NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 20-3368

_____________

K.S.,

 Petitioner

v.

ATTORNEY GENERAL OF THE 

UNITED STATES OF AMERICA 

_______________

On Petition for Review of a Decision of the

Board of Immigration Appeals

(BIA 1:A099-214-065)

Immigration Judge: Audra R. Behne

_______________

Argued

September 21, 2021

Before: JORDAN, PORTER, and RENDELL, Circuit Judges

(Filed: January 5, 2022)

_______________

Joseph A. Brophy [ARGUED]

Brophy & Lenahan

18 Campus Boulevard – Suite 100

Newtown Square, PA 19073

 Counsel for Petitioner
2

Margot L. Carter [ARGUED]

United States Department of Justice

1100 L Street, N.W.

Washington, DC 20530

Colin J. Tucker

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

 Counsel for Respondents

_______________

OPINION

_______________

JORDAN, Circuit Judge.

K.S. seeks review of a decision of the Board of Immigration Appeals (“BIA”)

affirming the denial of his application for asylum and withholding of removal. We will 

grant his petition.

I. BACKGROUND

K.S. is a native and citizen of Jamaica. In 2003, he was admitted to the United 

States and has been a lawful permanent resident since 2005. Pursuant to 8 U.S.C. § 1227 

(a)(2)(B)(i), the Department of Homeland Security (“DHS”) sought to remove him in 

March 2019 for convictions involving controlled-substances violations. The Immigration 

Judge (“IJ”) sustained the charge of removability . K.S. applied for asylum, withholding 

 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent.
3

of removal, and relief under the Convention Against Torture (“CAT”). In his written 

application, he claimed that his family faced threats of harm in Jamaica because of his 

mother’s political affiliations. He did not claim to face persecution on any other basis. 

The IJ held a merits hearing, and K.S. then claimed for the first time that he would 

be persecuted in Jamaica because of his sexual orientation. His counsel informed the IJ

that K.S. had “recently admitted ... that he is bisexual and he does cross-dress.” (AR at 

102.) On direct examination, in addition to testifying about his mother’s political 

affiliation, K.S. testified about his sexual orientation, saying that he was bisexual and that 

he had been having sexual relations with men since about 2009. 

On cross-examination, K.S.’s testimony produced some inconsistencies and some

new, salient assertions that had been omitted from his written application and direct 

examination. With regard to his sexual orientation in particular, he said that his first 

sexual relations with a man occurred in 2005, and that he first realized that he was 

attracted to men after an incident in 1995, while he still lived in Jamaica and a man made

advances to him. K.S. explained that he had not mentioned the 1995 experience on direct 

examination because he “wasn’t thinking” and he “wasn’t focusing on that.” (AR at 

161.) He also claimed that he did not mention his sexual orientation on his written

application because he “didn’t want to tell [his] family” and he was “really scared to 

come out with it.” (AR at 169-70.) 

K.S. also offered additional evidence of his sexual identity. He submitted a police 

affidavit that described a 2017 traffic stop. In that affidavit, the Pennsylvania State 

Trooper who stopped K.S. stated that K.S. was wearing women’s clothing at the time and 
4

admitted to keeping his cross-dressing secret. K.S.’s wife, J.S., also testified at the merits 

hearing. She testified that she only found out about K.S.’s cross-dressing and sexual

orientation when she read the police report from that traffic stop, after which K.S. 

confessed to her that he had been having sexual relations with men. 

On the day of the hearing, K.S.’s lawyer introduced two pieces of evidence

regarding the mistreatment of bisexual individuals in Jamaica: first, a Huffington Post 

article about the murder of a teenager caught cross-dressing in Jamaica; and second, an 

Amnesty International report about country conditions in Jamaica. The IJ admitted both 

pieces of evidence together as “Exhibit 6.” 

Ultimately, the IJ denied K.S.’s applications for asylum, withholding of removal, 

and protection under the CAT. She found that his testimony was not credible, based on 

his vague direct testimony and his failure to provide a clear explanation for why certain 

significant events were only disclosed on cross-examination, and on other inconsistencies 

and implausibilities in his testimony. Because she decided that K.S.’s claim that he was 

bisexual was not credible, the IJ found that he “[had] not established that he is a member 

of this particular social group.” (AR at 59.) In reaching that conclusion, the IJ

specifically noted that she was “taking into consideration the wife’s testimony and the 

court criminal document [i.e., the 2017 police affidavit].” (AR at 59.)
5

K.S. appealed the IJ’s denial of his application for asylum and withholding of 

removal.1 The BIA, in response, affirmed the IJ’s decision and dismissed the appeal. 

(AR at 3-4.) It explained that it “adopt[ed] and affirm[ed] the [IJ’s] adverse credibility 

finding for the reasons stated therein.” (AR at 3 (citing Matter of Burbano, 20 I. & N.

Dec. 872, 874 (BIA 1994)).) It further stated that, because of the adverse credibility 

determination, it did not need to reach the respondent’s remaining contentions on appeal.

According to the BIA, “[w]ithout credible testimony[,] the respondent cannot meet his 

burden of proving that he merits asylum and withholding of removal.” (AR at 4.) 

K.S. timely petitioned for review. He argues before us that the BIA erred by 

basing its decision exclusively on the adverse credibility determination and disregarding 

additional evidence of his bisexuality. He also claims that his due process rights were 

violated because Exhibit 6 was not included in the administrative record provided to the 

BIA.

II. DISCUSSION2

1 K.S. did not challenge the IJ’s decision that he had not established harm rising to 

the level of torture under the CAT. 

2 The BIA had jurisdiction pursuant to 8 U.S.C. § 1103 and 8 C.F.R. § 1003.1(b)

over K.S.’s appeal of the IJ’s ruling. We have jurisdiction pursuant to 8 U.S.C. § 1252. 

Because the government seeks to remove K.S. for a controlled-substance conviction, our

jurisdiction is limited to reviewing constitutional claims and other questions of law. 8 

U.S.C. § 1252(a)(2)(C), (D). “An adverse credibility determination is a finding of 

fact[,]” Sunuwar v. Att’y Gen., 989 F.3d 239, 247 (3d Cir. 2021), so we do not review 

either the IJ’s finding that K.S.’s testimony was not credible or the BIA’s acceptance of 

that finding.
6

The BIA accepted the IJ’s determination that K.S.’s testimony was not credible. 

Based solely on that, the BIA then dismissed K.S.’s appeal, without considering any 

other evidence or arguments presented by K.S. According to the BIA, the adverse 

credibility determination disposed of the matter because, “without credible testimony[, 

K.S.] cannot meet his burden of proving that he merits asylum and withholding of 

removal.” (AR at 4.) That legal statement was erroneous, at least in part, and the BIA’s 

decision to dismiss the appeal without considering any other evidence was thus also in 

error.

3

An alien is entitled to withholding of removal to a country if “the alien’s life or 

freedom would be threatened in that country because of the alien’s race, religion, 

nationality, membership in a particular social group, or political opinion.” 8 U.S.C. 

3 Our dissenting colleague says we are unfairly focusing on one sentence from the 

BIA’s opinion, a sentence “torn from the rest of the agency’s and the IJ’s opinions,” 

“shorn of context,” and “construe[d] ... uncharitably.” (Dissent at 2, 4.) To the contrary, 

though, we have quoted that particular sentence because it is a fair and accurate summary 

of the BIA’s entire opinion. In its own words, the BIA “adopt[ed] and affirm[ed] the 

Immigration Judge’s adverse credibility finding for the reasons stated therein (IJ at 3-8).” 

(A.R. at 3.) The BIA discussed only the IJ’s adverse credibility determination. It cited 

only to the pages of the IJ’s opinion that dealt with K.S.’s testimony and rendered the 

adverse credibility determination. The BIA’s analysis does not indicate that the agency

even considered, much less adopted, any other aspect of the IJ’s decision – such as the 

IJ’s weighing of independent evidence. And the sentence we have quoted, which is 

placed in the BIA’s opinion as a summary, is immediately followed by a case citation to 

Matter of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987), a decision emphasizing that an 

alien’s own testimony may, in some cases, be sufficient evidence to support his 

claim. Id. In short, the BIA’s opinion is all about the credibility of K.S. and nothing 

more. That is the full context in which our review must be and is grounded. See CallaCollado v. Att’y Gen., 663 F.3d 680, 683 (3d Cir. 2011) (explaining that “we will look to 

the IJ’s analysis to the extent that the BIA deferred to or adopted it,” but otherwise “we 

review only the BIA’s decision”).
7

§ 1231(b)(3)(A). The “would be threatened” standard “requires the alien to establish by

objective evidence that it is more likely than not that he or she will be subject to 

persecution upon deportation.” INS v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987). 

Importantly, that standard “has no subjective component.” Id.; see also Aguilar-Escoto v. 

Sessions, 874 F.3d 334, 337 (1st Cir. 2017) (“Withholding claims lack a subjective 

component and are [thus] concerned only with objective evidence of future persecution.” 

(alteration in original) (citation omitted)).

Because a claim for withholding of removal depends only on objective evidence, 

an adverse credibility determination is not automatically fatal to a claim for withholding 

of removal. Aguilar-Escoto, 874 F.3d at 338 (“[B]ecause withholding of removal 

requires no ... genuine belief [of future persecution], a withholding claim may, in 

appropriate instances, be sustained despite an adverse credibility finding.” (citation 

omitted)). Of course, an adverse credibility determination may ultimately be fatal to a 

withholding claim. An IJ may weigh all the evidence and, with a negative credibility 

finding in the balance, determine that future life-threatening or freedom-threatening 

events based on a protected ground are not likely to occur. There may also be cases

“where a withholding claim is based on the very fact, or set of facts, that the IJ found not 

to be credible.” Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). If the alien does not 

then present any evidence of a future threat to life or freedom other than his own 

testimony, an adverse credibility determination will preclude a claim of withholding. 

Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir. 2003); Paul, 444 F.3d at 156. But 

when the alien presents “independent evidence [that] could also serve as a basis for [the] 
8

application for withholding of removal,” that evidence must be considered as part of the 

objective inquiry into that claim. Camara v. Ashcroft, 378 F.3d 361, 370-71 (4th Cir. 

2004).

Here, K.S. presented independent evidence in support of his application for 

withholding of removal, including J.S.’s testimony and the 2017 police affidavit. Thus, 

this is not a case where an adverse credibility determination alone would necessarily 

doom a claim for withholding of removal. The IJ expressly noted that she had considered 

the 2017 police affidavit and J.S.’s testimony but that those pieces of evidence did not 

overcome the lack of credible testimony from K.S. himself. The BIA’s decision, 

however, never addressed any evidence other than K.S.’s testimony.4 The BIA 

committed legal error in concluding that, just because an alien’s testimony was not 

credible, it could disregard objective evidence that supports the withholding claim.

It is less settled whether an adverse credibility determination is automatically fatal 

to a claim for asylum. Unlike a claim for withholding of removal, which involves a 

purely objective inquiry, a claim for asylum requires the applicant to show a subjective

fear of persecution, in addition to an objective reasonableness of his fear. Guo v. 

Ashcroft, 386 F.3d 556, 564-65 (3d Cir. 2004). Our precedent has not clarified whether

4 Our dissenting colleague states that the BIA adopted “as its own” the “IJ’s 

factual findings,” including the consideration of the wife’s testimony and the police 

affidavit. Dissent at 3. We disagree. As already noted, supra n.3, the BIA was explicit 

in referring to and hence adopting only the IJ’s credibility findings. (A.R. at 3 (“We 

adopt and affirm the Immigration judge’s adverse credibility findings for the reasons 

stated therein ... .”).) It made no reference at all to evidence beyond K.S.’s testimony.
9

that subjective component must be shown through credible testimony from the applicant. 

Compare Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir. 2006) (“To establish a 

well-founded fear of persecution, an applicant must first demonstrate a subjective fear of 

persecution through credible testimony that her fear is genuine.”), and Abdulrahman v. 

Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003) (“[A]liens have the burden to establish their 

eligibility for asylum through credible testimony[.]”), with Chavarria v. Gonzalez, 446 

F.3d 508, 520 (3d Cir. 2006) (“We have held that an alien may use testimonial, 

documentary, or expert evidence to demonstrate either a subjective or objectively 

reasonable fear of future persecution.”), and Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 

2005) (“There does not appear to be evidence in the record that would compel us to 

disturb the BIA’s finding that Lie’s fear of future persecution is not genuine or 

reasonable.”).

But we need not answer that question here. The IJ did not deny K.S.’s application 

for failure to establish a genuine fear of future persecution. Instead, she determined that 

the claim for asylum failed at an earlier analytical step because, even after considering all 

of the evidence, K.S. “[had] not established that he is a member of this particular social 

group [of bisexual individuals].” (AR at 59.) See Lukwago v. Ashcroft, 329 F.3d 157, 

170 (3d Cir. 2003) (explaining that, in order to qualify for asylum on account of 

membership in a particular social group, “the applicant must establish that s/he is a 

member of that group”). We have not held that membership in a particular social group 

is a purely subjective inquiry or that it can only be established through the applicant’s 

credible testimony. Thus, the BIA’s failure to consider all of the evidence leads us to 
10

suggest that, upon remand, it also take into account objective evidence such as the 2017 

police affidavit and J.S.’s testimony, when assessing whether K.S. was a member of his 

asserted particular social group.

The BIA’s decision to prematurely end its analysis of the withholding-of-removal 

question was not harmless error. Our Court “will view an error as harmless and not 

necessitating a remand to the BIA when it is highly probable that the error did not affect 

the outcome of the case.” Li Hua Yuan v. Att’y Gen., 642 F.3d 420, 427 (3d Cir. 2011); 

see also Ricketts v. Att’y Gen., 955 F.3d 348, 352 (3d Cir. 2020) (explaining that when 

“remand would be futile – meaning the BIA on remand would be unable as a matter of 

law to grant the relief sought – we may deny a petition for review, without regard to the 

various issues that might otherwise be in play in the case”). There is nothing in the 

record that would suggest such “high probability.” The BIA’s decision gives no clear 

indication that it viewed all the presented evidence, as was required for a fulsome 

objective inquiry; to the contrary, it implies that it only considered K.S.’s testimony and 

his credibility. We also cannot discern that the BIA’s citation to, Matter of Burbano, 20 

I. & N. Dec. 872, 874 (B.I.A. 1994), shows that the BIA considered the additional 

evidence or incorporated the IJ’s assessment of that evidence. Burbano recognizes the 

BIA’s power to adopt “a decision of the immigration judge, in whole or in part,” so a 

reference to that precedent in the BIA’s decision here does not imply complete adoption 

of the IJ’s analysis. Id. (emphasis added). Furthermore, although the BIA might still 

have accepted the IJ’s findings even if it had considered the 2017 police affidavit and 

J.S.’s testimony, it would not have been required to accept them as a matter of law, and 
11

we cannot assume that it would have done so. See 8 C.F.R. § 1003.1(d)(3) (instructing

the BIA to review factual findings for clear error); 8 U.S.C. § 1252(a)(2)(C)-(D) (limiting 

our review in this case to constitutional claims and questions of law).

III. CONCLUSION

For the foregoing reasons, we will grant the petition for review and direct the BIA 

to address the additional evidence that K.S. introduced in support of his application for 

asylum and withholding of removal. When conducting its review, the BIA should ensure 

that the administrative record includes Exhibit 6, which was omitted from the 

administrative record in K.S.’s initial appeal.5 

5

In light of our instruction to the BIA, we do not reach K.S.’s argument that the 

omission of Exhibit 6 violated his due process rights. 
PORTER, Circuit Judge, dissenting.

The criminal-alien bar deprives us of “jurisdiction to review any final order of 

removal against an alien who is removable by reason of having committed a criminal 

offense covered in [8 U.S.C. § 1227(a)(2)(B)(i)].” 8 U.S.C. § 1252(a)(2)(C). Here, K.S. 

was ordered removed under 8 U.S.C. § 1227(a)(2)(B)(i) for three state-law drug offenses 

triggering this jurisdictional bar. So we cannot review the Bureau of Immigration 

Appeals’s (BIA) factual findings. 

We may review the BIA’s decision if it involves “constitutional claims” or 

“questions of law.” Id. § 1252(a)(2)(D). But if the “BIA’s opinion directly states that the 

BIA is deferring to the IJ, or invokes specific aspects of the IJ’s analysis and factfinding 

in support of the BIA’s conclusions, we review both decisions.” Thayalan v. Att’y Gen., 

997 F.3d 132, 137 (3d Cir. 2021) (quotation marks omitted) (quoting Uddin v. Att’y Gen., 

870 F.3d 282, 289 (3d Cir. 2017)). In this case, the agency “adopt[ed] and affirm[ed]” the 

IJ’s adverse credibility determination citing pages three through eight of the IJ’s opinion. 

A.R. 3. So we must look to both the BIA’s and the IJ’s opinions.

I agree with the majority that in considering K.S.’s application for asylum and 

relief from removal, the agency had to “weigh the credible testimony along with other 

evidence of record.” 8 U.S.C. § 1229a(c)(4)(B) (emphasis added). Once it has done so, its 

conclusions about the evidence are determinations of fact that we may not review. See 

S.E.R.L. v. Att’y Gen., 894 F.3d 535, 543 (3d Cir. 2018); 8 U.S.C. § 1252(a)(2)(C).

K.S. attempts to manufacture a question of law from a clipped statement in the last 

paragraph of the BIA’s opinion affirming the IJ’s decision. His argument hinges on the 
2

BIA’s closing observation—extracted from the rest of the BIA’s opinion and the IJ’s 

decision adopted by the BIA—that “[w]ithout credible testimony the respondent cannot 

meet his burden of proving that he merits asylum and withholding of removal.” A.R. 4.

The majority agrees with K.S. that this statement, torn from the rest of the 

agency’s and the IJ’s opinions, was “legal error” because it allegedly suggests that if 

“an alien’s testimony was not credible, [the BIA] could disregard objective evidence that 

supports the withholding claim.” Maj. Op. at 7–8; see also Pet’r Br. 15–16. As I 

understand the majority’s position, we may set aside the BIA’s decision if an isolated 

sentence, shorn of context, could be construed as a misstatement of law.

I disagree with this approach because it unfairly construes the two opinions before 

us. When we review agency decisions, we must consider the whole decision and not 

focus on just one sentence. See Auguste v. Ridge, 395 F.3d 123, 146–47 (3d Cir. 2005). 

Here, we look to the BIA’s whole decision and the portion of the IJ’s decision the BIA 

adopted as its own. Together, they leave no doubt that the agency considered K.S.’s 

credibility and the other evidence that he adduced.

In her opinion, including the pages specifically adopted by the BIA, the IJ 

considered both K.S.’s arrest records and his wife’s testimony. A.R. 54–55. And in the 

same pages, the IJ correctly stated that “[t]he Court may base its credibility determination 

on the demeanor, candor, and/or responsiveness of the respondent, the plausibility and 

consistency of respondent’s written and oral statements, as well as the consistency of the 

statements with other evidence in the record, and any other relevant factors.” A.R. 55

(emphasis added).
3

After weighing K.S.’s credibility and the independent evidence, the IJ found that 

the adverse credibility determination outweighed the probative effect of his independent

evidence. Her decision makes that perfectly clear: “the Court does not believe that [K.S.] 

has established, given his credibility issues, that he is even a member of a particular 

social group. And here the Court is taking into consideration the wife’s testimony and the 

court criminal document.” A.R. 59 (emphasis added). The BIA adopted these factual 

findings as its own. 

Summing up, the agency said that “[w]ithout credible testimony the respondent 

cannot meet his burden of proving that he merits asylum and withholding of removal.” 

A.R. 4. Considering the whole BIA opinion together with the IJ’s opinion, it is obvious 

that the basis for the agency’s decision included both the adverse credibility finding and 

the alien’s independent evidence. The fairest reading of the agency’s entire decision is 

that K.S.’s independent evidence was inadequate, so he needed to testify credibly to 

qualify for relief. But K.S.’s testimony was not credible, so he failed to carry his 

evidentiary burden.

The majority’s doubtful construction of the agency’s summation is no basis for us 

to vacate the decision. We can only vacate if the BIA’s findings and conclusions are “not 

in accordance with law.” 5 U.S.C. § 706(2)(A). And the Supreme Court has repeatedly 

instructed us to uphold “a decision of less than ideal clarity if the agency’s path may 

reasonably be discerned.” Garland v. Ming Dai, 141 S. Ct. 1669, 1679 (2021) (quoting 

Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)). We 
4

do not extract a sentence from its full context, construe it uncharitably, and on that basis 

presume that the agency’s decision must be vacated for clarification. 

By adopting the IJ’s decision, the BIA did exactly what the law requires: It 

weighed the alien’s credibility along with independent evidence. Because there was no 

error of law and we cannot review the agency’s factual findings, we must deny the 

petition. I respectfully dissent.