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Filed February 12, 2001
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-3111
OLUFEMI YUSSEF ABDULAI, Petitioner
v.
JOHN ASHCROFT,* ATTORNEY GENERAL OF
THE UNITED STATES, Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A 75 809 064)
Argued: December 19, 2000
Before: BECKER, Chief Judge, NYGAARD and
FUENTES, Circuit Judges.
(Filed February 12, 2001)
MEAGHAN E. TUCHEY-KAY,
ESQUIRE (ARGUED)
Catholic Legal Immigration Network,
Inc., (CLINIC)
976 Broad Street
Newark, NJ 07102
Counsel for Petitioner
_________________________________________________________________
* Substituted for Janet Reno pursuant to Federal Rule of Appellate
Procedure 43(c).
DAVID W. OGDEN, ESQUIRE
Assistant Attorney General
CARL H. McINTYRE, JR., ESQUIRE
Senior Litigation Counsel
MARSHALL TAMOR GOLDING,
ESQUIRE (ARGUED)
JOHN D. WILLIAMS, ESQUIRE
TERRI J. SCADRON, ESQUIRE
Office of Immigration Litigation
Civil Division
United States Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
RICHARD W. HILL, ESQUIRE
BRENDA C. LISS, ESQUIRE
(ARGUED)
ANTHONY F. YACULLO, ESQUIRE
McCarter & English, LLP
Four Gateway Center
100 Mulberry Street
Newark, NJ 07102
Counsel for Amicus Curiae,
The Lawyers Committee for
Human Rights
OPINION OF THE COURT
BECKER, Chief Judge.
Olufemi Yussef Abdulai, a Nigerian national, petitions for
review of a decision by the Board of Immigration Appeals
(BIA or Board) ordering him removed to his home country.
His petition presents the important question whether the
BIA may, consistent with existing law, sometimes r equire
otherwise-credible applicants for asylum or withholding of
removal to present evidence corroborating their stories in
order to meet their burden of proof. Abdulai contends that
it may not, but we conclude that it may.
2
We begin by clarifying that, absent special circumstances
not present here, we review only decisions by the BIA and
not those by immigration judges. We then explain why we
reject Abdulai's other main argument--that the Board
deprived him of due process of law by failing to conduct a
sufficiently individualized assessment of his claim. Turning
to the heart of the appeal, we explain why an examination
of the Immigration and Nationality Act (INA), the INA's
implementing regulations, the United States' obligations
under international law, and our own pr ecedent leads us to
conclude that the BIA may sometimes requir e corroboration
of otherwise-credible testimony. Despite this holding,
because there is a serious question whether the Board's
own rules were properly applied in this case, we vacate the
BIA's order and remand this matter to per mit the Board to
explain: (1) what aspects of Abdulai's narrative it would
have been reasonable to expect him to corr oborate; (2) why
the evidence he submitted failed to do so; and (3) why
Abdulai's explanations of why he could not corr oborate
certain aspects of his account were insufficient.
I.
A. Procedural History
Abdulai arrived at New York's JFK airport in the spring of
1998. Lacking a valid entry visa, he was taken into custody
by the Immigration and Naturalization Service (INS or
Service). Shortly thereafter, the INS commenced a
proceeding to allow it to remove Abdulai from the United
States. At an initial hearing Abdulai conceded that he was
"removable," i.e., that he was not entitled to remain in the
United States absent some form of relief by the INS, but
represented that he would be seeking both asylum from
and withholding of removal to Nigeria based on political
persecution. The case was continued to allow Abdulai to file
the appropriate papers, which he timely did.
A grant of asylum allows an otherwise-removable alien to
stay in the United States. Subject to numerous exceptions
not implicated in this case, the Attorney General "may
grant asylum" to an alien he "determines" to be a "refugee"
3
within the meaning of the INA. 8 U.S.C. S 1158(b)(1). As
relevant to this case, a person is a "r efugee" if he or she is
"unable or unwilling" to return home "because of
persecution or a well-founded fear of persecution on
account of . . . political opinion." Id.S 1101(42)(A).
Withholding of removal, in contrast, confers only the right
not to be deported to a particular country--not a right to
remain in this one. See INS v. Aguirr e-Aguirre, 526 U.S.
415, 419 (1999). Also subject to many exceptions not
applicable here, the Attorney General may not remove an
alien to a particular country if he "decides" that the alien's
"life or freedom would be threatened in that country
because of the alien's . . . political opinion." 8 U.S.C.
S 1231(b)(3)(A).
An Immigration Judge (IJ) conducted a hearing
concerning Abdulai's application. Abdulai testified on his
own behalf and offered documentary evidence describing
conditions in Nigeria in support of his claim. At the close of
the hearing, the IJ rendered an oral decision denying
Abdulai's application and ordering him r emoved. The IJ did
not expressly find that Abdulai's testimony lacked
credibility, but nevertheless concluded that he had "not
presented adequate evidence to demonstrate" eligibility for
asylum or withholding of removal. The IJ also noted that
General Sani Abacha--who had ruled Nigeria since seizing
power in a coup in 1993--had died just four days before
the hearing, and that "an issue of changed country
conditions" had arisen as a result. Referring to the fact that
"there have been some political changes in Nigeria," the IJ
nevertheless determined that it was "much too premature to
conclude that . . . the political atmosphere has changed in
Nigeria so that a person who has a credible fear of
returning to Nigeria would no longer have such fear."
Abdulai then appealed to the BIA, which received a
transcript of the hearing and a brief from Abdulai. The
Board ultimately remanded the case to the IJ. Noting the
recent changes in the Nigerian government, the BIA stated
that "the record does not contain infor mation from which
the Board would have been able to glean the import of the
changes on [Abdulai's] claim." Accor dingly, the BIA ordered
"the record . . . remanded to the Immigration Court so that
4
both parties . . . may have an opportunity to pr offer any
evidence relevant to the applicant's claim and for the entry
of a new decision by the Immigration Judge." The BIA also
ordered that "[s]hould a decision on remand be adverse to
the respondent, the record shall be certified to the Board
for review."
Consistent with the BIA's direction, the IJ then held
another hearing. A witness for Abdulai testified that any
changes in Nigeria following the death of General Abacha
were nothing more than cosmetic dif ferences between it
and the former government. Both Abdulai and the INS
submitted documentary evidence about the transfer of
power in Nigeria. The IJ again denied Abdulai's application
by a written decision, reasoning that even if she were "to
accept all of the [new] evidence presented by [Abdulai] in
the worst possible light, [Abdulai] has submitted no
evidence of any sort which relates to this Court's previous
finding that [he] has not met his bur den of proof and
persuasion do [sic] to the inadequacy of his testimony."
Accordingly, the IJ once again found that Abdulai had
"failed to meet the burden of proof and persuasion" and
denied him both asylum and withholding of removal. The IJ
also stated that she would "certify the r ecord to the BIA for
review." Abdulai claims that he was not per mitted to
submit an additional brief to the BIA, and it appears that
no transcript of the February 24, 1999 hearing was ever
prepared. The BIA denied Abdulai's r equest for oral
argument.
On January 18, 2000, the BIA entered a final order
denying Abdulai's application, which was accompanied by a
two-page per curiam opinion. The opinion noted that the IJ
had denied Abdulai's application "primarily based on [his]
failure to articulate a specific and detailed claim," and
noted that on remand Abdulai had "pr ovided only general
information as to the political situation in Nigeria, but
again failed to demonstrate how he is adversely af fected by
the change of government in Nigeria." Then, summarizing
several of its previous decisions, the Boar d laid out the
following rules: (1) an asylum seeker must always pr esent
"general background information on country conditions;"
and (2) "where it is reasonable to expect corroborating
5
evidence for certain alleged facts pertaining to the specifics
of an applicant's claim, such information should be
provided . . . [or] an explanation should be given as to why
such information was not provided." The BIA stressed that
the absence of corroboration or explanation in cases where
it is reasonable to expect one or the other"can lead to a
finding that the applicant has failed to meet his burden of
proof."
The Board's application of these principles to Abdulai's
case was terse. It stated:
[W]e find that the respondent has not provided
sufficient evidence to meet his burden of pr oof. We
acknowledge that the respondent has submitted
numerous articles and reports regar ding general
country conditions in Nigeria. However, we note the
conspicuous lack of documentary evidence
corroborating the specifics of the respondent's
testimony. Therefore, given the complete lack of
evidence corroborating the specifics of the r espondent's
asylum claim, we agree with the Immigration Judge
that the respondent has failed to sustain his burden of
proof in this matter.
Board Member Rosenberg dissented. She ar gued that
Abdulai had "provided consistent, specific and detailed
testimony, which establishe[d] that he pr eviously suffered"
persecution "at the hands of the Nigerian authorities on
account of his political opinion." Rosenber g also averred
that the IJ had "misassessed the evidence factually when
she concluded that [Abdulai's] testimony lacked specificity,"
and reasoned that the IJ had "applied an inappropriate
legal standard in justifying her finding that[Abdulai] had
not presented adequate evidence [i.e., the corroboration
requirement]." Rosenberg also took issue with the manner
in which the Board had dealt with Abdulai's case. She
stated:
The fact remains that we never have engaged in review
of the respondent's . . . original appeal in a manner
that can be described as meaningful. Rather, in
denying the instant appeal, the majority, in a cursory
per curiam decision, simply affirms the Immigration
6
Judge's original decision. The majority opinion does not
reflect that it meaningfully reviewed the decisions of
the Immigration Judge in relation to the r ecord, or that
it addressed the respondent's original appellate
arguments, or those made in connection with the
Immigration Judge's subsequent decision following our
remand order. In my view, the majority now sidesteps
our responsibility to conduct meaningful appellate
review by simply affirming the Immigration Judge's
decision without considering the record, de novo, or, at
the very least, addressing the arguments made by the
respondent in his original appeal.
Abdulai timely filed a petition for review with this Court.
We have jurisdiction pursuant to 8 U.S.C.S 1252(a).
B. Abdulai's Account and His Supporting Evidence 1
On June 12, 1993, Nigerians voted in a presidential
election. Despite the fact that Chief M.K.O. Abiola seems to
have won, the results were annulled when General Abacha
seized power in a coup. Abdulai--who had lived and worked
in and around Lagos, Nigeria for his entir e life--was
outraged by the coup. In November 1993 he joined and
attended his first meeting of the Campaign for Democracy
(CD), an organization seeking to restor e Nigeria to civilian
rule. At some point he was issued a CD membership card.
Abdulai did not attend another CD meeting, however ,
until February 1995. Abdulai provided no r eason for this
fourteen month gap--a fact stressed by the IJ--nor did he
explain what caused him to attend the February 1995
meeting. At that meeting, a large number of activists
gathered at the home of a CD organizer . The meeting was
raided by Nigerian police officers, and Abdulai was arrested
along with the president of the organization and other
prominent CD members. He was imprisoned in a communal
cell, but was never charged with an of fense, questioned by
the police, or permitted to speak with anyone on the
outside. After approximately two weeks, he was released
without explanation.
_________________________________________________________________
1. Unless otherwise stated, the details of Abdulai's story are
uncorroborated.
7
Abdulai resolved to become more involved with the CD.
He attended another meeting in March 1995, wher e he
volunteered to be a "Strategic Planner ." Strategic Planners
distribute pamphlets, hang posters, and "generally mak[e]
people aware" of CD's activities. Then, on June 12, 1995,
Abdulai participated in a rally held to commemorate the
two year anniversary of the 1993 elections. The police
arrived, fired tear gas into the crowd, and arrested Abdulai
while he was handing out pamphlets. He did not know how
many people had been at the June 12 rally, nor did he
know how many people had been arrested that day. During
his second stint in prison, Abdulai was told that he was
being confined pursuant to Decree Number Two of 1984,
and that he would be charged with distributing seditious
materials and unlawful gathering. The guards also took his
CD membership card. Two months later, Abdulai was
released when his family succeeded in bribing his captors.
After his release, Abdulai's family convinced him to drop
out of the CD because they feared for his safety. He stopped
attending CD meetings, abandoned his position as a
Strategic Planner, and destroyed all his CD materials.
Nevertheless, in June 1996, Abdulai was again taken into
custody, this time by the Nigerian State Security Services.
He was questioned for several hours about an upcoming
CD rally, and placed in a cell. He was questioned three
additional times over a four month period and then
released.
Abdulai was arrested a final time in either late November
or early December of 1996 by agents of the Dir ectorate of
Military Intelligence. The agents ransacked his apartment
and took him to their barracks. Abdulai was questioned
about an explosion in Lagos and his relationship to other
activists, but told the officers that he was no longer a
member of the CD. During the questioning, officers slapped
Abdulai and "stomped on his ear." He was then placed in a
cell. Abdulai was later told that he would be r eleased if he
signed a document incriminating other activists. He signed
the document, after which his conditions of confinement
improved.
Abdulai fell ill sometime around March 1997 and was
released in May of that year. After being treated by a doctor,
8
he fled to Benin. He stayed there until Mar ch 1998, when
several of his friends who had traveled to Nigeria to
participate in a rally were arrested. Abdulai became
convinced that the Nigerian police now knew his
whereabouts (and, presumably, that they would hunt him
down in Benin). A friend arranged for him to be smuggled
from Benin to Togo to Ghana to the Ivory Coast, and,
finally, to the United States.
Abdulai tendered a considerable amount of documentary
evidence in support of his account. In addition to a large
amount of background material concerning conditions in
Nigeria, he also submitted: (1) his Nigerian passport; (2) a
letter from the General Counsel of the National Democratic
Council, an umbrella organization supporting democracy in
Nigeria, which stated that his story "appear[ed] very
credible in relation to the types of cases we are aware of "
but that "[b]ecause of the massive clamp-down on civil
society in Nigeria, efforts to independently verify or confirm
membership [in pro-democracy groups] are usually fruitless
from this end and dangerous from the Nigerian end;" and
(3) an affidavit from an assistant pr ofessor of African
Studies and Politics who had visited Nigeria and written
about the political situation there. The pr ofessor opined
that Abdulai's account was "consistent with the current
political conditions in Nigeria."
II.
We must first clarify whether we review only the decisions
of the BIA or those of both the IJ and the BIA. Though this
Court appears never to have spoken on this pr ecise issue,
there is widespread consensus among our sister circuits.
Congress has granted us power to review only "final order[s]
of removal." 8 U.S.C. S 1252(a)(1). 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 r eview of IJ
decisions, there is no "final order" until the BIA acts. See
Castillo-Rodriguez v. INS, 929 F.2d 181, 183 (5th Cir. 1991).
Accordingly, we now expressly hold that the "final order" we
review is that of the BIA. Accord 3 Charles Gordon et al.,
9
Immigration Law & Procedure P 34.02[14][a], at 34-61
(2000).2
III.
Abdulai contends that the BIA denied him due pr ocess by
failing to make an individualized determination of his
interests. He specifically faults the Boar d for not
acknowledging or addressing any of his ar guments.3
Despite the fact that there is no constitutional right to
asylum, aliens facing removal are entitled to due process.
See Sewak v. INS, 900 F.2d 667, 671 (3d Cir. 1990). "The
fundamental requirement of due process is the opportunity
to be heard at a meaningful time and in a meaningful
manner." Matthews v. Eldridge, 424 U.S. 319, 333 (1976)
_________________________________________________________________
2. There are some situations in which a court of appeals effectively
reviews an IJ's decision, but this is not one of them. The vast majority
of the courts of appeals have held that the BIA"may simply state that
it affirms the IJ's decision for the r easons set forth in that decision."
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 such
cases, the IJ's opinion effectively becomes the BIA's, and, accordingly, a
court must review the IJ's decision. See id . at 7 n.3. The BIA may
disregard an IJ's factual findings and conduct a de novo review of the
entire record, but it is also entitled to defer to an IJ's fact-finding
(assuming, of course, that the IJ's conclusions ar e supported by the
evidence). See Senathirajah v. INS, 157 F .3d 210, 216 (3d Cir. 1998).
When the BIA defers to an IJ, 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. In this case, 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. We therefor e review only the BIA's decision.
3. Abdulai also claims that the BIA was r equired to conduct a de novo
review of the entire record. W e find this claim meritless. First, we have
squarely held that the BIA may defer to an IJ's factual findings. See
Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998). In such cases, the
BIA obviously does not review de novo. Second, the case on which
Abdulai relies, Charlesworth v. USINS, 966 F.2d 1323 (9th Cir. 1992),
simply does not support his argument. Charlesworth stated that the BIA
"has the power to conduct a de novo review of the record." Id. at 1325
(emphasis added) (quotation marks and citation omitted). Having the
power to do something and being required to do it are not the same
thing.
10
(quotation marks and citation omitted). In adjudicative
contexts such as this one, due process r equires three
things. An alien: (1) is entitled to "factfinding based on a
record produced before the decisionmaker and disclosed to"
him or her, Llana-Castellon v. INS, 16 F.3d 1093, 1096
(10th Cir. 1994); (2) must be allowed to make arguments on
his or her own behalf, see id.; and (3) has the right to "an
individualized determination of his [or her] interests," id.
(citing Rhoa-Zamora v. INS, 971 F.2d 26, 34 (7th Cir.
1992)). Because Abdulai does not contend that the decision
to exclude him was based on evidence that was kept secret
from him, or that he was prevented fr om making his case
to the BIA or the IJ, the only due process right potentially
implicated in this case is the third one--the right to an
"individualized determination."4
A decisionmaker must "actually consider the evidence
and argument that a party presents." Id. This Court has
suggested that the BIA denies due process to an alien when
it "act[s] as a mere rubber-stamp." Marincas v. Lewis, 92
F.3d 195, 202 n.7 (3d Cir. 1996). But because "[a]gency
action . . . is entitled to a presumption of r egularity,"
Abdulai bears the burden of proving that"the BIA did not
review the record when it consider ed the appeal." McLeod v.
INS, 802 F.2d 89, 95 n.8 (3d Cir. 1986).
We are troubled by certain aspects of this case. It
appears that no record of the February 24, 1999 remand
hearing was ever transmitted to the Board. 5 Moreover,
though the BIA faulted Abdulai for not submitting"evidence
_________________________________________________________________
4. Though Abdulai complains that he was not allowed to file an
additional brief with the BIA following the r emand, he concedes that he
submitted one during his first appeal to that body. Because the Board's
decision was based on Abdulai's failure to corr oborate the specifics of his
story, and because Abdulai concedes that no evidence going to that issue
was presented at the remand hearing, we conclude that the BIA's refusal
to allow him to submit an additional brief worked no due process
violation.
5. The BIA denied Abdulai's application because he had failed to
corroborate the specifics of his narrative. Because he concedes that none
of the evidence presented at the remand hearing qualified as such
corroboration, we conclude that the failur e to include the evidence in the
administrative record, though error , was harmless.
11
corroborating the specifics of [his] testimony," it failed to
acknowledge or respond to Abdulai's arguments that he
had corroborated certain portions of his testimony and that
it was unreasonable to expect him to corr oborate others.
That being said, the question for due process purposes is
not whether the BIA reached the corr ect decision; rather, it
is simply whether the Board made an individualized
determination of Abdulai's interests, and we believe that its
opinion contains sufficient indicia that it did so. The BIA
stated that: "This matter was remanded to the Immigration
Judge for further inquiry as to the changed country
conditions of Nigeria, particularly since the gover nment
that ruled in Nigeria at the time the respondent alleges he
suffered persecution was no longer in power." It then noted
that: "The Immigration Judge found that the r espondent
only provided a large amount of evidence concerning
general claims as to the unrest in Nigeria, but failed to
include evidence specific to his claim, such as evidence of
his membership in a political party." The BIA further
observed that: "[O]n remand, the r espondent provided only
general information about the political situation in Nigeria,
but again failed to demonstrate how he is adversely affected
by the change in government in Nigeria."
From these statements, one can deduce that the BIA was
aware that Abdulai was a Nigerian seeking asylum on the
basis of political persecution, that there had been issues
involving a change in the Nigerian government and his
failure to document his membership in a political party,
and that the IJ's decision evinced dissatisfaction with his
meeting the requisite burden of pr oof. This is sufficient.
See, e.g., Rhoa-Zamora, 971 F.2d at 35-36 (finding no due
process violation in a case where the BIA had noted that
the applicant's " `testimony concer ning the military round-
up of young males, like himself, in Nicaragua,' " and had
made "an explicit finding that [two particular State
Department Reports] which [the applicant] claimed that the
Immigration Judge improperly prevented him from
submitting, `do not establish his present eligibility for either
withholding of deportation or asylum.' " (quoting the BIA)).
The instant matter is distinguishable from the only
immigration case Abdulai cites in which a court found a
12
due process violation: the Tenth Cir cuit's decision in Llana-
Castellon v. INS, 16 F.3d 1093 (10th Cir . 1994). In that
case, "[w]ith the exception of the first footnote (in which the
BIA declined to address whether Petitioners hadfirmly
resettled in Honduras), the BIA's decision contain[ed] no
indication that it had undertaken a particularized
consideration of Petitioners' case." Id. at 1098 (emphasis
added). Because the BIA's opinion evidences its
consideration of the individualized circumstances of
Abdulai's application, we find no due process violation here.
IV.
We now come to the heart of the appeal. Though never
finding that his testimony lacked credibility, the BIA held
that Abdulai had not met his burden of pr oof due to his
failure to introduce evidence corr oborating the specifics of
his account.6 In so doing, the BIA applied its holding in In
_________________________________________________________________
6. At oral argument, counsel for the Service suggested that a BIA finding
that an applicant has failed to meet her bur den of proof necessarily
encompasses a conclusion that the applicant's account was not credible.
This is contrary to the Board's cases. In r e S-M-J-, Interim Decision 3303
(BIA 1997), available at 1997 WL 80984, explained the difference:
Even if an alien is found to be credible, if there is no context within
which to evaluate her claim, she has failed to met her burden of
proof because she has not provided sufficient evidence of the
foundation of her claim. A failure of pr oof is not a proper ground per
se for an adverse credibility determination. The latter finding is more
appropriately based upon inconsistent statements, contradictory
evidence, and inherently improbable testimony.
(emphasis added). In other words, the BIA views"credibility" as involving
only an analysis of the internal consistency and plausibility of an
applicant's claim, whereas burden of pr oof analysis also involves
consideration of all the surrounding evidence (or lack thereof).
Abdulai avers that we must assume that his testimony was deemed
credible because neither the BIA nor the IJ ever explicitly found to the
contrary. We acknowledge that such a rule pr evails in the Ninth Circuit,
see, e.g., Kataria v. INS, 232 F.3d 1107, 1113 (9th Cir. 2000), but
Abdulai points to no decision of this Court expr essly adopting such a
rule. Because it does not affect our disposition of this matter, we will
assume, without deciding, that Abdulai's testimony was credible.
13
re S-M-J-, Interim Decision 3303 (BIA 1997), available at
1997 WL 80984. S-M-J- established the following rules: (1)
an applicant need not provide evidence corr oborating the
specifics of his or her testimony unless it would be
"reasonable" to expect the applicant to do so; but (2) if it
would be "reasonable" to expect corr oboration, then an
applicant who neither introduces such evidence nor offers
a satisfactory explanation as to why he or she cannot do so
may be found to have failed to meet his or her bur den of
proof. Abdulai challenges both the BIA's authority to adopt
this rule and its application in his case. W e conclude that:
(1) the Board's rule is not per se invalid; but (2) because the
BIA's decision in this case provides us with no way to
conduct our (albeit limited) review, we will vacate its order
and remand to allow it to explain in mor e detail its reasons
for denying Abdulai's application. We note that, except with
regard to our discussion of this Court's prior cases, see
infra at pp. 17-19, our analysis as to both points tracks in
considerable measure that contained in Judge W alker's
persuasive opinion in Diallo v. INS, 232 F .3d 279 (2d Cir.
2000).
A.
We begin by acknowledging the narrow scope of our
review. The Attorney General has been"charged with the
administration and enforcement" of the INA, and Congress
has provided that his "determination[s] and ruling[s] . . .
with respect to all questions of law shall be controlling." 8
U.S.C. S 1103(a)(1). Because of this delegation, the Supreme
Court has held that "principles of Chevr on deference are
applicable" in the immigration context. INS v. Aguirre-
Aguirre, 526 U.S. 415, 424 (1999). The Court has also
emphasized that--because of the area's pr ofound foreign
policy implications--"judicial deference to the Executive
Branch is especially appropriate in the immigration
context." Id. at 425. And because the Attorney General has
vested the BIA with the power to exercise the"discretion
and authority conferred upon [him] by law," see 8 C.F.R.
S 3.1(d)(1) (2000), these principles of defer ence also apply to
the BIA. See Aguirre-Aguirre, 526 U.S. at 425.
14
In determining whether the BIA may sometimes r equire
corroboration of otherwise-credible testimony, we begin
with the language of the INA. We accor d Chevron deference
to the BIA's interpretations of the statute. See id. Our
inquiry, therefore, is limited to deter mining whether "the
statute is silent or ambiguous with respect to the specific
issue," and, if so, "whether the agency's answer is based on
a permissible construction of the statute." Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 843 (1984).
The INA is completely silent as to whether, when it is
reasonable to expect corroborating evidence, an otherwise-
credible applicant who neither produces such corroboration
nor adequately explains his or her failure to do so may be
deemed to have failed to meet his or her bur den of proof.
See Ladha v. INS, 215 F.3d 889, 897 (9th Cir. 2000) (noting
the INA's silence on this issue). The statute simply says
that a person is eligible for asylum "if the Attorney General
determines that such alien is a refugee," 8 U.S.C.
S 1158(b)(1), and that the Attorney General must grant
withholding relief if he "decides that the alien's life or
freedom would be threatened" in the alien's home country,
id. S 1231(b)(3)(A). What the statute says nothing about,
however, is whether the Attorney General may sometimes
require corroboration or explanation in determining
whether an alien is a refugee or deciding whether the
alien's life or freedom would be threatened in his or her
home country. Because the statute is silent, ther efore, the
question is whether the BIA's interpretation is based on a
permissible construction of the statute. In light of the INA's
enormously broad delegation to the Attor ney General, we
would be extremely reluctant to hold that his interpretation
is unreasonable.
In support of Abdulai's position, amicus Lawyer's
Committee for Human Rights invokes two regulations
promulgated by the Attorney General, one dealing with
asylum and the other with withholding of removal. Both
regulations provide that "[t]he testimony of the applicant, if
credible, may be sufficient to sustain the burden of proof
without corroboration." 8 C.F.R.S 208.13(a) (2000); Id.
S 208.16(b). Amicus argues that these regulations establish
15
that the BIA may never require an applicant to corroborate
otherwise credible testimony as a precondition for meeting
his or her burden of proof. We disagree.
First, our standard of review is even mor e deferential
when an agency is interpreting a regulation rather than a
statute that it administers. See Applebaum v. Nissan Motor
Acceptance Corp., 226 F.3d 214, 218 n.4 (3d Cir. 2000)
(noting this distinction). An agency's interpr etation of its
own regulation is "controlling . . . unless it is plainly
erroneous or inconsistent with the regulation." Bowles v.
Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). But
even setting aside the hefty deference to which the BIA is
entitled, we conclude that amicus' r eading is contrary to the
language of the regulation. The regulation states that
credible testimony may be enough to meet the applicant's
burden of proof. Saying that something may be enough is
not the same as saying that it is always enough; in fact,
the most natural reading of the word "may" in this context
is that credible testimony is neither per se sufficient nor per
se insufficient. In other words, "it depends." And, according
to the BIA, it depends, at least in part, on whether it would
be reasonable to expect corroboration. W e do not see how
this construction is plainly erroneous or inconsistent with
the regulation.
Amicus also invokes the United States' tr eaty obligations
pursuant to the 1967 Protocol Relating to the Status of
Refugees. The Protocol forbids any "contracting State" from
expelling "a refugee in any manner whatsoever where his
life or freedom would be threatened on account of his . . .
political opinion." 1967 United Nations Pr otocol Relating to
the Status of Refugees, Jan. 31, 1967, 19 U.S.T . 6224,
6276, T.I.A.S. No. 6577. Amicus notes that a Handbook
published by the Office of the United Nations High
Commissioner for Refugees states that "the r equirement of
evidence should . . . not be too strictly applied in view of
the difficulty of proof inherent in the special situation in
which an applicant for refugee status finds himself." See
Amicus Br. at 19 (quoting Office of the United Nations High
Commissioner for Refugees, Handbook on Pr ocedures and
Criteria for Determining Refugee Status Under the 1951
Convention and the 1967 Protocol Relating to the Status of
16
Refugees 197 (Geneva 1992) (the Handbook)). Accordingly,
the Handbook recommends that "if the applicant's account
appears credible, he should, unless ther e are good reasons
to the contrary, be given the benefit of the doubt." Amicus
Br. at 20 (quoting the Handbook).
Amicus' argument suffers fr om two fatal flaws. First, the
Handbook is not binding on the INS or American courts.
See, e.g., Aguirre-Aguirre, 526 U.S. at 427. Second, the
Handbook only recommends not requiring corroborating
evidence "unless there are good r easons to the contrary."
But because the BIA's rule only holds a failur e to
corroborate against an applicant when: (1) it is "reasonable
to expect" corroboration; and (2) the applicant has no
satisfactory explanation for not doing so, "[t]he standard
applied by the BIA adheres to [the Handbook's] general
parameters," Diallo v. INS, 232 F .3d 279, 286 (2d Cir.
2000). We find nothing in the Handbook that renders the
BIA's rule suspect on its face.
Abdulai presses a final claim based on stare decisis: He
argues that this Court's precedent establishes that credible
testimony is always sufficient to meet an applicant's burden
of proof. The BIA is required to follow court of appeals
precedent within the geographical confines of the relevant
circuit. See Matter of Anselmo (Interim Decision), 20 I.&N.
Dec. 25. 30-31 (May 11, 1989) (acknowledging this fact).
And this panel is, of course, bound by the decisions of a
prior panel. See 3d Cir. I.O.P . 9.1. Accordingly, if prior
Third Circuit law establishes that an applicant's credible
testimony is always sufficient to meet the bur den of proof,
then the BIA was not permitted to requir e corroboration in
this case and we must set aside the BIA's decision. Cf.
Ladha, 215 F.3d at 899 (following this logic based on Ninth
Circuit precedent).7
We disagree with Abdulai, however , that our cases have
established the rule that he seeks. Abdulai places most
_________________________________________________________________
7. In support of this argument, Abdulai and amicus cite numerous cases
from other courts of appeals. Because we ar e not bound by precedent
from other circuits and because we have concluded that only stare
decisis could justify a ruling in Abdulai's favor, these decisions are not
relevant to our disposition here.
17
emphasis on our decision in Senathirajah v. INS , 157 F.3d
210 (3d Cir. 1998).8 At one point in its opinion, the panel
stated that: "corroboration is not r equired to establish
credibility. The law allows one seeking r efugee status to
prove his persecution claim with his own testimony if it is
credible." Id. at 216 (quotation marks and citation omitted).
Abdulai submits that this language clearly establishes that
the BIA may not hold that an applicant has failed to meet
his or her burden of proof simply because he or she has
failed to produce corroborating evidence. Because we
assume (for the sake of argument) that Abdulai's testimony
was credible, see supra note 6, the sentence upon which he
must be relying is the second one: "The law allows one
seeking refugee status to prove his persecution claim with
his own testimony if it is credible." The pr oblem for
Abdulai, however, is that this statement was dicta.
The issue before us in Senathirajah simply had nothing
to do with corroboration. That case involved an asylum
applicant from Sri Lanka. See id. at 211. An IJ originally
denied the application on several grounds. Importantly, the
IJ found that the applicant's story had not been cr edible
and also concluded that he had failed to meet his burden
of proof because he had not corroborated his story. See id.
at 213-14. The applicant then appealed to the BIA, which
"conducted an independent examination of the r ecord, and
also concluded that Senathirajah was not credible." Id. at
216. The BIA gave three reasons for concluding that the
applicant lacked credibility--none of which involved his
failure to provide corroboration. See id. at 216-17. Because
we review only the BIA's decision, see supra page 9-10,
there was simply no issue of corroboration before us in
Senathirajah. This is confirmed by the fact that, other than
the sentence from which Abdulai and amicus seek to
extract so much meaning, our analysis in Senathirajah
contained no discussion of the corroboration issue. Though
_________________________________________________________________
8. He also cites Balasubramanrim v. INS, 143 F.3d 157 (3d Cir. 1998),
but that case simply states that "[w]hen documentary evidence is lacking
. . . the applicant's credible, persuasive, and specific testimony may
suffice." 143 F.3d at 165 (emphasis added). We return once again to a
point we made earlier: saying that something may suffice is not the same
as saying that it always does.
18
we agree that Senathirajah suggests that it may be a bad
idea to expect asylum applicants to provide corroborating
evidence, that issue simply was not before us.
In sum, we have no warrant for concluding that the BIA's
rule is per se invalid. The Board's rule is not foreclosed by
the INA or the governing regulations, it is consistent with
international standards, and it is not in conflict with our
cases. We therefore hold that the BIA may sometimes
require otherwise-credible applicants to supply
corroborating evidence in order to meet their burden of
proof.
B.
Our consideration is not ended, however, simply because
we have concluded that the BIA's rule is not per se invalid.
There remains the question whether it was properly applied
here. The BIA's rule contemplates a thr ee-part inquiry: (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 corr oborating 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. See In re S-M-J-, Interim Decision 3303
(BIA 1997), available at 1997 WL 80984.
In this case, the BIA seems to have focused on inquiry (2)
(whether Abdulai had corroborated the specifics of his
testimony), while completely ignoring the other two aspects
of its own test. The Board's entire analysis reads:
In the case at bar, we find that the r espondent has not
produced sufficient evidence to meet his bur den of
proof. We acknowledge that the r espondent has
submitted numerous articles and reports r egarding
general country conditions in Nigeria. However , we note
the conspicuous lack of documentary evidence
corroborating the specifics of the respondent's
testimony. Therefore, given the complete lack of
evidence corroborating the specifics of the r espondent's
asylum claim, we agree with the Immigration Judge
that the respondent has failed to sustain his burden of
proof in this matter.
19
What the BIA never explains, however, is what particular
aspects of Abdulai's testimony it would have been
reasonable to expect him to have corroborated. Without
knowing that, it is impossible for us to review: (1) whether
it was reasonable to expect Abdulai to corr oborate such
information; (2) whether Abdulai provided the requisite
corroboration; or (3) whether Abdulai adequately explained
his inability to do so.
Nor is this an academic exercise. The BIA's own prior
decisions establish that it is "reasonable" to expect an
applicant to corroborate "facts which ar e central to his or
her claim and easily subject to verification." In re S-M-J-,
supra. It has included in this category "evidence of [an
applicant's] place of birth, media accounts of large
demonstrations, evidence of a publicly held office, or
documentation of medical treatment." Id. The Board has
also stated that it is generally reasonable to expect
applicants to produce letters from family members
remaining in the applicant's home country. See In re M-D-,
Interim Decision 3339 (BIA 1998), available at 1998 WL
127881.9
Abdulai attempted to meet his burden under these rules.
He submitted his Nigerian passport, and attempted to
explain his inability to document his CD membership. At
oral argument before this Court, the Service submitted that
it is reasonable to expect Abdulai to have corr oborated his
hospital visit in Nigeria following his final r elease from
confinement. Though we are uncertain whether it would be
reasonable to hold Abdulai's failure to pr ocure Nigerian
hospital records against him (assuming, of course, that
such records even exist), that concer n is ultimately beside
_________________________________________________________________
9. In setting out this summary of the Boar d's case law, we express no
opinion as to whether we agree that it is "r easonable" to expect
applicants for asylum or withholding of removal to corroborate these
types of information. We observe, however, that an applicant's ability to
obtain corroborating evidence may often depend on the social and
political circumstances of a given country. See, e.g., Asylum and
Withholding of Deportation Procedur es, 52 Fed. Reg. 32552, 32553
(proposed March 7, 1991) ("[T]heflight or defection of a bona fide refugee
from a country that engages in widespread persecution may leave him in
a difficult position to corroborate his claim.").
20
the point. Because the BIA never stated which aspects of
his story it would have been reasonable to corr oborate, we
have no way of reviewing the Board's actual reasoning.
We acknowledge that our standard of r eview is
extraordinarily deferential to the BIA, and that nothing in
the INA specifically requires the Boar d to explain its
decisions. But the availability of judicial r eview (which is
specifically provided in the INA) necessarily contemplates
something for us to review. In a case quite similar to this
one, the Second Circuit vacated and remanded a decision
by the BIA so that the Board could further explain its
reasoning. See Diallo v. INS, 232 F .3d 279, 288-90 (2d Cir.
2000). We have done the same when deficiencies in BIA
decisions have made them impossible to review
meaningfully. See, e.g., Sotto v. USINS, 748 F.2d 832, 837
(3d Cir. 1984). Because the BIA's failur e of explanation
makes it impossible for us to review its rationale, we grant
Abdulai's petition for review, vacate the Boar d's order, and
remand the matter to it for further proceedings consistent
with this opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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