2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-12-2001

Abdulai v. Ashcroft

Precedential or Non-Precedential:

Docket 00-3111

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Recommended Citation

"Abdulai v. Ashcroft" (2001). 2001 Decisions. Paper 26.

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Filed February 12, 2001 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 00-3111 

OLUFEMI YUSSEF ABDULAI, Petitioner 

v. 

JOHN ASHCROFT,* ATTORNEY GENERAL OF 

THE UNITED STATES, Respondent 

On Petition for Review of an Order of the 

Board of Immigration Appeals 

(Agency No. A 75 809 064) 

Argued: December 19, 2000 

Before: BECKER, Chief Judge, NYGAARD and 

FUENTES, Circuit Judges. 

(Filed February 12, 2001) 

 MEAGHAN E. TUCHEY-KAY, 

 ESQUIRE (ARGUED) 

 Catholic Legal Immigration Network, 

 Inc., (CLINIC) 

 976 Broad Street 

 Newark, NJ 07102 

Counsel for Petitioner 

_________________________________________________________________ 

* Substituted for Janet Reno pursuant to Federal Rule of Appellate 

Procedure 43(c). 
 DAVID W. OGDEN, ESQUIRE 

 Assistant Attorney General 

 CARL H. McINTYRE, JR., ESQUIRE 

 Senior Litigation Counsel 

 MARSHALL TAMOR GOLDING, 

 ESQUIRE (ARGUED) 

 JOHN D. WILLIAMS, ESQUIRE 

 TERRI J. SCADRON, ESQUIRE 

 Office of Immigration Litigation 

 Civil Division 

 United States Department of Justice 

 P.O. Box 878, Ben Franklin Station 

 Washington, DC 20044 

 Counsel for Respondent 

 RICHARD W. HILL, ESQUIRE 

 BRENDA C. LISS, ESQUIRE 

 (ARGUED) 

 ANTHONY F. YACULLO, ESQUIRE 

 McCarter & English, LLP 

 Four Gateway Center 

 100 Mulberry Street 

 Newark, NJ 07102 

 Counsel for Amicus Curiae, 

 The Lawyers Committee for 

 Human Rights 

OPINION OF THE COURT 

BECKER, Chief Judge. 

Olufemi Yussef Abdulai, a Nigerian national, petitions for 

review of a decision by the Board of Immigration Appeals 

(BIA or Board) ordering him removed to his home country. 

His petition presents the important question whether the 

BIA may, consistent with existing law, sometimes r equire 

otherwise-credible applicants for asylum or withholding of 

removal to present evidence corroborating their stories in 

order to meet their burden of proof. Abdulai contends that 

it may not, but we conclude that it may. 

 2 
We begin by clarifying that, absent special circumstances 

not present here, we review only decisions by the BIA and 

not those by immigration judges. We then explain why we 

reject Abdulai's other main argument--that the Board 

deprived him of due process of law by failing to conduct a 

sufficiently individualized assessment of his claim. Turning 

to the heart of the appeal, we explain why an examination 

of the Immigration and Nationality Act (INA), the INA's 

implementing regulations, the United States' obligations 

under international law, and our own pr ecedent leads us to 

conclude that the BIA may sometimes requir e corroboration 

of otherwise-credible testimony. Despite this holding, 

because there is a serious question whether the Board's 

own rules were properly applied in this case, we vacate the 

BIA's order and remand this matter to per mit the Board to 

explain: (1) what aspects of Abdulai's narrative it would 

have been reasonable to expect him to corr oborate; (2) why 

the evidence he submitted failed to do so; and (3) why 

Abdulai's explanations of why he could not corr oborate 

certain aspects of his account were insufficient. 

I. 

A. Procedural History 

Abdulai arrived at New York's JFK airport in the spring of 

1998. Lacking a valid entry visa, he was taken into custody 

by the Immigration and Naturalization Service (INS or 

Service). Shortly thereafter, the INS commenced a 

proceeding to allow it to remove Abdulai from the United 

States. At an initial hearing Abdulai conceded that he was 

"removable," i.e., that he was not entitled to remain in the 

United States absent some form of relief by the INS, but 

represented that he would be seeking both asylum from 

and withholding of removal to Nigeria based on political 

persecution. The case was continued to allow Abdulai to file 

the appropriate papers, which he timely did. 

A grant of asylum allows an otherwise-removable alien to 

stay in the United States. Subject to numerous exceptions 

not implicated in this case, the Attorney General "may 

grant asylum" to an alien he "determines" to be a "refugee" 

 3 
within the meaning of the INA. 8 U.S.C. S 1158(b)(1). As 

relevant to this case, a person is a "r efugee" if he or she is 

"unable or unwilling" to return home "because of 

persecution or a well-founded fear of persecution on 

account of . . . political opinion." Id.S 1101(42)(A). 

Withholding of removal, in contrast, confers only the right 

not to be deported to a particular country--not a right to 

remain in this one. See INS v. Aguirr e-Aguirre, 526 U.S. 

415, 419 (1999). Also subject to many exceptions not 

applicable here, the Attorney General may not remove an 

alien to a particular country if he "decides" that the alien's 

"life or freedom would be threatened in that country 

because of the alien's . . . political opinion." 8 U.S.C. 

S 1231(b)(3)(A). 

An Immigration Judge (IJ) conducted a hearing 

concerning Abdulai's application. Abdulai testified on his 

own behalf and offered documentary evidence describing 

conditions in Nigeria in support of his claim. At the close of 

the hearing, the IJ rendered an oral decision denying 

Abdulai's application and ordering him r emoved. The IJ did 

not expressly find that Abdulai's testimony lacked 

credibility, but nevertheless concluded that he had "not 

presented adequate evidence to demonstrate" eligibility for 

asylum or withholding of removal. The IJ also noted that 

General Sani Abacha--who had ruled Nigeria since seizing 

power in a coup in 1993--had died just four days before 

the hearing, and that "an issue of changed country 

conditions" had arisen as a result. Referring to the fact that 

"there have been some political changes in Nigeria," the IJ 

nevertheless determined that it was "much too premature to 

conclude that . . . the political atmosphere has changed in 

Nigeria so that a person who has a credible fear of

returning to Nigeria would no longer have such fear." 

Abdulai then appealed to the BIA, which received a 

transcript of the hearing and a brief from Abdulai. The 

Board ultimately remanded the case to the IJ. Noting the 

recent changes in the Nigerian government, the BIA stated 

that "the record does not contain infor mation from which 

the Board would have been able to glean the import of the 

changes on [Abdulai's] claim." Accor dingly, the BIA ordered 

"the record . . . remanded to the Immigration Court so that 

 4 
both parties . . . may have an opportunity to pr offer any 

evidence relevant to the applicant's claim and for the entry 

of a new decision by the Immigration Judge." The BIA also 

ordered that "[s]hould a decision on remand be adverse to 

the respondent, the record shall be certified to the Board 

for review." 

Consistent with the BIA's direction, the IJ then held 

another hearing. A witness for Abdulai testified that any 

changes in Nigeria following the death of General Abacha 

were nothing more than cosmetic dif ferences between it 

and the former government. Both Abdulai and the INS

submitted documentary evidence about the transfer of 

power in Nigeria. The IJ again denied Abdulai's application 

by a written decision, reasoning that even if she were "to 

accept all of the [new] evidence presented by [Abdulai] in 

the worst possible light, [Abdulai] has submitted no 

evidence of any sort which relates to this Court's previous 

finding that [he] has not met his bur den of proof and 

persuasion do [sic] to the inadequacy of his testimony." 

Accordingly, the IJ once again found that Abdulai had 

"failed to meet the burden of proof and persuasion" and 

denied him both asylum and withholding of removal. The IJ 

also stated that she would "certify the r ecord to the BIA for 

review." Abdulai claims that he was not per mitted to 

submit an additional brief to the BIA, and it appears that 

no transcript of the February 24, 1999 hearing was ever 

prepared. The BIA denied Abdulai's r equest for oral 

argument. 

On January 18, 2000, the BIA entered a final order 

denying Abdulai's application, which was accompanied by a 

two-page per curiam opinion. The opinion noted that the IJ 

had denied Abdulai's application "primarily based on [his] 

failure to articulate a specific and detailed claim," and 

noted that on remand Abdulai had "pr ovided only general 

information as to the political situation in Nigeria, but 

again failed to demonstrate how he is adversely af fected by 

the change of government in Nigeria." Then, summarizing 

several of its previous decisions, the Boar d laid out the 

following rules: (1) an asylum seeker must always pr esent 

"general background information on country conditions;" 

and (2) "where it is reasonable to expect corroborating 

 5 
evidence for certain alleged facts pertaining to the specifics 

of an applicant's claim, such information should be

provided . . . [or] an explanation should be given as to why 

such information was not provided." The BIA stressed that 

the absence of corroboration or explanation in cases where 

it is reasonable to expect one or the other"can lead to a 

finding that the applicant has failed to meet his burden of 

proof." 

The Board's application of these principles to Abdulai's 

case was terse. It stated: 

 [W]e find that the respondent has not provided 

 sufficient evidence to meet his burden of pr oof. We 

 acknowledge that the respondent has submitted 

 numerous articles and reports regar ding general 

 country conditions in Nigeria. However, we note the 

 conspicuous lack of documentary evidence 

 corroborating the specifics of the respondent's 

 testimony. Therefore, given the complete lack of 

 evidence corroborating the specifics of the r espondent's 

 asylum claim, we agree with the Immigration Judge 

 that the respondent has failed to sustain his burden of 

 proof in this matter. 

Board Member Rosenberg dissented. She ar gued that 

Abdulai had "provided consistent, specific and detailed 

testimony, which establishe[d] that he pr eviously suffered" 

persecution "at the hands of the Nigerian authorities on 

account of his political opinion." Rosenber g also averred 

that the IJ had "misassessed the evidence factually when 

she concluded that [Abdulai's] testimony lacked specificity," 

and reasoned that the IJ had "applied an inappropriate 

legal standard in justifying her finding that[Abdulai] had 

not presented adequate evidence [i.e., the corroboration 

requirement]." Rosenberg also took issue with the manner 

in which the Board had dealt with Abdulai's case. She 

stated: 

 The fact remains that we never have engaged in review 

 of the respondent's . . . original appeal in a manner 

 that can be described as meaningful. Rather, in 

 denying the instant appeal, the majority, in a cursory 

 per curiam decision, simply affirms the Immigration 

 6 
 Judge's original decision. The majority opinion does not 

 reflect that it meaningfully reviewed the decisions of 

 the Immigration Judge in relation to the r ecord, or that 

 it addressed the respondent's original appellate 

 arguments, or those made in connection with the 

 Immigration Judge's subsequent decision following our 

 remand order. In my view, the majority now sidesteps 

 our responsibility to conduct meaningful appellate 

 review by simply affirming the Immigration Judge's 

 decision without considering the record, de novo, or, at 

 the very least, addressing the arguments made by the 

 respondent in his original appeal. 

Abdulai timely filed a petition for review with this Court. 

We have jurisdiction pursuant to 8 U.S.C.S 1252(a).

B. Abdulai's Account and His Supporting Evidence 1 

On June 12, 1993, Nigerians voted in a presidential

election. Despite the fact that Chief M.K.O. Abiola seems to 

have won, the results were annulled when General Abacha 

seized power in a coup. Abdulai--who had lived and worked 

in and around Lagos, Nigeria for his entir e life--was 

outraged by the coup. In November 1993 he joined and 

attended his first meeting of the Campaign for Democracy 

(CD), an organization seeking to restor e Nigeria to civilian 

rule. At some point he was issued a CD membership card. 

Abdulai did not attend another CD meeting, however , 

until February 1995. Abdulai provided no r eason for this 

fourteen month gap--a fact stressed by the IJ--nor did he 

explain what caused him to attend the February 1995

meeting. At that meeting, a large number of activists 

gathered at the home of a CD organizer . The meeting was 

raided by Nigerian police officers, and Abdulai was arrested 

along with the president of the organization and other 

prominent CD members. He was imprisoned in a communal 

cell, but was never charged with an of fense, questioned by 

the police, or permitted to speak with anyone on the 

outside. After approximately two weeks, he was released 

without explanation. 

_________________________________________________________________ 

1. Unless otherwise stated, the details of Abdulai's story are 

uncorroborated. 

 7 
Abdulai resolved to become more involved with the CD. 

He attended another meeting in March 1995, wher e he 

volunteered to be a "Strategic Planner ." Strategic Planners 

distribute pamphlets, hang posters, and "generally mak[e] 

people aware" of CD's activities. Then, on June 12, 1995, 

Abdulai participated in a rally held to commemorate the 

two year anniversary of the 1993 elections. The police 

arrived, fired tear gas into the crowd, and arrested Abdulai 

while he was handing out pamphlets. He did not know how 

many people had been at the June 12 rally, nor did he 

know how many people had been arrested that day. During 

his second stint in prison, Abdulai was told that he was 

being confined pursuant to Decree Number Two of 1984, 

and that he would be charged with distributing seditious 

materials and unlawful gathering. The guards also took his 

CD membership card. Two months later, Abdulai was 

released when his family succeeded in bribing his captors. 

After his release, Abdulai's family convinced him to drop 

out of the CD because they feared for his safety. He stopped 

attending CD meetings, abandoned his position as a 

Strategic Planner, and destroyed all his CD materials. 

Nevertheless, in June 1996, Abdulai was again taken into 

custody, this time by the Nigerian State Security Services. 

He was questioned for several hours about an upcoming 

CD rally, and placed in a cell. He was questioned three 

additional times over a four month period and then 

released. 

Abdulai was arrested a final time in either late November 

or early December of 1996 by agents of the Dir ectorate of 

Military Intelligence. The agents ransacked his apartment 

and took him to their barracks. Abdulai was questioned 

about an explosion in Lagos and his relationship to other 

activists, but told the officers that he was no longer a 

member of the CD. During the questioning, officers slapped 

Abdulai and "stomped on his ear." He was then placed in a 

cell. Abdulai was later told that he would be r eleased if he 

signed a document incriminating other activists. He signed 

the document, after which his conditions of confinement 

improved. 

Abdulai fell ill sometime around March 1997 and was

released in May of that year. After being treated by a doctor, 

 8 
he fled to Benin. He stayed there until Mar ch 1998, when 

several of his friends who had traveled to Nigeria to 

participate in a rally were arrested. Abdulai became 

convinced that the Nigerian police now knew his 

whereabouts (and, presumably, that they would hunt him 

down in Benin). A friend arranged for him to be smuggled 

from Benin to Togo to Ghana to the Ivory Coast, and, 

finally, to the United States. 

Abdulai tendered a considerable amount of documentary 

evidence in support of his account. In addition to a large 

amount of background material concerning conditions in 

Nigeria, he also submitted: (1) his Nigerian passport; (2) a 

letter from the General Counsel of the National Democratic 

Council, an umbrella organization supporting democracy in 

Nigeria, which stated that his story "appear[ed] very 

credible in relation to the types of cases we are aware of " 

but that "[b]ecause of the massive clamp-down on civil 

society in Nigeria, efforts to independently verify or confirm 

membership [in pro-democracy groups] are usually fruitless 

from this end and dangerous from the Nigerian end;" and 

(3) an affidavit from an assistant pr ofessor of African 

Studies and Politics who had visited Nigeria and written 

about the political situation there. The pr ofessor opined 

that Abdulai's account was "consistent with the current 

political conditions in Nigeria." 

II. 

We must first clarify whether we review only the decisions 

of the BIA or those of both the IJ and the BIA. Though this 

Court appears never to have spoken on this pr ecise issue, 

there is widespread consensus among our sister circuits. 

Congress has granted us power to review only "final order[s] 

of removal." 8 U.S.C. S 1252(a)(1). Because an alien facing 

removal may appeal to the BIA as of right, and because the 

BIA has the power to conduct a de novo r eview of IJ 

decisions, there is no "final order" until the BIA acts. See 

Castillo-Rodriguez v. INS, 929 F.2d 181, 183 (5th Cir. 1991). 

Accordingly, we now expressly hold that the "final order" we 

review is that of the BIA. Accord 3 Charles Gordon et al., 

 9 
Immigration Law & Procedure P 34.02[14][a], at 34-61 

(2000).2 

III. 

Abdulai contends that the BIA denied him due pr ocess by 

failing to make an individualized determination of his 

interests. He specifically faults the Boar d for not 

acknowledging or addressing any of his ar guments.3

Despite the fact that there is no constitutional right to 

asylum, aliens facing removal are entitled to due process. 

See Sewak v. INS, 900 F.2d 667, 671 (3d Cir. 1990). "The 

fundamental requirement of due process is the opportunity 

to be heard at a meaningful time and in a meaningful 

manner." Matthews v. Eldridge, 424 U.S. 319, 333 (1976) 

_________________________________________________________________ 

2. There are some situations in which a court of appeals effectively 

reviews an IJ's decision, but this is not one of them. The vast majority 

of the courts of appeals have held that the BIA"may simply state that 

it affirms the IJ's decision for the r easons set forth in that decision." 

Chen v. INS, 87 F.3d 5, 7 (1st Cir . 1996) (citing cases from the Second, 

Fourth, Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits). In such 

cases, the IJ's opinion effectively becomes the BIA's, and, accordingly, a 

court must review the IJ's decision. See id . at 7 n.3. The BIA may 

disregard an IJ's factual findings and conduct a de novo review of the 

entire record, but it is also entitled to defer to an IJ's fact-finding 

(assuming, of course, that the IJ's conclusions ar e supported by the 

evidence). See Senathirajah v. INS, 157 F .3d 210, 216 (3d Cir. 1998). 

When the BIA defers to an IJ, a reviewing court must, as a matter of 

logic, review the IJ's decision to assess whether the BIA's decision to 

defer was appropriate. In this case, the BIA never expressly "adopted" 

any portion of the IJ's opinion or announced that it was deferring to any 

of the IJ's findings. We therefor e review only the BIA's decision. 

3. Abdulai also claims that the BIA was r equired to conduct a de novo 

review of the entire record. W e find this claim meritless. First, we have 

squarely held that the BIA may defer to an IJ's factual findings. See 

Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998). In such cases, the 

BIA obviously does not review de novo. Second, the case on which 

Abdulai relies, Charlesworth v. USINS, 966 F.2d 1323 (9th Cir. 1992), 

simply does not support his argument. Charlesworth stated that the BIA 

"has the power to conduct a de novo review of the record." Id. at 1325 

(emphasis added) (quotation marks and citation omitted). Having the 

power to do something and being required to do it are not the same 

thing. 

 10 
(quotation marks and citation omitted). In adjudicative 

contexts such as this one, due process r equires three 

things. An alien: (1) is entitled to "factfinding based on a 

record produced before the decisionmaker and disclosed to" 

him or her, Llana-Castellon v. INS, 16 F.3d 1093, 1096 

(10th Cir. 1994); (2) must be allowed to make arguments on 

his or her own behalf, see id.; and (3) has the right to "an 

individualized determination of his [or her] interests," id. 

(citing Rhoa-Zamora v. INS, 971 F.2d 26, 34 (7th Cir. 

1992)). Because Abdulai does not contend that the decision 

to exclude him was based on evidence that was kept secret 

from him, or that he was prevented fr om making his case 

to the BIA or the IJ, the only due process right potentially 

implicated in this case is the third one--the right to an 

"individualized determination."4 

A decisionmaker must "actually consider the evidence 

and argument that a party presents." Id. This Court has 

suggested that the BIA denies due process to an alien when 

it "act[s] as a mere rubber-stamp." Marincas v. Lewis, 92 

F.3d 195, 202 n.7 (3d Cir. 1996). But because "[a]gency 

action . . . is entitled to a presumption of r egularity," 

Abdulai bears the burden of proving that"the BIA did not 

review the record when it consider ed the appeal." McLeod v. 

INS, 802 F.2d 89, 95 n.8 (3d Cir. 1986). 

We are troubled by certain aspects of this case. It

appears that no record of the February 24, 1999 remand 

hearing was ever transmitted to the Board. 5 Moreover, 

though the BIA faulted Abdulai for not submitting"evidence 

_________________________________________________________________ 

4. Though Abdulai complains that he was not allowed to file an 

additional brief with the BIA following the r emand, he concedes that he 

submitted one during his first appeal to that body. Because the Board's 

decision was based on Abdulai's failure to corr oborate the specifics of 

his 

story, and because Abdulai concedes that no evidence going to that issue 

was presented at the remand hearing, we conclude that the BIA's refusal 

to allow him to submit an additional brief worked no due process 

violation. 

5. The BIA denied Abdulai's application because he had failed to 

corroborate the specifics of his narrative. Because he concedes that none 

of the evidence presented at the remand hearing qualified as such 

corroboration, we conclude that the failur e to include the evidence in 

the 

administrative record, though error , was harmless.

 11 
corroborating the specifics of [his] testimony," it failed to 

acknowledge or respond to Abdulai's arguments that he 

had corroborated certain portions of his testimony and that 

it was unreasonable to expect him to corr oborate others. 

That being said, the question for due process purposes is 

not whether the BIA reached the corr ect decision; rather, it 

is simply whether the Board made an individualized 

determination of Abdulai's interests, and we believe that its 

opinion contains sufficient indicia that it did so. The BIA 

stated that: "This matter was remanded to the Immigration 

Judge for further inquiry as to the changed country

conditions of Nigeria, particularly since the gover nment 

that ruled in Nigeria at the time the respondent alleges he 

suffered persecution was no longer in power." It then noted 

that: "The Immigration Judge found that the r espondent 

only provided a large amount of evidence concerning

general claims as to the unrest in Nigeria, but failed to 

include evidence specific to his claim, such as evidence of 

his membership in a political party." The BIA further 

observed that: "[O]n remand, the r espondent provided only 

general information about the political situation in Nigeria, 

but again failed to demonstrate how he is adversely affected 

by the change in government in Nigeria." 

From these statements, one can deduce that the BIA was 

aware that Abdulai was a Nigerian seeking asylum on the 

basis of political persecution, that there had been issues 

involving a change in the Nigerian government and his 

failure to document his membership in a political party, 

and that the IJ's decision evinced dissatisfaction with his 

meeting the requisite burden of pr oof. This is sufficient. 

See, e.g., Rhoa-Zamora, 971 F.2d at 35-36 (finding no due 

process violation in a case where the BIA had noted that 

the applicant's " `testimony concer ning the military roundup of young males, like himself, in Nicaragua,' " and had 

made "an explicit finding that [two particular State 

Department Reports] which [the applicant] claimed that the 

Immigration Judge improperly prevented him from 

submitting, `do not establish his present eligibility for either 

withholding of deportation or asylum.' " (quoting the BIA)). 

The instant matter is distinguishable from the only

immigration case Abdulai cites in which a court found a 

 12 
due process violation: the Tenth Cir cuit's decision in LlanaCastellon v. INS, 16 F.3d 1093 (10th Cir . 1994). In that 

case, "[w]ith the exception of the first footnote (in which the 

BIA declined to address whether Petitioners hadfirmly 

resettled in Honduras), the BIA's decision contain[ed] no 

indication that it had undertaken a particularized 

consideration of Petitioners' case." Id. at 1098 (emphasis 

added). Because the BIA's opinion evidences its 

consideration of the individualized circumstances of 

Abdulai's application, we find no due process violation here. 

IV. 

We now come to the heart of the appeal. Though never 

finding that his testimony lacked credibility, the BIA held 

that Abdulai had not met his burden of pr oof due to his 

failure to introduce evidence corr oborating the specifics of 

his account.6 In so doing, the BIA applied its holding in In 

_________________________________________________________________ 

6. At oral argument, counsel for the Service suggested that a BIA finding 

that an applicant has failed to meet her bur den of proof necessarily 

encompasses a conclusion that the applicant's account was not credible. 

This is contrary to the Board's cases. In r e S-M-J-, Interim Decision 

3303 

(BIA 1997), available at 1997 WL 80984, explained the difference: 

 Even if an alien is found to be credible, if there is no context 

within 

 which to evaluate her claim, she has failed to met her burden of 

 proof because she has not provided sufficient evidence of the 

 foundation of her claim. A failure of pr oof is not a proper ground 

per 

 se for an adverse credibility determination. The latter finding is 

more 

 appropriately based upon inconsistent statements, contradictory 

 evidence, and inherently improbable testimony. 

(emphasis added). In other words, the BIA views"credibility" as involving 

only an analysis of the internal consistency and plausibility of an 

applicant's claim, whereas burden of pr oof analysis also involves 

consideration of all the surrounding evidence (or lack thereof). 

Abdulai avers that we must assume that his testimony was deemed 

credible because neither the BIA nor the IJ ever explicitly found to the 

contrary. We acknowledge that such a rule pr evails in the Ninth Circuit, 

see, e.g., Kataria v. INS, 232 F.3d 1107, 1113 (9th Cir. 2000), but 

Abdulai points to no decision of this Court expr essly adopting such a 

rule. Because it does not affect our disposition of this matter, we will 

assume, without deciding, that Abdulai's testimony was credible. 

 13 
re S-M-J-, Interim Decision 3303 (BIA 1997), available at 

1997 WL 80984. S-M-J- established the following rules: (1) 

an applicant need not provide evidence corr oborating the 

specifics of his or her testimony unless it would be 

"reasonable" to expect the applicant to do so; but (2) if it 

would be "reasonable" to expect corr oboration, then an 

applicant who neither introduces such evidence nor offers 

a satisfactory explanation as to why he or she cannot do so 

may be found to have failed to meet his or her bur den of 

proof. Abdulai challenges both the BIA's authority to adopt 

this rule and its application in his case. W e conclude that: 

(1) the Board's rule is not per se invalid; but (2) because the 

BIA's decision in this case provides us with no way to 

conduct our (albeit limited) review, we will vacate its order 

and remand to allow it to explain in mor e detail its reasons 

for denying Abdulai's application. We note that, except with 

regard to our discussion of this Court's prior cases, see 

infra at pp. 17-19, our analysis as to both points tracks in 

considerable measure that contained in Judge W alker's 

persuasive opinion in Diallo v. INS, 232 F .3d 279 (2d Cir. 

2000). 

A. 

We begin by acknowledging the narrow scope of our 

review. The Attorney General has been"charged with the 

administration and enforcement" of the INA, and Congress 

has provided that his "determination[s] and ruling[s] . . . 

with respect to all questions of law shall be controlling." 8 

U.S.C. S 1103(a)(1). Because of this delegation, the Supreme 

Court has held that "principles of Chevr on deference are 

applicable" in the immigration context. INS v. AguirreAguirre, 526 U.S. 415, 424 (1999). The Court has also 

emphasized that--because of the area's pr ofound foreign 

policy implications--"judicial deference to the Executive 

Branch is especially appropriate in the immigration

context." Id. at 425. And because the Attorney General has 

vested the BIA with the power to exercise the"discretion 

and authority conferred upon [him] by law," see 8 C.F.R. 

S 3.1(d)(1) (2000), these principles of defer ence also apply to 

the BIA. See Aguirre-Aguirre, 526 U.S. at 425. 

 14 
In determining whether the BIA may sometimes r equire 

corroboration of otherwise-credible testimony, we begin 

with the language of the INA. We accor d Chevron deference 

to the BIA's interpretations of the statute. See id. Our 

inquiry, therefore, is limited to deter mining whether "the 

statute is silent or ambiguous with respect to the specific 

issue," and, if so, "whether the agency's answer is based on 

a permissible construction of the statute." Chevron U.S.A. 

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 

837, 843 (1984). 

The INA is completely silent as to whether, when it is 

reasonable to expect corroborating evidence, an otherwisecredible applicant who neither produces such corroboration 

nor adequately explains his or her failure to do so may be 

deemed to have failed to meet his or her bur den of proof. 

See Ladha v. INS, 215 F.3d 889, 897 (9th Cir. 2000) (noting 

the INA's silence on this issue). The statute simply says 

that a person is eligible for asylum "if the Attorney General 

determines that such alien is a refugee," 8 U.S.C. 

S 1158(b)(1), and that the Attorney General must grant 

withholding relief if he "decides that the alien's life or 

freedom would be threatened" in the alien's home country, 

id. S 1231(b)(3)(A). What the statute says nothing about, 

however, is whether the Attorney General may sometimes 

require corroboration or explanation in determining

whether an alien is a refugee or deciding whether the 

alien's life or freedom would be threatened in his or her 

home country. Because the statute is silent, ther efore, the 

question is whether the BIA's interpretation is based on a 

permissible construction of the statute. In light of the INA's 

enormously broad delegation to the Attor ney General, we 

would be extremely reluctant to hold that his interpretation 

is unreasonable. 

In support of Abdulai's position, amicus Lawyer's 

Committee for Human Rights invokes two regulations 

promulgated by the Attorney General, one dealing with 

asylum and the other with withholding of removal. Both 

regulations provide that "[t]he testimony of the applicant, if 

credible, may be sufficient to sustain the burden of proof 

without corroboration." 8 C.F.R.S 208.13(a) (2000); Id. 

S 208.16(b). Amicus argues that these regulations establish 

 15 
that the BIA may never require an applicant to corroborate 

otherwise credible testimony as a precondition for meeting 

his or her burden of proof. We disagree. 

First, our standard of review is even mor e deferential 

when an agency is interpreting a regulation rather than a 

statute that it administers. See Applebaum v. Nissan Motor 

Acceptance Corp., 226 F.3d 214, 218 n.4 (3d Cir. 2000) 

(noting this distinction). An agency's interpr etation of its 

own regulation is "controlling . . . unless it is plainly 

erroneous or inconsistent with the regulation." Bowles v. 

Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). But 

even setting aside the hefty deference to which the BIA is 

entitled, we conclude that amicus' r eading is contrary to the 

language of the regulation. The regulation states that 

credible testimony may be enough to meet the applicant's 

burden of proof. Saying that something may be enough is 

not the same as saying that it is always enough; in fact, 

the most natural reading of the word "may" in this context 

is that credible testimony is neither per se sufficient nor per 

se insufficient. In other words, "it depends." And, according 

to the BIA, it depends, at least in part, on whether it would 

be reasonable to expect corroboration. W e do not see how 

this construction is plainly erroneous or inconsistent with 

the regulation. 

Amicus also invokes the United States' tr eaty obligations 

pursuant to the 1967 Protocol Relating to the Status of 

Refugees. The Protocol forbids any "contracting State" from 

expelling "a refugee in any manner whatsoever where his 

life or freedom would be threatened on account of his . . . 

political opinion." 1967 United Nations Pr otocol Relating to 

the Status of Refugees, Jan. 31, 1967, 19 U.S.T . 6224, 

6276, T.I.A.S. No. 6577. Amicus notes that a Handbook 

published by the Office of the United Nations High 

Commissioner for Refugees states that "the r equirement of 

evidence should . . . not be too strictly applied in view of 

the difficulty of proof inherent in the special situation in 

which an applicant for refugee status finds himself." See 

Amicus Br. at 19 (quoting Office of the United Nations High 

Commissioner for Refugees, Handbook on Pr ocedures and 

Criteria for Determining Refugee Status Under the 1951 

Convention and the 1967 Protocol Relating to the Status of 

 16 
Refugees 197 (Geneva 1992) (the Handbook)). Accordingly, 

the Handbook recommends that "if the applicant's account 

appears credible, he should, unless ther e are good reasons 

to the contrary, be given the benefit of the doubt." Amicus 

Br. at 20 (quoting the Handbook). 

Amicus' argument suffers fr om two fatal flaws. First, the 

Handbook is not binding on the INS or American courts. 

See, e.g., Aguirre-Aguirre, 526 U.S. at 427. Second, the 

Handbook only recommends not requiring corroborating 

evidence "unless there are good r easons to the contrary." 

But because the BIA's rule only holds a failur e to

corroborate against an applicant when: (1) it is "reasonable 

to expect" corroboration; and (2) the applicant has no 

satisfactory explanation for not doing so, "[t]he standard 

applied by the BIA adheres to [the Handbook's] general 

parameters," Diallo v. INS, 232 F .3d 279, 286 (2d Cir. 

2000). We find nothing in the Handbook that renders the 

BIA's rule suspect on its face. 

Abdulai presses a final claim based on stare decisis: He 

argues that this Court's precedent establishes that credible 

testimony is always sufficient to meet an applicant's burden 

of proof. The BIA is required to follow court of appeals 

precedent within the geographical confines of the relevant 

circuit. See Matter of Anselmo (Interim Decision), 20 I.&N. 

Dec. 25. 30-31 (May 11, 1989) (acknowledging this fact). 

And this panel is, of course, bound by the decisions of a 

prior panel. See 3d Cir. I.O.P . 9.1. Accordingly, if prior 

Third Circuit law establishes that an applicant's credible 

testimony is always sufficient to meet the bur den of proof, 

then the BIA was not permitted to requir e corroboration in 

this case and we must set aside the BIA's decision. Cf. 

Ladha, 215 F.3d at 899 (following this logic based on Ninth 

Circuit precedent).7 

We disagree with Abdulai, however , that our cases have 

established the rule that he seeks. Abdulai places most 

_________________________________________________________________ 

7. In support of this argument, Abdulai and amicus cite numerous cases 

from other courts of appeals. Because we ar e not bound by precedent 

from other circuits and because we have concluded that only stare 

decisis could justify a ruling in Abdulai's favor, these decisions are not 

relevant to our disposition here. 

 17 
emphasis on our decision in Senathirajah v. INS , 157 F.3d 

210 (3d Cir. 1998).8 At one point in its opinion, the panel 

stated that: "corroboration is not r equired to establish 

credibility. The law allows one seeking r efugee status to 

prove his persecution claim with his own testimony if it is 

credible." Id. at 216 (quotation marks and citation omitted). 

Abdulai submits that this language clearly establishes that 

the BIA may not hold that an applicant has failed to meet 

his or her burden of proof simply because he or she has 

failed to produce corroborating evidence. Because we 

assume (for the sake of argument) that Abdulai's testimony 

was credible, see supra note 6, the sentence upon which he 

must be relying is the second one: "The law allows one 

seeking refugee status to prove his persecution claim with 

his own testimony if it is credible." The pr oblem for 

Abdulai, however, is that this statement was dicta.

The issue before us in Senathirajah simply had nothing 

to do with corroboration. That case involved an asylum 

applicant from Sri Lanka. See id. at 211. An IJ originally 

denied the application on several grounds. Importantly, the 

IJ found that the applicant's story had not been cr edible 

and also concluded that he had failed to meet his burden 

of proof because he had not corroborated his story. See id. 

at 213-14. The applicant then appealed to the BIA, which 

"conducted an independent examination of the r ecord, and 

also concluded that Senathirajah was not credible." Id. at 

216. The BIA gave three reasons for concluding that the 

applicant lacked credibility--none of which involved his 

failure to provide corroboration. See id. at 216-17. Because 

we review only the BIA's decision, see supra page 9-10, 

there was simply no issue of corroboration before us in 

Senathirajah. This is confirmed by the fact that, other than 

the sentence from which Abdulai and amicus seek to

extract so much meaning, our analysis in Senathirajah 

contained no discussion of the corroboration issue. Though 

_________________________________________________________________ 

8. He also cites Balasubramanrim v. INS, 143 F.3d 157 (3d Cir. 1998), 

but that case simply states that "[w]hen documentary evidence is lacking 

. . . the applicant's credible, persuasive, and specific testimony may 

suffice." 143 F.3d at 165 (emphasis added). We return once again to a 

point we made earlier: saying that something may suffice is not the same 

as saying that it always does. 

 18 
we agree that Senathirajah suggests that it may be a bad 

idea to expect asylum applicants to provide corroborating 

evidence, that issue simply was not before us. 

In sum, we have no warrant for concluding that the BIA's 

rule is per se invalid. The Board's rule is not foreclosed by 

the INA or the governing regulations, it is consistent with 

international standards, and it is not in conflict with our 

cases. We therefore hold that the BIA may sometimes

require otherwise-credible applicants to supply 

corroborating evidence in order to meet their burden of 

proof. 

B. 

Our consideration is not ended, however, simply because 

we have concluded that the BIA's rule is not per se invalid. 

There remains the question whether it was properly applied 

here. The BIA's rule contemplates a thr ee-part inquiry: (1) 

an identification of the facts for which "it is reasonable to 

expect corroboration;" (2) an inquiry as to whether the 

applicant has provided information corr oborating the 

relevant facts; and, if he or she has not, (3) an analysis of 

whether the applicant has adequately explained his or her 

failure to do so. See In re S-M-J-, Interim Decision 3303 

(BIA 1997), available at 1997 WL 80984. 

In this case, the BIA seems to have focused on inquiry (2) 

(whether Abdulai had corroborated the specifics of his 

testimony), while completely ignoring the other two aspects 

of its own test. The Board's entire analysis reads:

 In the case at bar, we find that the r espondent has not 

 produced sufficient evidence to meet his bur den of 

 proof. We acknowledge that the r espondent has 

 submitted numerous articles and reports r egarding 

 general country conditions in Nigeria. However , we note 

 the conspicuous lack of documentary evidence

 corroborating the specifics of the respondent's 

 testimony. Therefore, given the complete lack of 

 evidence corroborating the specifics of the r espondent's 

 asylum claim, we agree with the Immigration Judge 

 that the respondent has failed to sustain his burden of 

 proof in this matter. 

 19 
What the BIA never explains, however, is what particular 

aspects of Abdulai's testimony it would have been 

reasonable to expect him to have corroborated. Without 

knowing that, it is impossible for us to review: (1) whether 

it was reasonable to expect Abdulai to corr oborate such 

information; (2) whether Abdulai provided the requisite 

corroboration; or (3) whether Abdulai adequately explained 

his inability to do so. 

Nor is this an academic exercise. The BIA's own prior 

decisions establish that it is "reasonable" to expect an 

applicant to corroborate "facts which ar e central to his or 

her claim and easily subject to verification." In re S-M-J-, 

supra. It has included in this category "evidence of [an 

applicant's] place of birth, media accounts of large 

demonstrations, evidence of a publicly held office, or 

documentation of medical treatment." Id. The Board has 

also stated that it is generally reasonable to expect 

applicants to produce letters from family members 

remaining in the applicant's home country. See In re M-D-, 

Interim Decision 3339 (BIA 1998), available at 1998 WL 

127881.9 

Abdulai attempted to meet his burden under these rules. 

He submitted his Nigerian passport, and attempted to 

explain his inability to document his CD membership. At 

oral argument before this Court, the Service submitted that 

it is reasonable to expect Abdulai to have corr oborated his 

hospital visit in Nigeria following his final r elease from 

confinement. Though we are uncertain whether it would be 

reasonable to hold Abdulai's failure to pr ocure Nigerian 

hospital records against him (assuming, of course, that 

such records even exist), that concer n is ultimately beside 

_________________________________________________________________ 

9. In setting out this summary of the Boar d's case law, we express no 

opinion as to whether we agree that it is "r easonable" to expect 

applicants for asylum or withholding of removal to corroborate these 

types of information. We observe, however, that an applicant's ability to 

obtain corroborating evidence may often depend on the social and 

political circumstances of a given country. See, e.g., Asylum and 

Withholding of Deportation Procedur es, 52 Fed. Reg. 32552, 32553 

(proposed March 7, 1991) ("[T]heflight or defection of a bona fide refugee 

from a country that engages in widespread persecution may leave him in 

a difficult position to corroborate his claim."). 

 20 
the point. Because the BIA never stated which aspects of 

his story it would have been reasonable to corr oborate, we 

have no way of reviewing the Board's actual reasoning. 

We acknowledge that our standard of r eview is 

extraordinarily deferential to the BIA, and that nothing in 

the INA specifically requires the Boar d to explain its 

decisions. But the availability of judicial r eview (which is 

specifically provided in the INA) necessarily contemplates 

something for us to review. In a case quite similar to this 

one, the Second Circuit vacated and remanded a decision 

by the BIA so that the Board could further explain its 

reasoning. See Diallo v. INS, 232 F .3d 279, 288-90 (2d Cir. 

2000). We have done the same when deficiencies in BIA 

decisions have made them impossible to review 

meaningfully. See, e.g., Sotto v. USINS, 748 F.2d 832, 837 

(3d Cir. 1984). Because the BIA's failur e of explanation 

makes it impossible for us to review its rationale, we grant 

Abdulai's petition for review, vacate the Boar d's order, and 

remand the matter to it for further proceedings consistent 

with this opinion. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 21