2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-23-2003

Zubeda v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 02-2868

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PRECEDENTIAL

Filed June 23, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-2868

TAKKY ZUBEDA,

Petitioner

v.

JOHN ASHCROFT, ATTORNEY GENERAL

OF THE UNITED STATES,

Respondent

Petition for Review of a Decision of the

Board of Immigration Appeals

A78-824-095

Argued: April 1, 2003

Before: McKEE and SMITH, Circuit Judges,

and HOCHBERG, District Judge*

(Opinion filed: June 23, 2003)

* The Honorable Faith Hochberg, District Judge of the United States

District Court for the District of New Jersey, sitting by designation. 
JUDITH BERNSTEIN-BAKER, ESQ.

AYODELE GANSALLO, ESQ.

HIAS and Council Migration Service

of Philadelphia

2100 Arch Street, 3rd Floor

Philadelphia, PA 19103

JONATHAN H. FEINBERG, ESQ.

(Argued)

Kairys, Rudovsky, Epstein &

Messing, LLP

924 Cherry Street, Suite 500

Philadelphia, PA 19107

Attorneys for Petitioner

ROBERT D. McCALLUM, ESQ.

Assistant Attorney General

Civil Division

TERRI J. SCADRON, ESQ.

Assistant Director

ANTHONY W. NORWOOD, ESQ.

Senior Litigation Counsel

JOHN M. MCADAMS JR., ESQ.

STACY S. PADDACK, ESQ. (Argued)

Attorney

Office of Immigration Litigation

Civil Division

U.S. Department of Justice

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

Attorneys for Respondent

OPINION OF THE COURT

McKEE, Circuit Judge. 

Takky Zubeda asks us to review the decision of the Board

of Immigration Appeals (the “BIA”) vacating an Immigration

Judge’s ruling granting her relief from an order of removal.

Although the Immigration Judge denied Zubeda’s petition

2
for asylum and withholding of deportation, he found that

she was entitled to relief under the United Nations

Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment (hereinafter referred to

as the “Convention Against Torture” or the “Convention”).

The BIA reversed that ruling and ordered Zubeda removed

to the Democratic Republic of the Congo. The BIA’s decision

was based upon its conclusion that the record did not

support the Immigration Judge’s finding that Zubeda would

likely be detained if returned to the DRC. Although it

appears that the Immigration Judge may have taken

administrative notice of that fact, the record is not clear as

to how the Immigration Judge concluded that Zubeda

would likely be detained if deported. 

Inasmuch as the INS agrees that the most appropriate

resolution is remand to the Immigration Judge for

clarification and additional evidence, we will grant Zubeda’s

petition for review and remand the matter to the

Immigration Judge. Moreover, inasmuch as the government

has also agreed to allow Zubeda to raise the issue of her

membership in the Bembe tribe on remand, the

Immigration Judge will also be able to consider any impact

Zubeda’s tribal identity may have on her claim for asylum,

withholding of deportation, or relief under the Convention

Against Torture.2

I. FACTS AND PROCEDURAL HISTORY

Takky Zubeda is a twenty-eight year old female who is

native to, and a citizen of, the Democratic Republic of the

Congo (the “DRC”). She is legally married to a lawful

permanent resident of the United States who entered this

country as a refugee from the DRC in 1993. In 1999, he

traveled briefly to Tanzania, where he and Zubeda were

married. After their marriage, Zubeda returned to the

Congo and lived with her husband’s parents for 22 months.3

2. Remand is not necessary if the record does not support a claim for

relief under the Convention Against Torture. Therefore, we will also

determine whether the record could, as a matter of law, support a claim

for relief under that Convention. 

3. Zubeda’s husband is currently in the process of becoming a

naturalized US citizen. His petition to allow her to join him in the US

3
Her current problems with the INS began when she was

detained in December of 2000 while attempting to enter the

United States without proper documentation after arriving

at an airport in New York City. Zubeda was referred to an

INS Asylum Officer for a “credible fear” interview after she

expressed her fear of being returned to the DRC. The

Asylum Officer found her credible and concluded that she

had established a credible fear of persecution if returned to

the DRC. 

The INS served a Notice to Appear on Zubeda on

February 2, 2001. It charged that Zubeda is removable

from the United States under section 212(a)(6)(C)(i) of the

Immigration and Nationality Act (“INA”), 8 U.S.C.

§ 1182(a)(6)(C)(i), for seeking admission to the United States

by fraud or willful misrepresentation, and under section

212(a)(7)(A)(i)(I) of the INA, 8 U.S.C. § 1182(a)(7)(A)(i)(I), for

failing to possess a valid entry document when seeking

admission to the United States. 

She thereafter filed a petition with the INS in which she

requested asylum and withholding of deportation, and “also

sought protection under Article 3 of the Convention,”

Zubeda’s Br. at 3. Zubeda appeared with counsel at the

hearing on that petition and conceded that she was

removable under INA § 212(a)(7)(A)(i)(I) because she lacked

valid travel documents. She denied seeking admission by

fraud or willful misrepresentation, and the Immigration

Judge dismissed those grounds after the INS failed to

produce any proof of those allegations. 

Several documents were admitted into evidence at the

hearing including official country reports prepared by the

U.S. State Department, as well as reports from private

organizations such as Human Rights Watch and Amnesty

International. The evidence also included Zubeda’s asylum

application, the record of the determination of the credible

fear interview, and an affidavit from an expert witness.

Zubeda was the only witness who actually testified.

was approved by the INS on October 10, 2002. Zubeda’s Br. at 9 n.3.

Zubeda claims that there is a wait of over four years for spouses of legal

permanent residents to enter the US as immigrants. 

4
Inasmuch as the conditions described in that evidence are

key to the Immigration Judge’s final determination, and the

BIA’s subsequent reversal of it, we will summarize the

testimony and country reports in some detail: 

A. The Democratic Republic of Congo.

According to the evidence that was introduced, the DRC

(formerly “Zaire”), has a history of flagrant human rights

abuses being perpetrated by both government and rebel

forces. The country is currently embroiled in a vicious civil

war. Six other African countries have aligned themselves

with one of the two sides in that war. The anti-government

faction in that war is composed of two factions: the

Rassemblement Congolais Pour La Democratie (Congolese

Rally for Democracy or “RCD”), and the Mouvement Pour

Liberation du Congo (Movement for the Liberation of Congo

or “MLC”). These fighters are supported by Tutsi factions

from Burundi and Rwanda and by the Uganda People’s

Defense Forces. The anti-government forces control the

eastern part of the DRC, including South Kivu which is

Zubeda’s home region. Government forces, known as Forces

Armees Congolaises (Congolese Armed Forces or “FAC”), are

supported by the governments of Angola, Namibia,

Zimbabwe and by Hutu militants from Rwanda known as

the “interahamwe.” Armed groups that support the

government known as “mayi-mayi,” or “mai mai,” also often

fight in rebel held areas. 

Reports of Amnesty International portray the DRC as a

brutal and life-threatening environment with a predatory

government capable of wielding genocidal force while

teetering on the brink of collapse. A Report states:

[A]t least 300,000 civilians have fled to neighboring

countries, while more than one million people have

been internally displaced in conditions that have

caused numerous deaths from disease, starvation and

exposure. This is a snapshot of a catalogue of human

rights abuses and suffering that the people of the DRC

have been subjected to since August 1998 by forces

whose foreign and Congolese political and military

leaders claim to be fighting for security or sovereignty.

5
In reality, many of the leaders are involved in a fight

for political and economic control of the DRC. Amnesty

International has concluded that these leaders are

perpetrating, ordering or condoning atrocities on a

large and systematic scale, and deliberately violating

people’s individual and collective right to security and

sovereignty. 

*****

. . . [S]ince the start of 1999, hundreds of unarmed

civilians have been killed as a result of direct or

indiscriminate attacks by forces loyal to President

Kaliba in clear violation of Common Article 3 of the

Geneva Conventions.

Amnesty International Reports, Democratic Republic of

Congo: Killing Human Decency (May 2000), at 1, 17.4

Zubeda introduced evidence to establish that her family

was from Baraka, a village in the South Kivu Province in

the eastern part of the DRC. Zubeda testified that her

mother had been raped by soldiers in November of 2000.5

Zubeda was then living in a nearby village with her in-laws,

but she returned to Baraka to care for her mother after the

rape. Her father intended to report the rape to human

rights groups working in the area, but before he could do

so, ten soldiers forcefully entered the family home and

brutalized the family. Zubeda said that these soldiers tied

her father and brother and forced them to watch as they

gang raped her. When they were finished, the soldiers

decapitated her father and brother with machetes and set

fire to the family home while Zubeda’s mother and sister

were still inside. Zubeda testified that she thought the

4. Similar descriptions of conditions in the DRC are found in reports

prepared by Human Rights Watch. See Human Rights Watch, Eastern

Congo Ravaged: Indiscriminate Attacks and Extrajudicial Executions of

Civilians (2000) and Eastern Congo Ravaged: Society Under Attack

(2000). 

5. It is unclear whether these soldiers were government soldiers, rebel

soldiers, soldiers from the other countries supporting either side in the

civil war, mai mai or interahamwe. Zubeda testified that she believes,

based on their uniforms, that they were rebel soldiers. 

6
soldiers committed these atrocities to prevent her father

from reporting her mother’s rape to human rights workers.

Zubeda said that after the gang rape, she was taken to a

detention camp or military camp where she was again

sexually abused and forced to clean and cook for the

soldiers. Zubeda claims that she was finally able to escape

from the camp along with three other women and flee to

neighboring Tanzania. There, she received assistance from

members of a religious organization who gave her $100 and

a passport belonging to one of the workers. Zubeda claimed

that she was told that the passport would allow her entry

into the United States. According to Zubeda, one of the

female workers took her to the train station in Dar Es

Salaam, Tanzania, and then helped her board the plane

that brought her to New York. Zubeda admitted that she

falsely told INS inspectors in New York that she had come

to visit her brother and attend bible school. She explained

that she lied because she became frightened about telling

the truth when INS inspectors threatened to return her to

the DRC. 

Zubeda claims that her experience is typical for South

Kivu Province which is the site of massive human rights

abuses as documented in various country reports. A report

by Human Rights Watch states:

[R]ape and other forms of sexual violence have become

widespread as the war in eastern Congo has grown

increasingly bitter. One Congolese women’s rights

group registered 115 rapes between April and July

1999 in just two regions of Katana and Kalehe in

South Kivu with thirty in just one April 5 attack on

Bulindi and Maitu. Groups of ten or more men

sometimes gang rape one woman. Assailants

sometimes take women hostage to be used as sexual

slaves. Both soldiers and armed opposition groups

have engaged in such abuses, but Hutu armed groups

are reported to have perpetrated rapes more often than

other groups. They use sexual violence to terrorize

civilians, especially those thought to be RCD

supporters and most especially those who participate

in civil self-defense forces. 

7
Human Rights Watch: Eastern Congo Ravaged:

Indiscriminate Attacks, at 5.6 The State Department paints

an even more horrifying picture of terror pervading the

DRC.

There were reports that Rwandan and Ugandan

soldiers allegedly raped women during extensive

fighting in Kisangani in May and June . . . . Rwandan

troops and RCD rebels also reportedly engaged in rape

of women in public and often in the presence of their

families and in-laws. A woman raped in this manner

generally is forced out of the village, leaving her

husband and children behind. In June, an RCD/Goma

soldier . . . stopped a young girl, Fitina, on the road

between Baraka and Mboko and raped her. After he

raped her, the soldier discharged his weapon into her

vagina. According to a number of credible human

rights organizations, marauding bands of armed men

in the occupied territories often put victims of rape

through further painful humiliations by inserting

rocks, sharp sticks, and hot peppers into their vaginas.

U.S. State Department, 2000 Country Reports on Human

Rights Practices: Democratic Republic of Congo (February

2001), at 10-11. The reign of terror documented by the

State Department includes the following atrocities from

Zubeda’s region:

On May 14 and 15, in response to an apparent Mai

Mai slaying of RCD commander Ruzagura during an

ambush on his motorcade, RCD/Goma forces killed

hundreds of civilians in and around the town of

Katogota in South Kivu Province. According to some

reports, RCD soldiers killed as many as 300 villagers

by slitting their throats. 

*****

Between August 18 and 24, following a period of

intense fighting between Mai Mai and RCD forces in

the Shabunda region of South Kivu Province, the RCD

carried out a punitive campaign against the villages

6. This is consistent with reports of the U.S. State Department as well as

the conditions Zubeda described in her testimony. 

8
between the towns of Lulingu and Nzovu. Soldiers sent

by RCD Commandant Macumu burned the villages;

more than 300 villagers were burned alive and 3,000

homes were destroyed. 

*****

On July 19, in the Fizi district of South Kivu Province,

Banyamulenge and Burundial soldiers killed an

estimated 150 persons on the town of Lubamba by

slitting their throats. The local population sought

refuge in the nearby town of Dine. 

*****

There were numerous reported killings along the road

from Uvira to Bukavu in South Kivu Province . . . . The

climate of insecurity in the occupied territories and

particularly in the Kivu Province forced many local

residents to abandon their homes and created food

shortages as armed bandits kept farmers from working

in their fields.

Id. at 6-7. 

B. Asylum and Withholding of Deportation.

The Attorney General only has discretion to grant asylum

to a deportable alien if the alien qualifies as a “refugee.” See

INA § 208 (a), 8 U.S.C. § 1158(a). “Refugee” is defined by

statute as:

[A]ny person who is outside any country of such

person’s nationality . . . and who is unable or unwilling

to avail himself or herself of the protection of that

country because of persecution or a well-founded fear

of persecution on account of race, religion, nationality,

membership in a particular social group, or political

opinion.

8 U.S.C. § 1101(a)(42)(A). Therefore an alien seeking asylum

must present some evidence that the alleged persecutors

want to punish him/her “on account of ” one of the five

enumerated grounds in order to be eligible for a grant of

asylum. INS v. Elias-Zacarias, 502 U.S. 478 (1992). 

9
Courts have frequently explained that the “well-founded

fear of persecution” that an alien must demonstrate

involves both a subjectively genuine fear of persecution and

an objectively reasonable possibility of persecution. INS v.

Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987). The

subjective prong requires a showing that the fear is

genuine. Mitey v. INS, 67 F.3d 1325, 1331 (7th Cir. 1995).

Determination of an objectively reasonable possibility

requires ascertaining whether a reasonable person in the

alien’s circumstances would fear persecution if returned to

the country in question. Chang v. INS, 119 F.3d 1055, 1065

(3d Cir. 1997). The law does not require that asylum be

granted even if the alien qualifies as a “refugee.” Rather,

that is left to the discretion of the Attorney General and is

decided on a case by case basis. 

Withholding deportation under INA § 243(h), 8 U.S.C.

§ 1253(h), is closely related to asylum. However, Congress

has declared: the “Attorney General shall not deport or

return an alien. . . to a country if the Attorney General

determines that such alien’s life or freedom would be

threatened in such country on account of race, religion,

nationality, membership in a particular social group, or

political opinion.” Id. (emphasis added). Therefore, the

Attorney General must withhold deportation if the alien

qualifies for relief under INA § 243(h). 

In order to obtain mandatory withholding of deportation

under § 243(h), the alien must first establish by a “clear

probability” that his/her life or freedom would be

threatened in the proposed country of deportation.

Janusiak v. INS, 947 F.2d 46, 47 (3d Cir. 1991). “Clear

probability” means that it is “more likely than not” that an

alien would be subject to persecution. INS v. Stevic, 467

U.S. 407, 429-30 (1987). The “clear probability” standard is

a more rigorous standard than the “well-founded fear”

standard for asylum. Janusiak, 947 F.3d at 47. Thus, if an

alien fails to establish the well-founded fear of persecution

required for a grant of asylum, he or she will, by definition,

have failed to establish the clear probability of persecution

required for withholding of deportation. Id. Under both the

“well founded fear” threshold required for asylum and the

“clear probability” required for withholding of deportation,

10
the alien must establish that persecution he/she fears is

“on account of ” one of the enumerated classifications or

activities incorporated into the definition of “refugee.”

7

C. The Immigration Judge’s Decision.

After receiving the aforementioned documentary evidence,

and hearing Zubeda’s testimony, the Immigration Judge

concluded “that [Zubeda] has failed to present to me that

quantum of credible testimony necessary to establish the

basis of her claim [for asylum].” Administrative Record

(“AR”), at 49. The Immigration Judge’s support for this

adverse credibility determination included citations to

inconsistencies between Zubeda’s testimony and her

written asylum application which the Immigration Judge

believed undermined Zubeda’s credibility. A.R. at 49-51.

He then stated:

I am not unaware of the atrocious human rights

violations in the Congo, including the raping of women

by security forces, and the indiscriminate murders of

civilians by these forces. All in all, the government of

the Congo is a miserable excuse of a sovereign

government. However, the Congo does not hold a

monopoly on abusive treatment of its citizens, and I

cannot grant relief to an alien on the mere fact of

hailing from such a country. Again, [Zubeda’s]

testimony is suspect for the reasons I have noted, and

she has the burden of proof to present detailed and

consistent testimony, which she has failed to do. 

Id. at 51. Accordingly, the Immigration Judge denied

Zubeda’s claims for asylum and withholding of deportation.

However, the Immigration Judge held that Zubeda did

qualify for relief under the Convention Against Torture. He

reasoned:

Can I state with any degree of confidence that [Zubeda]

would be permitted to arrive in the Congo and

immediately go about her business unmolested? No, I

7. “Race, religion, nationality, membership in a particular social group,

or political opinion.” 8 U.S.C. § 1101(a)(42)(A) § 1101(a)(42)(A). 

11
can’t, and neither can I state with any degree of

certainty that [Zubeda] would [not] be physically

harmed upon her return. But . . . I have little

confidence that [she], whatever her background, would

be treated with more deference than her fellow citizens,

none of whom apparently is immune to government

atrocities. It is clear from the evidence in this record

that the Congolese government, through its security

forces, are irresponsible as a whole and have no regard

for the well being nor the human rights of citizens.

Forcibly returning there any citizen of that troubled

land . . . should give any judge great pause. At least I

am convinced that [Zubeda] would be detained upon

her arrival. Virtually every government detains its

citizens for some period of time after that citizen is

deported or forcibly removed from another country. But

given the atrocious history and present country

conditions of the Congo, I believe that [Zubeda] has

shown the likelihood of being physically abused,

perhaps raped, which is almost modus operandi, while

detained. At least it is highly doubtful that [Zubeda]

would be treated any more leniently than her fellow

citizens under similar detention status. 

Id. at 54. The Immigration Judge then granted relief under

the Convention Against Torture, and the INS appealed that

ruling to the BIA. The BIA reversed and Zubeda filed the

instant petition for review. 

II. STANDARD OF REVIEW

Since the BIA conducted a de novo review of the record,

we are reviewing the BIA’s decision, and not the ruling of

the Immigration Judge. Abdulai v. Ashcroft, 239 F.3d 542,

548-49 (3d Cir. 2001). We sustain BIA’s determination if

there is substantial evidence in the record to support it.

Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001).

“Substantial evidence is more than a mere scintilla and is

such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Senathirajah v. INS,

157 F.3d 210, 216 (3d Cir. 1998) (quotation omitted).

Under this deferential standard, “the BIA’s finding must be

upheld unless the evidence not only supports a contrary

12
conclusion, but compels it.” Abdille, 242 F.3d at 483-84

(citing INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1

(1992)). However, in order to place our review of the BIA’s

decision in its proper context, and to assist in determining

if this record could support the relief the Immigration

Judge afforded Zubeda, we will first discuss the

requirements of the Convention Against Torture.

A. The Convention Against Torture.

Zubeda seeks protection under Article 3 of the United

Nations Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment, opened

for signature February 4,1985, S. Treaty Doc. No. 100-20,

at 20 (1988), 23 I.L.M. 1027, 1028 (1984). The United

States signed the Convention on April 18, 1988, and the

Senate ratified it on October 27, 1990. 136 Cong. Rec. S17,

486-501 (daily ed. Oct. 37, 1990). It became binding on the

United States in November of 1994 after President Clinton

delivered the ratifying documents to the United Nations.

U.N. Doc. 571 Leg/SER.E/13.IV.9 (1995); Convention, art.

27(2). The Foreign Affairs Reform and Restructuring Act of

1988 (“FARRA”) initiated implementation of the Convention.

Section 2242, Pub.L. No. 105-277, Div. G, 112 Stat. 2681-

761 (Oct. 21, 1988) (codified at note to 8 U.S.C. § 1231).

That legislation requires that “[n]o state . . . expel, return

(‘refouler’) or extradite a person to another state where

there are substantial grounds for believing that he would be

in danger of being subjected to torture.” Id. Accordingly, “it

shall be the policy of the United States not to expel, . . or

otherwise effect the involuntary return of any person to a

country in which there are substantial grounds for

believing the person would be in danger of being subjected

to torture. . . . ” Id.; see also Li v. Ashcroft, 312 F.3d 1094,

1103 (9th Cir. 2002).

“An applicant for relief on the merits under [Article 3] of

the Convention Against Torture bears the burden of

establishing ‘that it is more likely than not that he or she

would be tortured if removed to the proposed country of

removal.’ ” Sevoian v. Ashcroft, 290 F.3d 166, 174-175 (3d

Cir. 2002) (quoting 8 C.F.R. § 208.16(c)(2)). Unlike

establishing a “reasonable fear of persecution” for asylum,

13
“[t]he standard for relief [under the Convention on Torture]

has no subjective component, but instead requires the alien

to establish, by objective evidence, that he[/she] is entitled

to relief.” Id. at 175. (citation and internal quotations

omitted). 

The alien’s testimony, if credible, may be sufficient to

sustain the burden of proof without corroboration. Mansour

v. Immigration and Nationalization Service, 230 F.3d 902,

907 (7th Cir. 2000) (citing 8 C.F.R. § 208.16(c)(2)). If an

alien meets his/her burden of proof, withholding removal

under the Convention is mandatory just as it is for

withholding of deportation under § 243(h). INA § 241(b)(3);

8 C.F.R. §§ 208.16 - 208.18. 

Under the implementing regulations that were

promulgated pursuant to the Convention, 

Torture is defined as an act by which severe pain or

suffering, whether physical or mental, is intentionally

inflicted on a person for such purposes as obtaining

from him or her or a third person information or a

confession, punishing him or her for an act he or she

or a third person has committed or is suspected of

having committed, or intimidating or coercing him or

her or a third person, or for any reason based on

discrimination of any kind, when such pain or

suffering is inflicted by or at the instigation of or with

the consent or acquiescence of a public official or other

person acting in an official capacity. 

8 C.F.R. § 208.18(a)(1). 

“Torture is an extreme form of cruel and inhuman

treatment and does not include lesser forms of cruel and

inhuman treatment or punishment that do not amount to

torture.” 8 C.F.R. § 208.16(c)(3)(i). The Convention “draws a

clear distinction between torturous acts as defined in

Article 1 and acts [of cruelty] not involving torture

referenced in Article 16.” In Re J-E, 23 I. & N. Dec. 291,

295 (March 22, 2002). “The severity of the pain and

suffering inflicted is a distinguishing characteristic of

torture.” Id.

Rape can constitute torture. Rape is a form of aggression

constituting an egregious violation of humanity. See

14
Margaret A. Lyons, Hearing the Cry Without Answering the

Call: Rape, Genocide And The Rwandan Tribunal, 28

Syracuse J. Int’l L. 99, 99-100 (2001). The scarring effects

of rape compare with “psychological sequelae of . . .

survivors of abuse constituting torture under international

law. . . .” Lopez-Galarza v. INS, 99 F.3d 954, 963 (9th Cir.

1996) (citing Note, Torture by Means of Rape, 84

Georgetown L.J. 1913, 1931 (1996)). “The effects of rape

appear to endure for months or even years. One study

found that twenty-six per cent [of the rape survivors

studied] felt that they had not yet recovered four to six

years after their rapes.” Id., at n. 10 (citation omitted). 

Moreover, courts have equated rape with conduct

recognized under the law of nations as torture. In Al-Saher

v. INS, 268 F.3d 1143, (9th Cir. 2001), the court granted

the petition for review of an alien seeking to avoid

deportation to Iraq under the Convention Against Torture.

In concluding that the record supported the alien’s claim

that he would likely be tortured if returned, the court

stated: 

torture techniques [reported in country reports for Iraq

in 1997] included branding, electric shocks

administered to the genitals, and other areas, beating,

burning with hot irons, suspension from rotating

ceiling fans, dripping acid on the skin, rape, breaking

limbs, denial of food and water, and threats to rape or

otherwise harm relatives. . . . 

Id., at 1147 (emphasis added). The court expressed no

ambiguity or uncertainty in referring to those receiving

such treatment as “torture victims.” Id. After reviewing the

record, the court concluded that “[i]f forced to return to

Iraq, it is likely that Al-Saher would be tortured again.” Id.

at 1148; see also Kadic v. Karadzic, 70 F.3d 232, 242 (2d

Cir. 1995) (referring to allegations of “murder, rape, forced

impregnation, and other forms of torture,”); In re Extradition

of Suarez-Mason, 694 F.Supp. 676, 682 (N.D. Cal. 1988)

(stating “shock sessions were interspersed with rapes and

other forms of torture.”).8 Moreover, Congress has defined

8. See also Farmer v. Brennan, 511 U.S. 825, 952 (1994) (Blackmun

concurring) (referring to prison rape as “the equivalent of ” and “nothing

less than torture.”). 

15
torture in a different context as including “the use of rape

and other forms of sexual violence.” Torture Victims Relief

Act of 1998, Pub. L. No. 105-320 § 3, 112 Stat. 3016 (1998)

(emphasis added).9

Similarly, the BIA has held that rape can constitute

sufficient persecution to support a claim for asylum. Matter

of DV, Interim Dec. 3252 (BIA 1993). Two courts of appeals

have also held that rape and sexual violence against women

may constitute sufficient persecution to support a grant of

asylum. See, e.g., Shoafera v. INS, 288 F.3d 1070 (9th Cir.

2000); Angoucheva v. INS, 106 F.3d 781 (7th Cir. 1997);

Lopez-Galarza v. INS, 99 F.3d 954 (9th Cir. 1996); LazoMajano v. INS, 813 F.2d 1432 (9th Cir. 1996), overruled on

other grounds by Fischer v. INS, 79 F.3d 1432 (9th Cir.

1996)(en banc). 

The severe pain and suffering endemic to rape is a

necessary but not sufficient element of torture under the

Convention. The regulations also require us to consider: the

intent of the persecutor(s), whether the suffering will be

imposed for one of the purposes specified under the

Convention, and whether it will likely be inflicted with the

knowledge or acquiescence of a public official with custody

or control over the victim. 8 C.F.R. § 208.18(a). 

Although the regulations require that severe pain or

suffering be “intentionally inflicted,” id., we do not interpret

this as a “specific intent” requirement. Rather, we conclude

that the Convention simply excludes severe pain or

suffering that is the unintended consequence of an

intentional act. See Deborah E. Anker, Law of Asylum in

the United States 465, 486 (3d ed. 1999) (citing J. Hermann

Burgers & Hans Danelius, The Convention Against Torture:

A Handbook on the Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment 41).

The regulation does state: “in order to constitute torture, an

act must be specifically intended to inflict severe physical

or mental pain or suffering.” 8 C.F.R. § 208.18(a)(5).

9. The BIA has itself, in an unpublished opinion, held that rape and

sexual assault constitute torture within the terms of the Convention

Against Torture. See, e.g., Matter of Kuna, A76491421 (BIA July 12,

2001) (unpublished decision). 

16
However, the regulation immediately explains: “[a]n act that

results in unanticipated or unintended severity of pain and

suffering is not torture.” The intent requirement therefore

distinguishes between suffering that is the accidental result

of an intended act, and suffering that is purposefully

inflicted or the forseeable consequence of deliberate

conduct. However, this is not the same as requiring a

specific intent to inflict suffering. Our conclusion in this

regard is consistent with 8 C.F.R. § 208.18(a). A subsection

of that regulation provides:

(4) In order to constitute torture, mental pain or

suffering must be prolonged mental harm caused by or

resulting from:

(i) The intentional infliction or threatened infliction of

severe physical pain or suffering;

(ii) The administration or application, or threatened

administration or application, of mind altering

substances or other procedures calculated to disrupt

profoundly the senses or the personality;

(iii) The threat of imminent death; or

(iv) The threat that another person will imminently be

subjected to death, severe physical pain or suffering, or

the administration or application of mind altering

substances or other procedures calculated to disrupt

profoundly the sense or personality. 

8 C.F.R. § 208.18 (a) (4) (emphasis added). Therefore, the

Convention does not require that the persecutor actually

intend to cause the threatened result. It is sufficient if the

persecutor causes severe psychological suffering by

threatening beatings for one of the specified purposes such

as extracting information or coercing a confession. The

persecutor need not intend to “make good” on his/her

threats for the resulting suffering to constitute torture so

long as the threats are sufficiently protracted, and/or of

such an egregious nature to elevate the forseeable suffering

to the level of “torture.” 

Moreover, requiring an alien to establish the specific

intent of his/her persecutors could impose insurmountable

obstacles to affording the very protections the community of

17
nations sought to guarantee under the Convention Against

Torture. See Bolanos-Hernandez v. INS, 767 F.2d 1277,

1285 (9th Cir. 1985).10

As we have noted, the Convention requires that the

severe pain or suffering be imposed for certain specified

purposes “such . . . as obtaining information[ ] . . . or a

confession, . . . or intimidating or coercing him or her or a

third person, . . . .” 8 C.F.R. § 208.18 (a) (1) (2000). This

record could support a finding that the conduct described

in the DRC was for the purpose of coercing

and intimidating Zubeda and/or members of her family.

This is particularly true given the testimony regarding gang

rape, and evidence that family members were forced to

watch. It is difficult to imagine conduct that is more

intimidating. 

The Immigration Judge apparently concluded that, given

the record of systematic rape in the DRC, and the likelihood

that Zubeda would be detained upon her return, it was

likely that she would be raped while in official detention.

That being the case, those detaining her would, by

definition, be government agents. 

Zubeda therefore could satisfy the final burden of proving

that future torture would be at the hands of, or with the

acquiescence of, government agents.11 Although there may

be some doubt about the proper apportionment of blame

between government agents and local militia or rebels for

some past acts of torture, there can be little doubt that

government agents would be responsible for any detention

Zubeda would have to undergo upon her return and any

rape while detained.12

10. As noted by Prof. Karen Musalo, the law has long accepted that “[t]he

victim may not know the exact motivation of his or her persecutor.”

Karen Musalo, Irreconcilable Differences? Divorcing Refugee Protections

from Human Rights Norms, 15 Mich. J. Int’l L. 1179, 1210 (1994). 

11. See 8 C.F.R. § 208.18 (a) (torture must be “inflicted by or at the

instigation of or with the consent or acquiescence of a public official or

other person acting in an official capacity.)” 

12. Even though we assume that future rapes while detained would not

involve family members or third persons being forced to endure

18
C. The BIA’s Decision.

In a four paragraph decision, only two paragraphs of

which were devoted to discussing the legal principles

involved, the BIA sustained the government’s appeal,

vacated the Immigration Judge’s decision, and ordered

Zubeda removed to the Congo. As noted above, since

Zubeda appeals from the BIA’s de novo review of the

Immigration Judge’s decision, we review the BIA’s decision;

not the decision of the Immigration Judge. Abdulai, 239

F.3d at 548-49 (3d Cir. 2001).13

The BIA based its ruling upon Matter of J-E, I&N Dec.

291 (BIA 2002). There, with seven Board members

dissenting, the BIA concluded that conditions in Haitian

prisons did not constitute torture under the Convention.

Accordingly, a majority of the Board held that the

Convention Against Torture did not preclude returning a

Haitian national to Haiti. In reversing the decision of the

Immigration Judge here, the BIA noted the similarities

between the conditions in the Congo and the evidence in JE as follows: 

we found therein that evidence of the occurrence in

Haitian prisons of isolated instances of mistreatment

that may rise to the level of torture as defined in the

Convention Against Torture is insufficient to establish

that it is more likely than not that the respondent will

be tortured if returned to Haiti.

(Emphasis Added). AR at 3.14

watching, the Immigration Judge could reasonably conclude that any

custodial rape would nevertheless involve coercion and intimidation.

Indeed, it is difficult to imagine how one could reasonably conclude that

the conduct described in the country reports could have any other

purpose. 

13. If, however, the BIA had stated that it adopted the Immigration

Judge’s ruling for the reasons set forth therein, and did not provide an

independent analysis, we would review the decision of the Immigration

Judge as if it were the decision of the BIA. Abdulai v. Ashcroft, 239 F.3d

542, 549 n. 2 (3d Cir. 2001). 

14. The BIA’s reference to “isolated” instances of mistreatment is both

puzzling and troubling. The relevant reports here describe mistreatment

in the DRC as “systematic” and “large scale,” not “isolated instances” as

the BIA suggests. 

19
In addition, the BIA found that the evidence did not

support the Immigration Judge’s finding that Zubeda would

likely be detained upon return to the Democratic Republic

of the Congo. The BIA stated:

The background evidence establishes that prison

conditions in the Congo remain harsh and life

threatening. The Immigration Judge found that the

respondent would be detained upon return to the

Congo. However, we note a dearth of evidence to

support any finding that the respondent is likely to be

detained for any reason. 

AR at 3. The BIA also concluded that Zubeda “failed to

establish that the harsh prison conditions establish a

probability that she will be detained in a prison in the

Congo, much less that she will be individually targeted for

any harm by the government of the Congo.” Id. 

The BIA’s rather terse analysis completely ignores the

basis of the Immigration Judge’s decision. Obviously, prison

conditions do not establish a likelihood of detention, and

the Immigration Judge’s ruling is not to the contrary.

Rather, he relied upon the uncontested country reports

prepared by the State Department and the aforementioned

human rights organizations. He reached a conclusion about

the rampant brutality in the DRC and the terror that is

inflicted upon its citizens, particularly those who reside in

the region Zubeda is from. The Immigration Judge then

appears to have taken administrative notice of the

likelihood that Zubeda would be detained if forced to return

to the DRC and reached the seemingly unremarkable

conclusion that, given the conditions in the country, and

the documented frequency with which soldiers resort to

rape, there was a likelihood that Zubeda would be raped if

detained. The BIA’s analysis is therefore seriously flawed. 

As the Court of Appeals for the Seventh Circuit stated in

Mansour: “The BIA in a minimalistic and non-detailed

manner addressed [the alien’s] torture claim; leaving us to

ponder whether the BIA sufficiently focused on [her] claim

or merely concluded it was not viable because of its

determination that [the alien’s] prior testimony on asylum

was not credible.” 230 F.3d at 908. 

20
Moreover, the Immigration Judge’s rejection of Zubeda’s

claim for asylum and withholding of deportation does not

control the analysis of her claim for relief under the

Convention Against Torture. As noted above, asylum and

withholding of deportation require that the alien be both a

“refugee,” and establish either a well founded fear, or

probability of persecution, “on account of ” at least one of

five specified grounds. The Convention Against Torture is

not limited to “refugees” nor does persecution have to be

“on account of ” political opinion, religious or social group,

etc. Rather, the Convention simply seeks to prevent any

country from having to return someone to a place where it

is likely he/she will be tortured. 

Yet, the BIA reasoned: “the IJ specifically found [Zubeda]

to be incredible and the respondent has not contested that

finding. As such, the respondent has failed to meet her

burden of proof. Accordingly, the Service’s appeal will be

sustained.” AR at 3. However, Zubeda’s credibility for

purposes of establishing her asylum and withholding of

deportation claims does not defeat her ability to “meet her

burden of proof ” under the Convention Against Torture.

Allowing the taint of the earlier adverse credibility

determination to bleed through to the BIA’s consideration of

her claim under the Convention Against Torture without

further explanation is therefore error.15

[T]he Board failed to recognize the central distinction

that claims for relief under the Convention are

analytically separate from claims for asylum under INA

§ 208 and for withholding of removal under INA

§ 241(b)(3). Put another way, a claim under the

Convention is not merely a subset of claims for either

asylum or withholding of removal.

Kamalthas, 251 F.3d at 1283. This aspect of the BIA’s

opinion is even more troubling because, as we shall

explain, the record is not adequate to support the adverse

credibility determination that the BIA adopted. 

The BIA accepted the adverse credibility ruling of the

15. Inasmuch as this issue may come before the BIA again following

remand to the Immigration Judge, it is important to note this error. 

21
Immigration Judge without question even though the

Immigration Judge’s conclusion regarding Zubeda’s

testimony was, in part, based upon conflicts between her

testimony during the immigration hearing on the one hand,

and statements made in her asylum affidavit and during

her asylum interview on the other. In Balasubramanrim v.

INS, 143 F.3d 157, 161 (3d Cir. 1998), we cautioned

against placing too much weight on inconsistencies

between an asylum affidavit and subsequent testimony at a

hearing before an Immigration Judge. Caution is required

because of the numerous factors that might make it

difficult for an alien to articulate his/her circumstances

with the degree of consistency one might expect from

someone who is neither burdened with the language

difficulties, nor haunted by the traumatic memories, that

may hamper communication between a government agent

in an asylum interview and an asylum seeker. This is

particularly true when we consider that such an alien may

have tried to suppress the very memories and details that

have suddenly become so important to establishing his/her

claim. Id at 164.16 Recently, in Ezeagwuna v. INS, 325 F.3d

396 (3rd Cir. 2003), we cited our decisions in

Balasubramanrim and Senathirajah, and stated, “The

manner of eliciting [information in airport interviews] is

crucial to their probative value.” Id. at 408. Yet, here the

BIA accepted the Immigration Judge’s partial reliance upon

contradictions in Zubeda’s testimony at the deportation

hearing and statements during her airport interview

without any information about the circumstances of that

interview. The BIA correctly notes that Zubeda does not

challenge the Immigration Judge’s credibility determination

on her asylum and withholding of deportation claims.

However, that does not allow the BIA to rely upon those

16. “There are a series of common psychological responses to torture and

human rights violations as recognized by the Manual on the Effective

Investigation and Documentation of Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment.” Piwowarczyk, Seeking Asylum:

A Mental Health Perspective, 16 Geo. Immigr. L.J. 155, 157 (2001) (citing

the MANUAL ON THE EFFECTIVE INVESTIGATION AND

DOCUMENTATION OF TORTURE AND OTHER CRUEL, INHUMAN OR

DEGRADING TREATMENT OR PUNISHMENT (1999) (submitted to the

United Nations Office of the High Commissioner for Human Rights)). 

22
rulings on this record in denying Zubeda’s claim under the

Convention Against Torture.17

The BIA cavalierly dismissed the substantial

documentation of conditions in the DRC by suggesting that

Zubeda’s claim for relief was somehow limited to

“background evidence establish[ing] that prison conditions

in the Congo remain harsh and life threatening.” AR at 3.

Although the BIA “is not required to ‘write an exegesis’ on

every contention,” Mansour v. INS, 230 F.3d 902, 908 (7th

Cir. 2000), the “analysis” offered here is simply inadequate

to afford the meaningful review that both Zubeda and the

INS deserve. The BIA stated that it had considered the

“background evidence” and we assume that this is a

reference to the country reports that were introduced before

the Immigration Judge. Official as well as unofficial country

reports are probative evidence and can, by themselves,

provide sufficient proof to sustain an alien’s burden under

the INA. See Kamalthas v. INS, 251 F.3d 1279, 1284 (9th

Cir. 2001). 

However, the BIA then proceeds by mischaracterizing the

reports as “background evidence” relating to prison

conditions in the DRC. As is evident from excerpts set forth

above, the country reports that were introduced establish

the extent to which armed forces terrorize residents in the

DRC, especially Zubeda’s region of that country. They do

not address prison conditions in the manner that the BIA

suggests in its exceedingly brief reference to “background

evidence.” Reducing Zubeda’s claim to an attack on the

kind of inhumane prison conditions that formed the basis

of the Board’s decision in Matter of J-E, totally ignores the

fact that this record is replete with reports from government

agencies and human rights organizations that detail what

appear to be country wide, systematic incidents of gang

rape, mutilation, and mass murder. Country reports such

17. To his credit, the Immigration Judge recognized this concern

regarding reliance upon airport interviews and cited our opinions in

Balasubramanrim, and Senathirajan, See AR at 51. Nevertheless, he

proceeded to rely upon Zubeda’s statements in the asylum petition and

the airport interview without any evidence of the circumstances under

which those statements were obtained or the affidavit executed. 

23
as the ones Zubeda introduced here are “the most

appropriate and perhaps the best resource” for “information

on political situations in foreign nations.” Kazlauskas v.

INS, 46 F.3d 902, 906 (9th Cir. 1995) (quoting Rojas v. INS,

937 F.2d 186, 190 n.1 (5th Cir., 1991)). 

Of course, reports of generalized brutality within a

country do not necessarily allow an alien to sustain his/her

burden under the Convention Against Torture. As the

Immigration Judge correctly noted: “[T]he Congo does not

hold a monopoly on abusive treatment of its citizens, and I

cannot grant relief to an alien on the mere fact of hailing

from such a country.” AR at 51. However, as the

Immigration Judge also apparently realized, “gross, flagrant

or mass violations of human rights within the country of

removal . . .” can corroborate an alien’s claim that he/she

will be subjected to torture upon return; thus allowing the

alien to present the proof necessary for establishing a claim

under the Convention Against Torture. 8 C.F.R. § 208.16

(c)(3); Kamalthas, 251 F.3d at 1284. The BIA’s de novo

analysis never considers this. 

The applicable regulations require that all relevant

evidence be considered in determining the likelihood of

future torture. This includes evidence of past torture as

well as conditions in the country that would increase the

likelihood of history repeating itself. The regulations

provide: 

(3) In assessing whether it is more likely than not that

an applicant would be tortured in the proposed country

of removal, all evidence relevant to the possibility of

future torture shall be considered, including, but not

limited to:

(i) Evidence of past torture inflicted upon the

applicant;

(ii) Evidence that the applicant could relocate to a

part of the country of removal where he or she is not

likely to be tortured;

(iii) Evidence of gross, flagrant or mass violations of

human rights within the country of removal, where

applicable; and

24
(iv) Other relevant information regarding conditions in

the country of removal. 

8 C.F.R. § 208.16(c)(3) (emphasis added). 

III. NECESSITY FOR A REMAND

As we have summarized above, the foundation of

Zubeda’s claim for relief under the Convention Against

Torture is that she will likely be detained by the

government of the DRC if forcibly returned and that it is

more likely than not that she will be raped while in

detention there.18 As noted above, in granting Zubeda relief

under the Convention Against Torture, the Immigration

Judge wrote, “I am convinced that [Zubeda] would be

detained upon her arrival. Virtually every government

detains its citizens for some period of time after that citizen

is deported or forcibly removed from another country.” A.R.

at 54. 

The BIA reversed because of what it described as “a

dearth of evidence to support any finding that [Zubeda] is

likely to be detained for any reason.” Id. at 3. During

argument, the attorney for the INS devoted much of her

time to arguing that the record simply did not support the

Immigration Judge’s conclusion about the likelihood of

Zubeda’s detention upon return to the DRC. Yet, as we

have already noted, it appears from the Immigration

Judge’s opinion that he simply took administrative notice of

that fact. Zubeda claims that the BIA’s concern over a

“dearth of evidence to support [Zubeda’s] detention” is

therefore entirely unremarkable. Zubeda argues that the

law does not require that she prove anything as obvious as

the likelihood of detention upon forcible return to her

homeland after deportation for attempting to illegally enter

another country. According to Zubeda, the Immigration

Judge’s factual conclusion regarding events that will likely

follow upon her return is too commonly known to require

proof, and the country reports allow a reasonable fact

finder to make a decision about the likelihood of rape while

18. Counsel has argued that Zubeda is even more likely to be raped in

detention because she is from a rebel-held region. 

25
held in detention in the DRC. She therefore asks us to

conclude that the BIA erred in not deferring to the

Immigration Judge’s factual conclusion based upon an

administratively noticed fact. 

In McLeod v. Immigration and Naturalization Service, 802

F.2d 89 (3d Cir. 1986), we noted that an agency can take

official or administrative notice of commonly acknowledged

facts. We explained:

Official notice, rather than judicial notice, is the proper

method by which agency decisionmakers may apply

knowledge not included in the record. The

Administrative Procedure Act allows a decisionmaker to

take “official notice” of material not appearing in the

evidence in the record. Official notice is a broader

concept than judicial notice. Both doctrines allow

adjudicators to take notice of commonly acknowledged

facts, but official notice also allows an administrative

agency to take notice of technical or scientific facts that

are within the agency’s area of expertise.

Id. at 93 n.4. Here, however, the Immigration Judge did not

expressly invoke the doctrine of official or administrative

notice in evaluating Zubeda’s claim.19

The likelihood of official detention greatly bolsters

Zubeda’s claim under the Convention given the apparent

likelihood that she would be raped if detained. Although we

conclude that the BIA erred in providing only a minimal

analysis of Zubeda’s claim and deciding the appeal on the

basis of Matter of J-E, as well as allowing rulings on her

asylum and withholding of deportation claim to control her

claim under the Convention, we are reluctant to simply

reverse and remand to the BIA given the ambiguity

surrounding the Immigration Judge’s possible invocation of

the doctrine of administrative notice. 

Moreover, counsel for the INS has conceded that, given

the state of this record, the matter can best be resolved by

a remand to the Immigration Judge (as opposed to the BIA)

to allow clarification of the record and an opportunity for

19. We do not suggest that an Immigration of Administrative Judge must

always formally announce that he or she is taking administrative notice.

26
any additional fact finding or evidence that may be

necessary. See INS v. Ventura, 537 U.S. 12 (2002).

Accordingly, we will remand the matter to the Immigration

Judge for further proceedings consistent with this opinion.

In doing so, we commend counsel for the INS for the fair,

forceful and thorough manner in which she presented the

government’s appeal. The government has no interest in

deporting Zubeda if she is entitled to relief from the order

of deportation. 

In light of the universal condemnation of torture in

numerous international agreements, and the

renunciation of torture as an instrument of official

policy by virtually all of the nations of the world (in

principle if not in practice), . . . . an act of torture

committed by a state official against one held in

detention violates established norms of the

international law of human rights, and hence the law

of nations.

Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2nd Cir. 1980).20

The INS has also agreed that Zubeda will be able to raise

the issue of her tribal identity before the Immigration Judge

on remand. The administrative record confirms that Zubeda

is a member of the Bembe tribe. Form 1-870 (record of

determination of credible fear interview), at 2. (A.R. at 296).

Zubeda’s counsel claimed at oral argument that she is also

entitled to relief because of treatment afforded Bembes in

the DRC. The Bembe tribe is from the South Kivu Region of

the DRC which is a rebel-held and controlled area of the

Congo. According to Amnesty International, a number of

people who live in the Kivu Region are being detained by

the DRC and are at risk of being tortured. App. at 95.

Moreover, Amnesty International reports that a number of

these individuals are being arbitrarily detained simply

because they are from the Kivu Region. Id. Amnesty

20. See also Universal Declaration of Human Rights, General Assembly

Resolution, 217(III)(A)(Dec. 10, 1948) (“no one shall be subjected to

torture”), American Convention on Human Rights, Art. 5, OAS Treaty

Series No. 36 at 1, OAS Off. Rec. OEA/Ser 4 v/II 23, doc 21, rev.2.

(English ed. 1975) (“No one shall be subjected to torture or to cruel,

inhuman or degrading punishment or treatment”). 

27
International indicates that members of the Bembe tribe are

generally opposed to the killing of the Tutsi minority in the

Congo. App. at 82. Zubeda’s counsel claims that the

government of the DRC regards Bembes as sworn enemies

of the government. Counsel also notes that, according to

Amnesty International, mayi-mayi, who are armed groups

supporting the government, have targeted Bembes for

killing. App. at 82. In Zubeda’s counsel’s view, this strongly

supports her claim that she is more likely to be tortured if

returned to the Congo. It may also provide the missing “on

account of ” element for a claim of asylum or withholding of

deportation. 

However, counsel concedes that this issue was not raised

by prior counsel before the Immigration Judge.21

Nevertheless, inasmuch as the INS has agreed to allow

Zubeda to raise this issue on remand, the Immigration

Judge will be able to determine if Zubeda’s ethnicity affects

the prior denial of relief. As we have previously noted:

Justice requires that an applicant for asylum or

withholding of deportation be afforded a meaningful

opportunity to establish his or her claim. Deportation

is always a harsh measure; it is all the more replete

with danger when the alien makes a claim that he or

she will be subject to death or persecution if forced to

return to his or her home country. In enacting the

Refugee Act of 1980 Congress sought to give the United

States sufficient flexibility to respond to situations

involving political or religious dissidents and detainees

throughout the world.

Senathirajah, 157 F.3d 210, 221 (3d Cir. 1998) (internal

quotation marks omitted) (quoting INS v. Cardoza-Fonseca,

480 U.S. 421, 449 (1987)). 

IV. CONCLUSION

Accordingly, for the reasons set forth above, we will

vacate the decision of the BIA and remand to the

21. Zubeda’s current counsel did not represent her when she appeared

for the evidentiary hearing before the Immigration Judge. 

28
Immigration Judge for proceedings consistent with this

opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

29