Filed: Aug. 05, 2004
Latest Update: Apr. 11, 2017
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 8-5-2004 Berishaj v. Atty Gen USA Precedential or Non-Precedential: Precedential Docket No. 03-1338 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Berishaj v. Atty Gen USA" (2004). 2004 Decisions. Paper 378. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/378 This decision is brought to you for free and open access by the Opinions of
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 8-5-2004 Berishaj v. Atty Gen USA Precedential or Non-Precedential: Precedential Docket No. 03-1338 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Berishaj v. Atty Gen USA" (2004). 2004 Decisions. Paper 378. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/378 This decision is brought to you for free and open access by the Opinions of t..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
8-5-2004
Berishaj v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 03-1338
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Berishaj v. Atty Gen USA" (2004). 2004 Decisions. Paper 378.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/378
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PRECEDENTIAL BRENDA M. O’MALLEY (ARGUED)
LYLE D. JENTZER
LYNNE R. HARRIS
IN THE UNITED STATES COURT OF United States Department of Justice
APPEALS Office of Immigration Litigation
FOR THE THIRD CIRCUIT P.O. Box 878
_______________________________ Ben Franklin Station
Washington, DC 20044
NO. 03-1338
___________ Attorneys for Respondent
LEK BERISHAJ, ________________________
Petitioner
OPINION OF THE COURT
v. ________________________
JOHN ASHCROFT, ATTORNEY
BECKER, Circuit Judge.
GENERAL
OF THE UNITED STATES Lek Berishaj, an ethnic Albanian from
_______________________________ Montenegro, petitions for review of a
decision of the Board of Immigration
On Petition for Review of an Order of Appeals (BIA), which affirmed without
the opinion the decision of an immigration
Board of Immigration Appeals judge (IJ) denying him asylum and relief
(Board No. A74-881-632) under the Convention Against Torture and
_______________________________ Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT). Under
Argued June 25, 2004 our caselaw, see Dia v. Ashcroft, 353 F.3d
228 (3d Cir. 2003) (en banc), it is the IJ’s
Before: AMBRO, BECKER and decision that we review, no mean task here
GREENBERG, Circuit Judges because the IJ’s opinion is cursory, thinly
reasoned, and discusses the case without
(Filed: August 5, 2004 ) any reference to the governing legal
standards. Nonetheless, we understand the
VISUVANATHAN IJ to have concluded that Berishaj’s
RUDRAKUMARAN (ARGUED) testimony regarding past persecution was
875 Avenue of the Americas not credible; that, even taking Berishaj’s
New York, NY 10001 testimony as true, country conditions in the
Federal Republic of Yugoslavia (which
Attorney for Petitioner embraced Montenegro at the time of the
IJ’s decision) had changed such that
Berishaj could no longer have a well-
founded fear of future persecution; and records are grossly out-of-date, requiring
that Berishaj’s CAT claim failed because us to engage in the rather artificial exercise
there was no objective evidence that a of ruling on situations that existed several
return to Montenegro would expose him to years in the past, but do not exist today.
torture. Here, we work from an administrative
record in which the most recent country
Reviewing the IJ’s decision under the
conditions report is over four years out-of-
“substantial evidence” standard, see id. at
date. While SEC v. Chenery Corp., 318
247-50, we conclude that the IJ’s rejection
U.S. 80 (1943), and the constraints of
of Berishaj’s asylum claim cannot stand.
process-based review of administrative
First, the IJ’s adverse credibility
decision making prevent us from
determination has no basis in the record.
supplementing a grossly out-of-date
Second, the IJ misapplied the law in
administrative record, they do not
concluding that changed conditions in
command blindness to the emerging
Montenegro have obviated any persecution
pattern of stale records. Considering the
claim that Berishaj might once have had.
rapid, frequent political changes in
In such a posture, the burden of showing
countries from which asylum and CAT
changed country conditions is on the
applicants usually come, and the
government, see 8 C.F.R. 208.13(b)(1)(ii),
potentially dire consequences of sending
and we hold that the government must
such an applicant back to his country of
rebut the alien’s well founded fear of
origin to face possible persecution or
future persecution with specific evidence,
torture on the basis of such a stale report,
which it did not produce. We will
we call on Congress, the Department of
therefore grant the petition for review of
Justice, the Department of Homeland
the decision insofar as it rejected
Security, and the BIA to improve the
Berishaj’s asylum claim, and his related
structure and operation of the system, so
claim for withholding of removal. We
that all may have the confidence that the
leave it to the Agency to make a proper
ultimate disposition of a removal case
determination in the first instance of the
bears a meaningful connection to the
merits of those claims. With respect to
merits of the petitioner’s claim(s) in light
Berishaj’s CAT claim, the IJ’s decision
of contemporary world affairs.
passes muster (though barely), and we will
deny the petition for review of the IJ’s
CAT decision.
I. The Administrative Record and the
As we will explain in greater detail, we IJ’s Decision
think this case to be a particularly apt
As will become clear, the IJ’s
example of a disturbing trend we often
credibility determination rested on his
encounter in petitions for review of the
rejection of a fairly narrow slice of
BIA. In many cases in which country
Berishaj’s testimony. But we will discuss
conditions are at issue, the administrative
2
Berishaj’s testimony in full, because his A. Berishaj’s Testimony and
claims depend on aspects of it beyond the Corroborating Affidavit
specific testimony on which the IJ based
Berishaj is an ethnic Albanian who
his adverse credibility determination.
spent his youth in Montenegro, at the time
CAT claims and questions of changed
part of Yugoslavia.2 In the summer of
country conditions are, for the most part,
1991, he went to Kosovo, a neighboring
evaluated with reference to documentary
province of Yugoslavia, to attend a
evidence of contemporary country
university that conducted classes in his
conditions; questions of corroboration are
native Albanian tongue. (At that time, no
evaluated with reference to documentary
university in Montenegro conducted
evidence of past conditions. We will
classes in Albanian.) Serb forces had
therefore address the documentary
taken control in Kosovo in 1990, and had
materials in the record with a focus on
officially closed the university, but it
both past and contemporary events. To set
the context for Berishaj’s testimony, we
set forth in the margin a capsule
chronology of events in the Balkans from proclaimed their independence on March
1991 to 2001.1 3, 1992, and Serb forces seized seventy
percent of the country’s territory. War
between Serbia and Bosnia continued
until the Dayton Peace Accord on
1
The following chronology—which is November 21, 1995.
not taken from the administrative In 1998, fighting erupted in Kosovo,
record—is excerpted from the United a province of Serbia, between Serbians
Nations High Commissioner for and ethnic Albanians, displacing
Refugees document “A Brief History of hundreds of thousands of people. Peace
the Balkans,” which is available at the talks failed, and in March 1999 NATO
High Commissioner’s web site, air strikes began. In June 1999, NATO
http://www.unhcr.ch. and Russian forces entered Kosovo after
Yugoslavia was created following Yugoslavia accepted a peace plan. On
World War I, and after World War II October 6, 2000, Milosevic conceded
became a socialist federal republic defeat in a presidential election, and was
comprising Bosnia and Herzegovina, placed under house arrest. He was
Croatia, Slovenia, Serbia, Macedonia, handed over to the International Tribunal
and M ontenegro. Slobodan M ilosevic in the Hague on June 28, 2001.
was elected President of Serbia in 1989.
2
On June 25, 1991, Croatia and Slovenia The discussion in this section is taken
proclaimed their independence from from Berishaj’s testimony, which for
Yugoslavia, and Serb forces immediately ease of exposition we present as true.
overran thirty percent of Croatian We address the IJ’s adverse credibility
territory. Bosnia and Herzegovina determination in detail infra Part III.A.1.
3
continued to function underground, with cleaning the tank gun and guarding the
classes held in private homes in Pristina, a tank. He was beaten at the direction of
major city in Kosovo. Berishaj’s uncle, Serbian officers for singing songs in
Palok, with whom Berishaj lived at the Albanian, and he stopped speaking
time, was one of the leading organizers of Albanian publicly, relying on the Serbian
the illegal university, and he recruited he learned while in the army. After
Berishaj to find private homes in which to completing eleven months of military
hold classes. Because of his activities, service, Berishaj was discharged. He
Palok was arrested in 1991, and again in returned to Montenegro, then to Kosovo
1994, when he was detained and beaten for briefly to take university examinations,
several days. Berishaj was arrested in and then back to his parents’ home in
Pristina in the spring of 1992 for his Montenegro.
assistance to the illegal university; he was
In December 1993, four
beaten with a rifle butt and detained
p o l i c emen — appa rently milita ry
overnight. Not trusting the Serbian
police—came to his parents’ house at
doctors at the hospital, Berishaj was
midnight and took him to fight in Bosnia.
treated by an Albanian doctor practicing
He served again as a gunman, and was
illegally, and returned to Montenegro a
ordered to destroy buildings, houses, and
few weeks later.
shoot at the army and at Muslim civilians
Shortly after returning to Montenegro, in Bosnia. Berishaj explained that he had
Berishaj was inducted into the army; he no choice but to shoot civilians: “I would
was sent to serve in Serbia, where he spent either, you know, shoot or [the Serbians]
eleven months. He w as easily would kill me.” Ethnic Albanians in the
recognizable as an ethnic Albanian, among army were not trusted to shoot without
a predominantly Serbian army—“Berishaj” being under Serbian control. For example,
is a well-known Albanian name; indeed, Berishaj explained, “When we were in the
one Sali Berishaj was the former president tank, you know, using the gun, we would
of Albania. In the army, Berishaj served have somebody behind us [a Serbian] with
as a tank gunman following a three-month an automatic gun. . . . Their function was
training period in which he learned to that if somebody does not obey the order
operate the tank gun from instructions in to shoot with a gun, they would kill him.”
Serbian. In the tank crew of three or four, Berishaj spent two months in the army this
Berishaj was the lowest in rank, taking time, and escaped during the night in
orders from Serbs in charge of the tank. February 1994. He returned to his parents’
Berishaj did not, in these eleven months, home in Montenegro.
go to war in Bosnia. Berishaj attributed
Fearing that he would be arrested and
this to the Serbian officers not trusting
returned to the army, Berishaj crossed
Albanians enough to send them to war.
illegally from Montenegro into Albania,
Berishaj’s duties mostly consisted of
where he spent the next fourteen months in
4
hiding at his cousin’s home. He sought, nearly four years before. His father
but was unable to obtain, legal status in explained, in Berishaj’s words “that once
Albania; as a result, the Albanian I left, the [Montenegrin] police came three
authorities learned of him. His cousin, times and checked the house inside out
fearing the Albanian police, convinced looking for me after I had escaped. At this
Berishaj to return to Montenegro in April time, they asked him ‘Where is he? Where
1995. Upon returning to his parents’ home can we find him?’ And his response was
in Montenegro, Berishaj learned that he he didn’t know. . . . After I left, my father
was wanted by the police, and he went to was telling me that many incidents they
reside with his sister, who lived in another came and checked the house inside out
village several miles from his parents’ three times, and at one point were also
home. The five months with his sister guarding the house overnight to see if I
were spent mostly indoors, as were the would come home.” The police stopped
following months, which he spent with an searching for Berishaj when his father told
uncle in yet another village. them that Berishaj had left permanently.
Berishaj also learned from his father that
Berishaj ultimately was located by the
his brother was serving a five-year
Montenegrin police in September 1996,
sentence for helping the Kosovar
and detained for two days. They asked
resistance during the war. Berishaj’s
him why he deserted from the army, and
sister, a naturalized American citizen,
why he did not finish his studies at the
confirmed in an affidavit made in late
official university (i.e., the Serbian-run
1997 that she had received similar
university); it was clear that the police
accounts from their father, brother, and
knew he had participated in the illegal
sister regarding police activity at their
university. Berishaj was released from
parents’ home.
custody apparently when an uncle
fabricated a story about Berishaj needing B. Documentary Evidence in the
to visit an ill family member and posted Administrative Record
bail for him. Berishaj returned illegally to
1. Contemporary Country Conditions
Albania, where he resided until February
1997, when he was smuggled to Belgrade, Much of the record addresses
and from there to France, then Brazil, then contempo rary treatment of ethnic
the United States. Albanians in Kosovo or elsewhere in
Serbia; as this is not especially relevant to
Since being in the United States,
the situation in Montenegro, we will
Berishaj has had limited contact with
concentrate only on documentary evidence
family members in Montenegro, fearing
addressing Montenegro. We begin with
that his family would be coerced by the
the State Department’s 1999 Country
police into revealing his whereabouts. In
Reports on Human Rights Practices:
January 2001, Berishaj spoke to his father
Serbia-Montenegro, issued in February
for the first time since leaving Montenegro
5
2000 (the “1999 Country Report”); this is Report represents that Montenegro was
the latest country report available in the making progress toward democracy,
administrative record. While on the one holding free and fair elections, and
hand the BIA may not “‘hide behind the that1999 saw even further escape from the
State Department’s letterhead’” and place federal control of Milosevic’s regime. The
full and uncritical reliance on a country 1999 Country Report further states that
report, Ezeagwuna v. Ashcroft, 325 F.3d while the Montenegrin government
396 (3d Cir. 2003) (quoting Li Wu Lin v. generally respected its citizens’ human
INS, 238 F.3d 239, 246 (3d Cir. 2001)), rights, there were reports of extrajudicial
neither is it permissible for the IJ and BIA killings by federal troops, forcible
not to address the relevant country report c o n s c r i p t i o n , a n d v i o l en c e a n d
in some detail. The first line of the 1999 discrim ination aga inst minor i tie s.
C o u n t r y R e p o r t r e ad s : “ S e rb i a - Academic freedom is said to have been
Montenegro is dominated by Slobodan respected. In early 1999, the government
Milosevic,” though it goes on to note that began a program of devolving authority on
Milosevic’s primary influence is over local government officials in ethnic
Serbia proper (and even there, not in Albanian communities. The Yugoslav
Kosovo) and less over Montenegro. Parliament passed an amnesty for draft
Nonetheless, given Milosevic’s control evaders and deserters in late 1995, and the
over the Serbian army and federal police, Montenegrin Parliament passed a similar
the 1999 Country Report establishes that a law in late 1999. According to documents
prime force in the persecution (or worse) in the record from Amnesty International,
of ethnic Albanians was still in power at however, there is evidence that at least the
the time the administrative record was latter law was not fully observed, as
compiled.3 federal Yugoslav authorities and military
police controlled the treatment of evaders
On the other hand, the 1999 Country
and deserters.
The 1999 Country Report generally
3
We note that the final hearing before sounds of relative stability and democratic
the IJ in this case was conducted in progress, but other parts of the record
January 2001, by which point Milosevic suggest that events were very fluid in
was no longer in power in Serbia. 1999. For example, a series of news
Although this is not documented in the articles from the New York Times and
administrative record, at the January reports from human rights organizations
2001 hearing in this case, the IJ did refer sugg ests that paramilitary groups
to “Mr. Milosevic [being] taken out of associated with ethnic cleansing of ethnic
power.” No documentary evidence in the Albanians in Kosovo had moved into
administrative record discusses the effect Montenegro, perhaps at the behest of the
of Milosevic’s fall on conditions in Montenegrin police.
Montenegro.
6
2. Corroborating M aterials this is again consistent with Berishaj’s
account.
We turn now to materials in the record
that could corroborate Berishaj’s accounts C. The IJ’s Decision
from the early 1990s—specifically his time
The IJ’s decision (which, save for
at the illegal university in Kosovo and his
irrelevant introductory and concluding
military service from 1992 to 1994. Two
remarks, is recounted in full in the
pieces are worthy of note. First, Berishaj’s
paragraphs that follow) begins with his
story about the operation of the illegal
adverse credibility determination:
university in Kosovo, and police hostility
to it, is perfectly corroborated by an The case at bar is afflicted by
Amnesty International Report from 1994, testimony that is incredible in
which is in the administrative record. This nature. The Applicant’s statements
report describes the creation in 1990 and as to how he was recruited and
1991 by ethnic Albanians of “a parallel placed in a position of combat by
educational system using [pre-Serbian] the Serbs while at the same time
curricula,” with “lessons . . . held in adducing to an attitude of total
private homes.” The report also describes disdain and bias toward the
several specific episodes of police Applicant is just incredulous to the
violence against ethnic Albanians on Court. This fact is dramatized and
account of this parallel educational system. magnified by the Respondent’s
testimony that although he was
Second, and also in the administrative
despised by the Serbs in the army
record before the IJ, a 1992 article from
he was placed in command of a
the Bronx-published English-language
tank. The testimony further
Albanian-American newspaper Illyria
developed how the Applicant
profiles a young ethnic Albanian, Adem
learned to operate the tank by
Krasniqi, whose experience as a forced
reading the instructions in it and
inductee into the Serbian army closely
how, albeit they were written in a
parallels Berishaj’s. Krasniqi was one of
language he did not understand, he
many Albanian “tankers” (i.e., tank
was able to familiarize with the
operators or gunmen). In an attack on
operation of the tank in just three
Vukovar, Croatia, he was forced to move
months. As fantastic and ludicrous
forward in the first wave; the story quotes
as that statement may appear, the
Krasniqi as saying, “Behind us were the
Court was dazzled and astounded
Serbian irregulars uniformed as soldiers.
by the declaration that although he
Anyone trying to desert would be shot.
was in control of the tank he had a
We had two choices. Keep firing or get
Serbian officer behind his back
shot from people behind you.” Krasniqi
pointing a gun at him at all times!
also describes indiscriminate shelling, and
A better script could not have been
being forced to fire at innocent civilians;
7
thought about by kings of comedy a n d m a k e s h i s r et u r n to
like Peter Sellers or Mel Brooks. Mon tenegro reaso nable .
Montenegro has granted an
This ridiculous testimony is not
amnesty to deserters and draft
supported by one scintilla of
dodgers. Nothing in Respondent’s
evidence and in addition to be
arguments convinces this Court that
completely absurd it borders in an
his return to Montenegro would
offensive and arrogant attitude
place him in any type of danger at
toward the Court. The Applicant’s
the present time. In concluding as
demeanor, throughout the sessions
I do I have determined that the
of testimony, was characterized by
Applicant’s possibility of any
an arrogant disposition in thinking
f u t u r e p e r s e c u ti o n is n i l .
that he deserves what he is asking
Respondent’s attorney’s arguments
for.
that the new administration of
The IJ next turned to a brief discussion e l e c t e d presid e n t V o j i s l a w
of the then-curren t conditions in Kostunica is a mirror image of his
Montenegro: predecessor is not persuasive nor
established.
The amount of time this case
has been pending has made the The final substantive portion of the IJ’s
Respondent’s claim even weaker. decision reiterates his adverse credibility
Historically, Montenegro was determination:
considered a satellite or puppet
The Court has stated its opinion
nation of strongman Slobodan
earlier as to how skeptical the
Milosovic. Under Milosovic’s
Court is about the Applicant’s
regime the Respondent’s position
claim of p ast p erse c ution .
of opposition to service in the
Testimony that has been plagued by
Serbian army may have had some
fantastic anecdotes and
validity. It was not until very
uncorroborated information is very
recently that the Government of
difficult to accept even as plausible.
Montenegro has taken an
The Applicant’s case is precisely
independent position with regard to
affected by these characteristics
the treatment of ethnic Albanians in
and therefore makes it impossible
the region. Once the apparent
for the Court to accord it any
defeat of the Milosovic
credence.
administration, the Government of
Montenegro has shown signs of The BIA affirmed this decision without
self-determination. This change of opinion.
events, contrary to the Applicant’s
position benefits the Respondent
8
II. Standard of Review determination based upon the
administrative record. If a
Because the BIA affirmed the decision
reasonable fact finder could make a
of the IJ without opinion, see 8 C.F.R. §
p a r t i c u l ar f i n d i n g o n t h e
3.1(e)(4), the decision of the IJ is the final
administrative record, then the
agency determination, which we are called
finding is supported by substantial
upon to review. See Dia, 353 F.3d 228.
evidence. Conversely, if no
We have jurisdiction under 8 U.S.C. §
reasonable fact finder could make
1252 over this timely petition for review of
that finding on the administrative
a final determination of the BIA.
record, the finding is not supported
We review the Agency’s findings of by substantial evidence.
fact—such as the IJ’s credibility
353 F.3d at 249.
determinations, his findings on the CAT
claim, and his findings regarding changed
country conditions— under 8 U.S.C. §
III. Berishaj’s Application for Asylum
1252(b)(4)(B), which provides that
“administrative findings of fact are A. The Asylum Claim
conclusive un les s any reasonable
1. The Adverse Credibility
adjudicator would be compelled to
Determination
conclude to the contrary.” As we
explained in Dia, we have “read this Berishaj applied for asylum and
standard to require that the agency support withholding of removal based on past
its findings with substantial evidence, as persecution and a well-founded fear of
articulated by the Supreme Court in INS v. future persecution if he is removed to
Elias-Zacarias, 502 U.S. 478, 481-84 Montenegro. In Gao v. Ashcroft, 299 F.3d
[(1992)].” 353 F.3d at 247; see also 266 (3d Cir. 2002), we laid out the
Sevoian v. Ashcroft,
290 F.3d 166, 171 (3d statutory framework for asylum claims and
Cir. 2002) (“[The Illegal Immigration the relevance of adverse credibility
Reform and Immigrant Responsibility Act] determinations to the asylum inquiry:
codifies the language the Supreme Court
A grant of asylum under §
used in Elias-Zacarias to describe the
1158(b)(1) of the Immigration and
su b st a n ti al evid ence standard in
Nationality Act (INA) allows an
immigration cases.”). We concluded in
otherwise removable alien to stay
Dia that
in the United States. The Attorney
the question whether an agency General “may” grant asylum to an
determination is supported by alien who demonstrates that he/she
substantial evidence is the same as is a refugee: a person unable or
the question whether a reasonable unwilling to return to the country of
fact finder could make such a that person’s nationality or habitual
9
res i d e n c e b e c a u s e of past meet this burden, if “credible.” 8
persecution or because of a C.F.R. § 208.13(a), Chand v. INS,
well-founded fear of future 222 F.3d 1066, 1077 (9th Cir.
persecution on account of his race, 2000). In some cases the INS may
religion, nationality, membership in require documentary evidence to
a particular social group, or support a claim, even from
political opinion. See INA § otherwise credible applicants, to
208(b)(1), 8 U.S.C. § 1158(b)(1) meet their burden of proof.
( r e q u iring a syl um applicant Abdulai [v. Ashcroft], 239 F.3d
conform to definition of refugee); [542,] 554 [(3d Cir. 2001)].
[§] 101(a)(42)(A), 8 U.S.C. §
. . . . [A]dverse credibility
1 1 0 1 ( a ) (4 2 ) (A ) ( prov idin g
determinations are reviewed for
definition of refugee). In order to
substantial evidence.
establish eligibility for asylum on
Balasubramanrim v. INS, 143 F.3d
the basis of past persecution, an
157, 161 (3d Cir. 1998). . . .
applicant must show: “(1) an
Adverse credibility determinations
incident, or incidents, that rise to
based on speculation or conjecture,
the level of persecution; (2) that is
rather than on evidence in the
‘on account of’ one of the
record, are reversible. Salaam v.
statutorily-protected grounds; and
INS, 229 F.3d 1234, 1238 (9th Cir.
(3) is committed by the government
2000). G e n e r a l l y, m i n or
or forces the government is either
i n c o n s i s te n c i e s a n d m i n o r
‘unable or unwilling’ to control.”
admissions that “reveal nothing
Navas v. INS, 217 F.3d 646, 655
about an asylum applicant’s fear for
(9th Cir. 2000).
his safety are not an adequate basis
An applicant can demonstrate for an adverse credibility finding.”
that she has a well-founded fear of Vilorio-Lopez v. INS, 852 F.2d
future persecution by showing that 1137, 1142 (9th Cir. 1988). The
she has a genuine fear, and that a discrepancies must involve the
reaso nable person in her “heart of the asylum claim.”
circumstances would fear Ceballos-Castillo v. INS, 904 F.2d
persecution if returned to her native 519, 520 (9th Cir. 1990).
country. Elnager v. INS, 930 F.2d
Gao, 299 F.3d at 271-72. Furthermore, an
784, 786 (9th Cir. 1991). Aliens
alien who offers credible testimony
have the burden of supporting their
regarding past persecution is presumed to
asylum claims through credible
have a well-founded fear of future
testimony. Abdille v. Ashcroft, 242
persecution. See Abdulrahman v.
F.3d 477, 482 (3d Cir. 2001).
Ashcroft, 330 F.3d 587, 591-92 (3d Cir.
Testimony, by itself, is sufficient to
2003) (citing 8 C.F.R. § 208.13 (“An
10
applicant who has been found to have service as “just incredulous [sic] to the
established such past persecution shall also Court,” as “fantastic and ludicrous,” and
be presumed to have a well-founded fear “astound[ing],” worthy of “kings of
of persecution on the basis of the original comedy like Peter Sellers or Mel Brooks.”
claim.”)). The IJ’s comments are not only
intemperate but singularly unhelpful. At
Here, if the IJ’s adverse credibility
best they amount to a finding that
determination is supported by substantial
Berishaj’s testimony was implausible or
evidence, Berishaj’s asylum claim would
inherently improbable when, as we will
arguably fail because the IJ refused to
demonstrate, the testimony appears
credit significant testimony at the core of
eminently reasonable. At all events, the
Berishaj’s story of past persecution— his
IJ’s comments are not tethered to the
being subjected to persecution by Serbs on
record, owing what little support they have
account of his status as an ethnic Albanian.
to hyperbole and appeals to popular
We set aside for the time being that the IJ
culture—two utterly inappropriate bases
failed altogether to address Berishaj’s
for an asylum decision.
testimony about how he was treated
o u t s id e t h e m i l it a r y. That The BIA has of course held, and we
testimony—from his civilian have agreed, that an adverse credibility
life—arguab ly could indepen dently determination may properly be based on
support his asylum claim. In light of our implausibility or inherent improbability.
conclusion that the IJ’s adverse credibility See In re S-M-J-, 21 I. & N. Dec. 722,
determination is not supported by 729-30 (BIA 1997) (holding that an
substantial evidence, we need not address adverse credibility determination may be
whether the IJ’s adverse credibility “appropriately based on inconsistent
determination with respect to Berishaj’s statements, contradictory evidence, and
account of his military service could inherently improbable testimony . . . in
properly be used to reject his accounts of view of the background evidence on
arguable persecution as a civilian. country conditions”); Dia, 353 F.3d at 249
(“Where an IJ bases an adverse credibility
As noted, we conclude that the IJ’s
determination in part on ‘implausibility[,]’
adverse credibility determination is not
. . . such a conclusion will be properly
supported by substantial evidence. In
grounded in the record only if it is made
terms of the language we used in Gao, the
against the background of the general
IJ’s credibility determination was “based
country conditions.” (citing Gao, 299 F.3d
on speculation [and] conjecture, rather
at 278-79; He v. Ashcroft, 328 F.3d 593,
than on evidence in the record.”
299 F.3d
603 (9th Cir. 2003))). As these cases
at 272 (citing Salaam v. INS, 229 F.3d
illustrate, however, there must be record
1234, 1238 (9th Cir. 2000)). Without
support and specific, cogent reasons for
further elaboration, the IJ simply rejected
such an adverse credibility determination.
Berishaj’s testimony regarding his military
11
The en banc Court in Dia emphasized Hartooni v. INS, 21 F.3d 336, 342
exactly this point in rejecting the adverse (9th Cir.1994))).
credibility determination made by the IJ in
If the IJ’s conclusion is not
that case:
based on a specific, cogent reason,
“[W]hile we defer to the IJ on but, inste a d, is ba se d on
credibility questions, that deference speculation, conjecture, or an
is expressly conditioned on support otherwise unsupported personal
in the record,” Nagi El Moraghy [v. opinion, we will not uphold it
Ashcroft], 331 F.3d [195,] 205 [(1st because it will not have been
Cir. 2003)], and “[d]eference is not supported by such relevant
due where findings and conclusions evidence as a reasonable mind
are based on inferences or would find adequate. In other
p re s u m p t i o n s that are n ot words, it will not have been
reasonably grounded in the record.” supported by substantial evidence.
Id. at 202 (citation and internal
Id. at 249-50 (some alterations in original).
quotation marks omitted); see also
Abdulrahman, 330 F.3d at 597 None of the IJ’s reasons for finding
(stating that “substantial deference” Berishaj incredible withstand scrutiny in
to a finding is to be “afforded . . . light of the record. We address them
where it is grounded in evidence in seriatim. Most obviously wrong is the IJ’s
the record”). To this end, it is clear conclusion that Berishaj’s testimony about
that “[a]dverse credibility his experience in the military was “not
determ inations based on supported by one scintilla of evidence.”
speculation or conjecture, rather As we have already described, see supra
than on evidence in the record, are Part I.B.2, there is at least one strikingly
reversible,” Gao, 299 F.3d at 272, similar published account from another
and that an IJ must support her e thnic Alb ania n in the Serb ian
adverse credibility findings with army—Adem Krasniqi’s story as published
“specific[,] cogent reasons.” Id. at in Illyria. Irrespective of Illyria’s
276; Abdulrahman, 330 F.3d at reliability vel non as an unbiased source of
597; see also Secaida-Rosales [v. news from the Balkans, the article was in
Ashcroft], 331 F.3d [297,] 307 [(2d the administrative record and the IJ was
Cir. 2003)] (“When an IJ rejects an obliged to address it. Moreover, the IJ is
applicant’s testimony, the IJ must in no position to comment from his own
provide ‘specific, cogent’ reasons experience on the plausibility of the cruel
for doing so.”); He, 328 F.3d at 595 practices employed in one of the most
(“[T]he IJ and BIA must offer a heinous conflicts of the modern era. If
‘specific, cogent reason for any anything, the tactic of forcing one ethnic
s t a te d d i s b e li e f .’” (quotin g minority to kill another is entirely
12
consistent with multiparty ethnic warfare, We also note the basic misstatement of
and there is no substantial evidence on the record in the IJ’s description of
which to conclude otherwise. It seems Berishaj’s testimony—Berishaj never
eminently plausible that the Serbians testified that he was “placed in command”
would require the Albanians to be the ones of the tank, or “in control of the tank”; he
to shoot the Bosnians, and that they would testified that he was at the bottom of the
enforce that role in the manner chain of command. There is no evidence
described—by having a gunman behind contra. In sum, nothing of the IJ’s adverse
each Albanian. To describe this as a Mel credibility determination survives even
Brooks scenario seems to us bizarre. basic scrutiny, and we cannot accept the
IJ’s determination as supported by
We also cannot understand the IJ’s
substantial evidence
incredulity at Berishaj’s ability to learn
enough Serbian to clean and operate a tank The IJ also rejected Berishaj’s
gun as a low-ranking soldier. Berishaj testimony on the ground that it was
testified that he did not find Serbian “plagued by . . . uncorroborated
difficult to learn, and that he had to stop information.” To the extent that the IJ
speaking Albanian publicly—wh ich meant that Berishaj’s account of his
suggests that he was effectively immersed military experience could not be squared
in Serbian for several months. These are with the experiences of other ethnic
both candid and credible statements that Albanians in the Serbian army in the mid-
the IJ did not address. What is more, even 1990s, we think our discussion above
though the IJ’s hearing in January of 1998 amply refutes any notion that Berishaj’s
(no more than a year after Berishaj arrived experience was implausible. To the extent
in the United States) was conducted with that the IJ complained of the absence of
an Alb anian interpreter, Berishaj testimonial or documentary materials in
repeatedly demonstrated that he was the record to support aspects of the factual
listening to the questions in English, and account given by Berishaj, we are at a loss
not waiting for the interpreter’s translation. to com preh end th e IJ— requ iring
At times, Berishaj even responded in corroborative evidence in this situation
English. English is a difficult language to would run counter to our precedent, BIA
learn, but Berishaj apparently has some precedent, and common sense.
facility for picking up languages, and this
In Abdulai, 239 F.3d at 554, we held
only enhances the credibility of his claim
that “the BIA may sometimes require
to having learned basic Serbian in a few
otherwise-credible applicants to supply
months. In light of all this, we do not see
corroborating evidence in order to meet
how a reasonable factfinder could
their burden of proof.” In so doing, we
conclude that his claim that he learned
refused to hold invalid the rule of
enough Serbian to clean and operate the
corroboration laid down by the BIA in S-
tank gun was not worthy of belief.
M-J-, 21 I. & N. Dec. 722. We explained
13
that S-M-J- “contemplates a three-part founded fear of future persecution. See 8
inquiry: (1) an identification of the facts C.F.R. § 208.13(b)(1); Abdulrahman, 330
for which it is reasonable to expect F.3d 587. But 8 C.F.R. § 208.13(b)(1)(i)
corroboration; (2) an inquiry as to whether also provides that
the applicant has provided information
an immigration judge . . . shall deny
corroborating the relevant facts; and, if he
the asylum application of an alien
or she has not, (3) an analysis of whether
found to be a refugee on the basis
the applicant has adequately explained his
of past persecution if [it] is found
or her failure to do so.” Abdulai, 239 F.3d
by a preponderance of the evidence
at 554 (internal quotation marks omitted);
[that] [ t] he re ha s b e e n a
see also Mulanga v. Ashcroft, 349 F.3d
fundamental change in
123, 133-37 (3d Cir. 2003).
circumstances such that the
The IJ plainly did not heed even the applicant no longer has a well-
first step, which is simple common sense: founded fear of persecution in the
There are matters on which it is plainly applicant’s country of nationality .
unreasonable to expect any kind of . . on account of race, religion,
corroboration. Wartime persecution is nationality, membership in a
surely among these matters— exigency, particular social group, or political
strife, and destruction all conspire to opinion
destroy what records there might once
The burden of proof in a changed-country-
have been. Evidence documenting
conditions rebuttal is on the government.
military persecution and abuse is rarely
8 C.F.R. § 208.13(b)(1)(ii).
made in the first place. Testimony is
nearly impossible to come by because of Other Courts of Appeals have
death and dispersal in the ranks. The IJ recognized a limitation on the inferences
had no grounds on which to expect that may be drawn from evidence of
corroboration from Berishaj. changed country conditions. The First,
Seventh, Ninth, and Tenth Circuits agree
2. Changed Country Conditions
that evidence of changed country
The IJ’s alternative reason for rejecting conditions can successfully rebut an
Berishaj’s asylum claim was that country alien’s fear of future persecution based on
conditions in Montenegro had improved past persecution only if that evidence
by 2000 to the point that Berishaj’s stories addresses the specific basis for the alien’s
of past persecution—even if they were f e a r of per s e cution; ge ne r aliz ed
credible—no longer provided a basis for a improvements in country conditions will
well-founded fear of future persecution. not suffice as rebuttals to credible
As we have noted, an alien who offers testimony and other evidence establishing
credib le tes tim on y regarding past past persecution. The other Courts of
persecution is presumed to have a well- Appeals, including this Court, appear to
14
have had no occasion to consider the Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003)
matter. (citing Balasubramanrim, 143 F.3d at
161).
As the Court of Appeals for the Ninth
Circuit has explained, “[the] INS is To the extent that the IJ proposed to
obligated to introduce evidence that, on an proceed on an interpretation of 8 C.F.R. §
individualized basis, rebuts a particular 208.13(b)(1) that departs from the one
applicant’s specific grounds for his stated by our sister Courts of Appeals, the
well-founded fear of future persecution. IJ offered no reasoning and cited no
Information about general changes in the autho rity— not even the pertinent
country is not sufficient.” Rios v. regulation itself. Accordingly, we have no
Ashcroft, 287 F.3d 895, 901 (9th Cir. basis on which to conclude that the IJ’s
2002) (internal quotation marks and reading and application of the regulation
citations omitted); accord Krastev v. INS, was “reasonable” and therefore entitled to
292 F.3d 1268, 1276-77 (10th Cir. 2002) deference under Chevron U.S.A., Inc. v.
(granting petition for review, noting that Natural Resources Defense Council, 467
the country report relied on by the BIA did U.S. 837 (1984). Cf., e.g., Valansi v.
nothing to rebut petitioner’s fear from Ashcroft,
278 F.3d 203, 208-09 (3d Cir.
local, not national, authorities in 2002) (quoting, inter alia, Lewis v. INS,
Bulgaria); Gailius v. INS,
147 F.3d 34, 36
194 F.3d 539, 544 (4th Cir. 1999) (“If we
(1st Cir. 1998) (“It is well established that conclude that Congress has not directly
general changes in country conditions do addressed the question at issue in a statute
not render an applicant ineligible for or its intent is ambiguous, we must defer to
asylum when, despite those general the Board’s interpretation of the statute
changes, there is a specific danger to the provided it is not an unreasonable one.”
applicant.” (citing Fergiste v. INS, 138 (internal citations and quotation marks
F.3d 14, 19 (1st Cir. 1998)); Kaczmarczyk omitted))).
v. INS,
933 F.2d 588, 593-95 (7th Cir.
Subject to our discussion of the
1991) (explaining that, though it
staleness of the country report in the
appropriately rebutted petitioners’ fear of
administrative record here, the IJ’s
future persecution in that case, the BIA
reliance on changed country conditions
could not use the election of Solidarity
was only in part supported by substantial
Party members in Poland to reject all
evidence. Substantial evidence does
asylum claims by Polish nationals). We
support the IJ’s conclusion that Berishaj
agree with these cases and apply their
could no longer have an objectively
precepts to the case before us. The rule is
reasonable fear of future persecution in the
a natural corollary of the more general
military—after all, as even the 1997 State
proposition that the IJ is required to
D e p a r t m e n t Co untr y R e p o r t f or
consider the record as a whole in ruling on
Serbia/Montenegro notes, the war in
an alien’s claim. See, e.g., Tarrawally v.
Bosnia ended with the 1995 Dayton Peace
15
Accord, and the Yugoslav parliament had insuf f ic ient is the go vern men t’s
approved an amnesty for those who had observation (not relied on by the IJ, we
avoided military service between 1991 and note) that ethnic Albanians participate in
1995. While there were scattered reports the political process in Montenegro and
of forcible conscription, it was clear by have won seats in parliamentary elections.
2000 that this was the exception. There may be specific reasons to think that
Berishaj’s fear of persecution is no longer
On the other hand, nothing in the
reasonable, but the IJ offers none, and we
country reports, or elsewhere in the record,
will not scour a 700-plus page record (well
rebuts Berishaj’s fear of persecution at the
over half of which is devoted to
hands of Montenegrin police authorities.
documentary materials) for evidence
Berishaj testified that the police had come
unnoticed and unanalyzed by the IJ to
to his parents’ home looking for him after
uphold the IJ’s decision. The burden of
he had left Montenegro, and that his
proof in a changed-country-conditions
brother had been put in jail. Berishaj’s
rebuttal is squarely on the government, and
sister corroborated Berishaj’s account of
no reasonable factfinder could conclude
his parents’ report of the police searches.
that the government has carried its burden
The IJ’s extremely general observation
of presenting specific evidence to rebut
that, in the wake of Milosevic’s
Berishaj’s presumed well-founded fear of
withdrawal of influence over Montenegro,
future persecution.
“the government of Montenegro has
shown signs of self-determination” does In sum, substantial evidence does not
nothing to refute Berishaj’s claims of support the IJ’s rejection of Berishaj’s
police-initiated persecution.4 Similarly claim of persecution by Montenegrin
police authorities; we will therefore grant
his petition for review of the IJ’s
4
Berishaj also testified at length about disposition of his asylum claim. We do
how he believed the new leader of not hold that Bershaj’s asylum claim must
Montenegro in 2001, Milo Djukonovic, succeed; it may be that his objective fear
to be closely allied with Milosevic, even of future persecution is rebutted by
though the latter was no longer in power. evidence in the record, but we certainly
The IJ did not address the effects of will not mine the record to invent our own
Djukonovic’s government on conditions reasons to reject Berishaj’s application. It
in Montenegro, and in view of the may also be that the events of which
limited administrative record and Berishaj complains do not amount to
confused (dare we say Balkanized) state persecution, but it would be manifestly
of political affairs in the region, we are inappropriate for us, rather than the
unable to say whether Berishaj’s
assessment is correct. If anything, the
IJ’s failure to specifically address the Montenegro supports granting the
post-M ilosevic political situation in petition for review.
16
Agency, to undertake that inquiry in the record are three or four years old by the
first instance. See INS v. Ventura, 537 time the petition for review comes before
U.S. 12 (2002). Finally—as we discuss in us, and they frequently do not fairly reflect
greater detail infra Part III.B—it may be what our knowledge of world events
that the passage of considerable time since suggests is the true state of affairs in the
the original agency disposition will allow proposed country of removal, or the region
the administrative record to be embracing it. It almost goes without
supplemented in a way that sheds more saying that, in the troubled areas of the
light on Bershaj’s claim for asylum. planet from which asylum claims tend to
c o m e , t h e pa c e o f c h a n g e is
B. The Trouble with Stale
rapid—oppressive regimes rise and fall,
Administrative Records
and conditions improve and worsen for
It is a salutary principle of vulnerable ethnic, religious, and political
administrative law review that the minorities. As a consequence, we become
reviewing court act upon a closed record. like astronomers whose telescopes capture
This modus procedendi secures to an light rays that have taken millions of years
administrative agency the necessary to traverse the cosmos, revealing things as
measure of authority and discretion within they once were, but are no longer. But
its sphere of special competence, by unlike astronomers, who can only
preventing undue interference by speculate about what is happening at this
generalist courts that are charged only with moment in a far-off galaxy, we often know
ensuring procedural regularity in the very well what has happened in the years
agency’s actions. This in turn translates to since an administrative record was
long-term stability and predictability in compiled.
outcomes in matters within the agency’s
As we have suggested above, the
expertise. While the principle yields good
process-based review of agency actions is,
results in most cases, in the area of asylum
in theory at least, just that—process-based,
law, where claims are heavily dependent
without regard to the merits. That should
on country conditions, it can become an
make it easier, not harder, to judge long-
albatross. More specifically, the dispute
cold records. However, in contrast to the
often centers on the government’s
traditional administrative law case, this
assertion, based upon a State Department
type of review can give rise to potentially
Country Report, that conditions have so
devastating consequences to an applicant
changed from those represented in the
who faces the possibility of persecution (or
asylum application that there is no longer
worse) if he is removed.
a basis for the alien’s claim of persecution
in the country of proposed removal. This case is a good example of how
much can change in the time between the
It has become common that those
creation of the administrative record
country reports in the administrative
before the IJ and the judgment of this
17
Court. On the one hand, Slobodan at the illegal university in Kosovo, the
Milosevic is now gone from the region, the State Department notes that th e
Federal Republic of Yugoslavia no longer government in Kosovo “did not restrict
exists, and Berishaj’s native Montenegro is access to the Internet or academic
now within the recently formed loose freedom.” But this 2003 Country Report is
federation of Serbia and Montenegro. On not part of the administrative record.
the other hand, Berishaj claims—at least as
There are some applicants to whom our
of his testimony in early 2001—that the
concerns simply do not apply— applicants
leaders in power are in practice “mirror
from countries where conditions have not
image[s]” of Milosevic. Four-year-old
changed significantly for the better or
c o u n t r y r e p o r t s a r e s in g u l a r l y
worse in many years. And in other
unenlightening when faced with this kind
countries, the flux of world events is too
of situation.
great to hope for perfect, up-to-date
Specific to Berishaj’s fear of decisions in every immigration case.
persecution—we are looking now to the Surely, however, we can do much better
State Department’s 2003 Country Reports than we are doing now, especially in cases
on Human Rights Practices: Serbia and from volatile c ountries and with
Montenegro, released in February 2004, exceptionally stale records. The precise
which we have downloaded from the State problem is not just that the administrative
Department’s web site (the “2003 Country records in so many cases are out-of-date
Report”)—we note that police occasionally (though that is a contributing factor), but
beat suspects during arrest and detention, concomitantly that we do not have a
but there has been generally improved r e a so n a b l y r e c e n t f i n a l a g e n c y
respect by the police for human rights. determination to review. It is one thing to
Recently enacted criminal procedure supplement the record before us; it is quite
reforms are aimed toward eliminating another to decide a case based on this
arbitrary arrest and detention, and the expanded record.
Montenegrin Helsinki Committee (HCM),
We are aware that the Court of Appeals
a recognized human-rights monitor, did
for the Seventh Circuit apparently takes
not record any incidents of arbitrary arrest
judicial notice of post-final-agency-
or detention during 2003. In the cases
determination developments, in the form
where arrest did not lead to prosecution,
of new country reports, and at times rests
the HCM did not find (in contrast to
its disposition on those developments.
previous years) any political, ethnic, or
See, e.g., Pelinkovic v. Ashcroft, 366 F.3d
religious motivation by the police. Ethnic
532, 540-41 (7th Cir. 2004) (taking
Albanians participate in the political
judicial notice that country conditions for
p r o c e s s , a n d t h o u g h t h ey a re
e thnic Albanians in Serbia and
proportionately underrepresented, they do
Montenegro in 2004 are much-improved
have seats in the Montenegrin Parliament.
over conditions in the early 1990s). This
Finally, with respect to Berishaj’s troubles
18
practice might go a long way toward and 8 C.F.R. § 1003.2 (permitting an alien
solving the problem we face, but with all or the government to move the BIA to
respect we are unable to square this reopen proceedings, and authorizing the
practice with the clear command from SEC BIA to do so sua sponte). Indeed, both the
v. Chenery Corp., 318 U.S. 80 (1943), that statute and regulation seem to explicitly
courts reviewing the determination of an contemplate the situation we comment on
administrative agency must approve or here; they permit reopening of asylum
reject the agency’s action purely on the proceedings “based on changed country
basis of the reasons offered by, and the conditions arising in the country of
record compiled before, the agency itself. nationality or the country to which
Moreover, we are not especially sanguine removal has been ordered.” 8 U.S.C. §
about the Seventh Circuit’s relaxed 1229a(c)(6)(C)(ii); see also 8 C.F.R. §
approach to agency review. It not only 1003.2(c)(3)(ii) (permitting reopening
carries with it the potential for wholesale “based on changed circumstances arising
relitigation of many immigration-law in the country of nationality or in the
claims, but the Courts of Appeals are ill- country to which deportation has been
equipped to receive supplementary ordered”). Counsel for aliens generally
evidence. At all events, the asylum seem to be zealous in pursuing these
claimant should have the opportunity to motions to reopen when appropriate. But
challenge the updated country report that if this panel had to characterize the posture
the government would rely on. of petitions before it for review of the BIA
on an outdated record, we would say that
Congress could, of course, modify the
in the majority, country conditions had
rules normally applicable to petitions for
improved, weakening the alien’s case for
review of a final decision of the BIA
relief. Accordingly, we encourage the
without scrapping the strictures of
Department of Justice to adopt a policy
administrative agency review altogether.
that encourages its attorneys to file
Congress could require the Courts of
motions to reopen when the adjudication
Appeals, in their sound discretion, on
of an applicant’s claim would benefit from
motion or sua sponte, to grant petitions for
an updated administrative record. The
review of the BIA, and remand when it
device of the motion to reopen is far from
appears from judicially noticeable
perfect, though, as it may additionally
materials that the record compiled before
delay an already protracted process.
the agency does not generally reflect
contemporary country conditions. We come at last to the one actor not
directly discussed so far: the BIA. The
Better yet, the parties to these
trigger for the recent spate of out-of-date
proceedings might take advantage of the
records is, we suspect, the streamlining
procedures in 8 U.S.C. § 1229a(c)(6)
regulations noted above, which permit the
(permitting aliens to move to reopen
BIA to summarily affirm an IJ’s decision
proceedings on the basis of “new facts”)
without issuing its own opinion. See 8
19
C.F.R. § 3.1(e)(4). The natural—though Setting aside our perplexity at how the
surely unintended—consequence of the BIA apparently thought the IJ’s opinion
streamlining regulations is summary worthy of being the “final agency
affirmance by the BIA of stale, backlogged determination,” we do not understand why
decisions by IJs. When it does so, the BIA the BIA did not intervene to supplement
may have shirked its role and duty of the record in a weak case, arising out of a
e n s u r in g t h a t th e f inal a g e n cy highly volatile and evolving region of the
determination in an immigration case is world. The streamlining regulations exist
reasonably sound and reasonably current. to save an overburdened BIA from
The decision here on review is neither, and unnecessary and redundant tasks. They are
it is an embarrassment to the Agency on not a license for the BIA to say “not our
multiple levels. The “reasoning” of the IJ problem.” Outdated adm inistrative
is open to ridicule, as we think our records are the BIA’s problem, at least as
discussion in Part III.A illustrates; and the things now stand, and the BIA needs to
administrative record is a hoary relic: For confront them. We therefore call on the
example, the most recent country report BIA to adopt—by opinion, regulation, or
was thirty-five months out-of-date at the otherwise—policies that will avoid the
time the BIA rendered its decision, and as Court of Appeals having to review
of this writing, is fifty-four months out-of- administrative records so out-of-date as to
date.5 Though the en banc Court in Dia verge on meaningless.
approved the streamlining regulations over
In view of this discussion, we direct the
a statutory and Constitutional challenge, it
Clerk of the Court to send a copy of this
does not follow that the regulations are not
opinion, calling particular attention to this
subject to misuse and even abuse.
Part III.B, to the Chair, Ranking Member,
Chief Majority Counsel, and M inority
5
Of course, it is not strictly the Counsel of the Senate Committee on the
chronological age of the administrative Judiciary, and the Chair and Ranking
record that concerns us here; there are Member of the Subcommittee on
old records that may still reflect Immigration, Border Security and
contemporary conditions (as, for Citizenship; to the Chair, Ranking
example, in a country that has been ruled Member, Chief Majority Counsel, and
for several decades by the same dictator), Minority Counsel of the House Committee
and there are younger records that may on the Judiciary, and the Chair and
not reflect contemporary conditions (as, Ranking Member of the Subcommittee on
for example, in a country that Immigration, Border Security, and Claims;
experienced a recent coup d’état). But to the Attorney General of the United
generally speaking, the chronological age States, the Assistant Attorney General for
of the record is a good rough proxy for the Civil D ivision, United States
how well the record reflects Department of Justice, and the Deputy
contemporary conditions. Assistant Attorney General in charge of
20
the Office of Immigration Litigation; to the record as a whole does not show that
the Secretary of Homeland Security and Berishaj is more likely to be tortured than
the General Counsel of the Department of not if removed to Montenegro .
Homeland Security; and to the Chair of the Preliminarily, we note that Berishaj’s own
Board of Immigration Appeals. testimony—whether credible or not—has
nothing to do with his CAT claim; CAT
claims are entirely concerned with the
IV. Berishaj’s Application for Protection objective likelihood of torture in the
Under the CAT future, and Berishaj’s testimony did not
address contemporary treatment of
An applicant for relief under the CAT
disfavored persons in Montenegro in any
must show that it is “more likely than not”
particularized way.
that he would be tortured in the country of
removal. See Wang v. Ashcroft, 368 F.3d The balance of the record describes
347, 348 (3d Cir. 2004) (quoting 8 C.F.R. mistreatment and indignities, but there is
§ 1208.16(c)(2) (2004)); see also Dia, 353 scant evidence—let alone compelling
F.3d at 233 n.1. It is the alien’s burden to evidence—that it is more likely than not
show this, and objective evidence is that Berishaj would be tortured if removed
required. See Sevoian, 290 F.3d at 175. to Montenegro. To be sure, the record
The government simply argues that suggests that, at the time of its making,
Berishaj’s CAT claim fails because the IJ there was political instability in the
found him not credible, and it was only his fledgling Federal Republic of Yugoslavia
own testimony that formed the basis for (many newspaper articles in the record
the objective likelihood of being tortured. attest to this), and that Serbs continued to
Berishaj counters that the IJ’s analysis of perpetrate abuses and massacres in Kosovo
the CAT claim is so cursory that it is (this is well-chronicled in the 1999
impossible to tell whether (1) the IJ Country Report). But the former does not,
thought that a CAT claim could not stand of course, amount to torture, and the latter
if the asylum claim fell, or (2) the IJ was in Kosovo, not Montenegro. As for
analyzed the country conditions evidence Montenegro itself, there are reports of
and concluded that it did not support a extrajudicial killings perpetrated by the
CAT claim. The first alternative would be Yugoslav army, but such action seemed to
a legal error, and would be grounds for be outside of government control or
granting the petition because asylum and direction, and at all events, was not “more
CAT claims are “analytically separate.” likely than not” to be the fate of a
See Zubeda v. Ashcroft, 333 F.3d 463, 476 Montenegrin like Berishaj. There was also
(3d Cir. 2003) (quoting Kamalthas v. INS, forcible conscription of ethnic Albanians
251 F.3d 1279, 1283 (9th Cir. 2001)). in Montenegro, but again, this is not
torture. Most troubling perhaps is that a
We think the better reading of the IJ’s
human rights group, the International
decision to be the second alternative—that
Crisis Group, claims that as of 1999,
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“Yugoslav forces ha[ve] undertaken the petition for review with respect to
limited ethnic cleansing campaigns Berishaj’s claim under the CA T. We
directed against ethnic Albanians in direct the Clerk of the Court to send copies
northern Montenegro.” Similar reports are of this opinion to the officers and
scattered throughout the administrative legislators identified in Part III.B above.
record.
Ultimately, even if this activity
amounts to torture in some instances, there
is no suggestion that it is nearly frequent
enough to compel the conclusion that
Berishaj himself would more likely than
not suffer torture upon removal to
Montenegro. Thus we must deny the
petition for review of Berishaj’s CAT
claim. We also note that our observations
regarding stale administrative records, see
supra Part III.B, can apply with similar
force to claims for protection under the
CAT, even though in this particular case
the CAT issue is not presented in as stark
a relief as the asylum issue.
V. Conclusion
For the foregoing reasons, we will
grant the petition for review, and vacate
the IJ’s decision with respect to Berishaj’s
asylum claim. Because the IJ’s disposition
of Berishaj’s claim for withholding of
removal rested on the same grounds that
we have found insufficient to support his
rejection of Berishaj’s asylum claim, we
will also grant the petition for review, and
vacate the IJ’s decision, with respect to
Berishaj’s claim for withholding of
removal. See Mulanga, 349 F.3d at 132
(describing relationship between asylum
claims and claims for mandatory
withholding of removal). We will deny
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