PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

_____________

No. 09-3032

_____________

BEKHZOD BAKHTIYAROVICH YUSUPOV, 

a/k/a Bekhzod Yusupov,

 Petitioner 

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

_____________

No. 09-3074

_____________

ISMOIL SAMADOV, 

 Petitioner

 v.

 ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

__________

On Petition for Review of an Order

of the Board of Immigration Appeals

(Nos. A 079-729-905, A 079-729-711)

Immigration Judges: Hon. Walter A. Durling (Yusupov)

 Hon. Grace A. Sease (Samadov)

________

Argued December 14, 2010

Before: SLOVITER, GREENAWAY, JR., and 

STAPLETON, Circuit Judges
2

(Filed: June 16, 2011)

______

Lawrence H. Rudnick (Argued)

Steel, Rudnick & Ruben

Philadelphia, PA l9l03

Attorney for Petitioner Bekhzod Yusupov

Baher A. Azmy (Argued)

Anjana Malhotra

Seton Hall Law School

Newark, NJ 07102

Attorneys for Petitioner Ismoil Samadov

Eric H. Holder, Jr.

Thomas W. Hussey

Lyle D. Jentzer (Argued)

John M. McAdams, Jr.

United States Department of Justice

Office of Immigration Litigation

Washington, DC 20044

Attorneys for Respondents

Naureen Shah

Columbia University School of Law

New York, NY 10027

Robin L. Alperstein

Becker, Glynn, Melamed & Muffly

New York, NY 10171

Carl J. Micarelli

Debevoise & Plimpton

New York, NY 10022

Attorneys Amicus Curiae 

______
3

OPINION OF THE COURT

______

SLOVITER, Circuit Judge.

A federal statute, Immigration and Nationality Act 

(―INA‖) § 241(b)(3)(B)(iv), 8 U.S.C. § 1231(b)(3)(B)(iv), 

precludes withholding of removal if ―there are reasonable 

grounds to believe that the alien is a danger to the security of 

the United States.‖ In November 2003, the Government of 

Uzbekistan requested the extradition of, inter alia, Petitioners

Bekhzod Yusupov and Ismoil Samadov (collectively 

―Petitioners‖), asserting they participated with others in a 

movement seeking the ―forced overthrow‖ of the Republic of 

Uzbekistan, and the establishment on its territory of a 

―religious extremist Islamic fundamental state.‖ Y.App. at 

705, S.App. at 2993.1 After hearing testimony that it was 

merely pretext for persecution, both Immigration Judges 

(―IJs‖) concluded that the extradition request would be given 

no weight, ―coming from a government such as this with a 

history of engaging in persecution and using torture as a 

sovereign tool.‖ In Re Yusupov, No. A 79-729-905, at 10 (IJ 

Dec. Nov. 19, 2004). In addition, Uzbekistan stimulated 

Interpol notices seeking assistance in locating Petitioners. 

The Government now asserts that there are reasonable 

grounds to believe both Petitioners are a danger to the 

security of the United States.

These consolidated cases were previously before this 

court. In Yusupov v. Att’y Gen., 518 F.3d 185, 201 (3d Cir. 

2008) (―Yusupov I‖), this court overruled the Attorney 

General‘s construction of the national security exception that 

required merely that a person ―may‖ pose a danger to our 

security and held that the provision only applies to an 

 

1

 Each Petitioner filed a separate Appendix. We refer 

to that filed by Yusupov as ―Y.App.‖ and filed by 

Samadov as ―S.App.‖ The appendix located at the back of 

Yusupov‘s opening brief will be referred to as 

―Y.Br.App.‖
4

individual who actually ―is‖ a danger. Because the Board of 

Immigration Appeals (―BIA‖) evaluated Petitioners‘ cases 

under the incorrect standard, this court remanded to the BIA 

without passing on the merits. On remand, the BIA found 

that Petitioners are a danger to national security and are thus 

ineligible for withholding of removal. The BIA, however, 

granted the Petitioners deferral of removal under the United 

Nations Convention Against Torture (―CAT‖) finding it more 

likely than not that Petitioners would be persecuted and 

tortured on account of their religion and political opinion if 

returned to Uzbekistan. We are now called on to consider 

whether substantial evidence supports the BIA‘s 

determination that Petitioners pose an actual, present danger 

to the security of the United States.2 

I.

Background

A. Factual Overview

Yusupov and Samadov are two nationals of 

Uzbekistan who claim to be Independent Muslims and 

followers of Imam Obidkhon Nazarov. Nazarov and his 

followers have been subject to persecution since the early 

1990s by the Uzbek Government, known for its silencing of 

dissent and its ―very poor‖ human rights track record, charges 

also maintained by the U.S. Government. S.App. at 2170-73, 

Y.App. at 108. Petitioners left Uzbekistan in 1999, allegedly 

to pursue educational opportunities in the United States, and 

are now unwilling to return for fear of persecution. 

Yusupov and Samadov both testified at their respective 

initial hearings that they had only peacefully attended their 

mosques in their homeland and had engaged in no violent or 

 

2

This court expresses its gratitude to Amici Curiae –

Columbia Law School‘s Human Rights Institute; the 

Asian American Legal Defense and Education Fund et. al. 

(―AALDEF‖) and Immigration Law Scholars – for their 

submissions.
5

subversive activity. Both reported that in 2001, after they 

were in the United States, a former roommate, surname 

Oripjanov, was tortured and interrogated in Uzbekistan and 

forced to sign false allegations against them. This, they 

testified, precipitated Uzbekistan‘s issuance of the extradition 

requests and Interpol warrants charging them with 

participating in activities in support of an illegal, religious, 

extremist movement. The IJ presiding at Yusupov‘s hearing 

concluded that ―after listening closely to his testimony, and 

examining the voluminous evidence of record, [he] found 

respondent to have testified credibly.‖ In re Yusupov, No. A

79-729-905, at 9 (IJ Dec. Nov. 19, 2004). After hearing this 

testimony, Samadov‘s IJ similarly concluded as follows:

The Court has carefully reviewed that 

extradition request. It does not charge 

the respondent with any specific 

incident. . . . It appears that the 

respondent is being sought by the 

government of Uzbekistan because of his 

religious beliefs.

Based upon the documentary 

evidence that has been provided in this 

case, the reports of the State Department, 

about the religious Freedom Report and 

the Human Rights Report, the report 

from Human Rights Watch, the other 

corroborating evidence, the Court finds 

that the respondent‘s testimony when 

placed against this evidence is extremely 

credible.

S.App. at 46.

Neither of these findings regarding the credibility of 

Petitioners has subsequently been withdrawn by the IJ or 

found by the BIA to be clearly erroneous.3 Indeed, the BIA 

 

3 As noted hereafter, see infra text at 8, Samadov‘s IJ 

found some of his testimony at a subsequent hearing to be 
6

on review, expressly found ―no clear error in [Yusupov‘s] 

Immigration Judge‘s credibility determination regarding . . . 

the Uzbek extradition request and INTERPOL warrant.‖ In 

Re Yusupov, No. 79-729-905, at 3 (BIA Dec. June 18, 2009).

Meanwhile, in 2002, after receiving notice of criminal 

charges against Petitioners in Uzbekistan, the United States 

initiated an investigation during which Petitioners consented 

to a search of their shared home and computer. The search 

revealed cached video clips of Osama bin Laden and an 

alleged Chechen militant and what appear to be attacks on 

Russian troops and vehicles, a map of Pennsylvania State 

Police facilities, and an email addressed to Petitioners‘ former 

roommate, Erkinjon Zakirov, also an Uzbek national, that 

references ―jihad.‖4See Yusupov I, 518 F.3d at 190-92. 

 

―not credible.‖ However, this testimony related solely to 

Samadov‘s residence and activities after coming to this 

country. She did not retreat from her prior findings 

regarding the extradition request, the warrant, and 

Samadov‘s activities abroad. S.App. at 23-28. To the 

contrary, at this subsequent stage, the IJ relied upon the 

same ―documentary evidence‖ regarding Uzbekistan‘s 

treatment of Independent Muslims in support of her 

conclusion that Samadov would be tortured upon his 

return to his home country.

4

The email reads:

In the name of God. 

Peace upon you. 

Abu Ismoil, my brother

In my letter to PAHKAN I asked him questions 

you wanted me to. 

1- It is a possibility for You in particular and 

Otabek to get out from there, but it will require 

from us a lot of enormous amount of hard work 

with lots of difficulties. Therefore, if you can, 

please stay there, you will be serving Islam a 
7

The Government initiated removal proceedings against 

Petitioners. Petitioners conceded removability and applied 

for asylum, withholding of removal, and CAT relief.

In March 2004, IJ Grace A. Sease granted Samadov‘s

application for withholding of removal under the INA.

5

 

S.App. at 46. The BIA affirmed. Later that year, the 

Government moved to reopen Samadov‘s case on the ground 

 

big favor, your stay there will be a great jihad in 

the name of God. 

2- [PAKHAN] said that Abdu Wali Qorakan‘s 

classes on how to bring the Muslim religion 

into Uzbekistan will happen. You will be 

meeting him and taking instructions directly 

from him.

3- Regarding the boy you mentioned. (The idea 

is good to save the boy from the [National 

Security Council of Uzbekistan] but this 

requires a large amount of money, [PAKHAN] 

suggested not to pay the money before the boy 

is out, otherwise the prices will keep going up 

and all will be wasted.

Ask for patience from God. Be patient, you are 

on a great path, the jihad in the name of God. 

DO NOT FORGET TO GET MARRIED!!! 

Please hurry!!! All will be fine, with God‘s 

blessing!! 

God will keep you safe. 

As you see, we have many difficulties. 

Sincerely yours, brother:

Abu Ibroiym

S.App. at 1073.

5

See INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A) 

(statutory withholding of removal); 8 C.F.R. § 1208.16(c) 

(withholding of removal under the Convention Against 

Torture). 
8

that it had obtained new, previously unavailable evidence, 

namely the files extracted from the shared computer, that 

supported a finding that he was a danger to the security of the 

United States.6 

At the reopened hearing, the Government presented 

testimony only of Mark Olexa, an agent of the Department of 

Homeland Security (―DHS‖) Joint Terrorism Task Force

working out of Philadelphia, Pennsylvania. Agent Olexa was 

unable to translate the non-English writing superimposed on 

one of the videoclips or provide additional detail regarding 

the contents of several of the videos due to his lack of 

familiarity with the language.7 S.App. at 393-414. Olexa 

never interviewed Samadov about the materials or other 

evidence, and did not identify who had downloaded the files 

to the shared computer. He based his opinion that Samadov 

had engaged in ―extremist activity‖ primarily on the 

allegations in the extradition request. S.App. at 408. After 

the hearing, IJ Sease found Samadov‘s testimony regarding 

the computer and his activities in this country to be ―not 

credible.‖ Although the IJ held that he was ineligible for 

withholding of removal as a danger to national security, she 

found Samadov eligible for deferral under the CAT. In re 

Samadov, A 79-729-711, at 14-15 (IJ Dec. Aug. 2, 2005). In 

May 2006, the BIA affirmed. 

In November 2004, in separate proceedings, IJ Walter 

A. Durling, who was presiding at Yusupov‘s hearing, found 

him to be credible and held that there were not reasonable 

 

6

The FBI seized the computer in June 2002, but the 

Government took almost two years to fully sort and 

translate the materials. Because Yusupov‘s hearing was 

held after that of Samadov‘s first hearing, the computer 

materials were presented to the immigration court in 

Yusupov‘s case in the first instance.

7

In presenting his testimony, he relied on information 

provided by ―someone familiar with the Russian 

language‖ and other FBI agents. S.App. at 402. 
9

grounds to believe he is a danger to national security. The IJ 

granted Yusupov‘s applications for withholding of removal 

and CAT relief.8 The IJ found it significant that the 

Government ―did not produce any writing or correspondence 

pertaining to [Yusupov] that suggests any violent intentions 

or proclivities, nor has [it] suggested his collaboration or 

friendship with anyone in the United States considered of 

violent repute.‖ In re Yusupov, No. A 79-729-905, at 6 (IJ 

Dec. Nov. 19, 2004). 

IJ Durling noted the Government‘s argument that its 

threshold for establishing a reason to believe an alien is a 

danger is ―low.‖ Id. at 8. IJ Durling stated that even 

accepting that argument, this ―requires at least a modicum of 

evidence,‖ and ―some nexus between an alien‘s presence in 

the United States and his activities or beliefs which quantify 

him as a security risk,‖ which the Government failed to 

provide. Id. The IJ afforded the politically motivated 

extradition request no weight with regard to the allegations of 

criminal misconduct. Id. at 10. In August 2005, the BIA 

reversed the IJ‘s grant of withholding of removal on national 

security grounds but upheld the grant of deferral of removal 

for Yusupov under the CAT. 

Yusupov and Samadov petitioned for review and this 

court consolidated the petitions. 

B. Third Circuit Remand

In Yusupov I, this court did not comment regarding the 

sufficiency of the evidence as to whether either Petitioner 

falls within the national security exception. Rather, we 

limited our decision to an interpretation of the statutory 

language that provides withholding of removal is unavailable 

if ―there are reasonable grounds to believe that the alien is a 

danger to the security of the United States.‖ INA § 

241(b)(3)(B)(iv), 8 U.S.C. § 1231(b)(3)(B)(iv). We deferred 

to the Attorney General‘s interpretation that reasonable 

 

8

The Government also presented Agent Olexa as a 

witness at Yusupov‘s hearing. 
10

grounds to believe is satisfied ―if there is information that 

would permit a reasonable person to believe,‖ a standard akin 

to probable cause in criminal cases. Yusupov I, 518 F.3d at 

200. In addition, we found that the Attorney General was 

reasonable to interpret the exception as allowing the 

consideration of any evidence that is ―not intrinsically 

suspect,‖ including evidence that would not be admissible 

under the Federal Rules of Evidence. Id. (internal quotation 

omitted). 

However, as relevant here, we overruled the Attorney

General‘s reading of the statutory phrase ―is a danger‖ as 

requiring merely that an alien ―may pose‖ a danger. Id. at 

201. Instead, we held that the provision applies only to 

individuals who ―actually‖ pose a danger, reasoning that the 

term ―is‖ simply ―does not mean  ̳may.‘‖ Id. We refrained 

from determining the ―contours of risk to our Nation‘s 

defense, foreign relations, or economic interests‖ that would 

pose the requisite danger, deferring to the Attorney General‘s 

interpretation that the danger must be ―nontrivial.‖ Id. We 

found the standard ―includes an inherent seriousness 

requirement.‖ Id. at 204 (noting that ―the Attorney General 

was not unreasonable . . . to ensure that immigration judges 

do not consider trivial dangers in applying the national 

security exception‖). This court remanded to the BIA for 

application of the correct standard. 

C. BIA on Remand

1. Yusupov 

On remand, the BIA again reversed the decision of IJ 

Durling granting Yusupov withholding of removal and 

finding that Yusupov was not a danger to the security of the 

United States. In so doing, the BIA engaged in de novo 

review because it concluded that such a determination 

―concerns an issue of fact and law.‖ In re Yusupov, No. A 

79-729-905, at 2 (BIA Dec. June 18, 2009) (citing 8 C.F.R. § 

1003.1(d)(3)(ii) and Matter of V-K-, 24 I. & N. Dec. 500 

(BIA 2008)). Although the BIA found ―no clear error in the 

[IJ]‘s credibility determination regarding [Yusupov‘s] 
11

explanations of the reasons for downloading files on his 

computer, or the potential that the Uzbek extradition request 

and INTERPOL warrant are politically motivated,‖ it 

nonetheless determined that ―[t]here is considerable evidence 

to support the [Government‘s] claim that there are reasonable 

grounds to believe that [Yusupov] presents an actual danger 

to national security.‖ Id. at 2-3. 

The BIA relied on the following evidence to support 

its determination: (1) the extradition request; (2) the Interpol 

warrant; (3) cached video clips found on the shared computer; 

(4) the email sent to Zakirov, a sometime roommate of 

Petitioners, referring to his ―role‖ in a ―big jihad;‖ (5) a 

publicly available Pennsylvania Police facilities map from the 

shared computer; (6) entry by Yusupov, Samadov, and their 

roommate Zakirov to the United States on student visas, none 

of whom attended school for any length of time; (7) 

Yusupov‘s 2003 misdemeanor conviction for representing 

himself as a United States citizen on a job application; and (8) 

Yusupov‘s attempt to ―evade detention‖ upon learning that 

the federal government sought to apprehend his roommates 

and his initial failure to provide his residence to investigators. 

Id. The BIA, however, upheld the IJ‘s decision granting 

Yusupov CAT deferral, finding it is more likely than not that 

he would be tortured if returned. 

One member of the BIA panel dissented in a brief 

footnote, stating: 

On further reflection, Board Member Filppu 

finds the favorable credibility assessement [sic] 

below significant, and thus respectfully 

dissents. The Immigration Judge was not 

clearly erroneous in crediting [Yusupov‘s] 

innocent explanations for what would 

otherwise be reasonable concerns respecting 

his danger to the United States. Accepting 

those explanations as true, in the context of this 

case, supports the ruling below, and [the 

Government‘s] appeal should be dismissed.
12

Id. at 5. 

2. Samadov 

On remand, the BIA again upheld the 2005 decision of 

IJ Sease denying Samadov withholding of removal as a 

danger to the security of the United States. In so doing, the 

BIA upheld the IJ‘s adverse credibility determination and 

found that ―[t]here is considerable evidence to support the 

[Government‘s] claims that there are reasonable grounds to 

believe that [Samadov] presents an actual danger to national 

security.‖ In re Samadov, No. A 79-729-711, at 2 (BIA Dec. 

June 18, 2009).

The BIA relied on the following evidence similar to 

that it considered in connection with Yusupov‘s appeal to 

support its determination: (1) the extradition request; (2) the 

Interpol warrant; (3) the video files; (4) the ―jihad‖ email;9(5) 

the Pennsylvania Police facilities map; (6) entry by Samadov 

and Zakirov to the United States on student visas, neither of 

whom attended school for any length of time; (7) the attempt 

to evade detention by Samadov‘s former roommates, 

Yusupov and Zakirov; and (8) Samadov‘s conflicting 

testimony regarding whether he had ―given and received 

thousands of dollars from groups or individuals‖ in Central 

Asia. Id. at 2-3. The BIA here too upheld the IJ‘s decision 

granting Samadov CAT deferral because it is more likely than 

not he would be tortured if returned to Uzbekistan. 

Yusupov and Samadov timely appeal. 

II.

Jurisdiction and Standards of Review

 

9

The Government initially argued that this email had 

been sent to Samadov, but it became clear during the 

reopened proceedings that the email was addressed to 

Zakirov. Indeed, the IJ questioned whether the 

Government would have successfully reopened the case 

based on the other materials alone. S.App. at 463-64.
13

We have jurisdiction to review the BIA‘s final orders 

of removal under INA § 242(a)(1), 8 U.S.C. § 1252(a)(1). 

See also Yusupov I, 518 F.3d at 195-96. We review de novo 

constitutional claims or questions of law and the application 

of law to facts with appropriate agency deference. INA § 

242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D); Yusupov I, 518 F.3d 

at 197. We uphold the BIA‘s factual determinations if they 

are ―supported by reasonable, substantial, and probative 

evidence on the record considered as a whole.‖ Li v. Att’y 

Gen., 400 F.3d 157, 162 (3d Cir. 2005) (internal quotation 

omitted); see also 8 U.S.C. § 1252(b)(4)(B) (―administrative 

findings of fact are conclusive unless any reasonable 

adjudicator would be compelled to conclude to the contrary‖). 

We review the IJ‘s findings under this same substantial 

evidence standard to the extent ―the BIA directs us to the 

opinion and decision of the IJ who originally assessed [the] 

application.‖ Shah v. Att’y Gen., 446 F.3d 429, 434 (3d Cir. 

2006) (alteration in original) (internal quotation omitted). 

III.

Analysis

A. Forms of Relief

We begin our analysis with a brief discussion of the 

forms of relief at issue in this petition. Yusupov and 

Samadov were both granted deferral of removal under the 

CAT. Petitioners bring this appeal in part to afford them 

withholding of removal, under the INA and the CAT, which 

they argue provides superior procedural and substantive 

rights.10 

 

10 Yusupov concedes that he is ineligible for asylum 

for his failure to file an application within one year of his 

entry. Although Samadov correctly states that the BIA in 

its most recent decision did not consider his claim that his

asylum application was timely, in its first decision the 

BIA specifically affirmed the IJ‘s denial of asylum for 

failure to file within one year of arrival. This court lacks 
14

Consistent with our nonrefoulement obligations under 

the 1967 United Nations Protocol Relating to the Status of 

Refugees, section 241(b)(3)(A) of the INA, 8 U.S.C. § 

1231(b)(3)(A), prohibits removal of an individual unlawfully 

in this country if the Attorney General believes that the 

individual‘s life or freedom would be threatened in the 

country of removal on account of race, religion, nationality, 

membership in a particular social group, or political opinion

(statutory withholding of removal).

11

 Credible testimony 

alone may be sufficient to sustain the burden of proof without 

further corroboration. 8 C.F.R. § 1208.16(b). In addition, the 

CAT, as codified in regulation, provides for withholding of

removal if it is more likely than not that an individual would 

be tortured if removed to the proposed country of removal. 8 

C.F.R. § 1208.16(c). 

Withholding of removal under both the INA and the 

CAT is precluded if ―there are reasonable grounds to believe 

that the alien is a danger to the security of the United States.‖ 

8 U.S.C. § 1231(b)(3)(B)(iv); 8 C.F.R. § 1208.16(d)(2). ―If 

the evidence indicates the applicability of [the national 

security exception], the applicant shall have the burden of 

 

jurisdiction to review discretionary findings regarding 

timeliness. See Sukwanputra v. Gonzales, 434 F.3d 627, 

634 (3d Cir. 2006). Because the BIA has already decided 

the issue, remand for this reason would likely be futile. 

11 As explained in Yusupov I, 518 F.3d at 202-03, the 

Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, 

107, amended existing law on withholding of removal to 

conform it to Article 33 of the United Nations Protocol 

Relating to the Status of Refugees, Jan. 31, 1967, 19 

U.S.T. 6223, T.I.A.S. No. 6577 (―1967 Protocol‖). 

Article 33.1 of the 1967 Protocol, to which the United 

States is party, expresses the principle of nonrefoulement

that ―[n]o Contracting State shall expel or return 

( ̳refouler‘) a refugee in any manner whatsoever to the 

frontiers of territories where his life or freedom would be 

threatened on account of [the protected grounds].‖ 
15

proving by a preponderance of the evidence that such grounds 

do not apply.‖ 8 C.F.R. § 1208.16(d)(2). The national 

security exception, however, does not preclude grant of 

temporary deferral of removal under the CAT if there is a 

likelihood of torture. 8 C.F.R. § 1208.17(a). 

This court recognizes that withholding of removal 

provides greater protection and freedom than deferral of 

removal. Indeed, deferral is a more easily revocable form of 

relief, which would leave Petitioners vulnerable. See

Khouzam v. Att’y Gen., 549 F.3d 235, 240 n.3 (3d Cir. 2008). 

The Government can also invoke an adverse security 

determination to detain Petitioners indefinitely and place 

them on restrictive supervised release.

12

 See 8 U.S.C. § 

1231(a)(3)(D); 8 C.F.R. § 1241.14. Although withholding 

like deferral does not provide the basis for adjustment to legal 

permanent resident status, deferral recipients who are found 

to be a danger to national security are considered inadmissible 

or deportable, which makes them per se ―ineligible to receive 

visas . . . to the United States.‖ 8 U.S.C. § 1182(a)(5). In 

contrast, if granted withholding Petitioners would have no per 

se bars to adjustment of status, and would thus be able to 

obtain permanent residency through marriage, work, or 

family. 

Under the statutory scheme, the question whether an 

alien is a danger to the United States arises only once the IJ or 

BIA has found the alien is likely to be persecuted or tortured 

if removed to the country of nationality. Absent such a 

finding, the alien would be removed without consideration of 

his or her danger to the United States. However, both 

Immigration Judges and the BIA agreed that Yusupov and 

Samadov are likely to be tortured if removed. Thus, 

notwithstanding Congress‘ determination that restrictions on 

 

12 During the course of these proceedings, Petitioners 

spent three years in immigration detention. Although 

Petitioners have since been released, the immigration 

service ―continues to subject them to strict curfews, travel 

restrictions and twenty-four hour electronic monitoring.‖ 

Petitioners‘ 28(j) Letter dated Dec. 28, 2010. 
16

removal are warranted if there are reasonable grounds to 

believe an alien poses a danger to national security, courts 

must strictly interpret exceptions to nonrefoulement precisely 

because they are applied to those determined to be deserving 

of protection. See Yusupov I, 518 F.3d at 203-04 (In enacting 

the 1980 Refugee Act, ―Congress intended to protect refugees 

to the fullest extent of our Nation‘s international obligations. 

Indeed . . . Congress intended to allow exceptions to our 

nonrefoulement obligations only in a narrow set of 

circumstances.‖); see also Xu Sheng Gao v. Att’y Gen., 500 

F.3d 93, 98 (2d Cir. 2007) (narrowly interpreting bar to 

withholding because it would authorize deportation of 

individuals who have established that they would likely be 

persecuted if returned). 

B. BIA Standard of Review

Petitioners argue that the BIA misapplied its standard 

of review and failed to properly credit the IJ‘s findings of 

fact. In 2002, the Attorney General issued procedural reforms 

clarifying the BIA‘s scope of review. See 8 C.F.R. § 

1003.1(d)(3).13 Where the BIA reviews ―a mixed question of 

 

13 Section 1003.1(d)(3) provides:

(i) The Board will not engage in de novo 

review of findings of fact determined by an 

immigration judge. Facts determined by the 

immigration judge, including findings as to 

the credibility of testimony, shall be 

reviewed only to determine whether the 

findings of the immigration judge are 

clearly erroneous. 

(ii) The Board may review questions of 

law, discretion, and judgment and all other 

issues in appeals from decisions of 

immigration judges de novo. . . .

(iv) Except for taking administrative 

notice of commonly known facts such as 

current events or the contents of official 

documents, the Board will not engage in 
17

law and fact . . . now referred to as a discretionary decision,‖ 

it should ―defer to the factual findings of the immigration 

judge unless clearly erroneous,‖ but it retains ―independent 

judgment and discretion, subject to the applicable governing 

standards, regarding the review of pure questions of law and 

the application of the standard of law to those facts.‖ Board 

of Immigration Appeals: Procedural Reforms to Improve 

Case Management, 67 Fed. Reg. 54,878, 54,888-89 (Aug. 26, 

2002) (internal quotation omitted). 

As such, when evaluating an immigration judge‘s 

determination whether there are reasonable grounds to believe 

an alien is a danger to the United States, the underlying 

circumstances – e.g. whether Yusupov watched the videos 

and why or whether he attended English classes – are factual 

questions subject to clear error review by the BIA. On the 

other hand, when the BIA determines whether those facts 

give rise to a reasonable belief that an alien is a danger to 

national security it has before it a mixed question of law and 

fact that requires its application of a legal standard to facts as 

to which it retains ―independent judgment and discretion.‖

14

 

 

factfinding in the course of deciding 

appeals.

14 Yusupov argues that whether there are reasonable 

grounds to believe he is a danger is a question of fact akin

to a likelihood determination, or a prediction of future 

events, subject to clear error review, not de novo. 

Yusupov misplaces reliance on two recent opinions of this 

court. See Kaplun v. Att’y Gen., 602 F.3d 260, 269-71 (3d 

Cir. 2010) (under CAT, probability of future torture is 

finding of fact subject to clear error review, but whether 

future events rise to level of torture is a legal question 

reviewed de novo); Huang v. Att’y Gen., 620 F.3d 372, 

383, 387 (3d Cir. 2010) (extending Kaplun to asylum 

context, forecasting of what might happen to an applicant 

if returned is a factual question subject to clear error 

review, but whether events rise to the level of persecution 

and give rise to a well-founded fear are reviewed de 

novo). Kaplun and Huang are inapposite except to the 
18

This follows our previous holding that whether there are 

reasonable grounds to believe an applicant is a danger is akin 

to a probable cause determination that requires a finding that 

an applicant ―is‖ an actual and present danger. Yusupov I,

518 F.3d at 200-01. Probable cause determinations are 

reviewed de novo. See Harshbarger v. Regan, 599 F.3d 290, 

292 n.3 (3d Cir. 2010). 

Although the BIA stated that it left the IJ‘s positive 

credibility determination undisturbed and accepted Yusupov‘s 

innocent explanations as true, we review the BIA‘s actions 

rather than its statements. We agree with Yusupov that 

notwithstanding the BIA‘s own regulation that states the 

―Board will not engage in de novo review of findings of fact 

determined by an immigration judge,‖ see 8 C.F.R. § 

1003.1(d)(3), the BIA did not follow its own standard. For 

example, the IJ found credible Yusupov‘s testimony that he 

watched the videos out of a general interest in his country and 

the conflicts in the area and that he believed the extremist 

views of Osama bin Laden were inconsistent with true 

Islamic beliefs. The IJ also found credible Yusupov‘s 

testimony that he quit his job and evaded the authorities 

because he feared deportation; when it became clear that his 

friends with similar fears were not deported immediately and 

were provided with an opportunity to present their claims, he 

came out of hiding. Further, the IJ found credible Yusupov‘s 

explanation that he did not provide his residential address to 

investigators because he did not want to cause trouble for his 

host in Virginia, not because he attempted to hide anything 

suspicious. However, when the BIA concluded that the 

presence of the videos and Yusupov‘s alleged evasion 

provided reasonable grounds to believe he is a danger, it did 

not appropriately defer to the IJ on these points.

In contrast, the BIA did not err in relying on 

established facts not taken into account by the IJ regarding 

Yusupov‘s manner of entry to the United States and his 

misdemeanor conviction. Under the standard for mixed 

questions of law and fact, the BIA was entitled to ―weigh the 

 

extent they illustrate that questions under the INA often 

involve multiple inquiries subject to varying review. 
19

evidence in a manner different from that accorded by the 

[IJ].‖ Matter of A-S-B-, 24 I. & N. Dec. 493, 497 (BIA 2008); 

see also Rotinsulu v. Mukasey, 515 F.3d 68, 73 (1st Cir. 

2008) (finding that the regulations were ―not intended to 

restrict the BIA‘s powers of review, including its power to 

weigh and evaluate evidence introduced before the IJ‖). 

Whether this court finds that substantial evidence supports the 

BIA‘s ultimate conclusion that there are reasonable grounds

to believe Petitioners are a danger is a separate inquiry to 

which we now turn. 

C. The Existence of Substantial Evidence 

The Government urges this court to defer to the BIA‘s

finding that there are reasonable grounds to regard Petitioners 

as a danger to the security of the United States. The 

Government focuses on the Executive‘s power and expertise 

in the area of national security, and relies on recent Supreme 

Court precedent to support its position. In Holder v. 

Humanitarian Law Project (HLP), the Supreme Court 

acknowledged that ―when it comes to collecting evidence and 

drawing factual inferences in [the area of national security 

and foreign relations], the lack of competence on the part of 

the courts is marked, and respect for the Government‘s 

conclusions is appropriate.‖ 130 S. Ct. 2705, 2727 (2010) 

(internal quotation and citation omitted). 

We do not arrogate to ourselves knowledge and 

sources superior to that of the Government. But neither

should we take its statements as ipse dixit. Its statements, like 

that of any party, must be supported by the record it makes. 

In HLP, the Government substantiated its position 

regarding the operation of terrorist networks through 

Congressional history, factual documentation, expert 

testimony, and an affidavit from the United States 

Department of State.15 On the contrary, this court has little to 

 

15 In HLP, the plaintiffs argued that the criminal 

material support statute impermissibly regulated their 

speech because their support of designated foreign 
20

which to defer in this case. Neither the BIA nor the 

Government has provided the name of any potential terrorist 

organization or extremist movement with which they claim 

Petitioners are affiliated nor did either provide a ―coherent 

and reliable narrative‖ connecting Petitioners‘ seemingly

innocuous actions and circumstances with any particular harm 

that Petitioners pose to the United States. Malkandi v. 

Holder, 576 F.3d 906, 916 (9th Cir. 2009). Without some 

hard information, this court is left guessing. It is significant 

that even the State Department has declined to offer any 

opinion about the dangerousness of the Petitioners. 

During the course of these proceedings, the State 

Department issued letters to the immigration court concerning 

Petitioners‘ applications. The Department explained that 

issuance of the extradition requests is consistent with the 

Uzbek Government‘s practice of using broad provisions in its 

Criminal Code against political opponents for non-terrorismrelated activities. The Department declined to offer a position 

with respect to Petitioners‘ applications, stating it ―has no 

evidence connecting [Yusupov or Samadov] to acts of 

terrorism. The information available does not allow the 

Department to make a judgment as to whether [Petitioners] 

otherwise present[] a threat to the national security of the 

United States.‖ Y.Br.App. at 45, S.App. at 2170. As the 

Supreme Court stated in HLP, ―concerns of national security 

and foreign relations do not warrant abdication of the judicial 

role.‖ 130 S. Ct. at 2727. 

On remand, this court clearly instructed the BIA to 

ascertain whether reasonable, substantial, and probative

evidence in the whole record reveals ―reasonable grounds to 

believe‖ Petitioners ―actually pose a danger‖ to the United 

 

terrorist organizations affiliated with the Tamil struggle 

for independence in Sri Lanka would not further the 

terrorist activities of the organizations. The Government 

countered that terrorist organizations do not meaningfully 

segregate support for their legitimate activities from the 

nefarious. Id. at 2722-24. We have no reason to disagree 

with the Government. 
21

States – ―a more certain determination‖ than whether they 

may or could be. Yusupov I, 518 F.3d at 201-02. The BIA 

failed to follow this court‘s mandate when it issued 

substantially similar opinions pre- and post-remand. We 

recognize that the BIA ―is not required to write an exegesis 

on every contention;‖ however, it must ―consider the issues 

raised, and announce its decision in terms sufficient to enable 

a reviewing court to perceive that it has heard and thought 

and not merely reacted.‖ Filja v. Gonzales, 447 F.3d 241, 

256 (3d Cir. 2006) (internal quotation omitted). A formulaic 

recitation of our instructions simply does not suffice. See Dia 

v. Ashcroft, 353 F.3d 228, 250 (3d Cir. 2003) (en banc) 

(―[T]he soundness of the basis of the decision-making, even if 

experiential or logical in nature, must be apparent.‖).

The closest the BIA comes to identifying a particular 

threat posed by Petitioners involves their alleged support of 

Muslim extremists, to wit terrorists, in Uzbekistan based on 

the politically motivated Uzbek extradition requests and 

Interpol warrants.16 See In re Yusupov, No. A 79-729-905, at 

3-4 (BIA Dec. June 18, 2009) (the evidence ―shows a fair 

probability that [Yusupov] supports and assists terrorist 

activity‖); In re Samadov, No. A 79-729-711, at 4 (BIA Dec. 

June 18, 2009) (the Government met its burden of 

 

16 Under 8 U.S.C. § 1231(b)(3)(B)(iv), there are two 

ways to determine whether an alien is ineligible for 

withholding as a threat to national security. First, the 

agency may find the alien has been involved in terrorist 

activities or is a member of or associated with a terrorist 

organization as described 8 U.S.C. § 1227(a)(4)(B), which 

automatically renders the alien a danger. Second, the 

agency may simply find that there are reasonable grounds 

to believe the individual is a danger to national security 

(i.e. defense, foreign relations, or economic interests). 

There is little guidance in the statute or subsequent 

interpretations as to the circumstances, other than 

involvement in terrorist activity or membership, that 

would render the alien a danger. Indeed, it appears that 

the BIA rested its conclusions on a terrorism theory even 

though the Government did not charge Petitioners as such.
22

establishing reasonable grounds that Samadov is a security 

danger ―by supporting or assisting terrorism inspired by 

Muslim extremists‖). 

It appears that the principal basis for the BIA‘s finding 

that Petitioners are a danger to the United States stems from

the extradition requests and Interpol warrants issued by the 

Uzbek Government. Yet the BIA could not find that both IJs 

were clearly erroneous in their findings that the extradition 

requests and Interpol warrants were politically motivated and 

based on Petitioners‘ peaceful, religious beliefs. Even giving 

full deference to the BIA, we conclude that there is no 

credible evidence in the record to support the BIA‘s 

conclusion. On the contrary, there is overwhelming evidence 

that Article 244 of the Uzbek Criminal Code, upon which the

Uzbekistan charges are based, is used by that government as a 

pretext to single out and punish those in peaceful opposition 

to the authoritarian regime. Y.Br.App. at 45, S.App. at 2110

(letter from State Department referring, inter alia, to Uzbek 

Government‘s practice of using ―broad provisions in [its]

Criminal Code . . . against its political opponents‖ for nonterrorism-related activities). 

Olexa (who testified on behalf of the Government at 

Petitioners‘ removal hearings, emphasized the extradition 

requests and the Interpol warrants in support of a finding that 

Petitioners were dangerous) apparently had no direct 

knowledge about the situation in Uzbekistan, and offered no 

information as to Petitioners‘ role in any alleged terrorist 

activity in Uzbekistan.17 It would lead to a perverse outcome 

 

17 The Senior Researcher on Central Asia for Human 

Rights Watch, Acacia Shields, testified at Samadov‘s 

hearing before the IJ that she does not know of ―any 

Muslim groups [who favor the overthrow of the 

government] in the territory of Uzbekistan.‖ S.App. at 

2374. She testified that the Islamic Movement of 

Uzbekistan (―IMU‖) ―was based in Afghanistan,‖ and did 

engage in acts of violence, but she had not seen ―any 

evidence‖ that the group still exists. Id. The IMU is on 

the current list of foreign terrorist organizations 
23

were we to allow reliance on the fundamentally questionable 

extradition requests and Interpol warrants. How can the BIA 

on one hand assert that the Uzbekistan charges are pretextual 

and provide grounds for the United States to protect

Petitioners under the CAT while at the same time credit the 

very same allegations to find Petitioners are a danger to this 

country? The BIA‘s reliance on these documents is even 

more problematic because, as we noted in Yusupov I, the 

information therein was apparently obtained by torture. See 

Yusupov I, 518 F.3d at 191-92 n.9; see also Boumediene v. 

Bush, 476 F.3d 981, 1006 (D.C. Cir. 2007) (―Testimony 

procured by coercion is notoriously unreliable and 

unspeakably inhumane.‖); Abdah v. Obama, 709 F. Supp. 2d 

25, 28 n.3 (D.D.C. 2010) (―statements that are the product of 

torture are unreliable‖); cf. Costello v. United States, 365 U.S. 

265, 280 (1961) (in a criminal case, ―the fruit of the 

poisonous tree doctrine excludes evidence obtained from or 

as a consequence of lawless official acts‖) (internal quotation 

omitted). It follows that the documents relied on by the BIA 

are not probative as a matter of law. 

Even if there were some basis for the charges in the 

extradition request, ―[t]errorist activity that is directed at 

another country does not invariably or necessarily involve a 

danger to the security of the United States.‖ Hosseini v. 

Gonzales, 471 F.3d 953, 958 (9th Cir. 2006). See also 

Cheema v. Ashcroft, 383 F.3d 848, 858 (9th Cir. 2004) (―it 

does not follow that an organization that might be a danger to 

one nation is necessarily a danger to the security of the United 

States‖). The relevant statute and regulations adopted by the 

United States are based on an underlying assumption that

aliens frequently seek protection from their own countries 

that regard them to be dangerous, usually because of their 

opposition to the government in power. If we were to allow 

 

designated as such by the United States under INA § 219. 

Foreign Terrorist Organizations, U.S. Dept. of State (Nov. 

24, 2010), http://www.state.gov/s/ct/rls/other/des/ 

123085.htm. It is undisputed that Petitioners have no 

affiliation with the IMU.
24

the BIA‘s decisions to stand, it would run counter to this 

country‘s strong tradition of granting protection to individuals 

sought by authoritarian regimes based on politically 

motivated charges.18

The additional bases given by the BIA for its finding

that Petitioners are dangerous is based on evidence that is 

impermissibly speculative. Samadov argues persuasively that 

the legal standard requiring ―reasonable grounds to believe‖ 

Petitioners are dangerous cannot be met without presentation 

of evidence satisfying probable cause. Guilt by association

does not suffice. See Scales v. United States, 367 U.S. 203, 

224 (1961) (―In our jurisprudence guilt is personal . . . .‖); 

United States v. Shields, 458 F.3d 269, 277 (3d Cir. 2006) 

(probable cause ―must be . . . particularized with respect to 

that person‖) (internal quotation omitted). 

Part of the BIA‘s rationale for its conclusion that 

Petitioners pose a danger to the United States lies in their 

association with, inter alia, Zakirov. Samadov argues that the 

BIA‘s rationale of guilt by association presents serious due 

process concerns which we must avoid. He states that we can 

do so by imposing a ―firm substantive requirement limiting 

the application of the national security exception to cases in 

which sufficient probative evidence establishes that an 

individual is engaged in actual dangerous conduct, or 

otherwise meaningfully associated with avowedly dangerous 

organizations or countries.‖19 Samadov‘s Br. at 39-40. As 

 

18 There is extensive evidence in the record on the 

nature of the Uzbek regime. According to Human Rights 

Watch testimony before the House of Representatives 

Committee on International Relations, ―Uzbekistan cannot 

be a good ally for the United States in the struggle against 

terrorism unless it stops persecuting Muslims for the 

peaceful expression of their faith.‖ S.App. at 3171-72.

19 The Fifth Amendment entitles non-citizens to due 

process of law in, inter alia, deportation proceedings. 

Reno v. Flores, 507 U.S. 292, 306 (1993).
25

Samadov points out, this limiting principle finds its roots in 

Supreme Court jurisprudence requiring conduct or 

meaningful association in the application of immigration 

statutes to suspected Communist Party members in the middle 

of the last century. See, e.g., Gastelum-Quinones v. Kennedy, 

374 U.S. 469, 479-80 (1963) (holding mere membership in 

Communist Party was insufficient to meet threshold 

requirement of ―meaningful association‖ required for 

deportation); Rowoldt v. Perfetto, 355 U.S. 115, 120 (1957) 

(reversing BIA deportation order because active, dues-paying 

Community Party member who worked at ―an official outlet 

for communist literature‖ did not constitute meaningful 

association to warrant deportation); Bridges v. Wixon, 326 

U.S. 135, 145-46 (1945) (―course of conduct which reveals 

cooperation with Communist groups for the attainment of 

wholly lawful objectives‖ does not constitute ―affiliation‖ as 

defined by INA). 

This reading is also consistent with contemporary 

cases applying the national security exception that stand in 

sharp contrast to the instant case.20 In Malkandi v. Holder, 

576 F.3d 906 (9th Cir. 2009), for example, the Ninth Circuit 

found that substantial evidence supported the BIA‘s finding 

that an Iraqi Kurd is a danger to national security. There, the 

court found that Malkandi served as a ―travel facilitator‖ for a 

notorious al-Qaeda operative who was involved in attacks 

against United States interests overseas. Id. at 908. As the 

court stated, the facts found by the BIA ―connect[ed] the 

dots‖ between a known terrorist from the Middle East, a 

Yemeni go between, and Malkandi. Id. at 915. The plot was 

substantiated by the Government‘s expert witness as well as 

specific 9/11 Commission findings and FBI interrogations of 

 

20 Courts have even rejected the Government‘s 

authority to detain ―enemy combatants‖ at Guantanamo 

Bay based on mere speculation or guilt by association. 

See, e.g., Al Mutairi v. United States, 644 F. Supp. 2d 78, 

82 (D.D.C. 2009) (rejecting charge as speculative); Ahmed 

v. Obama, 613 F. Supp. 2d 51, 65 (D.D.C. 2009) 

(rejecting charge as associational). 
26

the operative. Id. at 910-11, 915. Moreover, the court found 

altogether implausible Malkandi‘s innocent explanations for 

the charged conduct. It found that his pattern of 

misrepresentations with the immigration authorities under 

oath ―discredited his portrayal of himself as an innocent 

participant.‖ Id. at 917. Cf. Matter of U-H-, 23 I. & N. Dec. 

355, 356 (BIA 2002) (finding reasonable grounds to believe 

Iranian national is a danger to national security because he is 

a member of the Mujahedin-e Khalq (―MEK‖), a designated 

foreign terrorist organization under INA § 219). 

In contrast to its holding in Malkandi, in Cheema the 

Ninth Circuit reversed the BIA‘s finding of dangerousness in 

part because ―no evidence supplies a link‖ between the 

applicants‘ alleged donations and ―any specific organization, 

let alone . . . militant organizations.‖ 383 F.3d at 856. Cf. 

Daneshvar v. Ashcroft, 355 F.3d 615, 628 (6th Cir. 2004) 

(reversing BIA‘s order where government failed to establish 

individual engaged in violent acts or that he knew or 

reasonably should have known of terrorist organization‘s 

activities). 

The INA also contains a related bar to the grant of 

asylum and withholding to individuals who have persecuted 

others on account of one of the protected grounds. See 8 

U.S.C. § 1231(b)(3)(B)(i). As the Second Circuit noted, 

―courts must be cautious before permitting generalities or 

attenuated links‖ when applying the bar for persecution of 

others because the aliens have established that they will likely 

be persecuted upon return to their country. Xu Sheng Gao, 

500 F.3d at 98. See also Diaz-Zanatta v. Holder 558 F.3d 

450, 455 (6th Cir. 2009) (―the alien must have done more 

than simply associate with persecutors; there must have been 

some nexus between the alien‘s actions and the persecution of 

others‖); Singh v. Gonzales, 417 F.3d 736, 739 (7th Cir. 

2005) (requiring a showing of ―genuine assistance in 

persecution‖ rather than an ―inconsequential association‖). 

The same concerns motivate our decision here. 

The record does not provide substantial, if any,

evidence that Petitioners engaged in conduct that was 
27

dangerous, or were planning as much, or meaningfully 

associated with organizations or countries inimical to the 

United States, terrorist or otherwise. Although a probable 

cause requirement does not require more probable than not 

proof, it does require more than mere suspicion. It is 

established when ―the facts and circumstances within the 

[Government‘s] knowledge are sufficient in themselves to 

warrant a reasonable person to believe that an offense has 

been or is being committed by [Petitioners].‖ Reedy v. 

Evanson, 615 F.3d 197, 211 (3d Cir. 2010) (internal quotation 

omitted). In analyzing whether probable cause exists, we take 

a totality of the circumstances approach. Id. We therefore 

proceed to consider each remaining ground given by the BIA. 

Computer Materials: The BIA accorded evidentiary 

significance to videos on the computer shared by the 

occupants of Petitioners‘ apartment and to an email sent, not 

to either Petitioner, but to someone else living in the 

apartment. These materials either viewed individually or with 

the record as a whole do not meet the probable cause 

standard.21 With respect to the videos, the BIA made 

significant prejudicial errors regarding the contents.22 The 

record does not support the BIA‘s contention that Ayman zaZawahiri, Osama bin Laden‘s deputy, appeared in any of the 

videos much less that he was giving a ―speech.‖ The BIA 

also characterizes the video of Chechen rebel leader Shamil 

Basayev as a ―speech,‖ whereas the record refers to it as an 

 

21 Petitioners testified that they never saw the 

Pennsylvania Police facilities map and the Government 

presents no evidence to the contrary. Even if they had 

viewed it, the BIA has provided no explanation for how 

this publicly available map in any way demonstrates 

Petitioners are a danger. This court can only presume that 

is because there is none.

22 Because Olexa, the Government‘s expert, does not 

speak the language contained in the videos, he was unable 

to provide detailed descriptions of what was said, and 

there was no translation provided. 
28

―interview.‖ Y.App. at 364, S.App. at 1949. Further, the 

BIA described one clip as ―appear[ing] to show how to wire a 

roadside bomb.‖ In re Samadov, No. A 79-729-711, at 2 

(BIA Dec. June 18, 2009). However, Agent Olexa 

specifically testified that none of the videos were ―training 

materials.‖ Y.App. at 191. Moreover, contrary to the BIA‘s 

finding, several of the videos, including that of bin Laden, 

originated from Al Jazeera, a recognized news source.

23

 

As discussed above, the BIA also failed to 

acknowledge that the IJ presiding over Yusupov‘s hearing 

found credible Yusupov‘s innocent explanations. To now 

find Yusupov‘s innocent explanations not credible, the BIA 

must point to evidence in the record that compels the 

conclusion that the IJ erred. 8 C.F.R. § 1003.1(d)(3)(i) 

(―Facts determined by the immigration judge, including 

findings as to the credibility of testimony, shall be reviewed 

only to determine whether the findings of the immigration 

judge are clearly erroneous.‖). It has not done so. The IJ 

found that Yusupov understandably had a general interest in 

the activities occurring in his home country in the name of his 

religion and that he rejected the views espoused on the 

videos, as opposed to his own beliefs and understanding of 

Islam. Indeed, millions worldwide were glued to their 

television sets and computers in the wake of 9/11 in an 

attempt to understand the tragic events. The BIA has 

provided no plausible link between the act of watching these 

videos and any risk to this Nation‘s defense, foreign relations 

 

23 Yusupov testified that some of the videos came from 

the website, kavkazcenter.com. Y.App. at 206. Neither 

party presented evidence about the nature of this website 

yet the BIA characterizes it as ―pro-extremist.‖ In re 

Yusupov, No. A 79-729-905, at 3 (BIA Dec. June 18, 

2009). This court takes judicial notice of the website that 

describes itself as ―a Chechen internet agency which is 

independent, international and Islamic . . . . registered 

with the CRI Ministry of Justice.‖ About Kavkaz Center, 

Kavkaz Center, http://kavkazcenter.com/eng/about/ (last 

visited May 19, 2011). 
29

or economic interests.24 This court also finds significant the 

IJ‘s finding, ignored by the BIA, that Yusupov did not intend 

to permanently download or archive the videos in any way. 

Reliance on the videos to support a finding of 

Samadov‘s dangerousness is even more specious. A ―mere 

propinquity to others independently suspected of criminal 

activity does not, without more, give rise to probable cause.‖ 

Shields, 458 F.3d at 277 (internal quotation omitted). The 

BIA impermissibly shifted the burden on the required 

showing with respect to national security to Samadov when it 

required that he corroborate his assertions that no evidence 

connected him to the activities of his roommate, Yusupov.

25

 

See Malkandi, 576 F.3d at 915 (noting that the burden only 

shifts to the alien to prove he is not a danger to national 

security once the Government has provided substantial 

evidence that he is). Even if Samadov happened to be present 

when Yusupov was watching the videos, inadvertent viewing 

does not constitute evidence of affirmative, nefarious activity. 

Cf. Shields, 458 F.3d at 279 (active registration with e-groups 

dedicated to trading child porn negated inference that 

defendant stumbled upon the sites never to return). 

 

24 As IJ Durling noted, the situation in Chechnya 

referred to in some of the videos ―is quite complex and 

selected depictions from computer video files is woefully 

inadequate to form even a basic understanding of that 

long-simmering conflict.‖ In re Yusupov, No. A79-729-

905, at 7 n.11 (IJ Dec. Nov. 19, 2004).

25 At oral argument, the Government argued that 

Yusupov‘s testimony demonstrates that Samadov watched 

the videos. However, Yusupov‘s testimony was not 

presented to the immigration court in Samadov‘s case. In 

any event, this testimony is hardly affirmative evidence 

that Samadov, lumped together with the ―whole world,‖ 

watched any videos, let alone the specific videos in 

question. Y.App. at 209-10. 
30

The Government did not present evidence that either 

Petitioner ever saw the email referring to ―jihad‖ on the 

computer. Moreover, the email is vague, see supra note 4, 

and the BIA, relying on stereotype and speculation failed to 

consider alternative meanings presented by Petitioners. In 

Yusupov I, we instructed the BIA on remand to consider the 

weight of Petitioners‘ evidence that there are alternative 

meanings to the word ―jihad.‖ In addition to violent holy 

war, which is the commonly used meaning of jihad, other 

meanings proffered on the record include ―from an inward 

spiritual struggle to attain perfect faith to an outward material 

struggle to promote justice and the Islamic social system.‖ 

Yusupov I, 518 F.3d at 191 n.7 (internal quotation omitted). 

Petitioners‘ consistent testimony, corroborated by country 

conditions evidence, was that they identify as Independent 

Muslims who follow a peaceful practice. 

In short, ―in spite of the number of years‖ Petitioners 

have been present in this country, their computer ―did not 

produce any direct or causal link suggesting that [they] 

espoused violence, such as email messages of a questionable 

nature.‖ In re Yusupov, No. A 79-729-905, at 6 (IJ Dec. Nov. 

19, 2004). 

Manner of Entry: Once again, we are unanimous that 

the BIA‘s finding that Petitioners‘ manner of entry supports a 

finding of dangerousness is not supported by substantial 

evidence. Samadov entered on a student visa with Zakirov 

and attended a four week program.26 Yusupov also entered 

on a student visa several months later but unlike his former 

roommates, never attended school. Y.App. at 109-10. 

Petitioners testified that they did not follow through with their 

 

26 The Government asserts that Samadov only attended 

two weeks of school in contrast to Samadov‘s testimony 

that he attended four weeks of school, as originally 

planned, and then stopped for financial reasons and 

thereafter sought work. S.App. at 2297. The IJ stated that 

Samadov and Zakirov ―spent four weeks studying English 

as a second language.‖ S.App. at 2215.
31

education for financial reasons. Y.App. at 109-10, 129,

S.App. at 2297. This explanation is not inherently suspect 

and cannot substitute for affirmative evidence of 

dangerousness.

27

 See Hosseini, 471 F.3d at 958 (reversing 

denial of withholding of petitioner who overstayed student 

visa, because BIA ―made no finding, and cited no evidence,

of any reason other than terrorist activity [abroad] why 

Hosseini is a danger to the security of the United States‖). 

The Government makes passing reference in its briefs 

to its suspicion based on the timing of Petitioners‘ entries to 

the United States as just after a bombing in Uzbekistan in 

1999. However, it makes no attempt to ―connect[ ] the dots‖ 

between this event and any actual evidence implicating 

Petitioners. Malkandi, 576 F.3d at 915. Petitioners have 

submitted evidence that the Uzbek Government itself was 

implicated in the 1999 bombings and used the events to crack 

down on opponents of its regime. Y.App. at 788, S.App. at 

930.

28

 

Alleged evasion of the authorities: The BIA‘s finding 

that Yusupov and Zakirov sought to evade detection by the 

authorities in the United States through interstate and 

international flight mischaracterizes the record and fails to 

acknowledge the plausible explanations provided by 

 

27 The Government directs us to the Congressional 

reports of the 9/11 Commission to support its contention 

that the manner of entry is suspect. Yet, the Government 

admits that this report does not establish any facts 

pertaining to Petitioners in particular. See Appellee‘s Br. 

in Yusupov v. Att’y Gen. at 41; Appellee‘s Br. in Samadov 

v. Att’y Gen. at 53. We cannot draw conclusions 

regarding Petitioners from this report.

28

 We recognize that some of the Government‘s 

suspicions may stem from the fact that some of the aliens 

responsible for the 9/11 bombings entered this country on 

student visas, but we know of no basis to attribute the 

same terroristic intent to all foreign student visa holders.
32

Petitioners. Although Zakirov left the United States before 

the Government had a chance to file a motion to reopen with 

the new evidence found on the roommates‘ shared computer, 

there is nothing in the record to suggest that the Government 

or the BIA has attempted to rescind the grant of withholding 

of removal. See In re Zakirov, No. A 79-729-712 (BIA Dec. 

Sept. 21, 2004). Petitioners contend that Zakirov traveled 

openly to Canada after being granted withholding of removal 

and the Government presents no evidence in contradiction. 

Indeed, at that time, nothing prevented Zakirov from seeking 

asylum, a more permanent form of relief, in Canada after his 

proceedings in the United States were final.29 In any event, 

the BIA does not explain why it paints Petitioners with 

Zakirov‘s brush.

Yusupov testified that he moved to Virginia after 

being granted withholding of removal, not in an attempt to 

evade the authorities. However, after he learned that the 

Government reopened Samadov‘s case and incarcerated him, 

Yusupov quit his job to avoid detection because he feared 

deportation to Uzbekistan where he believed he would be 

tortured. Y.App. at 149. As soon as Yusupov learned that 

the Government was not going to deport his friends, he 

returned to his Virginia job and cooperated with subsequent 

investigations. Y.App. at 150. The BIA has not explained

why it did not take this alternate, credible explanation into 

account. See Yan Lan Wu v. Ashcroft, 393 F.3d 418, 425 (3d 

Cir. 2005) (unexplained decision not supported by substantial 

evidence where contrary to testimony). 

 

29 A subsequent agreement between the United States 

and Canada prevents Canada from adjudicating an 

application for asylum already decided upon in the United 

States and vice versa. However, this rule would not apply 

to Zakirov who appears to have entered Canada prior to 

December 29, 2004 when the agreement became effective. 

See Agreement Between the Government of the United 

States of America and the Government of Canada for 

Cooperation in the Examination of Refugee Status Claims 

from Nationals of Third Countries, U.S.-Can., Dec. 5, 

2002, Can. T.S. No. 2.
33

There is no evidence that Samadov sought to evade 

detection. Any purportedly suspicious activities undertaken 

by Samadov‘s friends are, as a matter of law, insufficient to 

establish individualized suspicion against him. This is 

particularly applicable here, as the three individuals were no 

longer living together. The Government speculates that 

Samadov did not flee because ―it would have been more 

difficult for him to do so—and perhaps in his mind, less 

necessary—because he had married an American citizen.‖ 

Appellee‘s Br. at 51 n.19. No evidence supports this 

speculation. Moreover, ―where a factor and its opposite can 

both be used‖ to support a finding of reasonable suspicion, 

here flight or no flight, ―the court should not give weight to 

either factor.‖ Gonzalez-Rivera v. I.N.S., 22 F.3d 1441, 1446-

67 (9th Cir. 1994). 

Yusupov’s Misdemeanor Conviction: The BIA has 

failed to explain how Yusupov‘s misdemeanor conviction for 

misrepresenting his nationality in an attempt to obtain 

employment provides any connection to his asserted 

dangerousness.30 The IJ in Yusupov‘s hearing and the BIA 

found Yusupov‘s testimony to be credible regarding the heart 

of his claims (the prior standard) and there is no evidence that 

claiming citizenship to obtain employment indicates he is a 

danger. This is not unusual behavior, albeit undesirable and 

unlawful, for the tens of thousands of economic migrants and 

 

30 The Government makes some attempt to connect his 

behavior seeking a job by claiming that instead of 

enrolling in language school, Yusupov earned money and 

sent it ―to the families of criminals in Uzbekistan.‖ 

Appellee‘s Br. at 41. This argument distorts the record –

Yusupov testified that he sent the money to other 

Independent Muslims like himself targeted by the Uzbek 

authorities. Because the BIA did not rely on it, it merits 

little, if any, weight. 
34

refugees who enter our borders each year and does not here 

support a finding of probable cause.31

Samadov’s adverse credibility determination: The 

charge emphasized most vehemently by the BIA and the 

Government stems from the adverse credibility finding made 

by the IJ. Samadov argues that finding is clearly erroneous, is 

not material to any of the Government‘s allegations that he is 

a danger and, even if upheld, cannot be used to undermine 

Samadov‘s other testimony. It is, however, our responsibility 

to examine the record scrupulously in this connection. 

Like factual findings, ―adverse credibility 

determinations are reviewed for substantial evidence.‖ 

Balasubramanrim v. I.N.S., 143 F.3d 157, 161 (3d Cir. 1998). 

As such, ―adverse credibility determinations based on 

speculation or conjecture, rather than on evidence in the 

record, are reversible.‖ Dia, 353 F.3d at 249 (internal 

quotation omitted). 

Notably, at Samadov‘s first hearing, IJ Sease found his 

testimony regarding his activities in Uzbekistan and the origin 

of the extradition request to be ―extremely credible.‖ S.App. 

at 46. In the reopened proceedings, the same IJ without 

recanting her earlier findings, found Samadov‘s account of 

some aspects of his life in Philadelphia to be not credible. In 

re Samadov, No. A 79-729-711, at 9-10 (IJ Dec. Aug. 2, 

2005). The IJ based her latest adverse credibility finding on 

the following: (1) Samadov did not know every guest who 

stayed at the communal home rented in his name in 

Philadelphia; (2) Samadov was not familiar with everything 

stored on the computer he shared with his roommates; and (3) 

 

31 This court also finds significant that in January 

2007, a district court in the Middle District of 

Pennsylvania found that special circumstances (e.g. 

adverse foreign policy consequences or anti-terrorism 

concerns) did not warrant Yusupov‘s continued detention. 

Yusupov v. Lowe, No. 4:06-CV-1804 (M.D. Pa. Jan. 12, 

2007). The Government did not even argue that special 

circumstances existed in that case.
35

Samadov did not mention that he wired $3,000 to his brother 

in Uzbekistan when he was initially questioned by the 

Government about money sent home. 

No record evidence supports the IJ‘s first contention 

that it was implausible that Samadov did not know everyone 

who was living in his house. Samadov was never asked to 

provide the occupants‘ names and never testified that he 

lacked this knowledge. Rather, Samadov testified to the 

transient nature of the house and testified that anywhere from 

six to eight men lived there at any given time. The 

Government conceded at oral argument that this was a 

―peculiar finding‖ by the IJ that does not support the adverse 

credibility determination. Tr. of Oral Arg. at 58. 

The IJ‘s second contention is based on pure conjecture 

and similarly cannot support a lack of credibility on the part 

of Samadov. Dia, 353 F.3d at 249-50. Samadov testified that 

he never saw the materials found on the computer and that he 

rarely used the computer because it was frequently in use by 

others in the house and he spent little time at home given his 

work schedule. S.App. at 430. As we previously noted, the 

Government presented no evidence to the contrary. Indeed, 

as Samadov points out, the Government failed to inform the 

IJ that ―Yusupov had admitted that he was the one who found 

the videoclips on the internet, and that in the course of 

viewing they were cached – not downloaded, as the BIA 

claimed – on the computer without his knowledge.‖ 

AALDEF Br. at 26. We see no basis in the record for the IJ‘s 

finding that Samadov must have known about the cached 

videoclips. That finding is impermissibly based on the IJ‘s 

assumption that Samadov would have been interested in the 

video contents because he is a Muslim. 

Finally, we examine the record for any support for the 

IJ‘s determination that Samadov‘s testimony concerning the 

wire transfer to his brother is suspect. The Government 

argues that Samadov could not have honestly forgotten 

sending $3,000 to his brother five years prior to the hearing. 

Samadov counters that when he was first questioned about 

sending money to Uzbekistan, the questioning was focused on 
36

charitable contributions32 and because he regarded the 

payment to his brother as a repayment of a debt obligation, he 

 

32 For example, 

Q. Sir, they say that you‘ve have 

sent money back to Uzbekistan to fellow 

followers of Iman Nazarov, have you not?

A. No.

Q. No? Who have you sent money 

to (indiscernible)?

A. I sent to people there poor and 

needy people.

Q. And how did you learn the 

identities of the poor and needy people who 

needed money?

A. How I?

Q. Yes, how did you know who to 

send the money to?

A. Because I give my friends with a 

person who‘s in charge of they give that 

person people. They are responsible to give 

that charity to those people.

Q. How much money do you think 

you‘ve sent back to Uzbekistan since you‘ve 

been here in the United States?

A. Maybe $200.

Q. Two hundred dollars total?

A. Yes. Yes.
37

 

Q. That‘s your best recollection?

A. Yes.

Q. In what sort of increments of 

money have you sent there?

A. I don‘t understand the question 

increments?

Q. You sent $200 once and that‘s it 

or did you send $10 one day, $10 another - -

A. Twenty dollars, thirty dollars, 

whenever I feel give charity when I hear 

about somebody needs because so many 

families back there their husbands, their 

fathers in jail, their wives don‘t work, their 

kids are starving.

Q. Well, who is communicating 

these needs to you?

A. We have Muslim brothers in my 

country.

Q. And how would they 

communicate to you about their need for 

money?

A. Well, they can my friends call, 

they call or when I call my brother I found 

out about it. I send money for my relatives 

where ever I ask my brother this person is 

alright? This neighbor is alright? Because 

sometimes I call, my brother says, my mom 

says listen to my neighbors take in to 

custody, the kids are starving. Then I say, 

I‘m not going to eat food here (indiscernible) 
38

did not think it was relevant. See AALDEF Br. at 28 (―many 

Muslims draw a stark distinction between the concepts of 

debt and charity‖). 

Samadov argues that a review of the transcript makes 

clear that he did not intend to mislead the factfinder. When 

Samadov sought to explain his testimony, the IJ denied him 

the opportunity to clarify his responses. S.App. at 440-41. 

See Caushi v. Att’y Gen., 436 F.3d 220, 226 (3d Cir. 2006) 

(citing Campos-Sanchez v. I.N.S., 164 F.3d 448, 450 (9th Cir.

1999) (requiring the BIA to consider applicant‘s explanations

for inconsistencies before making a credibility 

determination)); Don v. Gonzales, 476 F.3d 738, 741 (9th Cir. 

2007) (IJ must ―provide a petitioner with a reasonable 

opportunity to offer an explanation of any perceived 

inconsistencies that form the basis of a denial of‖ relief)

(internal quotation omitted).

The Government‘s argument that Samadov only 

admitted to transferring money to his brother because the 

Government confronted him is belied by the record.33 

 

they are starving there. And that‘s what my 

religion teached me.

Q. And you‘re sure that it wouldn‘t 

be more than $200 (indiscernible)?

A. Yes, yes, sure.

S.App. at 425-426.

33

 An examination of the testimony bears this out. 

After a break of a few weeks, the hearing resumed and the 

Government lawyer focused on what he regarded as the 

inconsistency in Samadov‘s testimony, stating:

 And now we have bank records that 

show, that in fact, in June of 2000 he wired 

a substantial sum of money, apparently to 
39

 

his brother. Some $3,000 and Mr. Arlow 

gave a copy to me before the hearing. I 

don‘t know whether he‘s intending to 

submit it into evidence, I believe he just 

received it yesterday, that is a I believe is a 

handwritten fax from the respondent‘s 

brother confirming that he received $3,000 

in June of 2000 from his brother.

S.App. at 447. Samadov was then recalled:

JUDGE TO [SAMADOV‘S LAWYER]

Q. Mr. Arlow, you certainly have 

the right to question your client as well, but 

I believe that the Government has asked to 

recall you and I certainly want to know, 

want some explanations between what you 

previously said and the bank records that 

the Government has supplied.

A. May it please the court, we also 

agree that the money was transferred. It‘s 

not just that they‘re bank records. It‘s 

acknowledgement of receipt. There‘s not a 

question that the money was transferred.

. . .

[GOVERNMENT LAWYER] TO MR. 

SAMADOV 

Q. Mr. Samadov, did you send 

approximately $3,000 U.S. dollars to 

someone in Uzbekistan about June 20th, 

2000?

A. Yes, I did send (indiscernible) I 

send to my brother. Like I said in my 

court, last previously court date, --
40

 

JUDGE TO MR. SAMADOV

Q. The answer is yes or no, sir.

MR. SAMADOV TO [GOVERNMENT 

LAWYER]

Q. Yes, to my brother, not to 

someone

A. Okay.

Q. And how did you do that?

A. Yes, I wired the money. It was 

my (indiscernible) pay.

Q. And how did you wire the 

money?

A. My account.

. . . 

Q. And, how long did it take you to 

save up that money?

A. A year and a half.

Q. Okay. And this was as you said, 

your first priority was paying him back, 

right?

A. Yes.

Q. Because it had been a big 

hardship to him to help you out?
41

Samadov testified that he telephoned his brother to help him 

remember the amount of debt he repaid before the hearing. 

At the continued hearing, Samadov produced a letter from his 

 

A. Exactly. He had bankruptcy so I 

knew that –

Q. And you must‘ve felt good that 

you were paying him back and helping him 

out?

A. I‘m not helping out, it‘s just 

whatever my debt. It‘s nothing extra.

Q. Right. All right. But you were 

glad that you were able to fulfill your debt.

A. Of course, you know, as a 

brother.

Q. Had you forgotten all of this last 

time we had a hearing here and I asked you 

whether you had ever wired any money to 

Uzbekistan?

A. Yes, because it was debt. It was 

nothing extra. That‘s why I can‘t see, as 

like I said, I want to make very clear. In 

my previous court hearing, I said your 

question and the Judge also ask, did you, I 

said I don‘t remember. Like you said, but 

if I did, I said I did send to my brother. 

You ask was it Isroil Samadov, I said who 

was that person. I said Isroil Samadov. If 

I (indiscernible) say I sent to my brother. 

You ask who was it. It‘s on the record and 

I said Isroil Samadov. I spell the name 

very clear.

S.App. at 450-454.
42

brother, and on his own accord, provided an explanation for 

the discrepancy that arose in the prior hearing. S.App. at 560. 

Regardless, this discrepancy does not go to the heart of 

Samadov‘s claims and, as such, cannot support an adverse 

credibility determination. Berishaj v. Ashcroft, 378 F.3d 314, 

323 (3d Cir. 2004).34 The Government presented no evidence 

and the IJ made no finding that this $3,000 supports a finding 

of danger by Samadov to the United States. The IJ made no 

finding that the $3,000 went to finance terrorist or extremist 

activities, or that Samadov had any motive to lie or hide other 

transfers.35 See Muhanna v. Gonzales, 399 F.3d 582, 590 (3d 

Cir. 2005) (―one adverse credibility determination does not 

beget another . . . an IJ must justify each credibility finding 

with statements or record evidence specifically related to the 

issue under consideration‖) (internal quotation omitted). This 

is not surprising because, as the Government admitted at oral 

argument, ―[t]here is no direct evidence.‖ Tr. of Oral Arg. at 

67. The only reliable evidence is a letter from Samadov‘s 

brother confirming that the money was sent to repay a debt. 

S.App. at 560. Other than the $3,000, Samadov testified that 

he sent about $200 cash to needy families, testimony the 

Government does not dispute. Cf. In re R-S-H-, 23 I. & N. 

Dec. 629, 641 (BIA 2003) (upholding adverse credibility 

finding where respondent‘s testimony was directly related to 

whether he was aware of the terrorist-linked activities of an 

organization, despite his role therein). 

 

34 Because Samadov filed his asylum application 

before May 11, 2005, the pre-REAL ID Act standard 

applies. Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir. 

2007). 

35 The Government half-heartedly attempts to link this 

transfer of cash with potential support for bombings that 

occurred in Uzbekistan in 2004. Appellee‘s Br. at 44 

n.15. However, the $3,000 was wired to Samadov‘s 

brother in June 2000 and there is nothing in the record 

linking this cash or his brother to any such activities. In 

fact, Samadov was in Government custody at the time of 

the bombing and in the months before. 
43

The IJ also noted that she took into account Samadov‘s 

―demeanor, candor, [and] responsiveness.‖ In re Samadov, 

No. A 79-729-711, at 9 (IJ Dec. Aug. 2, 2005). However, the 

IJ did not explain why these factors demonstrated that all of 

Samadov‘s testimony was incredible and the IJ‘s holding 

deserves no deference.36 See Dia, 353 F.3d at 252, 275 

(McKee, J., concurring) (―resting factual conclusions upon 

unexplained and unarticulated demeanor poses an even 

greater risk of biased fact finding that can deny a petitioner 

due process‖). Accordingly, we find no evidence to support 

the IJ‘s finding, adopted by the BIA, that Samadov‘s 

testimony was not credible. 

Neither the IJ nor the BIA made any affirmative 

finding that the testimony it deemed incredible implicates 

national security. Substantial evidence is required to link the 

associations and activities of Yusupov and Samadov with one 

of the criteria relating to the security of the United States. 

The Government, ―[w]ith the extensive resources of the 

Executive Branch, including the resources of the Departments 

of Defense, State, Justice, Treasury and others . . . is in a 

unique position to provide such evidence.‖ Cheema, 383 

F.3d at 857. The Government has not so done. The evidence 

viewed as a whole not only supports a conclusion contrary to 

the BIA, but compels it. See Abdille v. Ashcroft, 242 F.3d 

477, 484 (3d Cir. 2001). 

 

36 The Government argues that ―Samadov was 

frequently uncooperative and belligerent, and had to 

repeatedly be instructed to answer the questions that were 

posed to him, and not be argumentative.‖ Appellee‘s Br. 

at 48. The Government mischaracterizes the record and 

misinterprets what appears to be Samadov‘s confusion, 

not unexpected given frequent language and cultural 

barriers in immigration proceedings.
44

IV.

Conclusion

As we have set forth in some detail, we conclude that 

the BIA‘s determination that Petitioners Yusupov and 

Samadov present an actual and present danger to the United 

States is not supported by substantial evidence. We are 

acutely cognizant that, in most respects, Congress has 

delegated issues of national security with respect to aliens to 

the agencies that deal with immigration, most particularly to 

the Board of Immigration Appeals. We recognize that the 

BIA is in a position of knowledge superior to that of the 

federal courts. Nonetheless, we retain our historic, indeed 

constitutional authority, to review executive agencies‘ 

determinations, giving their determinations due deference. In 

that vein, we do not decide that Petitioners do not present a 

danger to this country‘s security; we merely decide that the 

Government has not proven that they are!

Ordinarily, the ―proper course . . . is for an appellate 

court to remand to the agency for additional investigation or 

explanation.‖ Kang v. Att’y Gen., 611 F.3d 157, 168 (3d Cir. 

2010) (internal quotation and brackets omitted). However, in 

rare circumstances ―where application of the correct legal 

principles to the record could lead only to the same 

conclusion, there is no need to require agency 

reconsideration.‖ Id. (internal quotation and brackets 

omitted). This is such a case. 

There is no dispute that Petitioners would be 

persecuted and tortured on religious and political grounds if 

returned to Uzbekistan. No amount of reconsideration by the 

BIA will change that. Where the BIA has twice considered 

the whole record and failed to support its conclusion that 

Petitioners are a danger to national security with substantial 

evidence, and where the Government represented at oral 

argument that there are no additional facts or evidence to link 

either individual to activities or groups adverse to United 

States interests, there is no reason to remand. See, e.g., Zhu v. 

Gonzales, 493 F.3d 588, 602 (5th Cir. 2007) (―[T]he BIA has 
45

now had two opportunities to address the legal and factual 

issues that are again before this court; we need not give it a 

third bite at this apple.‖). 

It follows that Yusupov and Samadov are entitled to 

mandatory withholding of removal as a matter of law.37 See 

I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 420 (1999). ―When 

the outcome is clear as a matter of law . . . remand is not 

necessary.‖ Mahmood v. Gonzales, 427 F.3d 248, 253 (3d 

Cir. 2005). Accordingly, we grant the petitions for review 

and direct the BIA to grant Petitioners‘ applications for 

withholding of removal.

 

37 We deny Samadov‘s request that we overturn the 

agency‘s denial of asylum. This court lacks jurisdiction to 

do so. See supra note 10.