*1 to set power the terms conditions citizenship and executive’s
American the immigration to administer
discretion v.
laws.” Renteria-Gonzalez Cir.2003) (citation (5th omit
ted).
III. above, out the Dis-
For reasons set Munroe’s petition
trict Court’s denial of relief is corpus
for writ of habeas affirmed. DIA, Petitioner
Saidou Attorney ASHCROFT, General of
John States, Respondent.
the United
No. 02-2460. Appeals,
United States Court
Third Circuit.
Argued Feb. 2003.
Reargued May En Banc 22, 2003.
Filed Dec. *5 Cindy Kolleeny, [Argued], City, War- Steven J. New York Brett S. Deutseh Sutcliffe, ner, Orriek, Amicus-appellant, Lawyers New The Herrington & Commit- Rights (“Lawyers tee for Human Commit- City, York for Petitioner. tee”). Fuller, C. Allen W. Haus- Christopher McAdams,
man, Jr., Greg M. D. John SCIRICA, Judge, Before Chief Department of Jus- [Argued], Mack U.S. SLOVITER, NYGAARD, ALITO, ROTH, tice, Litigation, Immigration Ben Office McKEE, RENDELL, BARRY, AMBRO, DC, Station, Washington, Franklin for Re- FUENTES, SMITH, BECKER and spondent. STAPLETON, Judges. Circuit [Argued], K. Ameri- Nadine Wettstein Foundation, Immigration Law Wash- can OF THE OPINION COURT DC, Amicus-appellant, Ameri-
ington, RENDELL, Judge. Foundation. Immigration can Law Circuit TABLE OF CONTENTS
I. THE STREAMLINING REGULATIONS.234 Background.234 Statutory A. Regulatory B. Scheme.236 Challenges.238 C. Constitutional RELIEF.245
II. THE AGENCY’SDENIAL OF Testimony A. Dia’s .245 of Review.247 B. Burden and Standard Judge’s .250 Immigration Decision C. *6 1. Past Persecution.251 Passport of a and Visa.256 2. Procurement Future 3. Persecution.259
III. CONCLUSION.260 2001, Immigration In and
Judge opinion Rendell filed the (INS) Judge charged and Naturalization Service Sai Court which Chief Scirica Fuentes, Dia, Republic dou a native of the of Guin Judges Nygaard, Barry, and ea, McKee, entry into joined removability illegal with for Judges Smith amd Ambro Dia remova joined Judge as to Part II. the United States. conceded and Becker relief, Alito, Roth, asy joined by Judges bility applied seeking and but for Solviter removal, lum, un concurring withholding Part I and relief opinion filed an as to dissenting Judge and as to Part II. Sta- der the United Nations Convention Torture, Cruel, Inhu dissenting, Against an in which and Other pleton filed McKee, Punishm joined. Degrading and Becker man or Treatment or Judges Ambro been, alleged ent.1 Dia that he had and Judge opinion concurring McKee filed an be, persecuted would in Guinea due to his as to Part II. persecution underlying cause of or a well-founded fear of 1. The basic law Dia's substantive race, religion, Attorney persecution na- General has the on account of claims clear. The tionality, membership particular grant asylum in a social discretion to Dia if he meets "refugee” group, political opinion.” 8 U.S.C. definition of as defined in the Im- or Act, 1101(a)(42)(A). withholding Nationality qualify § migration 8 U.S.C. To that, i.e., removal, (INA), deported, seq. § he is Dia must show 1101 et unable probability” unwilling country "be- is a "clear that he will to return to his home there 234 imputed political opinions. The I. THE
actual STREAMLINING (IJ) rejected Immigration Judge Dia’s alle- REGULATIONS was “not con- gations, finding she de- upholding the IJ’s determination past perse- has suffered [Dia] vinced removal, BIA did nying Dia relief from persecuted or that Dia would be cution” but, instead, opinion, not issued issue if he Guinea. killed returned and/or (AWO) under opinion” “affirmance without solely The IJ her conclusion on her based streamlining its C.F.R. regulations. See 8 determination Dia was credible. (2002). 3.1(a)(7) regu- § streamlining The appealed Immigration Dia to the Board of recently subject of lations have been the (BIA), summarily which affirmed Appeals See, e.g., many attacks. unsuccessful streamlining the IJ’s decision under its (4th Ashcroft, F.3d Khattak v. fol- regulations. petition This for review Cir.2003) argument that the (rejecting the jurisdiction arises under 8 lowed. Our regulations are retroac- “impermissibly § U.S.C. tive”); Albathani v. court con- Two issues are before the (1st Cir.2003) (rejecting process due sideration en banc: Area challenge); Capital Immigrants’ Rights Dep’t Coalition v. United States First, we will review whether (D.D.C.2003) Justice, F.Supp.2d
streamlining regulations promulgated (rejecting challenge under Adminis- Attorney General are either incon- Act). Dia, able trative Procedure with INA, sistent with the or violative amici, broadly attacks the support rights Fifth process Dia’s due under the Const, streamlining regulations grounds; on two Amendment. See U.S. amend. V. (1) (2) INA; inconsistent Second, we will review the adverse process rights. as violative of his due made determination Immigration Judge summarily af- Background A. BIA. firmed “ recog Supreme ‘long Court issue, As to the first we determine that expel or power nized the exclude aliens regulations streamlining are valid. *7 sovereign exer a fundamental attribute issue, however, As to the second political depart cised the Government’s analysis conclude that the IJ’s of Dia’s con largely judicial immune ments reasoning was based on ” Bell, 787, 792, v. 97 trol.’ Fiallo 430 U.S. at unexplained spec- best and at worst (1977) 1473, 52 50 (quoting S.Ct. L.Ed.2d Accordingly, supported ulative. it was not v. Mez Shaughnessy United States ex rel. by substantial evidence. ei, 206, 210, 625, 345 U.S. 73 S.Ct. 97 L.Ed. (1953)). review, limited for 956 Con grant petition exceptions, We will With order, INA, Attorney gress, charges vacate and to the BIA in the remand opportunity explain or and en give the IJ the General “with the administration analysis. [the her forcement of other INA] bolster laws Punishment, 1984, 10, persecuted specified or Dec. on account of Treatment 85, 1027(CAT), ground' here, political opinion 8 returned 1465 U.N.T.S. 23 I.L.M. see — —if (2002), country. Ashcroft, prove § to his 208.17 Dia native See Zubeda C.F.R. must 463, (3d Cir.2003); likely 8 to be in the 333 F.3d 469 C.F.R. he is more than not tortured 208.16(b). country § qualify relief of v. Ash- To for under removal. Abdulrahman Torture, (3d Cir.2003) (citing Against croft, United Nations Convention Cruel, 208.16(c)(2) (4)). §§ & Degrading or C.F.R. Other Inhuman Attorney promulgated and naturaliza- The General immigration to the relating 1103(a)(1) § streamlining regulations aliens.” 8 U.S.C. 1999 when the tion of (2002). power, Congress caseload, to this Pursuant with a crushing Board was faced Attorney General has mandated having the number of cases ex- increased ... regulations; such issue “shall establish ponentially a little over a decade. See instructions; such other and perform such Immigration Executive Office Review: necessary carrying for as he deems acts Immigration Appeals Board of Streamlin- authority under [the INA].” out his (Oct. 56,135, 56,136 ing, Reg. 64 Fed. 1103(a)(3) (2002). Congress § has U.S.C. 1999) (to 3). pt. codified at 8 C.F.R. Attorney authorized that “[t]he further generally Immigration Ap- See Board of may provide regulation General peals: Improve Procedural Reforms to on the con- other conditions or limitations 54,878, Management, Reg. Case 67 Fed. application asylum not sideration of 2002) (to 54,878-79 (Aug. be codified at with this Act.” 8 U.S.C. inconsistent 3). pt. regulations, Under the C.F.R. (2002). 1158(d)(5)(B) § may' designate “the Chairman [of BIA] Attorney delegated categories certain of cases as suitable for The General many by designated un- review” Board members responsibilities the BIA laws, “who authorized to affirm decisions of immigration see Charles der the Mailman, Gordon, Judges ... without Stanley Stephen Immigration opinion.” & (2002). 3.1(a)(7)© Yale-Loehr, single § Immigration Law and Pro- 8 C.F.R. 2003) (rev. (stating assigned BIA to whom the case is § ed. member 3.02[1] cedure single affirm an decision in a BIA “exercises so much of the IJ’s authority under sentence without he or she Attorney General’s correct, determines that the result was immigration nationality laws as “(A) it”), appeal squarely Attorney may delegate to the issue General or delegated supervision by existing controlled Board federal and has further involve, Department precedent BIA court and does to the Justice’s precedent to a novel fact Immigration application Review. Executive Office (B) situation; BIA, legal the factual and by regulation, established Id. The questions appeal raised on are so insub- guises has existed in various and has held that three-Member review is not responsibilities since 1922. Id. stantial various 3.1(a)(7)(h) § Initially, immigration § laws were warranted.” 8 C.F.R. 3.05[1]. (2002).2 Labor, exactly Secretary un- Each AWO is the same. enforced affirms, It “The Board without supervision the administrative reads: der whose of the decision below. appellate body opinion, was known as the results immigration is, therefore, agency final Id. After The decision the “Board of Review.” Con- *8 determination.” See 8 C.F.R. gress responsibility transferred the 3.1(a)(7)(iii) (2002); § see also Executive Attorney enforcement to the immigration 1940, Immigration of Review: Board of the Board of Review was Office General Streamlining, 64 Immigration Ap- Immigration Appeals of renamed the Board (“The 56,137-38 form, decision ren- Reg. In the BIA has Fed. at peals. present its agency the final deci- quasi-judicial body “a dered below will be been described as purposes.... exclusively judicial functions.” Id. sion for review appellate with BIA, Regulations. See 8 C.F.R. appeal 2. time of Dia’s to the of Federal Since the 1003.1(a)(7). streamlining regulations moved § have been chapter of 8 of the Code to different section 236 2778; Judge’s Aguirre-Aguirre, be- see also 526 U.S. decision Immigration
[T]he
reviewed.”).
424,
so,
doing
an
In
we
Such
at
119
comes
decision
S.Ct.
necessarily
approval
imply
“judicial
does not
in mind
deference to the
order
bear
decision,
reasoning
all of
the IJ’s
especially appropriate
is
Executive Branch
reviewing
Board
does
signify
but
immigration
in the
context
officials
where
by the
errors
member considered
func
especially
political
sensitive
‘exercise
Id. If
were harmless or immaterial.
IJ
questions
foreign
implicate
tions
”
deci-
single BIA member decides that the
at
Aguirre-Aguirre,
relations.’
526 U.S.
for affirmance with-
inappropriate
sion
Abudu,
425, 119
(quoting
S.Ct. 1439
INS v.
to a
opinion,
assigned
the case is
out
94, 110,
904, L.Ed.2d
485 U.S.
108 S.Ct.
99
and deci-
panel
three-member
review
(1988));
Ash
90
see also Abdulrahman v.
3.1(a)(7)(iv)(2002). That
§
sion. 8 C.F.R.
(3d Cir.2003)
587,
croft,
(quot
597
330 F.3d
however, is also authorized to deter-
panel,
Ab
ing
Aguirre-Aguirre);
this section
with-
mine that a case should be affirmed
(3d
542,
Ashcroft,
dulai v.
239 F.3d
551
opinion.
out an
Id.
Cir.2001)
(acknowledging
narrow
“the
circum
scope of our review” under such
Statutory
Regulatory
B.
Scheme
stances).
ques
are
[with]
We
“confronted
streamlining regulations easily
implicating
agency’s
tions
construction
step
inquiry.
of the
pass
first
Chevron
INS
of the statute which
administers.”
...
to”
respect
The INA “is silent
with
415, 424,
526
119
Aguirre-Aguirre,
U.S.
Chev
appeals.
streamlined administrative
(citation
1439, 143
(1999)
L.Ed.2d
S.Ct.
590
ron,
843,
237 nothing firming” says regarding deportation. INA whatsoever the “order” of 1101(a)(47)(B). ap- of an procedures § administrative U.S.C. Based on the matter, or, peal, proce- 1101(a)(47)(B) for that other § fact that only contains the by employed dures the BIA. INA, mention BIA of the it seems Congress clear that procedural has left all out, Dia refers to points As INA BIA, aspects of especially how it hears section, in BIA in connec- its “definitions” cases, entirely Attorney to the General’s tion with definition of the term “order its discretion. Id. deportation.”4 of U.S.C. 1101(a)(47)(A) (2002). § relevant pro- The The an statute’s references to “adminis- reads, pertinent part:
vision trative do appeal” not alter this conclusion. deportation”] shall [“order be- Only statutory two provisions of the INA (i) upon come final the earlier a deter- reference the term ap- “administrative by the Immigration mination Board of peal.” provisions These mandate that the (ii) order; Appeals affirming or such procedure applying asy- established for for expiration period which the lum
alien is to seek review of such permitted provide shall that— Immigration order the Board of Ap- peals. (iii) in absence exceptional cir- 1101(a)(47)(B) (2002). § 8 U.S.C. Under cumstances, adjudi- final administrative deportation this an provision, order of is asylum cation of the application, not in- passed not “final” until either the BIA has cluding administrative shall appeal, be it, seeking on time for BIA or the review completed days within 180 after the date expired. provides has The statute also filed; application statutory right judicial review (iv) any shall appeal administrative deportation only orders of available days grant- filed within 30 of a decision 1252(b)(9) § for a “final order.” 8 U.S.C. ing asylum, or denying days or within (2002); Ashcroft, Gao v. completion proceed- of removal (3d Cir.2002). provi- Based these two ings immigration judge before under sions, argues BIA Dia at the title, section 1229a whichever is provided relevant was an entity time later. by statute, longer solely and no existed 1158(d)(5)(A)(iii) (iv) (2002) § & U.S.C. regulation. added). (emphasis Although provi- these assuming But even BIA could of an contemplate type sions some admin- statutory be eliminated without au- applica- istrative appeal connection thorization, pressed we are hard to con- asylum, they provide any tions for fail to clude much more from the definitional guidance procedural trappings as to the 1101(a)(47)(B). § says statement at It ab- that appeal. solutely nothing procedures about to be BIA, to, Similarly employed by right unpersuasive or the or is Dia’s cita 1229a(c)(4), of, § generally; pro manner review tion to 8 which U.S.C. speaks the BIA and its “af- vides: review part: provision ity determining
4. The alien reads in whole whether an is de- portable, concluding that alien is de- deportation” The term "order of means the officer, special inquiry portable ordering deportation. order of the or other 1101(a)(47)(A). such to whom § administrative officer 8 U.S.C. Attorney responsibil- delegated General *10 238 dele- light enormously of the INA’s broad immigration judge decides that
If the
General,
Attorney
is
and orders the
we would
gation
the alien
removable
to the
removed,
judge
shall
alien to be
hold that his
extremely
reluctant
to
right to appeal
unreasonable.”);
inform the alien of the
see also
interpretation is
consequences
that decision and of the
Mailman, Yale-Loehr,
Gordon,
&
Immi-
1
depart
for failure to
under
order
§
gration
3.02[2]
Law and Procedure
removal,
and
civil
criminal
including
(“[T]he
that all
theory of
[INA]
penalties.
responsibility to enforce or administer
Attorney
added).
immigration laws is vested in the
if we
to
(emphasis
Even
were
Id.
or
General,
may delegate
that she
contemplates
and
provision
assume
manner
opportunity
assign
powers
any
of such
any
that an alien will have the
pro
neither this
therefore
appeal,
appropriate.”).
an administrative
she deems
We
any
that,
streamlining
INA
provision
nor
other
promulgating
vision
hold
requirements
procedural
not
regulations,
Attorney
references
General did
appeal
outlines a
an administrative
INA.5
run afoul of the
streamlining
inconsistent with the
scheme
Challenges
C. Constitutional
Instead,
only speaks gener
regulations.
“the
ally
appeal”
of an “administrative
streamlining
Dia next attacks the
only
the BIA
right
appeal,”
to
and of
regulations
deprivation
as a
of his constitu
of a “final” order. To conclude
the context
process
tional
to due
under the Fifth
right
in the INA that
language
from this
Const, amend. V.
Amendment.6 See U.S.
regulations are not a
streamlining
“permis
review
constitutional
plenary
We have
over
the statute” under
sible construction of
immigration
challenges
procedures.
Chevron,
2778,
843,
467
at
104
U.S.
S.Ct.
Abdulrahman,
agree
F.3d
330
at 597. We
leap
require
sizable
we cannot
would
courts of
that have
appeals
with our sister
Supreme
forcefully
make. The
Court
that the
passed on this issue
conclude
“[ajbsent constitutional
emphasized that
regulations
not violate the
streamlining
do
cir
extremely compelling
constraints or
Due
Clause
the Constitution.
Process
agencies
the administrative
cumstances
22879815,
2003
at
See Denko v.
WL
free to
their own rules of
should be
fashion
(6th
Dec.8, 2003); Falcon Carriche
*8
Cir.
inqui
methods
pursue
procedure
(9th
845,
Ashcroft,
v.
350 F.3d
Cir.
discharge
them to
ry capable
permitting
962,
2003);
v.
F.3d
Georgis Ashcroft, 328
their multitudinous duties.” Vermont
(7th Cir.2003);
v.
Mendoza
United
Corp. v.
Yankee Nuclear Power
Natural
Gen.,
Att’y
States
Inc.,
Council,
435 U.S.
Res. Def.
(11th Cir.2003); Soadjede Ashcroft, 324
(1978) (cita
1197,
239
a
process
deportation proceed
application
due
of law
contained
“terse”
of Board
Flores,
292, 306,
507
ings,”
precedent
specific
Reno v.
U.S.
to the
facts Abdulai’s
1439,
(1993),
what minimum are due under adjudication context of the of claims for depends on circum statutory right relief from removal such the one as before situation.”). particular stances us, process “requires things.” due three process due afforded aliens stems (1) “An Id. at 555. alien: is entitled to statutory rights granted those Con ‘factfinding produced based on a record gress principle that and the “[m]inimum before the decisionmaker and disclosed to’ rights statutory process due attach to (2) her; him must be allowed to make Marincas, 203; rights.” 92 F.3d at see behalf; arguments on his or her own Fano, 215, 226, also v. 427 Meachum U.S. (3) right has the to ‘an individualized de (1976). 2532, 49 451 96 S.Ct. L.Ed.2d Our ” termination interests.’ Id. [or her] concern, then, streamlining is whether the INS, (quoting Llana-Castellon regulations afford aliens such Dia their (10th (citation Cir.1994) 1093, 1096 omit process rights. minimum due Alba- See ted)). these requirements, Of three Abdu- thani, at 375 that an (stating 318 F.3d solely requirement, lai dealt with the third present unadmitted alien the United turn, an In “individualized determination.” process States has “limited” due that, by issuing Dia an contends AWO rights); see also Anwar v. 116 F.3d streamlining to the pursuant regulations, (5th Cir.1997) (“Due 140, 144 chal process deprived process the BIA him of his due lenges require to deportation proceedings right “individualized determination” showing preju an initial of substantial recognized as that right his interest dice.”). assessment, making In this we in Abdulai. process look to see if the at issue fits with the notion that re “[t]he Although ultimately concluded Ab- fundamental quirement process is opportuni due process there dulai that was no due viola- ty at meaningful to be heard time and in tion we found that the BIA had in because meaningful manner.” v. El Mathews fact made “individualized determina- 319, dridge, 893, 424 U.S. S.Ct. at application, tion” of Abdulai’s id. (citation (1976) L.Ed.2d 18 internal Dia on seizes what we said as we reasoned omitted) quotation marks (emphasis add that conclusion. such com- toward One ed). previously “suggest- ment was that we had process ed that the BIA to an denies due primary argu- Dia process bases his due Abdulai, alien when it mere ‘act[s] as a rubber- ment on we made in statements ” “ Marineas, stamp.’ (quoting Id. 92 F.3d where we expounded ‘fundamen- ” 7). tal at 202 n. that “the requirement process’ of due We also noted articulat- Abdulai, question process simply ed in for due ... Mathews. Mathews, (quoting the Board U.S. at 96 whether made an individualized 893). Abdulai, S.Ct. the BIA had is- determination Abdulai’s interests.” Id. added). per sued a curiam Dia two-page (emphasis argues these *12 “[tjhere that are in which a require observations we invalidate the some situations streamlining regulations. effectively appeals court of reviews an IJ’s decision, [that but Abdulai’s not one was] Dia, however, takes our statements them.” Id. One those situations out of context. made those Abdulai We arises, noted, the we when BIA “defers” to statements connection with Abdulai’s situation, the In reviewing IJ. Id. that “a argument that BIA not the had “acknow- must, as matter of logic, court review the ledged] any argu- or of his address[ed] IJ’s decision to assess whether the BIA’s Id. at In we ments.” 549. neces- Abdulai Id.; to appropriate.” decision defer was sarily reviewed BIA’s opinion, the because Abdulrahman, the see at opinion BIA had and the also 330 F.3d 591. issued so, here, petitioner arguments his on that the focused And where BIA directs us to opinion. Id. at 548. We therefore made the opinion and decision of the IJ who the in Abdulai in the context of statements originally Dia’s application, assessed we situation which the BIA had chosen to the IJ’s opinion. review speak forcing reviewing the court to —thus Dia, nonetheless, that also insists examine the BIA’s reasoning had —but the streamlining regulations violate in a way done so that us to ques- caused right to an “individualized determination” carefully tion whether the BIA had re- they specifically because state that an specific viewed the matter it. before See necessarily imply approval does not INS, 299, (5th AWO v. Mikhael 115 F.3d 302 Cir.1997) (“We reasoning the all of the IJ’s decision. authority to have review 3.1(a)(7)(iii)(2002). § BIA, IJ, See an order the not 8 C.F.R. But he the why unless the IJ’s decision or impact has some fails articulate how is so. decision.”). any on the BIA’s requirement, situation We are unaware of let different; very here is BIA the did not requirement, alone constitutional that opine own, but, instead, on its referred us an agency adjudicator must commit to to the IJ’s decision. writing otherwise verbalize his or her where, reasoning, here, agency
Contrary
suggestion,
to Dia’s
in Abdulai
directed us to an
In
for review.
impose requirement
we
not
did
that in all
case,
process right
Dia’s
the due
must
instances
BIA
indicate that
it
“individualized determination” was accord
made an individualized determination of
level,
ed
Dia at
the IJ
where the IJ
fact,
the claim for
In
relief.
we noted our
decision,
her
gave
“reasoned”
and the BIA
approval of
decisions
other courts of
imprimatur
the result its
pursuant
to its
appeals
upheld
BIA’s right
have
“
regulations. Certainly,
the BIA
affirms
could
‘simply
that it
state
IJ’s
affirming
have articulated its reasons for
decision for
reasons
forth in
set
”
order,
Abdulai,
just
IJ’s
it
decision.’
239
at 549 n. 2
but
because
had the
F.3d
(1st
power
so,
(quoting Chen v.
to do
does not
mean
Consti
Cir.1996)).
also
clear
required
power.7
We
made
tution
it to
exercise
fact,
summary
we
agreed
reasoning provided by
see the
affirmance
we
with the
Indeed,
and,
process
streamlining regulations
in the
parties,
to be
district court.
times,
process employed by
Supreme
guess
little different from the
Court
were left
we
summarily
grounds
our court
which
have
af-
on what
affirmed.
It is well-
established, however,
rulings
procedure
firmed
of the district court. See 3d
that this
States,
§
Operating
Cir. Internal
Procedures
10.6. In
constitutional. See Furman v. United
(2d Cir.1983) ("There
past, we
"judgment
often affirmed via
720 F.2d
is no
orders,”
requirement
appellate
no mention of whether or not
law that a
federal
sion,
Abdulai,
(“Having
F.3d at 549 n. 3
albeit
the IJ rather than the
See
Chenery
require
BIA.
does
something
being
re-
that this
power
to do
statement come from the BIA rather
thing.”).
not the same
quired to do
than the IJ.
unavailing
argument
is amici’s
Equally
Albathani,
377;
318 F.3d at
see
Nagi
also
of administrative
rule[s]
that “fundamental
Moraghy Ashcroft,
El
Supreme
law” enunciated
Court
*13
(1st Cir.2003) (“The provision of reasons in
194, 196-
Chenery Corp.,
332 U.S.
SEC
opinion
requirement
the IJ’s
satisfies the
(1947),
97,
1575,
[Petitioner
Amici]
plain language
Chenery,
specifically
refers
review” lacks substance. Dia
which
agencies
entirety,
right
individ- maintains that he has the
to mean-
their
Here,
BIA. Other than
components
agencies.
ingful
ual
review
Due Process
agency
present-
pointing generally
relevant
INS —has
to the
—the
however,
Clause,
identify
for
deci-
Dia does not
ed
statement of reasons
its
process
accompanied by a
did not constitute a denial of due
court’s decision be
written
36(a)(2) (outlin-
law);
opinion.”);
Baynes,
R.App. P.
United States v.
548 F.2d
see also Fed.
481,
(3d Cir.1977)
ing
procedure
entering
judgment
(holding
affir-
by judgment
opinion”).
mance
order without an
"rendered without
impossible
meaningfully
us
alleged right.
source
We are un-
review
any authority supporting
decision,
aware of
a due
its
we must vacate that decision
review”
process right
“meaningful
so
BIA
further
remand
can
appellate body.
administrative
Quite
explain
clearly,
reasoning.”).
its
right
alien has no constitutional
“[a]n
“right meaningful
The
review”
all,”
appeal
administrative
at
Albatha
distinguished
alleges
clearly
Dia
ni,
376;
318 F.3d
see also Guentchev v.
requirement
fundamental
“[t]he
(7th
Cir.1996),
process
opportunity
due
to be
[that]
and, therefore, no
to a
right
constitutional
meaningful
in a
heard at a
time and
mean
appeal.
“meaningful” administrative
manner,” Mathews,
ingful
424 U.S. at
S.Ct.
we discussed above.
Dia’s
persuaded
Nor
“meaningfulness”
requirement
*14
argument
streamlining
that
the
related
opportunity
to “the
to
pertains
Mathews
nature,
regulations or,
“opaque”
their
as
—
be heard” and
“manner” which one
prevent
amici describe
us as a
heard,
them —
by
is
not to a
an
review
administra
appeals
engaging
court of
in a mean
Moreover,
body.
tive appellate
Id.
ingful
agency’s
review of the
actions. See
review,”
recognized
“meaningful
to
right
(3d
1160,
Beyer,
Simmons v.
44 F.3d
1169
fully
margin,
we
more
note
Cir.1995) (stating
process
that due
re
by
been confined to the context of review
quires
guaranteed “appellate proce
that a
courts,
to
federal
and not extended
review
furnish
components
dure must
neces
by
body.8
appellate
administrative
See
review”).
sary
meaningful
cannot
also,
for
We
Ashcroft,
v.
e.g., Awolesi
Cir.2003)
(3d
(“In
agree with
claim that “the sum
227,
amici’s
232
for
order
us to
mary
process impermissibly
affirmance
give
able
review
meaningful
be
to
to the
decision,
strips
ability
of the
to
BIA’s
we
the federal courts
insight
must have some
properly
agency
review critical
reasoning.”); Kayembe Ashcroft,
into its
v.
action.”
(3d Cir.2003) (“When
231,
streamlining
way
334
238
in no
regulations
ability
agency’s
deficiencies
decision make it
restrict our
review
BIA’s
to
See,
Zurko,
150,
e.g.,
8.
Dickinson v.
527 U.S.
that where the
in an
defects
administrative
162,
1816,
(1999)
proceeding
judicial
S.Ct.
L.Ed.2d 143
that
119
144
foreclose
review of
review;
("The
requires meaningful
proceeding,
obtaining
APA
an alternative means of
judicial
judicial
its
meant
enactment
stricter
review of
review must be made available
(citations omitted));
agency factfinding
Congress
than
Int’l Bhd.
v.
believed
Teamsters
of
States,
324,
conducted.”);
376,
previously
some courts had
United
431 U.S.
97 S.Ct.
Russell,
225,
1843,
(1977) ("We
Regina
Salve
Coll. v.
499
L.Ed.2d
observe
U.S.
52
396
1217,
234,
(1991)
only
S.Ct.
190
111
113 L.Ed.2d
that when the court exercises its discre-
might
("Although
say
dealing
problem
some
that this Court
tion in
with the
of laid-off
uniformly
light
spoken
employees
developed
has not
at
a
clear voice
of the facts
remand,
judge’s
hearings
clearly
on the
issue of deference to a district
on
it should
law,
meaningful
of state
a careful
state its
review
determination
consider
reasons so that
apparent
duty
appeal.”);
ation
of our cases makes
be had
Fein v. Selective
7,
N.Y.,
Yonkers,
provide meaningful
appellate
Sys.
courts
review
Serv.
Local Bd. No.
380,
405
determination.”);
365,
1062,
a
United
92
31
298
such
States
U.S.
S.Ct.
L.Ed.2d
828, 837-38,
(“The
(1972)
Mendoza-Lopez, 481 U.S.
107
rationale is that some statement
(1987) (stating
necessary
‘meaningful’
S.Ct.
243
Bridges
An
agency,
denial of relief from removal.
ments
“fairness.” See
v. Wix
on,
135, 154,
appellate
particular
not a
administrative
U.S.
65 S.Ct.
(“Meticulous
(1945)
body,
forth the basis
its order
must set
L.Ed. 2103
care must
specificity
permit
mean- be
procedure by
with sufficient
exercised lest the
which
by this court. See Albatha-
ingful review
deprived
he is
liberty
meet the
ni,
Here,
fairness.”).
as we discuss
318 F.3d at
essential
standards
We
section,
in the
no doubt as to
next
have
Congress
have made clear that “[w]hen
agency’s
put
for the
decision as
basis
agency
procedure,
directs an
establish
The BIA
forth for review
the BIA.
...
Congress
it can
assumed
be
in
presents
reasoning
for our review the
and tends that
a fair
procedure
one.”
Attorney
decision
IJ as that of the
Marineas,
F.3d at
203. What is “fair”
General.
Executive
of Immi-
See
Office
within
of immigration proceed
the context
Immigration
gration
Ap-
Board of
Review:
ings, however,
always
need not
measure up
56,-
Streamlining,
Reg.
peals
Fed.
requirements
of fairness in other
137-38.
contexts, especially
“[a]liens
because
statutory rights granted
have
those
our
required
All that is
mean
Id.;
Congress.”
see also Mathews v.
ingful
agency
repre
review
—as
Diaz,
67, 79-80,
96 S.Ct.
U.S.
opinion of
BIA or
sented
IJ—
(1976) (“In
L.Ed.2d 478
the exercise of its
sufficiently
opinion.
*15
forth
put
a
reasoned
power
broad
and immi
over naturalization
(“[T]he
Mendoza,
A. Dia’s
lice,
killed,
militia groups
and civilian
*17
Dia,
Fula,
beat,
citizens,
in
raped
an ethnic
was born
Selou-
and
as well as refu-
ma,
gees
Liberia.
Dinguiraye,
Guinea. He has had
from Sierra Leone and
education,
years of
Security
arbitrary
two
has a limited abili-
forces used
arrest
write,
ty
speak
security
to
and
and
not
and
of
read
does
detention. Members
the
English.
joined
impuni-
He
the
with
Rassemblement
forces committed abuses
Peuple
(“Rally
People
ty....
du
de
societal
Guiñeé
Violence and
discrimi-
“RPG”)
women,
Party”
prostitution
of Guinea
or
in
at the
nation
of
against
age
twenty-two.
young girls,
genital
His father had been a
mutilation
female
(FGM),
member
the
before his death in
ethnic discrimination and inter-
RPG
violence,
labor,
Dia
in
rallying
reports
1997.
worked
the field
ethnic
child
leader,
children,
imprisoned
for
support
trafficking
RPG’s
A-
women and
and
pha
parliament
vigilante
others
Conde—a member
and a
actions
victims or
in
presidential
persisted.
candidate
the
elec-
end,
exclusively
BIA
done.
focused
on
record
had
The BIA’s
was a
the
the
diversion,
which,
reasoning,
analysis.
help,
not a
in our
and the IJ's
Dia waited
uncle
not at his home and
report
important because the
Id. This
paints provides
background
finally
until his uncle
returned.
picture
days
three
credibility.
Dia’s
consulted,
which to assess
against
agreed
uncle
After
two
Dia’s
the
Moraghy,
El
247 ” U.S.). of a Dia also secured the services ‘credible.’ (quoting 8 C.F.R. 208.13(a)) (citation omitted)); pass § policeman help Guinean to him see also paid Ashcroft, 123, v. through police Mulanga roadblocks. Dia 349 F.3d 132-34 (3d Cir.2003) (about 300,000 (stating an applicant’s that officer Guinean francs that U.S.). testimony “may credible be sufficient to $150 sustain the burden of proof without cor- U.S., Upon arrival Dia at- his roboration”). The IJ concluded here tempted country using to enter the Dia was not credible on based “the incon- story smuggler recommended. in Dia’s sistencies its overall official, noticing The that Dia did not INS implausibility.” This adverse Honduras, go have a did not ticket to determination —fatal to Dia’s claim—was a believe The story. sought his INS then Gao, fact. finding 272; of See 299 F.3d removability, remove Dia. Dia conceded Mulanga, 131-32; see also F.3d at 349 sought deportation but based relief INS, 297, v. Secaida-Rosales F.3d 331 307 removal, asylum, withholding (2d Cir.2003) (“Generally, courts have twenty-six relief under the CAT. Dia was credibility questions treated in deportation years old at time of his before hearing fact....”). proceedings questions as counsel, Represented by the IJ. agency’s findings We review the of fact speaking through interpreter, in Fulani under the standard the Illegal found hearing he testified at the and called Immigration Immigrant Reform and Re- handwriting story expert support his 1996, Act sponsibility Pub. L. No. 104- passport that the contain visa and did not 208, C, (enacted 1, div. 110 Stat. April 3009 his written handwriting. IJ issued a 1997) (IIRIRA or and Responsi- “Reform opinion, relief denying because she found Act”), bility provides: which mentioned, that Dia was not credible. As BIA, findings administrative [T]he fact are through single member Board, adjudi- conclusive unless reasonable opinion pursuant affirmed without 3.1(a)(7) (2002). compelled cator would be § to 8 C.F.R. conclude to contrary. B. Burden and Standard of Review 1252(b)(4)(B). § 8 U.S.C.
An alien has
the burden
Since
enactment of the Reform and
Act,
supporting
remov Responsibility
his claim relief from
courts of ap-
various
itself,
court,
al. An
credibility, by
may peals, including
alien’s
our
have read this
burden,
satisfy
require
agency
his
or doom
claim.
sup-
standard
(“Aliens
Gao,
evidence,
port
findings
There,
a
mind might
the standard as
evidence as
reasonable
the Court framed
accept
adequate
support
follows:
as
a conclu-
sion,”
enough
...
and it must be
BIA’s determination that Elias-Za-
justify,
if the
a jury,
trial were to
a
eligible
asylum must
carias was not
for
reasonable,
to direct a verdict when the con-
“supported by
refusal
upheld
substantial,
probative
sought
it
and
evidence
clusion
to be drawn from is one
a
8
jury.
the record considered as whole.”
fact for the
1105a(a)(4).
It can be re-
§
U.S.C.
Co.,
Enameling
Stamping
&
Columbian
presented
if the
versed
evidence
(citation
300,
306 U.S.
249
ments,
The application
evidences,
of the substan
contradictory
and inher
ently
tial evidence standard is well-established.
improbable
...
in view of
See,
Serv.,
e.g.,
background
Allentown Mack Sales &
evidence on country condi
NLRB,
359,
(Interim
366-67,
Inc. v.
522 U.S.
118
Decision),
tions.” In re S-M-J-
(1998) (indicat
818,
722,
(BIA
S.Ct.
versely,
no
fact
reasonable
finder could
record”).
grounded
evidence
finding
make that
on the administrative
end,
To this
it is clear that “[a]dverse
record,
finding
is not supported by
credibility
specu
determinations based on
substantial evidence.
conjecture,
lation or
rather
than on evi
Thus,
record,
reversible,” Gao,
where we
review IJ’s
dence in the
determination,
credibility
272,
we must ask 299 F.3d at
and that an IJ must
whether the
supported by support
determination is
her adverse
findings
evidence that a reasonable mind would find
“specific[,] cogent
reasons.”
Id. at
adequate.
276; Abdulrahman,
We look at an
597;
adverse credibili
330 F.3d at
see
ty
Secaida-Rosales,
determination to ensure that
it was
also
ibility determination as each However, because of perhaps supported are not categories cases, types nature of these the difficult record, and are not by evidence importance resolving critical and the the conclu support otherwise sufficient to very properly the stakes them must, there reached the IJ.20We sions —for of the basis of high indeed —the soundness fore, analysis and reasons examine IJ’s experiential making, the decision even whether forth in order to determine put nature, apparent. must be logical credibility determi the adverse she based so, drawing inferences cannot be process of Doing on substantial evidence. nation whim, withstand scrutin left to but must do not find that the IJ’s conclusions y.21 way the evidence flow in a reasoned moval); (regarding § 208.16 establishing eligi- 8 C.F.R.
20. Dia bears the burden CAT). bility removal. 8 C.F.R. for relief from Mendoza, (regarding asylum); § 208.13 Judge agree Alito that an IJ is 21. We also withholding (regarding of re- F.3d at 1287 very plausibility. law Yet free to assess Here, presented unique gest with a require we are reasoning sound which, setting catalog, as we will breathes life into standard. *22 inferences drawn conclusions reached not, do Judge implies, We as Alito con- in sequiturs, are in some instances non clude the IJ was bound to find Dia others, counterintuitive. The flow of the Rather, recognize credible. we possi- reasoning process appears to break down bility that the might IJ’s conclusions ulti- IJ, repeatedly, as the draws an unreason- mately However, be the correct ones. we susceptible able conclusion from a fact to cannot affirm findings the IJ’s and conclu- differing interpretations. Numerous such presented us, sions on the record to as the not, instances do as the dissent suggests, provide reasons she does in support of her totality to a of up add circumstances that logically decision do not flow from the supports finding testimony that Dia’s facts she considered. Rather, Accordingly, we con- they was not credible. are clude that aggregation empty rationales that de- the best course is to remand for unsupported into an finding volve of ad- further explanation by the IJ as to the Moreover, credibility. verse rather than basis for her various conclusions. head,” our standing standard “on its as the suggests, appropriate dissent our insis- 1. Past Persecution
tence on upholds “substantial evidence” We first address by requiring parts that standard that there be a the various supplied testimony sound basis—-whether the rec- Dia’s regarding past persecution by background ord evidence or knowl- rejected. begin IJ We with a edge support findings.22 the IJ’s statement made the IJ that foretells —to many of the errors that also infect other
Here, the conclusions of the IJ are more
parts
opinion:
rejection
of her
the IJ’s
puzzling
plausible,
than
more curious than
that,
words,
testimony
Dia’s
in her
“mem-
Judge
suggests
commonsense.
Alito
bers of
police
actively
the Guinean
are
if we refuse to
reasoning
defer
the IJ’s
here,
looking
rejected
for him.” The IJ
gut
we would
the substantial evi-
contrary,
dence standard. To
sug-
testimony
we
as not credible for two reasons:
support
adjudicators
review article that he uses to
which all reasonable
would affir-
permissibility
drawing
skepti-
inferences is
matively find Dia to be
We
credible.
have not
plausibility, noting
highly
cal of
that it is "a
applied
statutory
standard in this manner.
‘Sure,
uncertain standard.
that makes sense’
Mulanga,
(finding
See
Dia’s
and asked the
that,
hearsay nature
provide
“[tjhough
information.
ond is
Government
Thus,
it
expressed
certainly
weight
the IJ
desire for corrob-
of evidence
affects the
(ie.,
documentation”),
accorded,
“supporting
oration
it does not affect its admissi-
it,
discouraged
providing
Dia from
bility
immigration
proceed-
then
[removal
penalize
criticize and
Dia for not
Ashcroft,
ings].” Kiareldeen v.
(3d
providing
Cir.2001);
it. Such arbitrariness necessari-
Ezeagwuna
cf.
reasoning.
(3d Cir.2003)
ly
undermines the IJ’s
Ashcroft, 325 F.3d
hearsay
(referring
“multiple
to a letter as
issues,
In
involving
a recent case
similar
kind”).
troubling
By
of the most
matter-
that an
adverse
opined
IJ’s
of-factly dismissing the evidence as “hear-
pass
determination does not
muster under
why it
say,”
explain
the IJ failed to
should
rubric
the substantial evidence
when
weight.
accorded no
submit that
We
adequate
supported
explanation
hearsay
seemingly
such
reliable
evidence
reasoning.
Mulanga,
of the IJ’s
rejected
perfuncto-
not be
in such a
should
126-27,
F.3d at
we encountered and criti-
ry manner.
very
type
analysis that
cized the
same
There,
problematic
we find
here.
the IJ:
proffered
other reasons that the
IJ
1)
petitioner’s
provide
faulted the
failure to
similarly
rejecting
corroboration
a situation which that
namely,
grounds,
based on unsustainable
2)
reasonable;
quite
failure seemed
found
conjecture.
pure
“questioned]
The IJ
petitioner’s
account—which we found
many
why
go
respon-
so
men would
to the
*25
plausible
light
Department
in
of State
re-
him,”
searching for
dent’s home
and stated
sense,”
ports
lack “common
without
—to
seems,
Court,
that
to
an un-
“[i]t
th[e]
[ ]
3)
and,
explanation;
further
dissuaded the
usually large
purpose.”
number for that
evidence,
petitioner
producing
expla-
that Dia gave
The IJ also noted
no
lack of which was later criticized.
Id. at
why
raped
nation
the men
his wife and
too,
There,
135-38.
we found a lack of
unlikely
stated that
seems
to
“[i]t
th[e]
support
substantial evidence to
the ad-
that
looking
Court
men who were
for the
determination,
verse
and con-
attack
respondent would
his wife.” The
cluded that
the order should be vacated
having “questioned”
basis
the IJ’s
this
pro-
and the matter remanded for further
testimony
explained,
is not
appears
and
at
ceedings. Id.
Why
speculative
best.
would the IJ
An
significant aspect
expect
why
large group
even more
Dia to know
such a
rejected
him
testimony
seeking
why they
Dia’s
the IJ was his
of men were
or
twenty-five
“un-
report
raped
Twenty-five
that
members of the
his wife?
was an
him, and,
what,
military
usually large
his
compared
went to
home to find
number” —
there,
upon realizing
explana-
that Dia was not
beat
or based on what? Without some
raped
hard-pressed
and
his wife. One reason the IJ
tion we are
to understand
gave
discrediting
story
why
this
was that
the IJ would find it so difficult to
present any
group
twenty-five
Dia
not
that
that a
did
evidence
believe
about
military,
who did this were from the
men would have come to Dia’s home. Not
men
hearsay
other than
of his wife. We have
does this account seem consistent
problems
reasoning.
practice
two
with this
The with common accounts of the
countries,
in
in
again
engage
groups
first is that the IJ
failed to
armed
war-torn
but
three-pronged analysis
require
documentary
the record contains
evidence
expects documentary
confirming
police
evidence
that
and civilian mili-
when
IJ
812;
num-
roving
large
bands
Navas v.
659 n. 18
groups of
tías —
(9th Cir.2000) (“Where
suspected
attack
rebel
rape
police
beat and
bers —
civilians, often burn-
supporters, as well as
spouse
dissident,
threaten the
of known
what
looting
process.
On
ing and
logical,
it is
the absence of evidence
determine that these as-
basis did
IJ
motive,
pointing to another
to conclude
“unlikely”?
account
pects of Dia’s
were
they
that
did so
of the spouse’s
because
wondering.
we are left
Again,
association.”).
presumed guilt by
As a
result,
regard,
the IJ’s conclusion
also conclude that the IJ unreason-
We
too,
unsupported either in
the record
ably
presenting
Dia for
“no ex-
penalized
explanation.
or
a commonsense
why
men would beat
planation as to
these
his wife.” Dia testified that his
rape
testimony
The IJ’s disbelief of Dia’s
that
they
military
him
wife told
that
were
him
urged
country
his wife
to flee the
him
they
looking for
because he
were
without her also lacked foundation
showed a tem-
supported the rebels. He
logical reasoning
any support
in the
proximity
Bangora’s
between
visit to
poral
record, and thus seems to demonstrate
of his wife. He
raping
his home and the
speculation
more
and arbitrariness on the
Bangora
also testified that
knew of his
part of the
Dia testified that
wife
“[his]
IJ.
So,
did, in
affiliation with the RPG.
Dia
really
told
he would
like to see her
[him]
fact,
why
as to
present some
future,
again, next time in the
men came to his home.
It seems reason-
just
thing
try
was for
flee
[him]
best
militia
able for Dia to believe
try
a place.
to find
And
decided
[he]
or was
government
consisted
soldiers
family
to leave her with her
members.”
Yet,
government.
sent
the IJ re-
highly
“it
The IJ stated
she found
jected
explanation.
It
this account without
woman,
unlikely
allegedly
that a
who
had
hardly
can
be said that Dia had an obli-
just
raped,
urge
been beaten and
would
specific
further
gation
investigate
suggest
her husband
leave her and
identity
raped
of the men who he claims
accompany
that she
him out of the coun-
wife and
his home. How could
burned
*26
try.” Why? The IJ also stated that “it
any
he have known this? Would not
ex-
unlikely that a man whose
appears
wife
planation
might
he
offer be criticized
just
raped by military
been beaten and
fabrication,
surely they
the
as a
since
IJ
they
personnel
suggest
would not
that
flee
not
their motivation
would
have shared
country together.” Why?
the
We can
authority
with him? There is no
that
why
any
think of
number of reasons
Dia’s
require Dia to
direct evi-
present
would
him
motives; rather,
might
urged
wife
have
to leave with-
cir-
dence
men’s
any
out her.24 The IJ failed to share
basis
cumstantial evidence was sufficient. See
and,
Elias-Zacañas,
proper
without
502 U.S. at
S.Ct.
for her conclusions
Maybe
example,
go on the run with her father.
24. For
Dia and his wife
have
than
during
quickly
injuries Dia's
her
determined that he could move more
wife sustained
travel,
easily
impossible
her to
and elude detection more
if he was
assault made it
for
alone,
traveling
by having
knowledge that her husband was on
not burdened
to
and the
safety
important
daughter,
way to
was
to her
care for a wife and
and that once
his
more
having
stay safely
country,
than
him risk his life to
her.
he was
out of the
he could
possible
simply feared
arrange
join
Perhaps
him.
It is also
that Dia
so
for them
willing
own life that he was
Dias
motivated
concern for their
much for his
were
child,
family.
rejected
young
believing
his
The IJ
Dia's
that
it was in their
abandon
indicating any
testimony
consider-
daughter’s
interest
that she and her
without
best
equally likely
ation of these
scenarios.
mother remain at
relative's home rather
help
Dia
have
support, we cannot
but view them as
to how
IJ believed
should
highly
But it seems
unreasonable
acted.
constituting
not
substantial evidence.25
IJ,
into
inquiry
without
the under-
reasons,
lying
to assume that Dia would
Passport
2. Procurement
of a
have,
fail,
without
learned Sow’s friend’s
and Visa
name, given that
was his
Sow
friend
general aspect
story
The second
of Dia’s
Sow,
Dia,
that it
who dealt with
rejected
that the IJ
dealt with the circum-
smuggler.26 Why
would someone in
surrounding
procurement
stances
his
of a
position
smuggler’s
Dia’s
care about the
passport
put
and visa. The reasons
forth
name?
however,
support
rejection,
as
do
rejected
inappropriately
The IJ also
not,
satisfy
again,
the test for substantial
testimony
Dia’s
that he had never been to
evidence.
Italy.
Dia testified that he was told
First,
expressed incredulity
IJ
procured
passport
Sow’s friend who
his
ie.,
Mend,
“a
the “smug-
Sow’s
man” —
say
Italy
that he was a
picker
tomato
gler” procured
passport
a new
and a U.S.
—
Honduras,
way
and that he
this
told
Essentially,
visa for Dia.
she concluded story
immigration
to the
officer at the
the man did not exist because she
airport.
rejecting
Dia’s
found it
unbelievable
Dia did not
Italy,
he had never been to
the IJ listed a
identity
know
of a man
him
helped
who
litany of reasons:
U.S. visa
Dia’s
country
“paid
leave the
and to whom
he
passport
Italy;
was issued in
the visa and
fact,
large
money.” In
during
sum of
“valid”;
passport
non-immigrant
Dia’s
hearing
went
far
she
so
as to dismiss
Dia”;
signature
visa contains a
of “Saidou
Sow’s friend out of hand
an “imaginary
file,
an INS memo to
derived
person.”
inquiry
But she did so without
interview,
airport
states that Dia
awas
and,
aspect
story,
into this
of Dia’s
in her
picker”
Italy;
pick-
“tomato
the “tomato
opinion,
written
she failed to articulate
er” lie does not make sense because the
why she
it
considered
so unbelievable.
fact
picker
Italy
that he was a tomato
more,
earlier,
What is
as mentioned
she
him
was “not beneficial to
as far as his
inconsistently asked for more information
U.S.”;
intention to remain in
pos-
Dia
visa,
got
about how Dia
passport
employment
sessed
documents from Hou-
that Dia
provide any
but stated
could not
con Cargo Shipping Company
addressed
supporting
evidence from
more
Italy;
“Dia’s”
alleged ig-
address
Dia’s
presented
opin-
“friends.” As
in her
norance as to how these documents came
ion, then,
(and
aspect
dismissal
explanation
smuggler
to be
*27
him)
unbelievable;
conjecture
got
Dia’s
constitutes
them
was
and
Attorney
25. The
General states that
upheld
"one in
that an administrative order
be
cannot
consistency
large
looms
over the record. Dia
grounds upon
agency
unless
which the
testified that when he returned to his home
exercising
powers
acted in
its
were those
uncle,
visiting
after
he discovered that his
sustained.”).
upon which its action can be
burned, yet
home had been
when he saw his
wife, she does not tell him that their home
Perhaps
importantly,
most
we fail to see
along
alleged
had been burned
with her
re
why
placed any emphasis
par-
the IJ
on this
port
raped
to him that she had been
and
aspect
testimony.
ticular
of Dia's
The name
IJ, however,
beaten.” The
never mentioned
pertain
of Sow’s friend did not at all
to Dia's
thus,
alleged inconsistency;
sup
it is not
claim for relief from removal and Dia’s testi-
port
credibility
for the IJ’s
determination.
mony
point
on this
seemed consistent.
80, 95,
Chenery,
See SEC v.
318 U.S.
63 S.Ct.
(1943) ("We merely
why he told the INS officials We do not know how the interview was picker way on his to Honduras. tomato or how the document conducted was that, points Dia out as discussed be- also prepared. We do not know whether the low, expert an witness who presented he questions and answers were recorded testimony that the hand- gave unrebutted verbatim, summarized, paraphrased. or was not Dia’s. writing on the documents We cannot tell from the document the shipping compa- from the As for the letter petitioner] extent to which had diffi- [the certainly ny, a address for Dia purported questions, culty comprehending the render it authentic. The exis- does not repeated, questions whether had of the address on the letter does not tence language how sign or when and that the that the address exists or mean the document used. Nor does reveal mailed, letter was ever or even petitioner’s] responses ac- [the whether fact, to con- cargo company existed. tually correspond to those recorded or clude that because the documents listed whether the examiner recorded some address, shipping Italian therefore the summary version based on distilled company actually knew of Dia’s address response. his best estimation Italy, strikes us as bizarre. Dia testified 162; Mulanga, Id. at see also smug- got that he the documents from rely heavily too on the (refusing 137-38 and, thus, totally gler they were noting airport content of interview fraudulent. The record contains no evi- discrepancies that “immaterial between contradictory story, to this and the dence airport subsequent interviews and testimo- explain why plausi- does not it was not IJ adverse ny should not be used make ble. Zubeda, determinations”); (stating that is re-
Basically,
“[e]aution
seemed confused
the F.3d at 477
IJ
considering
weight
what
quired”
fact that the documents that
friend
when
Sow’s
*28
affidavit);
asylum
to an
Senathi-
procured
good
give
for Dia could be so
that the
even
(warning against
genuine
rajah,
and that the
his home but
flight
from the
III. CONCLUSION
country, Dia notes that
hiding
he was
at
Dia asks that we
BIA
reverse the
home
during
Lastly,
Sow’s
time.
grant
the relief he
But
seeks.
we are
IJ,
perhaps
tellingly,
again,
most
mis-
Rather,
finding
Dia credible.
we are
testimony.
stated Dia’s
Dia never testi-
concluding,
before,
as we have repeatedly
military
fied that
thought
that he was
that because of the lack of substantial evi
helping
Rather,
escape prison.
Conde
he
support
dence to
credibility
adverse
testified that
military
told his wife determination, we will
remand
order for
that Dia
helping
the rebels so that
agency
explain
further
or supple
prison.
Conde could be released from
Gao,
ment the record.
In
Ezeagwuna,
IJ’s adverse credi
so.”
“[t]he asylum-seekers to deportation pro- of able demand that withholding and asylum of evidence, corroborating regarding vide evidence re- of such but without light personal experiences their in their home credibility deter- gard prior to its adverse countries. incidents often Such are not Senathirajah, 157 F.3d at mination”); (at any memorialized not in least records to (remanding to BIA with instructions anyone that are available to outside the asylum on and remand to IJ for decision fleeing government), per- home and aliens con- withholding but without application, at all may lucky escape secution be to and credibility of adverse sideration erroneous may opportunity no have to secure Instead, appeal). we finding reversed documentary that exists or to evidence the BIA will vacate order.30 sis [*] [*] [*] [*] [*] willing obtain statements from witnesses to help. addition, once who asylum- are country, may this they seekers reach find Accordingly, petition will grant we corroborating very it hard to obtain evi- review, the BIA’s sum- vacate order decision, may peo- dence. It be difficult to contact re- marily affirming the IJ’s and home, persons ple might at and who assist to the BIA. mand may govern- prevented home doing may or ment so be reluctant to ALITO, Judge, whom Circuit with governmental of help fear retribution. ROTH, join, and Judges SLOVITER Thus, it is often not reasonable demand dissenting concurring part. part corroboration. join I Part I of the of the Court. hand, however, testimony On the other However, I because believe by asylum-seekers simply cannot be ac- analyzing Immigra- Court’s method of question. wishing cepted without Persons Judge’s tion determination escape deplorable that fall conditions flawed, deny seriously petition I would strong persecution short have motive for review. it persecution, tales of fabricate recognized must be that such stories are I. An asylum-seeker not hard to construct. may person’s account have heard another or asylum Cases which aliens seek persecution himself substitute withholding on the likeli- removal based asylum or herself as Or an victim. persecution they probability hood or may take an incident in which he or seeker their countries are returned to own actually may exag- she was involved and face. the most difficult among police military conduct of the or gerate the stake, obviously Much is but the eviden- the high so as to make reach standard Indeed, tiary very meager. record is often persecution. needed constitute Immigration Judge it is common for an (IJ) Martin, David A. former to have little other than the As Professor written, general counsel of the applicant on which to base the deci- sion, rarely to conduct a government and serious able presents obvious appli- matters problems. investigation field such ty complied whether the Board also contends that the Board did not review Dia streamlining streamlining regulations. Because we regulations when it follow Government, erred, we need have that the IJ issued an AWOin his case. The found turn, that we do not have authori- address this issue. contends activities, First, mental “past political specific cants’ mistakes. the Court fails to against abuses or recognize entirely proper threats directed them or that it is for a their families or friends.” David A. Mar- fact into finder to take account “back- tin, Adjudication: “Reforming Asylum On ground human knowledge” about behavior Bohemia,” Navigating the Coast 138 U. in assessing plausibility testimony. *32 (1990). Pa. Law Rev. As a Second, although pays Court lip ser- result, “[ajsylum determinations often de- very vice to the standard of limited review pend critically on a determination of the apply, we must the Court in effect credibility applicant, for she will inverts that standard refuses to sus- usually be the available witness to the credibility tain the finding, IJ’s not be- adjudicative critical facts of the case. Be- adjudicator a cause could not reasonable person cause that has substantial incen- find credibility, that Dia but lacked be- (and tives to lie or to embroider the truth cause, view, in a the Court’s reasonable disincentives), few system this makes for a fact a contrary finder could make finding. manipulation.” vulnerable to Id. at 1281- Third, failing Court errs to take the (footnotes omitted).1 These two fac- totality of the circumstances into account frequent unavailability tors-—the of cor- in reviewing credibility the IJ’s determina- roboration and the ease of fabricating a Instead, tion. the Court focuses one persecution claim—make determinations one specific statements were made credibility regarding asylum-seek- by Dia and asks each of whether those critically ers important. plausible. statements is The Court fails to recognize may, In that a deciding series statements how such determinations are together, taken a country, provide to be reasonable Congress made this basis could for finding a be variety have taken a witness to incredible even ap- different standing each proaches. chose, might statement alone approach The it how- be ever, credible. was to the responsibility entrust
making important these determinations to General, Attorney very limited A. judicial participation. Specifically, we accept credibility must determination “Background knowledge.” In assessing Attorney made those to whom Gen- credibility testimony, fact finders authority delegated eral’s has been “unless commonly ask whether the is adjudicator reasonable would be com- consistent with their own understanding of pelled to contrary.” conclude people how usually Judge behave. Wein- 1252(b)(4)(B). § U.S.C. This limited role “background stein uses the term knowl “ puts sometimes us the uncomfortable edge” to describe the ‘vast storehouses of position of to a deferring credibility deter- commonly-held about people notions how ” mination about skeptical. which are behave,’ ... generally explains he But the us statute leaves no alternative. that credibility may determinations knowledge based on such even though it is
II. not in the record. United States Shonub i, (E.D.N.Y.1995) In analyzing credibility F.Supp. the IJ’s decision (citation omitted). case, in this the Court makes three funda- truthful, goes express applicants 1. Professor on to Martin his be- not not be and our honest, applicants system lief identify that most id. at current IJ's to relies on those question- applicants. 1282—a fact that I do some —-but professional dealer or underworld provided useful Professor Uviller by a fact hoodlum. process used description of testimony com- deciding whether finder Nevertheless, process judging Id. “background knowledge.” with such ports every in crimi- employed day He writes: cases, nal civil and there no reason juror tests a by which a process why asylum cannot be used in also involves some sort story plausibility words, asylum an IJ in an cases.2 other matching. juror juxtapos- A cerebral judge a credi- may properly case witness’s actions and events a set of recounted es bility testimony to the by comparing that imagination, and experience, against her background knowledge IJ’s about human concerning the be- intelligence derived general and about the behavior behavior and fictitious reactions real havior and seeking entry into the United *33 of those thing that I the sort of others: “Is this States. in those circumstances?” might do case, however, In the faults this Court I know have reacted that anyone “Would very process. this employing the for IJ the of These are sorts way?”.... notes, Dia that his As Court testified the juror the on which guides plausibility had wife him that about soldiers told rely. must looking come him and to their home Uviller, Credence, “Essay: Richard H. that, Dia’s told them that she when wife Character, of Evidence: and the Rules whereabouts, men his the did not know Tale,” 42 Duee Seeing Through the Liar’s raped her burned the house. beat and (1993). L.J. that, urg- AR at his 86. Dia stated wife’s the also weak- explains Professor Uviller alone, leaving the ing, country fled he of process: nesses this finding child AR 86. In wife and behind. credible, course, the trouble, frequently expressed that Dia was not IJ that The of is a in the position the that woman customs the belief the cultural context and her probably urge Dia’s would not in the wife actors the events recounted AR The jurors to leave her behind. 43. totally to the husband witnesses are alien in a man expressed IJ the belief that seeking match. Neither also plausibility probably “suggest likely position are to Dia’s would jurors anyone they nor the AR country together.” the any compa- they that flee experiences know have had precisely in engaged thus from the 43. The IJ rable to those now described de- process that Professor Uviller drug an adolescent mental witness stand n.21) interpreter a dif- (Maj. through an and comes from Op. The Court notes 250-51 —as impeach- As background. ferent cultural judging credibility method have I—that this statements, the prior ment with inconsistent hardly foolproof. Court What the does is problems with undue reliance Court notes however, is recognize, is that the same true of 257-58), (see Maj. Op. airport on statements assessing virtually of the other methods all asylum on made in and reliance statements credibility are to IJ's. Two of that available subsequent applications and interviews most common methods involve assess- present due to translation also difficulties impeachment based ment demeanor must problems and the volume of cases that prior As to de- inconsistent statements. sum, virtually processed. all meanor, Judge that *34 finding. trary knowledge,” imagination, “her experience, intelligence concerning performs slight and derived the be- The Court the same and reactions of ... told evaluating havior others” hand in picker” “tomato likely a urge story. Although her that woman was not Dia asy- testified at the just her husband to flee had hearing alone she lum that he in had never been (AR 102), raped by been beaten and who Italy soldiers the INS regarding memo Similarly, looking were for him. upon Airport IJ’s his interview arrival at JFK 27, 2001, “background knowledge” told her that a reported on March Dia had that likely wife apparently man was leave his and been employed a as tomato Italy. child behind under such circumstances. AR picker in 237. The also memo more expects What the Court the IJ to reported join that Dia was en a route to point have said on this is a puzzle. ship Does in as an engine Honduras room tech- (AR 237), expect the Court the IJ to have cited to nician documentary there is empirical couples gen- about supports evidence how evidence that the account in the just erally behave when the wife been in memo. Dia had his valid possession a raped by beaten soldiers who are look- visa that United States bore his name and ing the husband for political photo reasons? and that had been in Milan. issued
AR possessed “Employ- 225. He also ment Letter” Houcon Cargo Systems B. that of Rotterdam was him at addressed to Brescia, Reversing the proof. Italy. standard We in address AR 218-221. required findings to sustain the IJ’s The letter stated that Dia em- had been adjudicator ployed by company two-year “unless reasonable would for a compelled contrary.” engine conclude to period as an room technician 1252(b)(4)(B). Court, § how- ship U.S.C. instructed that he was to in board a ever, repeatedly turns April this standard its 218. Honduras 2001. AR documents, aspects head and finds that Dia’s testi- When asked about these Dia mony they have been be credi- provided should found to stated that had been himto C. procured unnamed man who had
by the found account but the IJ passport, Totality judg- the circumstances. 44. AR dubious. ing credibility story, of a a witness’s fact entitled to whether finder is consider whether reasonable asking Instead a whole has truth. story ring proof could infer from this adjudicator Suppose that a witness asserts that some- Italy in and had therefore Dia had been thing ordinary happened. bit out of the postulates the Court all hearing, lied at things Since unusual a fact happen, do possible for the evi- explanations sorts of finder credit that if the might assertion Italy. Dia’s pointing dence to residence say witness anything does not else might at the have been airport statement But questionable. suppose that the wit- lack of his of facili- misunderstood because goes ness assert series on to that whole French, language which he ty things happened. At unusual some time; if Dia did at the say at that spoke point, may reasonably— the fact finder — employed Italy, that he airport had been testimony as a conclude witness’s might have an untruth because his he told whole is unbelievable. under “was not taken oath” statement Here, rejects the Court the IJ’s determi- simply parroting what the man who he was nation that Dia’s was not credi- told him the documents had provided because, taking each ble of his contested Maj. Op. Although the say. at 257-58. one, statements one the Court finds it genuine, prove that did not visa Thus, plausible. each fault’s the the Court “necessarily legitimately ob- had been because, finding IJ’s And although tained.” Id. view, plausible it Court’s that about might Dia’s have been photo, visa bore to look men would be sent Dia’s home Id. someone else. Houcon obtained *35 him; flee plausible for it is that Dia would might Id. at 257. If it Cargo not exist. alone and leave his wife and child behind does, might the letter not be authentic. though even his wife had beaten and been Brescia, Italy, might Id. The address in be him; it raped by for looking soldiers not, fictitious, and even if it is the letter procure Dia was to plausible that able into might way posses- have found its Dia’s authorities police stamp though even to that being without mailed address. sion him; it that a looking plausible were for The Court concludes: Id. was identity man Dia not know whose did got Dia testified that he the documents passport Dia a legitimate able to for obtain and, thus, smuggler they from the that visa; it is legitimate United States were fraudulent. The record contains Dia had never plausible though that even contradictory story. to no evidence this in say arriving he would on Italy, been in in country, employed this that he had been Id. Italy picker; plausi- it is as a tomato effect, says that the IJ was Court been though Dia had never ble that even testimony accept Dia’s that he bound in have a States Italy, he would United Italy unless had never been there was in Milan stamped visa that was as issued contrary. If proof to the Employment conclusive and an Letter addressed if was findings Italy. this standard to the him at Even the IJ applied place plausi- routinely by judges juries made bound to view each these facts I not think that she was^—it litigation, findings few could be ble—and do federal bound, when does follow that she was not sustained. these facts if considering together, thing might all of similar recur the hus- find Dia credible. band again left alone and wife was
questioned? III. (cid:127) It was for the IJ to ques- reasonable whole, as a I Viewing the record believe tion Dia’s testimony about 25 men that a finder reasonable fact could find looking went to his house for him. A Dia’s was not believable adjudicator reasonable could be skepti- application and could deny his on that cal many that so men would be sent to basis. look single, low-ranking person. for a (cid:127) In light previously mentioned Similarly, it reasonable for the IJ documentary evidence and Dia’s state- whether, question testified, as Dia ment at the it was airport, reasonable alleged his think pursuers would that a question for the IJ to whether Dia told low-ranking person like Dia help could the truth he when testified at opposition political leader of an hearing that had never he been group escape. And it was reason- Italy. may While this evidence not question able for the IJ to how Dia prove conclusively that Dia had been police was able to stamp obtain in Italy, certainly provided a reason- passport the authorities were able basis for the IJ to infer that he searching for him. While each of had. And if Dia lied about point, standing these statements alone reasonably the IJ could doubt give strong not rise to a inference of of the remainder truthfulness of his mendacity, each can statement testimony. questioned, together and when taken (cid:127) It ques- was reasonable the IJ to they reasonably can contribute to a tion Dia’s truthfulness based on Dia’s finding that Dia was credible. that, statement even though his wife Whether I would have believed Dia if I had raped been and beaten men had given been responsibility to make him, who looking were he and his say. determination I cannot But wife agreed that he should flee alone. viewing all of above, the evidence explained As record the IJ’s belief *36 and applying the narrow standard couple likely about how a would of re- react prescribed statute, under view I just say such circumstances is cannot “background sort of that a knowledge” adjudicator about reasonable could not human that a fact behavior finder is find Dia to be incredible. in
entitled to consider evaluating a credibility. Moreover, witness’s STAPLETON, Judge, dissenting, Circit (that particular question belief a McKEE, AMBRO, with Judges whom and couple, circumstances, under join. BECKER likely would not decide that the hus- An applicant asylum seeks to himself) avoid away by band should run is at removal country to a he where insists he least Since reasonable. Dia’s wife had will be persecution. the victim of allegedly rec- raped been and beaten ognition of consequences one the serious of occasion when she did not tell pursuers was, asylum, Dia’s erroneous denial of Congress, where he INA, asylum a couple given unreasonable to think that seekers the that position right would fear that to present some- evidence to an immigra-
267 (2002),1 I. (“U”), § 1229a judge 8 U.S.C. tion appeal of an to an administrative right judi- The of and scheme administrative Immigra- Board of decision to the adverse asy- cial established in the INA for review (“BIA”), 8 U.S.C. Appeals tion lum Comparable is a familiar one. cases 1229a(c)(4),2 judicial right § and to re- Supreme schemes have been before the of final Appeals a Court a view of occasions, Court on numerous and its deci- and denying asylum order direct- agency sions in those cases have articulated funda- (2002).3 § 8 1252 ing removal. U.S.C. principles mental of administrative law Attorney streamlining General’s govern that review under such schemes. BIA member to single direct a regulations See, e.g., Chenery Corp., SEC v. 332 U.S. whether a deni- the final decision on make 194, 196-97, 1575, L.Ed. 67 S.Ct. 91 1995 decision, 8 asylum al is the “correct” of (1947); U.S.A. Inc. v. Natural Chevron 1003.1(a)(7)® (2002), § then C.F.R. and Council, 837, 842-44, Res. U.S. to review Appeals the Court of instructs Def. (1984); explanation disposi- for his or her 81 L.Ed.2d the IJ’s S.Ct. Ventura, the BIA mem- explanation 12, 17, tion4—an INS U.S. S.Ct. adopt. 8 expressly declines to C.F.R. (2002). ber Nothing L.Ed.2d 272 1003.1(a)(7)(iii).5 severing § thus By legislative history suggests the INA its agency’s from the ex- final decision-maker in asy- intended that review Congress denial, planation Attorney for its Gen- depart lum would from these well- cases seekers, effectively says asylum to eral principles, established statute right appeal have a to “You Court light I applied must be of them. con- asylum may but be denied Appeals, Attorney stream- clude that the General’s you reasons are may be removed for lining regulations inconsistent subject Today, our its review.” applied. INA as so scheme judicial perversion court sanctions this Attorney ways, In a Gen- number require Chevron does not us review. reading eral’s of the is more statute and I would perversion, defer to such straightforward than that of the Court. to do so. decline 1225(b)(1) title) gov- 1229a(b)(4)(B) provides § ant this that: to section 1. 8 U.S.C. section, except proceedings only by chapter Title under this under erned 158 of "In (b) Attorney regulations provided General-the alien in subsection section opportunity to exam- except shall have reasonable not order the court alien, against present the evidence ine taking additional evidence under section behalf, evidence on the alien's own 2347(c) of Title 28.” presented by the cross-examine witnesses Government....” Immigration Office Re- See Executive Immigration Appeals Stream- *37 view: Board of 1229a(c)(4) § states: "If the immi- 2. 8 U.S.C. 18, 56,138 (Oct 1999) Reg. lining, Fed. judge gration that the alien is remova- decides (“The below will the decision rendered removed, and orders the alien to be the ble pur- judicial review agency final decision for right judge alien of the to shall inform the Judge's poses Immigration deci- .... [T]he consequences the appeal that decision and of reviewed.”). sion the decision becomes depart under the order of re- for failure moval, including penal- and criminal civil single "ap- member 5. The order of BIA ties.” proves decision result reached in the be- the low; approval necessarily imply of does not 1252(a)(1) it § states: “Judicial re- 3. 8 U.S.C. (other reasoning of decision....” all the than of a final order of removal view (a)(7)(iii). pursu- § hearing C.F.R. 1003.1 an order of removal without begrudgingly decisions, The Court “assume[s] [that there is no “final order” until contemplates the Act] that an alien will the BIA Accordingly, acts. we now ex- have opportunity the for an administrative pressly hold that the “final order” we appeal.” Maj. Op. at 237-38. It does so review is that of the BIA. because Congress expressly has mandated Kayembe See also v. Ashcroft, 334 F.3d IJ, that an upon entry of an order (3d 231, Cir.2003) (“Our power of re- denying asylum removal, and granting view ... only extends to the decision of “shall inform the right alien of the Therefore, the BIA.... if only the BIA appeal decision.” 8 U.S.C. expressly adopts or defers to a finding of 1229a(c)(4). § Attorney The General has IJ, will we review the decision of the matter, no doubts about and his IJ.”); Ashcroft, Awolesi v. streamlining regulations provide for such (3d (“We Cir.2003) review the decision appeal. regulations Those continue to BIA, IJ.”). of the not that of the that, recognize in accordance with the re- The Attorney recognizes, General also quirements statute, there can be no must, as he asylum that an seeker is enti- agency final order until the BIA has acted judicial tled under the statute to review of asylum or the foregone seeker has agency’s decision, final and the stream- right appeal to the BIA. 8 U.S.C. lining regulations provide. on, so They go 1101(a)(47)(B) (2002).6 § Thus, any however, to deprive the Appeals Court of taken, case an appeal where the final any basis for reviewing the agency’s decision of agency subject judicial decision, final deprive the Court of the review is that Moreover, of the BIA. benefit of agency’s expertise, and to Attorney that, General understands while deprive asylum seeker of de novo re- substantially statute judicial constrains view of the IJ’s fact finding. These as- review of fact,7 findings administrative pects of the streamlining regulations are at contemplates de novo review the BIA. odds with the statute applied as in light of occurs, Even when streamlining single at least two principles well-established member, BIA approving before “the result administrative law.
reached in review,” the decision under must determine that it “was correct.” 8 1003.1(a)(7)(ii). §
C.F.R.
II.
As we succinctly
explained in
Ashcroft,
Abdulai v.
239 foremost, judicial
First and
review nec
(3d Cir.2001):
548-49
essarily requires something
and,
to review
Congress
granted
federal
agency
[the
provides only its result with
power
courts]
to review
“final or-
explanation
out an
underlying
fact
der[s]
removal.” Because an alien finding and analysis, a court is unable to
facing
removal
appeal to
BIA
provide judicial
review. See SEC v. Chen
right,
and because the BIA
ery
has the
Corp.,
194, 196-97,
332 U.S.
67 S.Ct.
power to conduct a
(1947) (“If
de novo review of IJ
269 procedure. In basis with administrative to be tested the ence action is istrative rest, requirement, we pointed that basis that have to deed purports which it upon out, be in clarity Supreme as to from the set with such stems Court’s must be forth Bachowski, understandable.”);8 Dunlop Packing v. [N.L.R.B. v. structions Gissel 1851, 44 560, 572, Co., 575, 1918, 95 S.Ct. 23 421 S.Ct. 395 U.S. 89 U.S. INS, 77 (1975); (1969)], Guentchev v. L.Ed.2d 377 L.Ed.2d 547 fundamental (7th Cir.1996) (statement 1036, (citing F.3d 1038 of administrative law.” Chen rules 1575)).9 196-97, the “norm administrative of reasons is at 67 ery, 332 U.S. S.Ct. law”). explained in Abdulai As we also streamlining regulations the Whenever of the INA: specific the context invoked, reviewing a they deprive re-
[Njothing
specifically
in the INA
terms,
court, by
express
their
basis
explain
decisions.
Board to
its
quires the
knowing
findings
the
fact or
for
either
availability
judicial
review
the
But
the
denial
upon
the rationale
which
BIA’s
(which
in the
provided
is specifically
they
judi-
thus
asylum rests and
make
INA) necessarily contemplates
some-
impossible.
review
C.F.R.
cial
8
Because
thing for us to review....
1003.1(a)(7)(iii)
requires
§
the BIA’s
it
makes
explanation
BIA’s failure of
affirms,
“the
expressly
order
state
Board
rationale,
us to review its
impossible for
opinion, the result
the decision
without
review,
for
vacate
grant
petition
accepts
This means that the BIA
below.”
order,
mat-
and remand the
the Board’s
of the IJ’s
only “the result”
deliberations.
...
ter.
Indeed,
regulations,
addition to fore-
ex-
Abdulai,
giving
the BIA from
“further
closing
555.
we did
F.3d at
While
239
reasoning,” go
or
to state
planation
for this
Chenery
proposition
cite to
not
Abdulai,
judi-
“approve
of the BIA’s order is to
with
to
the effect
holdings
respect
our
in the
be-
...
the result reached
decision
decisions
cial review of administrative
See,
any implication that
and to disavow
Chenery's reasoning.
low”
clearly embrace
The
any further.
Corp.,
approval
extends
N.L.R.B. v. Permanent Label
e.g.,
(3d Cir.1981)
fail to
thus does not
512,
(“Requir- BIA’s order
F.2d
532
IJ,
findings
reasoning
adopt
reasons for
the Board to articulate its
ing
endorsing
find-
disavows
those
rep-
expressly
a
order
not
imposing bargaining
does
analysis.
See 8 C.F.R.
judicial
ings
interfer-
an
resent
unwarranted
grounds
agency.”
solely by the
invoked
Chenery stated that:
8. The Court in
196,
In a recent Court of the court, BIA of the as did the Ventura it has Appeals for the Ninth Circuit overturned permitted itself, agency the by absolve argument order of based on an removal regulation, responsibility the for fulfill- asylum that had been the addressed ing legally BIA’s argument IJ but not the BIA. the mandated role. Giv- The mandate, Congressional turned on in en whether conditions Guatemala the our Court improved had the point that no realistic should allow this abdication of respon- persecution currently threat of existed. sibility. Supreme
The Court held that Court of the Appeals violated had “well-established IV. principles by pro- of administrative law” Attorney General’s desire ceeding giving op- “without the BIA the appeals streamline the process is under- portunity [disputed] to address the matter Moreover, agree standable. I with its own light expertise.” INS v. Ventura, 12, 17, given by Congress Court that he has been 537 U.S. 123 S.Ct. (2002). authority explained simplify expedite L.Ed.2d 272 The Court why Circuit I Appeals’s process agency. perceive the Ninth Court of before the no reason, action “seriously disregarded agency’s for example, why he cannot have a legally mandated role”: BIA single category member decide appeals
Within limits like the one broad the law entrusts the identified Moreover, agency eligi- streamlining regulation. to make the asylum basic sin- bility question. gle clearly appeals decision here such can member decide “judicial can- judgment adopting by adopt- circumstances of the IJ or McKEE, Judge, concurring exceptions. What Circuit specified it with ing dissenting consistent Attorney part part. General not do princi- INA and well-established II join majority opinion I Part deprive the law is to of administrative ples agree grant I must because provide ability reviewing court many upon Petition for Review based by Congress. judicial review mandated Immigration Judge’s with the problems foreclose the specifically, he cannot More majority ruling adverse in some explaining its decision BIA *42 However, explains. respectfully I must way. majority opinion Part I of dissent from the the Contrary suggestion, to the Court’s streamlining regulations. upholding streamlining scheme Attorney General’s view, be my regulations those should analogous the affirmance not at all ably for all of so invalidated the reasons judgments by ap- court of Court District thoughtful in explained Judge Stapleton’s BIA’s order opinion. an The peals without dissent. materially judgment from a different may be appeals of a court order separately I write I am troubled because higher judicial authority. reviewed majority’s that the IJ’s suggestion may appeals an a court of While unsupportable credibility ruling flawed and the intend- helpful, it is essential to if it could somehow have been saved were judicial system. operation of federal ed than upon Dia’s rather based demeanor special no appeals possesses A court ma- testimony. of his the substance lacks Court expertise Supreme rely “the jority notes that IJ did not judgment courts a court’s and both review observations of Dia’s demean- personal her review. The using the same standards of any other observations to which or or INA, hand, an contemplates on the other degree an even greater must accord which entity administrative review Majority n.23. Opinion at 252 deference.” which expertise relevant special, has de review of IJ’s will exercise novo law has It is of course true that findings of fact as well as her conclusions recognized relationship be- traditionally in very important of law. Both factors are The Su- credibility. tween demeanor us, the one and the Con- cases like before op- has even preme Court noted as in- scheme cannot function gressional to observe a witness’s demeanor portunity BIA tell us what tended does not in the Clause Confrontation is embodied reasoning it relied facts it found what v. Amendment. the Sixth See California upon. 1930, Green, 149, 158, 26 90 S.Ct. 399 U.S. (1970) confronta- (stating 489 L.Ed.2d
V.
jury
decide the
“permits the
that is to
tion
demeanor
fate
observe the
defendant’s
review and
grant
petition
I would
for
statement,
making
in
his
of the witness
to the BIA
instructions
remand
jury
his credi-
aiding
assessing
in
thus
explanation
grounds
provide
However,
bility”).1
principle
this
its decision.
223,
Zant,
214,
Reid,
317,
(3d
S.Ct
486 U.S.
v.
Amadeo v.
See also Zilich
Sain,
(1988)
Cir.1994)
(stating that an
L.Ed.2d 249
(citing
372 U.S.
Townsend
(1963),
give
regard to the
appellate
court must
due
S.Ct.
L.Ed.2d 770
opportunity
judge
credibili
signifi
judge's
stating
is a
trial
that "demeanor evidence
witnesses).
credibility");
ty
adjudging
cant factor in
Cf.
proceedings
appar-
evolved in the context of
evidence was cut off on the
[T]he
assumption
ent
a 10-
[evidence of]
where the fact finder and witnesses share
year-old membership in a union was too
culture. Fact
common
finders who are
or too
a ground
old
stale to constitute
unfamiliar with the mannerisms and sub-
so,
persecution. Perhaps
this is
but
tleties of a witness’s cultural tradition have
nothing
there is
record to
sustain
advantage
no
in assessing
based
immigration
judge’s assumption
Moreover,
upon demeanor.
to the extent
regard, except perhaps
general
that the customs of a witness’s native land
perception
political
of life or
conditions
finder’s,
from the fact
fact
differ
finder
in El
may may
Salvador which
not be
may
disadvantage
be at
substantial
be-
grounded in fact.
cause
subliminal
misinterpret
he/she
rule,
general
considering
As a
thing
clues that mean one
the fact find-
persecution
highly
claims of
I think it
culture,
something entirely
er’s
but
differ-
advisable
avoid assumptions regard-
ent
the witness’s.
*43
way
ing
operate.
other societies
Courts have addressed the extent
again
Time and
this Board has consid-
ignorance
which
about an alien’s native
appeals
assumptions
ered
in which
of
shape
land can
conclusions. See Senathi
proven
this nature have been
to be total-
(3d
INS,
210,
rajah v.
157 F.3d
220-21
ly wrong,
applicant
once the
has been
Cir.1998) (finding that
unsupport
the IJ’s
full
given
hearing.
assumptions
Tigers
ed
about
the Tamil
added).
(emphasis
Id.
group
government
and the Sri Lankan
INS,
Cordero-Trejo
482,
In
v.
40 F.3d
appropriate
were not an
basis for her fac
(1st Cir.1994),
490
the IJ based an adverse
However,
tual findings).
courts have not
credibility determination in part upon the
willing
recognize
been as
that unfamil
petitioner’s
signed
fact that
wife had
her
iarity
experience
with a
cultural
witness’s
full
petitioner
name on several letter’s to
may similarly color
intangible aspects
and she had addressed the letters using
Moreover,
of
determinations.
petitioner’s formal name
than using
rather
case law
experi
demonstrates
even
a more familiar reference. The IJ believed
enced IJs who are accustomed to evaluat
suspicious
upon
that was
based
his as-
ing
testimony
of aliens are not immune
sumption
normally
that “one would
expect
allowing
their conclusions to be col
spouse
to use the more familiar form”
ored
such cultural bias.
addressing
when
letters to her husband.
(internal
omitted).
quotation
Id.
marks
INS,
In
v.
Ap-
Chouchkov
the Court of
appeal,
rejected
On
the court
the IJ’s
peals
Ninth
for the
Circuit cautioned: “It
skepticism because “there was
evi-
[no]
pecu-
must be stressed that what sounds
suggest
dence
the record to
that signing
country may
liar
one
be the norm in
spouse residing
a letter to a
in a foreign
(9th
another.” 220
n.
F.3d
country by using one’s full name is con-
Cir.2000).
so,
In doing
the court cited
trary
practice
to the common
of someone
(1st
Perez-Alvarez v.
of
petitioner’s
[the
cultural back-
wife’s]
Cir.1988). There, the
of Appeals
Court
ground.” Id.
incorporated
First Circuit
the com-
dissenting
ments of the
member of the
The cultural bias at the heart of the
BIA into the
opinion.
court’s
his dis-
ruling
Barapind
adverse
of the IJ in
BIA,
96-55541,
sent from the decision of the
Board Rogers, No.
WL
(9th
1997)
proclaimed:
May
(reported
Member Heilman had
at 114
Cir.
thought
sizing
have
her own
summary af-
for the IJ to
unpublished
1193 as
firmance),
physical appearance
an even more dramat-
of an alien
up
furnishes
assessing
dangers
example
age
ic
into the
gave
superior insight
her a
also
cultural divide and
credibility across a
her; still less do we see
the Sikh before
too much
danger
placing
illustrates
Barapind
hunch showed that
was
how her
without elaboration
on demeanor
emphasis
lying.” Id. The court dismissed the IJ’s
There,
rejected an
the IJ
explanation.2
age
alien lied about his
conclusion that the
part upon
testimony based
alien’s
improper-
more than a “hunch”
nothing
demeanor
the alien’s “stoic”
belief that
IJ’s
conjecture.” Id.
ly
upon “personal
based
inconsistent with hav-
testifying was
while
*2,
concluded, “[ajgain,
court
*3. The
gruesome
subjected to the kind of
ing been
the inference
the IJ seems to reflect
support
he testified about
torture
Indeed,
Id. at *2.
her own cultural bias.”
concluded that
claim. The IJ thus
asylum
the alien’s
that he was
given
as he testi-
“‘stoic’ demeanor
the alien’s
subjected
applying
to torture
included
police
the Indian
about torture
fied
“parts
to various
of his
electric shock
at *2.
lying.” Id.
On
sign
that he was
id.,
body,”
surprising
have been
would
that the alien
recognized
the court
appeal,
than he
appeared
had not
be older
he
cultural
reflected his
demeanor
petitioner’s
was.
explained that “stoic
The court
tradition.
expected from
acceptance of misfortune
tangible
primarily exemplify
These cases
constancy
courage,”
persons
However, resting
of bias.
manifestations
*44
of
enjoyed
reputation
“long
had
Sikhs
upon unexplained and
factual conclusions
Id.
‘unsurpassed’ as
soldiers.”
being
even
poses
unarticulated demeanor
an
GRIFFIN,
LEPEL HENRY
(quoting
finding
fact
that can
greater risk of biased
(1892)).
36-37
RANJIT SINGH
process
a
due
of law.3
deny petitioner
that the alien was
also doubted
The IJ
plays a central
example, eye
For
contact
he testified. Based
years
29
old as
wit
credibility
in
of a
evaluating
role
of the alien
observation
upon
personal
her
The central issue
in our own culture.
ness
“thought
the IJ
he
during
testimony,
(2d
Artuz,
55
Cir.
in
v.
281 F.3d
Morales
rejected
quickly
court
looked 40.” Id. The
2002),
consti
the defendant’s
was whether
as a basis
age discrepancy
purported
had been
of confrontation
right
tutional
the alien was not credi-
concluding that
for
key
a
judge allowing
trial
by the
no basis
violated
“We see
ble. The court stated:
decisions, that "im-
immigration court
U.S.
Barapind
unpublished
and is
is an
asylum
generally
precedential
migration judges
value. See 9TH
evaluated
of no
therefore
36-3(a).
political
cite it not as relevant
Cir. R.
I
consideration
claims without
example of the kind of
precedent but as an
[petitioners’] home countries
in the
realities
frequently
may all too
bur-
bias that
cultural
and
imposing their own cultural
while also
a well-
way
the mind of even
row its
into
[petition-
assessing
political assumptions in
finder,
fact
and conscientious
intentioned
Kaelin,
credibility”);
also Walter
see
ers']
undermining
finding process to
the fact
thus
Cross-Cultural
Communication:
Troubled
conclusions
an extent that factual
such
Misunderstandings
Asylum-Hearing,
in the
than the
upon nothing more substantial
rest
230,
(stat-
(1986)
Migration
20 Int’l
Rev
quicksand
cultural bias.
in
miscommunication
ing
cross-cultural
due to the cultur-
asylum hearings occurred
Anker, Determining Asy-
Deborah E.
3. See
notions,
words,
concepts
relativity
al
States,
United
19 N.Y.U.
lum Claims in the
of consciousness
together with the lack
433, 451-52
Change
and Social
Rev. of Law
communication).
in
these differences
(conclud-
(1992)
Study]
Anker
[hereinafter
empirical study
conducting
ing, after
cultures,
in
testify
wearing
deception by people
while
Western
defense witness
jury
eye
very
that the
sunglasses
avoiding
that were so dark
contact
different
eyes.
writing
could not see her
meaning in some other cultures.
See
panel, Judge
thought-
Newman
unanimous
Ruppel, The Need
Joanna
Benefit of
of the role
fully
importance
outlined the
Credibility
Evalua-
Doubt Standard
af-
eye
traditionally
contact has
been
Asylum Applicants,
tion
23 COLUM.
society.4
analysis began
in this
forded
1, 12-13,
n.44
HUM. RTS. L. REV.
by explaining
sunglasses
created
(1992)
Kurzban,
(quoting panelist Ira J.
of confrontation
right
no obstacle to the
Esquire,
saying
assumptions
made
seeks
insofar as
Confrontation Clause
relationship
eye
between
contact
about the
cross-examination,
con-
guarantee
but
product
can
“the
of cul-
be
ceivably infringed
right
on the
of confron-
credibility” in
ture and not
Annual Judicial
tation to the extent
the Confrontation Conferences, Second Judicial Circuit of the
opportunity
for the
Clause “assures
States,
349,
(Sept.
115 F.R.D.
United
defendant,
jurors
especially
to see the wit-
1986)).
example, in
For
certain Asian
eyes
ness’s
order to consider her de-
cultures, avoiding eye
sign
contact is a
assessing
meanor as an aid to
her credibili-
eye contact
respect, and direct
is consid-
ty....”
Id. at 60. The court cited several
Navajo
in traditional
inappropriate
ered
“
noting
‘eye
[is]
cases
contact’
society.
Tremblay,
Paul R.
Interview-
See
among
aiding
factors
the fact-finder
[the]
ing
Counseling
Across Cultures:
credibility.”
in assessing a witness’s
Id.
Biases,
Heuristics and
9 CLINICAL L.
Waters,
(quoting
Churchill
(2002).
A
REV.
witness from a
(7th Cir.1992)).
Similarly,
disrespectful
to “look
culture where
Iowa,
1012, 1019,
Coy v.
487 U.S.
108 S.Ct.
eye”
naturally
someone in the
would
(1988),
2798,
For unfair and example, example, notes that the unfounded. For rejected testimony concluded giving IJ Dia’s about a that we were forced affirm police ruling bribe to Guinean officer be- the IJ’s Abdulrahman v. Ash $150 (3d croft, Cir.2003), cause she believed amount of the F.3d 587 even though very given panel bribe was too small level of risk troubled There, police allegedly findings. officer undertook on IJ’s IJ based her rejection my colleagues point Dia’s behalf. As out of Abdulrahman’s however, amount of the such bribe Dia said “inconsistencies” as assertion that gave quarter average upon he he relied traditional herbal about medicine annual per capita country. by family income Dia’s administered members rather Maj. Op. Accordingly, visiting hospital following alleged See at 252-53. than $150 government was a at very substantial sum indeed.7 torture the hands of offi Moreover, the rationale cials. 330 IJ’s assumes 594. Given our stan-
logued
significance
$150
the
in the Manual on
Effective Investi-
Given the
of
in the Guine-
context,
gation
that
and Documentation
Torture and
I need not mention
a search
Cruel,
bribery
Degrading
country
Other
Inhuman or
convictions in this
Treat-
would
ment
submitted
United
no doubt
instances where
in
or Punishment
to the
disclose
officials
High
the
Nations Office of the
Commissioner for
United States had risked career and liber-
ty
$150
Rights. Id. at 477 n. 16.
for
or less.
Human
review,
that,
were constrained to
thor of
opinion]
dard
we
the
is correct
rejected
affirm and we
the alien’s claim of
extremely
view of our
narrow standard
so,
However,
doing
review,
bias.
we noted:
we are constrained to view
them
join
Judge
as so
While I
places
doing.
must
that there were
be added
beyond
opinion,
Shadur’s
I
go
separately
where the IJ did
the
write
bounds
highlight
of propriety to make some additional
these statements and
ex-
problematic
press my
generalized assertions
extreme discomfiture with
them,
of her
as discussed
they
own. While
below
as
on the
border
cavalier.
understandably
Indeed,
view,
we are
troubled
some
my
they
come extreme-
comments,
ly
those
in the context of the
constituting
close to
reversible error.
record as whole there is insufficient
Id. at 600.
Judge
concurring
Becker’s
evidence to
that
conclude
overall opinion
joined by
the entire panel.
in violation of
proceedings were biased
However,
given
scope
even
our narrow
right
process.
Abdulrahman’s
to due
review,
require
specific
still
concurring
F.3d at 595. In his
opin-
given
reasons
for
credibility
be
adverse
ion, Judge Becker
on some of
commented
determinations so
we can
review
more troubling aspects
of the IJ’s anal-
Balasubramanrim,
BIA’s
In
decision.
ysis.
explained:
He
where
credibility
the BIA made its own
Immigration
The
Judge
ruling
upon
based
record
before
(IJ) is laden with statements such as the
IJ, we stated:
Board
give
“[t]he
should
following, which I
find
troubling
specific
its
reasons for
determination that
viability
terms of their
as
a witness is not credible. We must evalu-
judgments:
ate
those reasons
determine whether
(1) “The respondent
testified that he
they
grounds upon
are valid
which to base
herbs, by
was treated
grand-
a finding
applicant
is not credible.
mother,
mother
told the
The
bear a legitimate
reasons must
nexus
way
Court these
things
are
(internal
to the finding.”
much reliance one It also
tation of a demeanor. witness’s why content
demonstrates we must allowing credibility determinations determining reliability yet my while upon I have elaborated concerns testimonial Artuz, accepting arguendo proposition de- factually.” be demonstrated Morales testimony is (2d meanor of substantial assistance Cir.2002) (discussing 62 n. 3 evaluating willing ac- credibility. I am evidence, validity debate over the of this my cept proposition purposes of dis- empirical citing sub- studies that raise given long legal that I cussion tradition validity age old stantial doubt about the not, how- have noted above. That tradition is relationship presumption about between ever, skeptics. Empirical its studies without veracity). demeanor ''[a]lthough some to have lead conclude that regarded by attorneys, highly judges and ... value as a means of of demeanor evidence *49 America,
UNITED STATES of
Plaintiff-Appellee, HIGGS,
Dustin Defendant- John
Appellant.
No. 01-3. Appeals,
United States Court of
Fourth Circuit. 4, 2003.
Argued: June
Decided: Dec. Judge Duniway Appeals may of the Court of timid witness be or be made can aptly explained problem the Ninth Circuit astute such that cross-examiner be he as follows: thought by judge jury will be or the special deference is notion owed may be He a liar. be unable face the fact, to the determination of a trier of cross-examiner, jury, judge; or he examiner, judge, hearing whether trial offi- chair; may squirm he slouch (administrative judge), jury, cer law or be- nervous; may obviously be his tense and cause the trier sees the witnesses and hears indirect, questions may answers to be ram- [reviewing testify, agency them while the inaudible; may bling, and he hesitate be- look[s] court at cold records or] answering; may alternately fore he turn deeply imbedded in the law. There must be short, pale may, and blush. he to the appellate that state thousands of decisions fact, liar, entirely fact trier of be a but variety ways. and restate it in an infinite however, Again, truthful. another fact find- convinced, experience I am both from er, witness, hearing seeing and same lawyer experience trial as an his to the attribute demeanor natural appellate judge, thought that much that is very timidity average well educat- and said about the trier of fact as a lie non-public person ed and sort of when myth Every detector is or folklore. trial dragged against court will and forced knows, lawyer judges and most trial will cross-examiner, testify face a hostile admit, is not unusual for an accom- telling that the witness is conclude plished to fool a [fact finder] liar because truth. convincing. his demeanor is so NLRB, Village, Penasquitos Inc. v. Conversely, many lawyers, trial and some (9th 1977) (Duniway, Cir. J. judges, will 1084-85 trial admit that the demeanor of unsophisticated perfectly concurring). honest but McKee's notes assessing are avail- methods of reliability credibility determinations problems, fraught with but able to IJ's challenged based on demeanor been such essential that IJ's make nevertheless questioning special imperfect using admittedly that there are reasons for assessments that are hand. technique when the witness testifies tools compared might she what Dia’s wife ble person scribed: because reasonable them (urging did that her husband flee have found believable. allegedly her) thought without what the IJ The evaluation of Court’s Dia’s testimo- do, position likely in that woman would himself ny about his decision to flee compared IJ (leaving and the what Dia did again de- Rejecting instructive. the IJ’s alone) thought with what she a man that it was that a “unlikely” termination likely to do. situation Because IJ position couple of Dia and his wife spouses position concluded agree would the husband should es- likely Dia and his wife would not behave alone, cape the Court can states: ‘We way described, that Dia IJ found it any think of number of Dia’s why reasons unlikely story that Dia’s was true. urged have him might wife with- leave her,” out such as a belief that “could Dia Although process the mental which quickly move more and elude detection engaged entirely the IJ was routine and easily more he was traveling alone.” permissible, rejects ap- the Court the IJ’s Maj. words, n. Op. at & 23. In other proach. Court criticizes the IJ for inverts the statutory Court test and failing explain (Maj. Op. her reasoning accept refuses to the IJ’s finding because 255), but basis for her conclusion could imagine grounds can a con- Court “background not be clearer: the IJ’s