### 2001 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

2-12-2001 

# Ab dul ai v . Ashcr oft

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 00-3111

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_2001

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2001 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" Abdul ai v . Ashcr oft " (2001). 2001 D e cisio n s

. P a pe r 26.

h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_2001/26Filed 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 Ru le 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, petiti ons for review of a decision by the Board of Immigration Ap peals (BIA or Board) ordering him removed to his home cou ntry. His petition presents the important question whethe r the BIA may, consistent with existing law, sometimes r equire otherwise-credible applicants for asylum or withhol ding of removal to present evidence corroborating their sto ries in order to meet their burden of proof. Abdulai conten ds that it may not, but we conclude that it may.

2We begin by clarifying that, absent special circums tances

not present here, we review only decisions by the B IA and not those by immigration judges. We then explain wh y we reject Abdulai's other main argument--that the Boar d deprived him of due process of law by failing to co nduct a sufficiently individualized assessment of his claim . Turning to the heart of the appeal, we explain why an exami nation of the Immigration and Nationality Act (INA), the I NA's implementing regulations, the United States' obliga tions under international law, and our own pr ecedent lea ds us to conclude that the BIA may sometimes requir e corrob oration of otherwise-credible testimony. Despite this holdi ng, because there is a serious question whether the Boa rd's own rules were properly applied in this case, we va cate the BIA's order and remand this matter to per mit the B oard 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 obo rate certain aspects of his account were insufficient.

I.

A. Procedural History

Abdulai arrived at New York's JFK airport in the sp ring 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 U nited States. At an initial hearing Abdulai conceded that he was "removable," i.e., that he was not entitled to rema in in the United States absent some form of relief by the INS , but represented that he would be seeking both asylum fr om and withholding of removal to Nigeria based on poli tical persecution. The case was continued to allow Abdula i to file the appropriate papers, which he timely did.

A grant of asylum allows an otherwise-removable ali en to stay in the United States. Subject to numerous exce ptions not implicated in this case, the Attorney General " may grant asylum" to an alien he "determines" to be a " refugee"

3within 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 o n account of . . . political opinion." Id.S 1101(42)( A). Withholding of removal, in contrast, confers only t he right not to be deported to a particular country--not a r ight to remain in this one. See INS v. Aguirr e-Aguirre, 52 6 U.S. 415, 419 (1999). Also subject to many exceptions no t applicable here, the Attorney General may not remov e an alien to a particular country if he "decides" that the alien's

"life or freedom would be threatened in that countr y 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 describ ing conditions in Nigeria in support of his claim. At t he close of the hearing, the IJ rendered an oral decision denyi ng Abdulai's application and ordering him r emoved. Th e IJ did not expressly find that Abdulai's testimony lacked credibility, but nevertheless concluded that he had "not presented adequate evidence to demonstrate" eligibi lity for asylum or withholding of removal. The IJ also noted that General Sani Abacha--who had ruled Nigeria since se izing power in a coup in 1993--had died just four days be fore the hearing, and that "an issue of changed country conditions" had arisen as a result. Referring to th e fact that "there have been some political changes in Nigeria, " the IJ nevertheless determined that it was "much too prema ture to conclude that . . . the political atmosphere has ch anged 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. Notin g 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 BI A ordered "the record . . . remanded to the Immigration Court so that

4both parties . . . may have an opportunity to pr of fer any

evidence relevant to the applicant's claim and for the entry of a new decision by the Immigration Judge." The BI A also ordered that "[s]hould a decision on remand be adve rse to the respondent, the record shall be certified to th e Board

for review."

Consistent with the BIA's direction, the IJ then he ld another hearing. A witness for Abdulai testified th at any changes in Nigeria following the death of General A bacha were nothing more than cosmetic dif ferences betwee n it and the former government. Both Abdulai and the INS submitted documentary evidence about the transfer o f power in Nigeria. The IJ again denied Abdulai's app lication by a written decision, reasoning that even if she w ere "to accept all of the [new] evidence presented by [Abdu lai] in the worst possible light, [Abdulai] has submitted n o 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 testim ony." Accordingly, the IJ once again found that Abdulai h ad "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 appea rs that no transcript of the February 24, 1999 hearing was ever prepared. The BIA denied Abdulai's r equest for ora l argument.

On January 18, 2000, the BIA entered a final order denying Abdulai's application, which was accompanie d by a two-page per curiam opinion. The opinion noted that the IJ had denied Abdulai's application "primarily based o n [his] failure to articulate a specific and detailed claim ," and noted that on remand Abdulai had "pr ovided only ge neral information as to the political situation in Nigeri a, but again failed to demonstrate how he is adversely af fected by the change of government in Nigeria." Then, summari zing several of its previous decisions, the Boar d laid out the following rules: (1) an asylum seeker must always p r esent "general background information on country conditio ns;" and (2) "where it is reasonable to expect corrobora ting

5evidence for certain alleged facts pertaining to th e 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 stresse d that the absence of corroboration or explanation in case s where it is reasonable to expect one or the other"can lea d to a finding that the applicant has failed to meet his b urden of proof."

The Board's application of these principles to Abdu lai's

case was terse. It stated:

[W]e find that the respondent has not provid ed sufficient evidence to meet his burden of pr oof. We acknowledge that the respondent has submitte d numerous articles and reports regar ding gen eral country conditions in Nigeria. However, we n ote the conspicuous lack of documentary evidence corroborating the specifics of the responden t's testimony. Therefore, given the complete lac k 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 hi s burden of proof in this matter.

Board Member Rosenberg dissented. She ar gued that Abdulai had "provided consistent, specific and deta iled testimony, which establishe[d] that he pr eviously suffered" persecution "at the hands of the Nigerian authoriti es 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 spe cificity," and reasoned that the IJ had "applied an inappropri ate legal standard in justifying her finding that[Abdul ai] had not presented adequate evidence [i.e., the corrobor ation requirement]." Rosenberg also took issue with the m anner in which the Board had dealt with Abdulai's case. S he

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 Immi gration

6Judge's original decision. The majority opin ion does not

reflect that it meaningfully reviewed the de cisions of the Immigration Judge in relation to the r e cord, or that it addressed the respondent's original appel late arguments, or those made in connection with the Immigration Judge's subsequent decision foll owing our remand order. In my view, the majority now s idesteps our responsibility to conduct meaningful app ellate review by simply affirming the Immigration J udge's decision without considering the record, de novo, or, at the very least, addressing the arguments mad e by the respondent in his original appeal.

Abdulai timely filed a petition for review with thi s 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 Ab acha 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 an d attended his first meeting of the Campaign for Demo cracy (CD), an organization seeking to restor e Nigeria t o civilian rule. At some point he was issued a CD membership c ard.

Abdulai did not attend another CD meeting, however

, until February 1995. Abdulai provided no r eason fo r 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 activis ts gathered at the home of a CD organizer . The meetin g was raided by Nigerian police officers, and Abdulai was arrested along with the president of the organization and ot her prominent CD members. He was imprisoned in a commun al cell, but was never charged with an of fense, quest ioned by the police, or permitted to speak with anyone on th e outside. After approximately two weeks, he was rele ased without explanation.

___________________________________________________ ______________

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

uncorroborated.

7Abdulai resolved to become more involved with the C D.

He attended another meeting in March 1995, wher e h e 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 pol ice arrived, fired tear gas into the crowd, and arreste d 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. Du ring his second stint in prison, Abdulai was told that h e was being confined pursuant to Decree Number Two of 198 4, and that he would be charged with distributing sedi tious materials and unlawful gathering. The guards also t ook his CD membership card. Two months later, Abdulai was released when his family succeeded in bribing his c aptors.

After his release, Abdulai's family convinced him t o drop out of the CD because they feared for his safety. H e stopped attending CD meetings, abandoned his position as a Strategic Planner, and destroyed all his CD materia ls. Nevertheless, in June 1996, Abdulai was again taken into custody, this time by the Nigerian State Security S ervices. He was questioned for several hours about an upcomi ng CD rally, and placed in a cell. He was questioned t hree additional times over a four month period and then

released.

Abdulai was arrested a final time in either late No vember or early December of 1996 by agents of the Dir ecto rate of Military Intelligence. The agents ransacked his apa rtment and took him to their barracks. Abdulai was questio ned about an explosion in Lagos and his relationship to other activists, but told the officers that he was no lon ger a member of the CD. During the questioning, officers slapped Abdulai and "stomped on his ear." He was then place d in a

cell. Abdulai was later told that he would be r ele ased if he signed a document incriminating other activists. He signed the document, after which his conditions of confine ment improved.

Abdulai fell ill sometime around March 1997 and was released in May of that year. After being treated b y a doctor,

8he 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 becam e 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 smu ggled from Benin to Togo to Ghana to the Ivory Coast, and

, finally, to the United States.

Abdulai tendered a considerable amount of documenta ry 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 passpo rt; (2) a

letter from the General Counsel of the National Dem ocratic Council, an umbrella organization supporting democr acy in Nigeria, which stated that his story "appear[ed] ve ry credible in relation to the types of cases we are a ware of " but that "[b]ecause of the massive clamp-down on ci vil society in Nigeria, efforts to independently verify or confirm membership [in pro-democracy groups] are usually fr uitless from this end and dangerous from the Nigerian end;" and (3) an affidavit from an assistant pr ofessor of Af rican Studies and Politics who had visited Nigeria and wr itten about the political situation there. The pr ofessor opined

that Abdulai's account was "consistent with the cur rent political conditions in Nigeria."

II.

We must first clarify whether we review only the de cisions

of the BIA or those of both the IJ and the BIA. Tho ugh this Court appears never to have spoken on this pr ecise issue, there is widespread consensus among our sister circ uits. Congress has granted us power to review only "final order[s] of removal." 8 U.S.C. S 1252(a)(1). Because an alie n facing removal may appeal to the BIA as of right, and beca use the BIA has the power to conduct a de novo r eview of I J decisions, there is no "final order" until the BIA acts. See Castillo-Rodriguez v. INS, 929 F.2d 181, 183 (5th C ir. 1991). Accordingly, we now expressly hold that the "final order" we

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

9Immigration Law & Procedure P 34.02[14][a], at 34-6 1

(2000).2

III.

Abdulai contends that the BIA denied him due pr oce ss by failing to make an individualized determination of his interests. He specifically faults the Boar d for no t acknowledging or addressing any of his ar guments.3

Despite the fact that there is no constitutional ri ght to asylum, aliens facing removal are entitled to due p rocess. See Sewak v. INS, 900 F.2d 667, 671 (3d Cir. 1990). "The fundamental requirement of due process is the oppor tunity to be heard at a meaningful time and in a meaningfu l manner." Matthews v. Eldridge, 424 U.S. 319, 333 (1 976)

___________________________________________________ ______________

2. There are some situations in which a court of ap peals effectively reviews an IJ's decision, but this is not one of th em. 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 f orth 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 mus t, as a matter of logic, review the IJ's decision to assess whether t he 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 i t 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 t o conduct a de novo

review of the entire record. W e find this claim me ritless. First, we have squarely held that the BIA may defer to an IJ's fac tual findings. See Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 199 8). In such cases, the BIA obviously does not review de novo. Second, the case on which Abdulai relies, Charlesworth v. USINS, 966 F.2d 132 3 (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 r ecord." Id. at 1325 (emphasis added) (quotation marks and citation omit ted). Having the power to do something and being required to do it a re not the same thing.

10(quotation marks and citation omitted). In adjudica tive

contexts such as this one, due process r equires th ree things. An alien: (1) is entitled to "factfinding b ased on a record produced before the decisionmaker and disclo sed to" him or her, Llana-Castellon v. INS, 16 F.3d 1093, 1 096 (10th Cir. 1994); (2) must be allowed to make argum ents on his or her own behalf, see id.; and (3) has the rig ht to "an individualized determination of his [or her] intere sts," id. (citing Rhoa-Zamora v. INS, 971 F.2d 26, 34 (7th Ci r. 1992)). Because Abdulai does not contend that the d ecision 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 po tentially implicated in this case is the third one--the right to an

"individualized determination."4

A decisionmaker must "actually consider the evidenc e and argument that a party presents." Id. This Court has suggested that the BIA denies due process to an ali en when it "act[s] as a mere rubber-stamp." Marincas v. Lew is, 92 F.3d 195, 202 n.7 (3d Cir. 1996). But because "[a]g ency action . . . is entitled to a presumption of r egul arity," Abdulai bears the burden of proving that"the BIA di d 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 rem and hearing was ever transmitted to the Board. 5 Moreov er, though the BIA faulted Abdulai for not submitting"e vidence

___________________________________________________ ______________

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 obo rate the specifics of

his story, and because Abdulai concedes that no evidenc e going to that issue was presented at the remand hearing, we conclude th at the BIA's refusal

to allow him to submit an additional brief worked n o 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 qua lified as such corroboration, we conclude that the failur e to inc lude the evidence in

the administrative record, though error , was harmless.

11corroborating 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 o thers.

That being said, the question for due process purpo ses 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 believ e that its opinion contains sufficient indicia that it did so. The BIA stated that: "This matter was remanded to the Immig ration 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 al leges he suffered persecution was no longer in power." It th en noted that: "The Immigration Judge found that the r espon dent only provided a large amount of evidence concerning general claims as to the unrest in Nigeria, but fai led to include evidence specific to his claim, such as evi dence of his membership in a political party." The BIA furth er observed that: "[O]n remand, the r espondent provid ed only general information about the political situation i n 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 h is failure to document his membership in a political p arty,

and that the IJ's decision evinced dissatisfaction with his meeting the requisite burden of pr oof. This is suf ficient. 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 milita ry roundup of young males, like himself, in Nicaragua,' " a nd had made "an explicit finding that [two particular Stat e Department Reports] which [the applicant] claimed t hat the Immigration Judge improperly prevented him from submitting, `do not establish his present eligibili ty for either withholding of deportation or asylum.' " (quoting t he BIA)).

The instant matter is distinguishable from the only immigration case Abdulai cites in which a court fou nd a

12due process violation: the Tenth Cir cuit's decisio n in LlanaCastellon v. INS, 16 F.3d 1093 (10th Cir . 1994). I n that case, "[w]ith the exception of the first footnote ( in which the

BIA declined to address whether Petitioners hadfirm ly resettled in Honduras), the BIA's decision contain[ ed] no indication that it had undertaken a particularized consideration of Petitioners' case." Id. at 1098 (e mphasis added). Because the BIA's opinion evidences its

consideration of the individualized circumstances o f Abdulai's application, we find no due process viola tion here.

IV.

We now come to the heart of the appeal. Though neve r finding that his testimony lacked credibility, the BIA held that Abdulai had not met his burden of pr oof due t o his failure to introduce evidence corr oborating the sp ecifics of his account.6 In so doing, the BIA applied its hold ing in In

___________________________________________________ ______________

6. At oral argument, counsel for the Service sugges ted that a BIA finding that an applicant has failed to meet her bur den of proof necessarily encompasses a conclusion that the applicant's accou nt 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 t he 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 sufficien t 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 statem ents, contradictory evidence, and inherently improbable testimon y.

(emphasis added). In other words, the BIA views"cre dibility" as involving only an analysis of the internal consistency and pl ausibility of an applicant's claim, whereas burden of pr oof analysi s also involves consideration of all the surrounding evidence (or l ack thereof).

Abdulai avers that we must assume that his testimon y was deemed

credible because neither the BIA nor the IJ ever ex plicitly 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 es sly 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.

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

1997 WL 80984. S-M-J- established the following rul es: (1) an applicant need not provide evidence corr oborati ng the specifics of his or her testimony unless it would b e "reasonable" to expect the applicant to do so; but (2) if it would be "reasonable" to expect corr oboration, the n an applicant who neither introduces such evidence nor offers a satisfactory explanation as to why he or she cann ot 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 conc lude 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 i ts reasons for denying Abdulai's application. We note that, ex cept with regard to our discussion of this Court's prior case s, see infra at pp. 17-19, our analysis as to both points tracks in considerable measure that contained in Judge W alke r'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 Con gress has provided that his "determination[s] and ruling[ s] . . . with respect to all questions of law shall be contr olling." 8 U.S.C. S 1103(a)(1). Because of this delegation, th e Supreme Court has held that "principles of Chevr on deferen ce are applicable" in the immigration context. INS v. Agui rreAguirre, 526 U.S. 415, 424 (1999). The Court has al so emphasized that--because of the area's pr ofound fo reign policy implications--"judicial deference to the Exe cutive Branch is especially appropriate in the immigration context." Id. at 425. And because the Attorney Gene ral has vested the BIA with the power to exercise the"discr etion 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.

14In determining whether the BIA may sometimes r equi re

corroboration of otherwise-credible testimony, we b egin with the language of the INA. We accor d Chevron de ference to the BIA's interpretations of the statute. See id . Our inquiry, therefore, is limited to deter mining whet her "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., 46 7 U.S. 837, 843 (1984).

The INA is completely silent as to whether, when it is reasonable to expect corroborating evidence, an oth erwisecredible applicant who neither produces such corrob oration 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 simpl y says that a person is eligible for asylum "if the Attorn ey General determines that such alien is a refugee," 8 U.S.C. S 1158(b)(1), and that the Attorney General must gr ant withholding relief if he "decides that the alien's life or

freedom would be threatened" in the alien's home co untry, id. S 1231(b)(3)(A). What the statute says nothing about, however, is whether the Attorney General may someti mes require corroboration or explanation in determining whether an alien is a refugee or deciding whether t he

alien's life or freedom would be threatened in his or her home country. Because the statute is silent, ther e fore, the question is whether the BIA's interpretation is bas ed on a permissible construction of the statute. In light o f the INA's enormously broad delegation to the Attor ney Genera l, we would be extremely reluctant to hold that his inter pretation

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 wi th asylum and the other with withholding of removal. B oth regulations provide that "[t]he testimony of the ap plicant, if credible, may be sufficient to sustain the burden o f proof without corroboration." 8 C.F.R.S 208.13(a) (2000); Id. S 208.16(b). Amicus argues that these regulations e stablish

15that the BIA may never require an applicant to corr oborate

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 deferen tial when an agency is interpreting a regulation rather than a statute that it administers. See Applebaum v. Nissa n Motor Acceptance Corp., 226 F.3d 214, 218 n.4 (3d Cir. 20 00) (noting this distinction). An agency's interpr etat ion of its own regulation is "controlling . . . unless it is p lainly erroneous or inconsistent with the regulation." Bow les 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 cont rary to the language of the regulation. The regulation states t hat credible testimony may be enough to meet the applic ant's burden of proof. Saying that something may be enoug h 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 suffic ient nor per se insufficient. In other words, "it depends." And, according to the BIA, it depends, at least in part, on whethe r it would be reasonable to expect corroboration. W e do not s ee how this construction is plainly erroneous or inconsist ent with the regulation.

Amicus also invokes the United States' tr eaty obli gations pursuant to the 1967 Protocol Relating to the Statu s of Refugees. The Protocol forbids any "contracting Sta te" from expelling "a refugee in any manner whatsoever where his

life or freedom would be threatened on account of h is . . . political opinion." 1967 United Nations Pr otocol R elating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T . 6 224, 6276, T.I.A.S. No. 6577. Amicus notes that a Handbo ok published by the Office of the United Nations High Commissioner for Refugees states that "the r equire ment of evidence should . . . not be too strictly applied i n view of the difficulty of proof inherent in the special sit uation in which an applicant for refugee status finds himself ." See Amicus Br. at 19 (quoting Office of the United Nati ons High Commissioner for Refugees, Handbook on Pr ocedures and Criteria for Determining Refugee Status Under the 1 951 Convention and the 1967 Protocol Relating to the St atus of

16Refugees 197 (Geneva 1992) (the Handbook)). Accordi ngly,

the Handbook recommends that "if the applicant's ac count 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. Fir st, the Handbook is not binding on the INS or American cour ts. See, e.g., Aguirre-Aguirre, 526 U.S. at 427. Second , the Handbook only recommends not requiring corroboratin g evidence "unless there are good r easons to the con trary." But because the BIA's rule only holds a failur e to corroborate against an applicant when: (1) it is "r easonable to expect" corroboration; and (2) the applicant has no satisfactory explanation for not doing so, "[t]he s tandard applied by the BIA adheres to [the Handbook's] gene ral 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 decisi s: 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 ap peals precedent within the geographical confines of the r elevant circuit. See Matter of Anselmo (Interim Decision), 20 I.&N. Dec. 25. 30-31 (May 11, 1989) (acknowledging this f act). And this panel is, of course, bound by the decision s of a prior panel. See 3d Cir. I.O.P . 9.1. Accordingly, if prior Third Circuit law establishes that an applicant's c redible testimony is always sufficient to meet the bur den of proof, then the BIA was not permitted to requir e corrobor ation 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 b ound by precedent

from other circuits and because we have concluded t hat only stare decisis could justify a ruling in Abdulai's favor, these decisions are not relevant to our disposition here.

17emphasis on our decision in Senathirajah v. INS , 1 57 F.3d

210 (3d Cir. 1998).8 At one point in its opinion, t he panel stated that: "corroboration is not r equired to est ablish credibility. The law allows one seeking r efugee st atus 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 establis hes that the BIA may not hold that an applicant has failed t o meet his or her burden of proof simply because he or she has failed to produce corroborating evidence. Because w e assume (for the sake of argument) that Abdulai's te stimony was credible, see supra note 6, the sentence upon w hich he must be relying is the second one: "The law allows one seeking refugee status to prove his persecution cla im 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 noth ing to do with corroboration. That case involved an asy lum applicant from Sri Lanka. See id. at 211. An IJ ori ginally denied the application on several grounds. Importan tly, the IJ found that the applicant's story had not been cr edible

and also concluded that he had failed to meet his b urden 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 ecor d, 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 involve d 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 u s in Senathirajah. This is confirmed by the fact that, o ther than

the sentence from which Abdulai and amicus seek to extract so much meaning, our analysis in Senathiraj ah

contained no discussion of the corroboration issue. Though

___________________________________________________ ______________

8. He also cites Balasubramanrim v. INS, 143 F.3d 1 57 (3d Cir. 1998), but that case simply states that "[w]hen documentar y evidence is lacking . . . the applicant's credible, persuasive, and spe cific testimony may suffice." 143 F.3d at 165 (emphasis added). We retu rn once again to a point we made earlier: saying that something may s uffice is not the same as saying that it always does.

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

idea to expect asylum applicants to provide corrobo rating 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 for eclosed by the INA or the governing regulations, it is consist ent 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 burde n of proof.

B.

Our consideration is not ended, however, simply bec ause 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 inq uiry: (1)

an identification of the facts for which "it is rea sonable to expect corroboration;" (2) an inquiry as to whether the applicant has provided information corr oborating t he relevant facts; and, if he or she has not, (3) an a nalysis of whether the applicant has adequately explained his or her failure to do so. See In re S-M-J-, Interim Decisio n 3303 (BIA 1997), available at 1997 WL 80984.

In this case, the BIA seems to have focused on inqu iry (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 espon dent has not produced sufficient evidence to meet his bur den of proof. We acknowledge that the r espondent h as submitted numerous articles and reports r eg arding general country conditions in Nigeria. Howev er , we note the conspicuous lack of documentary evidence corroborating the specifics of the responden t's testimony. Therefore, given the complete lac k 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 hi s burden of proof in this matter.

19What the BIA never explains, however, is what part icular

aspects of Abdulai's testimony it would have been reasonable to expect him to have corroborated. With out 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 requi site corroboration; or (3) whether Abdulai adequately ex plained his inability to do so.

Nor is this an academic exercise. The BIA's own pri or decisions establish that it is "reasonable" to expe ct an applicant to corroborate "facts which ar e central to his or her claim and easily subject to verification." In r e S-M-J-, supra. It has included in this category "evidence o f [an applicant's] place of birth, media accounts of larg e demonstrations, evidence of a publicly held office, or documentation of medical treatment." Id. The Board has also stated that it is generally reasonable to expe ct applicants to produce letters from family members remaining in the applicant's home country. See In r e M-D-, Interim Decision 3339 (BIA 1998), available at 199 8 WL

127881.9

Abdulai attempted to meet his burden under these ru les. He submitted his Nigerian passport, and attempted t o explain his inability to document his CD membership . At oral argument before this Court, the Service submit ted that it is reasonable to expect Abdulai to have corr obo rated his hospital visit in Nigeria following his final r ele ase from confinement. Though we are uncertain whether it wou ld be reasonable to hold Abdulai's failure to pr ocure Ni gerian hospital records against him (assuming, of course, that such records even exist), that concer n is ultimate ly 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 easona ble" 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 t he 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 persecuti on may leave him in a difficult position to corroborate his claim.").

20the point. Because the BIA never stated which aspec ts of

his story it would have been reasonable to corr obo rate, we have no way of reviewing the Board's actual reasoni ng.

We acknowledge that our standard of r eview is extraordinarily deferential to the BIA, and that no thing 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 conte mplates something for us to review. In a case quite similar to this one, the Second Circuit vacated and remanded a deci sion 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 B IA decisions have made them impossible to review meaningfully. See, e.g., Sotto v. USINS, 748 F.2d 8 32, 837 (3d Cir. 1984). Because the BIA's failur e of expla nation 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 con sistent with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

21