* Of the U.S. District Court for the District of

Massachusetts, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 02-2606

ADEL NAGI EL MORAGHY,

Petitioner,

v.

JOHN ASHCROFT, Attorney General,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF THE 

BOARD OF IMMIGRATION APPEALS

Before

Selya and Lynch, Circuit Judges, 

Young,* District Judge.

Saher Joseph Macarius for petitioner.

Harvey Kaplan, with whom Kaplan, O'Sullivan & Friedman, Beth

Werlin, Mary A. Kenney, Nadine K. Wettstein, and Iris Gomez, were

on the brief for American Immigration Law Foundation, Massachusetts

Law Reform Institute, and the New England Chapter of the American

Immigration Lawyers Association, amici curiae. 

William C. Peachey, Attorney, Office of Immigration

Litigation, with whom Robert D. McCallum, Jr., Assistant Attorney

General, and Linda S. Wernery, Senior Litigation Counsel, were on

brief for respondent.

June 12, 2003
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LYNCH, Circuit Judge. This case causes us to review a

denial of an application for asylum by a Coptic Christian Egyptian

national based on grounds of religious persecution. Although the

Board of Immigration Appeals ("BIA") affirmed the denial of asylum

using its relatively new summary affirmance procedure, it should

not have done so. Basic flaws in the methodology and reasoning

used by the Immigration Judge ("IJ") undercut his reasoning and so

we remand. We reject the notion that a State Department country

condition report must specifically name a petitioner or his family

members to be useful in the analysis of an asylum application. We

also reject the notion that an IJ, particularly in the absence of

any adverse finding as to petitioner's credibility, may simply

ignore the need to make a finding as to whether petitioner has

demonstrated past persecution on account of one of the specified

grounds for asylum. But one swallow does not make a spring, and we

reject again the petitioner's wholesale attack on the BIA's summary

affirmance procedure.

Adel Nagi El Moraghy, a native and citizen of Egypt,

entered the United States in 1999 on a tourist visa, which he

subsequently overstayed. In 2000, El Moraghy, a Coptic Christian,

applied for asylum, citing incidents of persecution by Islamic

fundamentalists while he was a student in the southern Egyptian

town of Assiut. His application for asylum, withholding of

removal, and relief under the Convention Against Torture ("CAT")
1 The Attorney General has been substituted for the

Immigration and Naturalization Service as respondent with the

implementation of the Homeland Security Act of 2002, Pub. L. No.

107-296, §§ 441, 471, 116 Stat. 2135, at 2192, 2205 (Nov. 25,

2002). See 8 U.S.C. § 1252(b)(3)(A) (2000).

-3-

was rejected by an IJ on May 16, 2001. El Moraghy appealed this

decision to the BIA, which upheld without opinion the decision of

the IJ. See 8 C.F.R. § 3.1(e)(4) (2003). El Moraghy, supported by

amici curiae, now petitions this court for review of the BIA's

decision. We remand for further consideration, finding that the

IJ's improper use of State Department country condition reports and

failure to make findings as to past persecution or credibility

prevent us from resolving the case on those grounds.1 We take no

view as to the petitioner's eligibility vel non for any of the

relief that he seeks.

I.

El Moraghy, then twenty-three years old, entered the

United States on a tourist visa at Newark Airport on February 18,

1999. He initially resided in Oklahoma City with his maternal

uncle, Dr. Wagdy Rizk, and later moved to Milford, Massachusetts.

During this time, El Moraghy received financial support from Dr.

Rizk and family in Egypt. After the expiration of his six-month

tourist visa, El Moraghy submitted an application for asylum on

February 10, 2000, including a signed statement, dated January 25,

2000, detailing alleged incidents of persecution in Egypt. On

March 23, 2000, El Moraghy was interviewed by an asylum officer who
-4-

found him not credible. Four days later, on March 27, the

Immigration and Naturalization Service issued a Notice to Appear to

El Moraghy for overstaying his visa.

El Moraghy conceded deportability, but applied for

asylum, withholding of removal, and non-return under Article III of

the CAT. He said he sought "to escape the persecution of the

Muslim Fundamentalists in Egypt, because I am a Coptic Christian."

El Moraghy alleged that his life had been threatened on several

occasions because of his religious beliefs, aggravated by his

friendship with a Muslim woman. "The Egyptian government," he

said, "does little to protect Christians from attacks of the Muslim

Fundamentalists." According to El Moraghy, if he were forced to

return to Egypt, he would "be tortured or most likely killed by

Muslim Fundamentalists." 

At his June 22, 2000 hearing, El Moraghy described a

handful of purported instances of persecution in Egypt. All of

these incidents happened in or near Assiut, Egypt, a town six hours

to the south of Cairo by train, where El Moraghy attended college.

El Moraghy is an active Orthodox Coptic Christian who grew up in

Cairo. Most Egyptians are Sunni Muslims, but approximately ten per

cent, or more than six million, belong to the Coptic Orthodox

Church. After his graduation from high school in 1993, El Moraghy

was assigned by the government to attend college in Assiut. El

Moraghy had no choice of where to attend college, and his later
-5-

requests to transfer out of Assiut were denied. We describe the

five incidents as related by El Moraghy, as to which the IJ made no

credibility finding.

The first incident occurred shortly after El Moraghy

arrived at Assiut University in 1993. El Moraghy approached a

group of students to ask them about class schedules. When the

students noticed the cross tattooed on El Moraghy's right hand,

they verbally abused him and then departed. No physical violence

occurred at this time. A second incident took place in February

1994. El Moraghy was prevented from returning to his apartment by

individuals who told him that he would defile the ground outside

the mosque near his apartment, and that he had to wait until after

Friday prayers to return home. 

The third incident took place on March 4, 1994. El

Moraghy met a girl he knew from church named Enass Abrahin Zaki on

campus. As they spoke, four students he described as members of

fundamentalist groups surrounded them and told him that he was

violating their rules by speaking with a woman. As El Moraghy

walked home afterwards, he was stopped by the same four

individuals, who pushed him into a secluded area and began beating

him. They hit him with belts and kicked him until they heard

someone coming and ran away. During the beating they called El

Moraghy an "infidel" and an "animal." El Moraghy's shoulder was

dislocated, his glasses were broken, and he felt concussed as a
2 Arabic employs a patronymic naming system. El Moraghy's

certificate from Assiut University refers to him as Mr. Adel Nagy

Nasrallah Hanna. 

3 El Moraghy submitted this certificate during the course of

the June 2000 hearing. At the conclusion of the hearing, a

continuance was granted, in part, to allow El Moraghy to acquire

his complete hospital records, and to authenticate them according

to 8 C.F.R. § 287.6. No further records were forthcoming at the

subsequent May 2001 hearing, however.

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result of the beating. He subsequently saw a doctor, who referred

him to a hospital in Assiut. El Moraghy submitted a document

purporting to be a certificate from St. Mary's Medical Center in

Assiut that stated that on March 5, 1994, "Adel Nagi Naser Allah"2

was examined and found to have "a dislocated right shoulder,

concussion, and scratches around the right eye. This could be

[the] result of striking a rough solid object. The scratches

around the right eye could possibly happen as a result of shattered

glass."3 El Moraghy said he stayed in the hospital for three days,

but he did not report the incident to the police because he feared

that the fundamentalists would find out and kill him. 

A fourth incident occurred in 1995. El Moraghy was

visiting a monastery, Daral Maker or Dar El Muhurak, more than an

hour away from Assiut. El Moraghy hired a taxi to drive him part

of the way back from the monastery. The taxi driver was playing an

anti-Christian tape. El Moraghy asked him not to play the tape

because he was a Christian; the driver responded by forcing him out

of the taxi, hitting El Moraghy hard enough to cause bleeding from
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one ear, and leaving him on the highway. Again, El Moraghy did not

report the incident to the police because he feared retribution.

The final incident grew out of El Moraghy's friendship

with a girl, Nadia Ziki, a Muslim who lived in Assiut. El Moraghy

met Ziki on the train in 1995 when she was visiting an uncle in

Cairo. They became friends, and Ziki asked El Moraghy to take her

along to see the monastery. Ziki said that, as an educated person,

she wanted to go to see the monastery herself, even though it might

be dangerous and she would be considered polluted in the eyes of

fundamentalists. El Moraghy eventually agreed to take her, and

they went together five or six times. 

On their last visit to the monastery, on July 27, 1998,

they were stopped and forced out of Ziki's car on the way back to

Assiut by members of a group El Moraghy identified as Islamic

fundamentalists. El Moraghy and Ziki were driven, blindfolded, to

an unknown location. There they met with the group's leader. The

group's leader told them that the group knew about the relationship

between El Moraghy and Ziki, and that the only solution was for El

Moraghy to become Muslim and to marry her. (According to El

Moraghy, the relationship was a platonic one.) El Moraghy, the

leader demanded, must convert from Christianity to Islam. When El

Moraghy said he could not become Muslim, he was struck. A paper

was brought to El Moraghy, who was told that signing it would

amount to a conversion. Seeing no other way out, El Moraghy signed
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the paper, which committed him to become a Muslim. El Moraghy and

Ziki were then told that they had to wait for the official in

charge of conducting marriages to arrive, but it turned out that he

was not available. They were then told that they could leave, but

would have to return to complete the marriage.

Afterwards, El Moraghy took the train to Cairo, where he

met with a priest, named Arsanwos Basyeley Ragheb, from his church.

The priest told him he should flee, and recommended that he go to

the Marmina monastery in Alexandria. El Moraghy submitted a

statement from Arsanwos. In it, Arsanwos recalled advising El

Moraghy to go to the St. Mina monastery to escape "the tremendous

amount of psychological pressure that he was exposed to." Arsanwos

also said that he counseled El Moraghy to stay in the United States

"to get away from th[e] difficult atmosphere he was living in." 

El Moraghy stayed at the monastery for a while, and then

returned to Cairo, where he resided with his grandmother. From

November 1998 until February 1999, El Moraghy worked at the Sonesta

Hotel in Cairo as a cashier, because he needed certification of

employment to be able to travel to the United States. El Moraghy

had previously worked at the Sonesta hotel during summer vacations.

During the two months before his departure, El Moraghy did not

return to his family home out of fear. He said that his mother had

received anonymous calls inquiring if he was there. El Moraghy's

theory was that he was a marked man, even in Cairo, based on the
-9-

earlier events and his signed promise and subsequent failure to

convert to Islam. 

El Moraghy's uncle, Dr. Rizk, testified at a second

hearing on May 16, 2001 that El Moraghy had told Dr. Rizk that he

had been beaten on multiple occasions, that his shoulder had been

dislocated, that the trouble had been caused by his friendship, as

a Christian, with a Muslim woman, and that his life was in danger

in Egypt. Dr. Rizk had also spoken to El Moraghy's mother, both on

the telephone and in person during a 2000 visit to Egypt, and said

that El Moraghy's family was very worried about him and feared that

he would be harmed if he returned to Egypt, but did not specify

their reasons for the fear. Dr. Rizk was cross-examined by the IJ

about his statement that El Moraghy had told him he had read the

conversion document he had been forced to sign; at the earlier

hearing El Moraghy had testified that he had not read the document.

This discrepancy concerned the IJ.

During the June 2000 hearing, El Moraghy testified that

none of his nuclear family members had experienced problems with

Islamic fundamentalists. He did know one person -- a friend's

mother -- who was killed in Egypt. But he remained afraid that he

would be killed if he returned to Egypt because once he had been

identified by the fundamentalists as a target, he would remain a

marked man. 
-10-

El Moraghy argued that the government could not control

fundamentalists and did little to protect Coptic Christians. To

demonstrate this, he submitted State Department country condition

reports for Egypt and newspaper articles describing anti-Coptic

terrorism in Egypt. According to the 1999 country condition

report, there are significant legal and social impediments placed

on Christians in Egypt. While Coptic Christians had previously

been the target of violent assaults, "there were no reports of

terrorist attacks against Christians during [1999]." The

government had begun prosecutions against some perpetrators of

previous attacks against Coptic Christians, but "some members of

the Christian community do not believe that the government is

sufficiently vigorous in its efforts to prevent attacks." The

country condition report for 1998 had noted that "Coptic Christians

are the objects of occasional violent assaults by the Islamic Group

and other terrorists. During [1998], extremists were responsible

for killing eight Christians in the Minya governorate [near

Assiut]." A 1996 country condition report described continuing

violence against Coptic Christians, with at least twenty-two

killed, including a group of eight in Assiut. 

El Moraghy also submitted numerous newspaper articles and

other sources describing the history of persecution of Coptic

Christians in Egypt. The Islamic terrorist group Gama'a Islamiya

carried out attacks on Coptic Christians from 1992 on, operating
-11-

mainly in the southern (or upper) regions of Egypt, including Minya

and Assiut governorates, but also in large towns such as Alexandria

and Cairo. In May 1992, thirteen Coptic Christians were killed in

Assiut in a single day. Nearly thirty people were killed in Assiut

in two weeks in February 1996. According to a 1998 Human Rights

Watch World Report, eight or more Coptic Christian students were

killed at a church youth group meeting in February 1997 in Minya

governorate. Newspaper accounts also relate kidnappings and forced

conversions of Christians. 

The IJ issued an oral decision on May 16, 2001. He

denied El Moraghy's application for asylum, withholding of removal,

and relief under the CAT. He granted El Moraghy's request for

voluntary departure. The IJ noted that El Moraghy had attached

State Department country reports for Egypt for 1998 and 1999, and

other accounts of Muslim fundamentalism in Egypt, but said "[a]

review of those documents does not refer to the respondent or any

members of his family in Egypt." The IJ dismissed the purported

medical certificate from St. Mary's, saying that there were no

hospital records to corroborate El Moraghy's account. Furthermore,

he declared:

Outside of the respondent's self-serving declaration of

what happened to him in Egypt, other than what the

witness' uncle has testified in this proceedings has told

him after coming to the United States, there is not one

scintilla or iota of evidence to corroborate the

respondent's self-serving declaration of what happened to

him in Egypt and why he left Egypt and came to the United

States.
4 The American Immigration Law Foundation, the Massachusetts

Law Reform Institute and the New England chapter of the American

Immigration Lawyers Association filed a joint amici curiae brief.

We acknowledge their assistance with gratitude.

-12-

The IJ concluded that a similarly-situated person would not fear

persecution, nor would persecution be likely if El Moraghy were to

return to Egypt. The IJ did not make any finding that El Moraghy

was not credible, nor did he address whether El Moraghy had

suffered past persecution. 

El Moraghy appealed the IJ's decision to the BIA. On

November 14, 2002, the BIA affirmed without opinion the IJ's

decision, relying on the summary affirmance procedure provided for

in 8 C.F.R. § 3.1(e)(4). El Moraghy, supported by amici,4 now

challenges the BIA's ruling, arguing that the BIA's affirmance was

in error, and that the IJ improperly failed to make a credibility

finding or analyze whether El Moraghy had suffered past

persecution. El Moraghy and amici also contend that the BIA's

application of the summary affirmance procedure was in error, and

that the summary affirmance regulations prevent judicial review of

the BIA's actions.

II.

The BIA's determination "must be upheld if supported by

reasonable, substantial, and probative evidence on the record

considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992) (internal quotation omitted). "It can be reversed only if
-13-

the evidence presented by [petitioner] was such that a reasonable

factfinder would have to conclude that the requisite fear of

persecution existed." Id.; accord Albathani v. INS, 318 F.3d 365,

372 (1st Cir. 2003). We "should not supplant the agency's findings

merely by identifying alternative findings that could be supported

by substantial evidence." Arkansas v. Oklahoma, 503 U.S. 91, 113

(1992). Our review is deferential, Vazquez v. INS, 177 F.3d 62, 64

(1st Cir. 1999), but "deference is not due where findings and

conclusions are based on inferences or presumptions that are not

reasonably grounded in the record, viewed as a whole, or are merely

personal views of the immigration judge." Cordero-Trejo v. INS, 40

F.3d 482, 487 (1st Cir. 1994) (citations omitted). 

The petitioner bears the burden of establishing

eligibility for asylum by proving that he qualifies as a refugee.

8 U.S.C. § 1158(b)(1) (2002). A petitioner can do so by two

routes: "(1) by demonstrating past persecution, thus creating a

presumption of a well-founded fear of persecution; or (2) by

demonstrating a well-founded fear of persecution." Yatskin v. INS,

255 F.3d 5, 9 (1st Cir. 2001) (citing 8 C.F.R. § 208.13(b)). To

prove past persecution, an applicant must demonstrate that he has

suffered persecution on one of the five enumerated grounds: race,

religion, nationality, membership in a particular social group, or

political opinion. Id. § 208.13(b)(1). To establish a wellfounded fear of future persecution, applicants can either offer
-14-

specific proof, or they can claim the benefit of a regulatory

presumption based on proof of past persecution. Guzman v. INS, 327

F.3d 11, 15 (1st Cir. 2003) (citing 8 C.F.R. § 208.13(b)(1));

Velasquez v. Ashcroft, 316 F.3d 31, 35 (1st Cir. 2002) (same). 

Once an applicant "has been found to have established

such past persecution" he or she "shall also be presumed to have a

well-founded fear of persecution on the basis of the[ir] original

claim." 8 C.F.R. § 208.13(b)(1). That presumption can be rebutted

by an IJ's finding by a preponderance of the evidence either (1)

that "[t]here has been a fundamental change in circumstances such

that the applicant no longer has a well-founded fear of persecution

in the applicant's country of nationality," or (2) that "[t]he

applicant could avoid future persecution by relocating to another

part of the applicant's country . . . ." Id. § 208.13(b)(1)(i)(A)-

(B).

In order to demonstrate a well-founded fear of

persecution by direct evidence, a petitioner must satisfy both an

objective and a subjective test. Velasquez, 316 F.3d at 35.

"Under the subjective requirement, a petitioner must prove his fear

is genuine, while the objective component requires showing by

'credible, direct and specific evidence' that this fear is

reasonable." Id. (citation omitted) (quoting Ravindran v. INS, 976

F.2d 754, 758 (1st Cir. 1992)).
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Even under this deferential review of agency decisions,

we conclude the IJ's decision cannot, on this record, be upheld.

The IJ fails to state conclusions at all on several important

issues. The IJ misused State Department country reports and failed

to address the issue of past persecution. In the absence of a

finding that the petitioner was not credible, the decision cannot

be affirmed as being based on substantial evidence. We require the

BIA "to exercise independent judgment, and to state plainly its

reasons for granting or denying relief." Chen v. INS, 87 F.3d 5,

7 (1st Cir. 1996); see also Gailius v. INS, 147 F.3d 34, 44 (1st

Cir. 1998) ("The need for clear administrative findings is implicit

in the statute under which we review the BIA's decision."). "[A]

reviewing court should judge the action of an administrative agency

based only on reasoning provided by the agency, and not based on

grounds constructed by the reviewing court." Yatskin, 255 F.3d at

9 (citing Gailius, 147 F.3d at 44). When the BIA summarily affirms

the IJ's opinion, as here, we review the decision of the IJ.

Herbert v. Ashcroft, 325 F.3d 68, 71 (1st Cir. 2003); Albathani,

318 F.3d at 373.

The BIA has changed its regulations to provide, "The

testimony of the applicant, if credible, may be sufficient to

sustain the burden of proof without corroboration." 8 C.F.R.

§ 208.13(a). The old regulations explicitly said that credibility

should be judged "in light of general conditions in the applicant's
-16-

country of nationality or last habitual residence." Under the old

regulations, courts and the BIA routinely used country condition

reports to inform credibility judgments. See, e.g., Cordero-Trejo,

40 F.3d at 491-92. Country condition reports are still relevant as

to credibility, whether or not they specifically name the

applicant. See 3 C. Gordon, S. Mailman & S. Yale-Loehr,

Immigration Law & Procedure § 33.04[3][f], at pp. 33-52.21 to 23

(2003) (collecting cases applying old and new versions of §

208.13(a)). While State Department reports are "generally regarded

by courts of law as reliable," Cordero-Trejo, 40 F.3d at 492 n.6,

they are not binding on either the agency or the courts, Gailius,

147 F.3d at 46. Used in their normal fashion, namely, to provide

a context for assessing the credibility of a petitioner's account,

country reports can cut two ways: they can either help or harm a

petitioner's case, depending on whether or not they corroborate the

petitioner's tale.

The IJ here, however, appears to have employed the

country condition reports solely as a test of direct corroboration,

rather than for the purposes of providing context and generalized

credibility assessment. That is, the IJ appears to have improperly

imposed a requirement that the country condition reports refer

specifically to the petitioner or his family members. Rather than

reading State Department and other materials for a general

description of conditions faced by Coptic Christians in Egypt,
5 Evidence of changed country conditions can also be used by

the petitioner as part of a motion to reopen. See 8 C.F.R.

3.2(c)(3)(ii).

-17-

which would tend to corroborate the petitioner's claim or not, the

IJ appears merely to have searched for mentions of El Moraghy and

his family members. After each of the two State Department country

reports and other materials, the IJ noted "a review of the document

does not refer to the respondent or any members of his family in

Egypt." This sentence is repeated three times in the IJ's opinion,

and is followed by no further analysis of the documents in question

or how that information supports or does not support petitioner's

claims. It is unrealistic to expect that country condition reports

could contain references to all citizens of that country who have

faced, or might face, persecution on one of the specified grounds.

While country reports may, in rare instances involving prominent

dissidents, contain direct corroboration of a petitioner's account,

to demand that they do so and otherwise eschew any analysis of the

evidence is clearly erroneous. 

In the present case, the IJ did not provide any finding

at all that El Moraghy had not suffered past persecution. Another

use of the country reports is by the government to show changed

conditions after an applicant has demonstrated past persecution.5

Changed country conditions rebut the presumption of future

persecution. The government here has not argued changed country

conditions, and the IJ made no finding on the point. But the IJ
-18-

here failed to make any finding as to past persecution, a failure

which is independently significant.

In Yatskin, we noted the difficulty of conducting

meaningful judicial review of a decision by the agency finding "no

well-founded fear of persecution" when there was no underlying

determination of whether there had been past persecution. 255 F.3d

at 9. In Yatskin, we were able to avoid the issue and affirm the

BIA because, even taking Yatskin's testimony as true, the BIA was

well-justified in concluding that changed country conditions meant

Yatskin did not have an objectively reasonable fear of persecution.

Here, we have no such finding by either the BIA or the IJ. It is

not the job of the courts of appeals to make such findings for any

agency; here, "[n]o finding . . . was made by the agency, and it is

for the agency, not the courts, to make findings of fact."

Gailius, 147 F.3d at 44. The absence of reasoned discussion of

past persecution undercuts any meaningful review of the IJ's fear

of future persecution finding, because we do not know whether El

Moraghy should have had the benefit of the regulatory presumption

of fear of persecution based on prior events. See 8 C.F.R. §

208.13(b)(1).

Finally, the IJ's decision cannot be upheld on

credibility grounds because here too the IJ has not made any

finding. It may be that the IJ believed El Moraghy not to be

credible, which was the conclusion of the initial interviewing
-19-

officer. If so, the IJ neither made such a finding, nor explained

the basis in evidence for such a finding, both of which are basic

errors. "[T]he IJ must, if he or she chooses to reject

[petitioner's] testimony as lacking credibility, offer a specific,

cogent reason for [the IJ's] disbelief." Gailius, 147 F.3d at 47

(internal quotation omitted). While we defer to the IJ on

credibility questions, that deference is expressly conditioned on

support in the record, as evidenced by specific findings:

[W]hen a hearing officer who saw and heard a witness

makes an adverse credibility determination and supports

it with specific findings, an appellate court ordinarily

should accord it significant respect. While the

obligation to defer should not be confused with an

obligation to rubber-stamp the hearing officer's

credibility call, such a determination merits judicial

approbation as long as the findings on which it rests

have sufficiently sturdy roots in the administrative

record. 

Aguilar-Solis v. INS, 168 F.3d 565, 571 (1st Cir. 1999) (citations

omitted) (emphasis added). The IJ's passing comment that El

Moraghy's account is self-serving does not suffice. The testimony

of every applicant for asylum is self-serving. This does not make

it untrue. 

Moreover, in his opinion, the IJ did not make a finding

that, even if everything El Moraghy said were true and even if the

country conditions had been properly considered as evidence of

context, what was presented by petitioner did not amount to either

past persecution or a well-founded fear of persecution. Neither
-20-

the IJ nor the BIA make any such finding which would remedy the

inadequacies of the IJ's reasoning. 

If the BIA or the IJ has not ruled on an issue, either

explicitly or implicitly, the respondent cannot ask us to uphold a

decision on those grounds. See Gailius, 147 F.3d at 44. We cannot

say the evidence compels a conclusion either way; in light of the

misuse of the country condition reports and the absence of key

findings, we remand. See id. at 47; Osorio v. INS, 99 F.3d 928,

933 (9th Cir. 1996).

We do not consider El Moraghy's withholding of removal

claim or his CAT claim, both of which require that petitioner meet

a higher burden of proof. See Aguilar-Solis, 168 F.3d at 569 n.3

(withholding of deportation requires a clear probability of

persecution); 8 C.F.R. § 208.16(c)(2) (applicant for relief under

the CAT bears burden of proof to demonstrate that it is more likely

than not that he would be tortured if removed to the proposed

country of removal).

III.

Petitioner and amici also ask us to reverse on the ground

that the BIA failed to satisfy its own regulatory requirements for

summarily affirming the IJ's opinion, and that the summary

affirmance regulations themselves improperly insulate the appeal

process from judicial review. We have already rejected the second

ground in Albathani and do so again today. As to the first ground,
-21-

if the BIA erred in using its affirmance without opinion ("AWO")

procedure, our remand cures the problem. See generally Albathani,

318 F.3d at 378.

The AWO procedure allows affirmance by a single Board

member, rather than the usual three-member review. The IJ's

opinion is affirmed without further analysis, with the statement,

"The Board affirms, without opinion, the result of the decision

below." 8 C.F.R. § 3.1(e)(4)(B)(ii). The AWO procedure is

available when a Board member determines that the result reached by

the IJ was correct, that any errors in the decision were harmless

or non-material, and that either the issue is squarely controlled

by precedent and does not involve a novel fact pattern, or that the

factual and legal questions raised are so insubstantial that threemember review is not warranted. Id. § 3.1(e)(4)(A)-(B). The

regulations governing the AWO procedure were first promulgated in

1999 in order to address a growing backlog of immigration appeals.

See Albathani, 318 F.3d at 376 n.8.

In Albathani, this court upheld the streamlining

regulations establishing the AWO procedure as constituting a

legitimate exercise of the Attorney General's discretion to fashion

its own rules of procedure. Id. at 377. The provision of reasons

in the IJ's opinion satisfies the requirement in SEC v. Chenery

Corp., 332 U.S. 194, 196-97 (1946), that administrative agencies

set forth with clarity the basis for their decisions, Albathani,
-22-

318 F.3d at 377, and the AWO procedure did not prevent there being

meaningful review.

Nonetheless, as we warned in Albathani: 

[I]f the BIA identifies an alternative satisfactory

ground for upholding denial of asylum in a case with an

otherwise unsatisfactory decision by the IJ, it must

state it or risk remand. Ordinarily, the case will be

remanded to the agency [by the court of appeals], and the

agency will not, in the end, have saved any time or

effort.

Id. at 378. Here, streamlining a case "in which the reasoning

proffered by the IJ is faulty" has resulted only in additional lost

time and judicial resources. See id. If, in the end, El Moraghy

is granted the discretionary relief he seeks, the cost will have

been borne mostly by the courts, which have done what the BIA

should have done. And if El Moraghy is properly denied relief,

then the cost of the summary affirmance procedure will be, in

addition, that an alien who should have been removed has stayed

here even longer.

Still, while the IJ's opinion here was flawed, the

summary affirmance of one flawed IJ decision by the BIA does not

rise to the level of "evidence of systemic violation by the BIA of

its regulations" we identified as a precursor to even addressing

the question of whether a more searching review of the application

of the AWO regulations is available. Id. at 378-79. We need not

address the question of whether the decision to streamline this
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case was proper, because our review of the IJ's decision

necessitates a remand to the BIA for further proceedings.

IV.

The order of the BIA is vacated, and the case is remanded

to the BIA for further proceedings consistent with this opinion.