we
simply can not afford the meaningful review the law
requires.
In In re B-, 21 I & N Dec. 66 (BIA 1995) (Interim
Decision), the BIA rejected the IJ’s negative credibility
assessment where that conclusion rested largely upon the
alien’s “tendency during his testimony to look down at the
table or at the wall behind the interpreter instead of at the
Immigration Judge” while testifying. 21 I & N Dec. at 70.
The BIA explained its reasons for rejecting the IJ’s negative
assessment of that demeanor as follows:
Although, of course, we have not been able to observe
this behavior by the applicant, we do not find that it
necessarily indicates deception. Instead, it may
82
indicate the applicant’s concentration on the questions
being asked of him through the interpreter. We note
that the applicant seems to have been listening
carefully, as the transcript contains about half a dozen
instances where the applicant requested clarification of
a question before he answered. These requests for
clarification appear to have been conscientious
attempts to provide the information sought by the
questioner rather than attempts to evade answering.
Id. at 71.
Although the BIA’s concern with the IJ’s reliance on
demeanor in In re B- does not implicate the cultural bias I
am concerned about here, the BIA’s opinion clearly shows
the danger of placing too much reliance upon one person’s
interpretation of a witness’s demeanor. It also demonstrates
why we must not be content with allowing credibility
determinations to rest upon “demeanor” with no further
explanation by the IJ.
Requiring the fact finder to specify, and thereby think
about and identify, those aspects of an alien’s demeanor
that are troubling will also enhance the quality of the entire
process by affording IJs an opportunity to reflect upon
perceptions that may simply reflect differing customs.
Suggesting that adverse credibility rulings will be affirmed
whenever they rest upon an alien’s demeanor, with no
further explanation or elaboration, will substantially
undermine the process and open the door to no small
amount of mischief.
I obviously I do not intend to suggest that all claims for
relief under the immigration laws are valid or that
petitioners do not sometimes fabricate testimony in order to
avoid removal. Similarly, I do not minimize the difficulty of
distinguishing valid claims from invalid ones at times.
However, those difficulties are not resolved by unjustifiable
deference to an IJ’s unexplained interpretation of a
witness’s demeanor. Rather, they are exacerbated.
Accordingly, for all of the reasons I have noted, I take this
opportunity to express my concern with the import of
83
footnote 23 in the majority opinion even though I join that
portion of my colleague’s analysis.8
8. I have elaborated upon my concerns while accepting arguendo the
proposition that demeanor testimony is of substantial assistance in
evaluating credibility. I am willing to accept that proposition for purposes
of my discussion given the long legal tradition that I have noted above.
That tradition is not, however, without its skeptics. Empirical studies
have lead some to conclude that “[a]lthough highly regarded by . . .
judges and attorneys, the value of demeanor evidence as a means of
determining testimonial reliability has yet to be demonstrated factually.”
Morales v. Artuz, 281 F.3d 55, 62 n.3 (2d Cir. 2002) (discussing the
debate over the validity of this evidence, and citing empirical studies that
raise substantial doubt about the validity of the age old presumption
about the relationship between demeanor and veracity).
Judge Duniway of the Court of Appeals for the Ninth Circuit aptly
explained the problem as follows:
The notion that special deference is owed to the determination
of a trier of fact, whether judge, trial examiner, hearing officer
(administrative law judge), or jury, because the trier sees the
witnesses and hears them testify, while the [reviewing agency or]
court look[s] only at cold records is deeply imbedded in the law.
There must be thousands of appellate decisions that state and
restate it in an infinite variety of ways.
* * *
I am convinced, both from experience as a trial lawyer and
from experience as an appellate judge, that much that is thought
and said about the trier of fact as a lie detector is myth or
folklore. Every trial lawyer knows, and most trial judges will
admit, that it is not unusual for an accomplished liar to fool a
[fact finder] because his demeanor is so convincing. . . . .
Conversely, many trial lawyers, and some trial judges, will
admit that the demeanor of a perfectly honest but
unsophisticated or timid witness may be or can be made by an
astute cross-examiner to be such that he will be thought by the
jury or the judge to be a liar. He may be unable to face the
cross-examiner, the jury, or the judge; he may slouch and
squirm in the chair; he may be obviously tense and nervous; his
answers to questions may be indirect, rambling, and inaudible;
he may hesitate before answering; he may alternately turn pale
and blush. In short, he may, to the trier of fact, be a liar, but in
fact be entirely truthful. Again, however, another fact finder,
84
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
seeing and hearing the same witness, may attribute his
demeanor to the natural timidity of the average not very well
educated and non-public sort of person when dragged to court
against his will and forced to testify and face a hostile cross-
examiner, and conclude that the witness is telling the truth.
Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1084-85 (9th Cir.
1977) (Duniway, J. concurring).