2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-22-2003

Dia v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 02-2460

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Volume 1 of 2

PRECEDENTIAL

Filed December 22, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-2460

SAIDOU DIA,

Petitioner

v.

JOHN ASHCROFT,

Attorney General of the United States,

Respondent

On Petition for Review of an Order of Removal from

the Board of Immigration Appeals

U.S. Department of Justice

Executive Office for Immigration Review

(BIA No. A78-514-349)

Argued February 3, 2003

Before: SLOVITER, RENDELL and STAPLETON,

Circuit Judges.

Reargued En Banc May 28, 2003

Before: SCIRICA, Chief Judge, SLOVITER, NYGAARD,

ALITO, ROTH, McKEE, RENDELL, BARRY, AMBRO,

FUENTES, SMITH, BECKER and STAPLETON,

Circuit Judges.

(Filed: December 22, 2003)
Brett S. Deutsch [ARGUED]

Cindy Warner

Orrick, Herrington & Sutcliffe

666 Fifth Avenue

New York, NY 10103

Counsel for Petitioner

Christopher C. Fuller

Allen W. Hausman

John M. McAdams, Jr.

Greg D. Mack [ARGUED]

U.S. Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

Nadine K. Wettstein [ARGUED]

American Immigration Law

Foundation

918 F Street, N.W., 6th Floor

Washington, DC 20004

Counsel for Amicus-appellant,

American Immigration Law

Foundation

Steven J. Kolleeny

Four Times Square, Room 48-328

New York, NY 10036-6522

Counsel for Amicus-appellant, The

Lawyers Committee for Human

Rights (“Lawyers Committee”)

2
OPINION OF THE COURT

TABLE OF CONTENTS

I. THE STREAMLINING REGULATIONS ................... 5

A. Background ................................................... 6

B. Statutory and Regulatory Scheme ................. 7

C. Constitutional Challenges .............................. 11

II. THE AGENCY’S DENIAL OF RELIEF .................... 28

A. Dia’s Testimony ............................................. 28

B. Burden and Standard of Review ................... 32

C. The Immigration Judge’s Decision ................. 38

1. Past Persecution ...................................... 41

2. Procurement of a Passport and Visa ....... 49

3. Future Persecution .................................. 56

III. CONCLUSION ....................................................... 59

Judge Rendell filed the opinion of the Court in which Chief

Judge Scirica and Judges Nygaard, Barry, Fuentes, and

Smith joined. Judge Alito filed an opinion concurring as to

Part I and dissenting as to Part II in which Judges Sloviter

and Roth joined. Judge Stapleton filed an opinion

dissenting as to Part I, in which Judges Ambro and Becker

joined. Judge McKee filed an opinion dissenting as to Part

I and concurring as to Part II. 

RENDELL, Circuit Judge. 

In 2001, the Immigration and Naturalization Service (INS)

charged Saidou Dia, a native of the Republic of Guinea,

with removability for illegal entry into the United States.

Dia conceded removability but applied for relief, seeking

asylum, withholding of removal, and relief under the United

Nations Convention Against Torture, and Other Cruel,

Inhuman or Degrading Treatment or Punishment.1 Dia

1. The basic law underlying Dia’s substantive claims is clear. The

Attorney General has the discretion to grant Dia asylum if he meets the

definition of “refugee” as defined in the Immigration and Nationality Act,

8 U.S.C. § 1101 et seq. (INA), i.e., he is unable or unwilling to return to

his home country “because of persecution or a well-founded fear of

3
alleged that he had been, and would be, persecuted in

Guinea due to his actual and imputed political opinions.

The Immigration Judge (IJ) rejected Dia’s allegations,

finding that she was “not convinced that [Dia] has suffered

past persecution” or that Dia would be persecuted and/or

killed if he returned to Guinea. The IJ based her conclusion

solely on her determination that Dia was not credible. Dia

appealed to the Board of Immigration Appeals (BIA), which

summarily affirmed the IJ’s decision under its streamlining

regulations. This petition for review followed. Our

jurisdiction arises under 8 U.S.C. § 1252. 

Two issues are before the court for consideration en banc:

First, we will review whether the streamlining

regulations promulgated by the Attorney General are either

inconsistent with the INA, or violative of Dia’s due process

rights under the Fifth Amendment. See U.S. Const. amend.

V. 

Second, we will review the adverse credibility

determination made by the Immigration Judge and

summarily affirmed by the BIA. 

As to the first issue, we determine that the streamlining

regulations are valid. 

As to the second issue, however, we conclude that the

IJ’s analysis of Dia’s credibility was based on reasoning

that was at best unexplained and at worst speculative.

Accordingly, it was not supported by substantial evidence.

persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). To

qualify for withholding of removal, Dia must show that, if deported, there

is a “clear probability” that he will be persecuted on account of a

specified ground — here, political opinion — if returned to his native

country. See Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003); 8

C.F.R. § 208.16(b). To qualify for relief under the United Nations

Convention Against Torture, and Other Cruel, Inhuman or Degrading

Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, 23 I.L.M.

1027 (CAT), see 8 C.F.R. § 208.17 (2002), Dia must prove that he is

more likely than not to be tortured in the country of removal.

Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003) (citing 8

C.F.R. §§ 208.16(c)(2) & (4)). 

4
We will grant the petition for review, vacate the order,

and remand to the BIA to give the IJ the opportunity to

explain or bolster her analysis. 

I. THE STREAMLINING REGULATIONS

In upholding the IJ’s determination denying Dia relief

from removal, the BIA did not issue an opinion, but,

instead, issued an “affirmance without opinion” (AWO)

under its streamlining regulations. See 8 C.F.R. § 3.1(a)(7)

(2002). The streamlining regulations have recently been the

subject of many unsuccessful attacks. See, e.g., Khattak v.

Ashcroft, 332 F.3d 250, 253 (4th Cir. 2003) (rejecting the

argument that the regulations are “impermissibly

retroactive”); Albathani v. INS, 318 F.3d 365, 377 (1st Cir.

2003) (rejecting a due process challenge); Capital Area

Immigrants’ Rights Coalition v. United States Dep’t of

Justice, 264 F. Supp. 2d 14, 39 (D.D.C. 2003) (rejecting a

challenge under the Administrative Procedure Act). Dia,

with able support of amici, broadly attacks the streamlining

regulations on two grounds: (1) as inconsistent with the

INA; and (2) as violative of his due process rights. 

A. Background

The Supreme Court has “ ‘long recognized the power to

expel or exclude aliens as a fundamental sovereign

attribute exercised by the Government’s political

departments largely immune from judicial control.’ ” Fiallo

v. Bell, 430 U.S. 787, 792 (1977) (quoting Shaughnessy v.

United States ex rel. Mezei, 345 U.S. 206, 210 (1953)). With

limited exceptions, Congress, in the INA, charges the

Attorney General “with the administration and enforcement

of [the INA] and other laws relating to the immigration and

naturalization of aliens.” 8 U.S.C. § 1103(a)(1) (2002).

Pursuant to this power, Congress has mandated that the

Attorney General “shall establish such regulations; . . .

issue such instructions; and perform such other acts as he

deems necessary for carrying out his authority under [the

INA].” 8 U.S.C. § 1103(a)(3) (2002). Congress has further

authorized that “[t]he Attorney General may provide by

regulation for any other conditions or limitations on the

5
consideration of an application for asylum not inconsistent

with this Act.” 8 U.S.C. § 1158(d)(5)(B) (2002). 

The Attorney General has delegated to the BIA many of

his responsibilities under the immigration laws, see 1

Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr,

Immigration Law and Procedure § 3.02[1] (rev. ed. 2003)

(stating that the BIA “exercises so much of the Attorney

General’s authority under the immigration and nationality

laws as the Attorney General may delegate to it”), and has

further delegated supervision of the BIA to the Department

of Justice’s Executive Office of Immigration Review. Id. The

BIA, established by regulation, has existed in various

guises and has held various responsibilities since 1922. Id.

at § 3.05[1]. Initially, immigration laws were enforced by the

Secretary of Labor, under whose supervision the

administrative immigration appellate body was known as

the “Board of Review.” Id. After Congress transferred the

responsibility for immigration enforcement to the Attorney

General in 1940, the Board of Review was renamed the

Board of Immigration Appeals. In its present form, the BIA

has been described as “a quasi-judicial body with

exclusively appellate functions.” Id.

The Attorney General promulgated the streamlining

regulations in 1999 when the Board was faced with a

crushing caseload, the number of cases having increased

exponentially in a little over a decade. See Executive Office

of Immigration Review: Board of Immigration Appeals

Streamlining, 64 Fed. Reg. 56,135, 56,136 (Oct. 18, 1999)

(to be codified at 8 C.F.R. pt. 3). See generally Board of

Immigration Appeals: Procedural Reforms to Improve Case

Management, 67 Fed. Reg. 54,878, 54,878-79 (Aug. 26,

2002) (to be codified at 8 C.F.R. pt. 3). Under the

regulations, “the Chairman [of the BIA] may designate

certain categories of cases as suitable for review” by

designated Board members “who are authorized to affirm

decisions of Immigration Judges . . . without opinion.” 8

C.F.R. § 3.1(a)(7)(i) (2002). The single BIA member to whom

the case is assigned may affirm an IJ’s decision in a single

sentence without an opinion if he or she determines that

the result was correct, and that “(A) the issue on appeal is

squarely controlled by existing Board or federal court

6
precedent and does not involve the application of precedent

to a novel fact situation; or (B) the factual and legal

questions raised on appeal are so insubstantial that threeMember review is not warranted.” 8 C.F.R. § 3.1(a)(7)(ii)

(2002).2 Each AWO is exactly the same. It reads: “The

Board affirms, without opinion, the results of the decision

below. The decision is, therefore, the final agency

determination. See 8 C.F.R. § 3.1(a)(7)(iii) (2002); see also

Executive Office of Immigration Review: Board of

Immigration Appeals Streamlining, 64 Fed. Reg. at 56,137-

38 (“The decision rendered below will be the final agency

decision for judicial review purposes . . . . [T]he Immigration

Judge’s decision becomes the decision reviewed.”). Such an

order does not necessarily imply approval of all of the

reasoning of the IJ’s decision, but does signify that the

reviewing Board member considered that any errors by the

IJ were harmless or immaterial. Id. If the single BIA

member decides that the decision is inappropriate for

affirmance without an opinion, the case is assigned to a

three-member panel for review and decision. 8 C.F.R.

§ 3.1(a)(7)(iv) (2002). That panel, however, is also authorized

to determine that a case should be affirmed without an

opinion. Id.

B. Statutory and Regulatory Scheme

We are “confronted [with] questions implicating an

agency’s construction of the statute which it administers.”

INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999) (citation

and internal quotation marks omitted). For this reason, we

apply the principles of deference described in Chevron

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,

842 (1984). See Aguirre-Aguirre, 526 U.S. at 424 (“It is clear

that principles of Chevron deference are applicable to this

statutory scheme.”). We initially ask whether “the statute is

silent or ambiguous with respect to the specific issue” we

confront. Chevron, 467 U.S. at 843. If it is, “the question for

the court is whether the agency’s answer is based on a

2. Since the time of Dia’s appeal to the BIA, the streamlining regulations

have been moved to a different section of chapter 8 of the Code of

Federal Regulations. See 8 C.F.R. § 1003.1(a)(7). 

7
permissible construction of the statute.” Id. at 843; see also

Aguirre-Aguirre, 526 U.S. at 424. In doing so, we bear in

mind that “judicial deference to the Executive Branch is

especially appropriate in the immigration context where

officials ‘exercise especially sensitive political functions that

implicate questions of foreign relations.’ ” Aguirre-Aguirre,

526 U.S. at 425 (quoting INS v. Abudu, 485 U.S. 94, 110

(1988)); see also Abdulrahman v. Ashcroft, 330 F.3d 587,

597 (3d Cir. 2003) (quoting this section of Aguirre-Aguirre);

Abdulai v. Ashcroft, 239 F.3d 542, 551 (3d Cir. 2001)

(acknowledging “the narrow scope of our review” under

such circumstances). 

The streamlining regulations easily pass the first step of

the Chevron inquiry. The INA “is silent . . . with respect to”

streamlined administrative appeals. Chevron, 467 U.S. at

843. The next question is whether the streamlining of

administrative appeals “is based on a permissible

construction of the statute.” Id. If, as Dia contends, the

streamlining regulations are inconsistent with the INA, they

certainly are not based on a permissible construction of the

statute. So, we must look at what the INA says regarding

the BIA in particular, and administrative appeals in general.3

In so doing, we can discern nothing in the INA with which

the streamlining regulations are inconsistent. See Abdulai,

239 F.3d at 555 (“[N]othing in the INA specifically requires

the Board to explain its decisions.”). In fact, the INA says

nothing whatsoever regarding the procedures of an

administrative appeal, or, for that matter, any other

procedures employed by the BIA. 

3. We look at the INA at the time of Dia’s appeal to the BIA. The INA was

amended by the Homeland Security Act of 2002, Pub. L. No. 107-296,

§ 471, 116 Stat. 2135, 2192, 2205 (Nov. 25, 2002), which, on March 1,

2003, transferred the functions of the INS to various bureaus, the one

dealing with asylum cases being the Bureau of Citizenship and

Immigration Services within the Department of Homeland Security. See

generally 1 Gordon, Mailman, & Yale-Loehr, Immigration Law and

Procedure 1:SA1-1-2. The functions of the Executive Office for

Immigration Review continue to reside in the Department of Justice,

under the direction of the Attorney General. Because of the status of the

agency at the time this case was submitted, and for ease of reference,

this opinion refers to the agency as the INS or merely as the “agency.”

8
As Dia points out, the INA refers to the BIA in its

“definitions” section, in connection with its definition of the

term “order of deportation.”

4

 8 U.S.C. § 1101(a)(47)(A)

(2002). The relevant provision reads, in pertinent part: 

The [“order of deportation”] shall become final upon the

earlier of (i) a determination by the Board of

Immigration Appeals affirming such order; or (ii) the

expiration of the period in which the alien is permitted

to seek review of such order by the Board of

Immigration Appeals. 

8 U.S.C. § 1101(a)(47)(B) (2002). Under this provision, an

order of deportation is not “final” until either the BIA has

passed on it, or the time for seeking BIA review has expired.

The statute also provides that the statutory right to judicial

review of orders of deportation is only available for a “final

order.” 8 U.S.C. § 1252(b)(9) (2002); Gao v. Ashcroft, 299

F.3d 266, 271 (3d Cir. 2002). Based on these two

provisions, Dia argues that the BIA at the relevant time was

an entity provided for by statute, and no longer existed

solely by regulation. 

But even assuming that the BIA could not be eliminated

without statutory authorization, we are hard pressed to

conclude much more from the definitional statement at

§ 1101(a)(47)(B). It says absolutely nothing about

procedures to be employed by the BIA, or the right to, or

manner of, review generally; it only speaks to review by the

BIA and its “affirming” the “order” of deportation. 8 U.S.C.

§ 1101(a)(47)(B). Based on the fact that § 1101(a)(47)(B)

contains the only mention of the BIA in the INA, it seems

clear that Congress has left all procedural aspects of the

BIA, especially how it hears cases, entirely to the Attorney

General’s discretion. Id.

4. The provision reads in whole part: 

The term “order of deportation” means the order of the special

inquiry officer, or other such administrative officer to whom the

Attorney General has delegated responsibility for determining

whether an alien is deportable, concluding that the alien is

deportable or ordering deportation. 

8 U.S.C. § 1101(a)(47)(A). 

9
The statute’s references to an “administrative appeal” do

not alter this conclusion. Only two statutory provisions of

the INA reference the term “administrative appeal.” These

provisions mandate that the procedure established for

applying for asylum 

shall provide that — 

. . . 

(iii) in the absence of exceptional circumstances, final

administrative adjudication of the asylum application,

not including administrative appeal, shall be completed

within 180 days after the date an application is filed; 

(iv) any administrative appeal shall be filed within 30

days of a decision granting or denying asylum, or

within 30 days of the completion of removal

proceedings before an immigration judge under section

1229a of this title, whichever is later. 

8 U.S.C. § 1158(d)(5)(A)(iii) & (iv) (2002) (emphasis added).

Although these provisions contemplate some type of an

administrative appeal in connection with applications for

asylum, they fail to provide any guidance as to the

procedural trappings of that appeal. 

Similarly unpersuasive is Dia’s citation to 8 U.S.C.

§ 1229a(c)(4), which provides: 

If the immigration judge decides that the alien is

removable and orders the alien to be removed, the

judge shall inform the alien of the right to appeal that

decision and of the consequences for failure to depart

under the order of removal, including civil and criminal

penalties.

Id. (emphasis added). Even if we were to assume that this

provision contemplates that an alien will have the

opportunity for an administrative appeal, neither this

provision nor any other provision of the INA references the

procedural requirements of an administrative appeal or

outlines a scheme inconsistent with the streamlining

regulations. Instead, it only speaks generally of an

“administrative appeal” and “the right to appeal,” and of the

BIA only in the context of a “final” order. To conclude from

10
this language in the INA that the streamlining regulations

are not a “permissible construction of the statute” under

Chevron, 467 U.S. at 843, would require a sizable leap that

we cannot make. The Supreme Court has forcefully

emphasized that “[a]bsent constitutional constraints or

extremely compelling circumstances the administrative

agencies should be free to fashion their own rules of

procedure and to pursue methods of inquiry capable of

permitting them to discharge their multitudinous duties.”

Vermont Yankee Nuclear Power Corp. v. Natural Res. Def.

Council, Inc., 435 U.S. 519, 543 (1978) (citation and

internal quotation marks omitted). This “basic tenet of

administrative law,” id., has even more force in the

immigration context where our deference is especially great.

See Abdulai, 239 F.3d at 552 (“In light of the INA’s

enormously broad delegation to the Attorney General, we

would be extremely reluctant to hold that his interpretation

is unreasonable.”); see also 1 Gordon, Mailman, & YaleLoehr, Immigration Law and Procedure § 3.02[2] (“[T]he

theory of the [INA] is that all responsibility to enforce or

administer the immigration laws is vested in the Attorney

General, and that she may delegate or assign any of such

powers in any manner she deems appropriate.”). We

therefore hold that, in promulgating the streamlining

regulations, the Attorney General did not run afoul of the

INA.5

C. Constitutional Challenges

Dia next attacks the streamlining regulations as a

deprivation of his constitutional right to due process under

the Fifth Amendment.6 See U.S. Const. amend. V. We have

plenary review over constitutional challenges to

immigration procedures. Abdulrahman, 330 F.3d at 597.

We agree with our sister courts of appeals that have passed

5. A fortiori, we reject Dia’s argument that the INA requires the BIA to

conduct de novo review on appeal. 

6. Dia suggests that his argument is tailored only to address how the BIA

applied the streamlining regulations to him. However, his attack is broad

and not based on any specifics of his case. Therefore, we view his due

process challenge as a facial challenge to the procedures. 

11
on this issue and conclude that the streamlining

regulations do not violate the Due Process Clause of the

Constitution. See Denko v. INS, 2003 WL 22879815, at *8

(6th Cir. Dec. 8, 2003); Falcon Carriche v. Ashcroft, 2003

WL 22770121, at *3 (9th Cir. Nov. 24, 2003); Georgis v.

Ashcroft, 328 F.3d 962, 967 (7th Cir. 2003); Mendoza v.

United States Att’y Gen., 327 F.3d 1283, 1288 (11th Cir.

2003); Soadjede v. Ashcroft, 324 F.3d 830 (5th Cir. 2003);

Albathani, 318 F.3d at 377. 

The basic elements of due process in this context are

clear. Although “the Fifth Amendment entitles aliens to due

process of law in deportation proceedings,” Reno v. Flores,

507 U.S. 292, 306 (1993), due process is “flexible and calls

for such procedural protections as the particular situation

demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972);

see also Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996)

(“Precisely what minimum procedures are due under a

statutory right depends on the circumstances of the

particular situation.”). The due process afforded aliens

stems from those statutory rights granted by Congress and

the principle that “[m]inimum due process rights attach to

statutory rights.” Marincas, 92 F.3d at 203; see also

Meachum v. Fano, 427 U.S. 215, 226 (1976). Our concern,

then, is whether the streamlining regulations afford aliens

such as Dia their minimum due process rights. See

Albathani, 318 F.3d at 375 (stating that an unadmitted

alien present in the United States has only “limited” due

process rights); see also Anwar v. INS, 116 F.3d 140, 144

(5th Cir. 1997) (“Due process challenges to deportation

proceedings require an initial showing of substantial

prejudice.”). In making this assessment, we look to see if

the process at issue fits with the notion that “[t]he

fundamental requirement of due process is the opportunity

to be heard at a meaningful time and in a meaningful

manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)

(citation and internal quotation marks omitted) (emphasis

added).

Dia bases his primary due process argument on

statements we made in Abdulai, where we expounded on

this “ ‘fundamental requirement of due process’ ” articulated

in Mathews. Abdulai, 239 F.3d at 549 (quoting Mathews,

12
424 U.S. at 333). In Abdulai, the BIA had issued a two-page

per curiam opinion that contained a “terse” application of

Board precedent to the specific facts of Abdulai’s case. Id.

at 547. Abdulai argued, inter alia, that in so doing, “the BIA

denied him due process by failing to make an individualized

determination of his interests.” Id. at 549. 

We began our analysis of Abdulai’s due process argument

by noting that, in the context of the adjudication of claims

for relief from removal such as the one before us, due

process “requires three things.” Id. at 555. “An alien: (1) is

entitled to ‘factfinding based on a record produced before

the decisionmaker and disclosed to’ him or her; (2) must be

allowed to make arguments on his or her own behalf; and

(3) has the right to ‘an individualized determination of his

[or her] interests.’ ” Id. (quoting Llana-Castellon v. INS, 16

F.3d 1093, 1096 (10th Cir. 1994) (citation omitted)). Of

these three requirements, Abdulai dealt solely with the

third requirement, an “individualized determination.” In

turn, Dia contends that, by issuing an AWO pursuant to

the streamlining regulations, the BIA deprived him of his

due process right to an “individualized determination” of his

interest as that right was recognized in Abdulai. 

Although we ultimately concluded in Abdulai that there

was no due process violation because we found that the

BIA had in fact made an “individualized determination” of

Abdulai’s application, id. at 550, Dia seizes on what we said

as we reasoned toward that conclusion. One such comment

was that we had previously “suggested that the BIA denies

due process to an alien when it ‘act[s] as a mere rubberstamp.’ ” Id. (quoting Marincas, 92 F.3d at 202 n.7). We also

noted that “the question for due process . . . is simply

whether the Board made an individualized determination of

Abdulai’s interests.” Id. (emphasis added). Dia argues that

these observations require that we invalidate the

streamlining regulations. 

Dia, however, takes our statements in Abdulai out of

context. We made those statements in connection with

Abdulai’s argument that the BIA had not “acknowledg[ed]

or address[ed] any of his arguments.” Id. at 549. In Abdulai,

we necessarily reviewed the BIA’s opinion, because the BIA

had issued an opinion and the petitioner focused his

13
arguments on that opinion. Id. at 548. We therefore made

the statements in Abdulai in the context of a situation in

which the BIA had chosen to speak — thus forcing the

reviewing court to examine the BIA’s reasoning — but had

done so in a way that caused us to question whether the

BIA had carefully reviewed the specific matter before it. See

Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997) (“We have

authority to review only an order of the BIA, not the IJ,

unless the IJ’s decision has some impact on the BIA’s

decision.”). The situation here is very different; the BIA did

not opine on its own, but, instead, referred us to the IJ’s

decision. 

Contrary to Dia’s suggestion, in Abdulai we did not

impose a requirement that in all instances the BIA must

indicate that it made an individualized determination of the

claim for relief. In fact, we noted our approval of decisions

of other courts of appeals that have upheld the BIA’s right

to “ ‘simply state that it affirms the IJ’s decision for the

reasons set forth in that decision.’ ” Abdulai, 239 F.3d at

549 n.2 (quoting Chen v. INS, 87 F.3d 5, 7 (1st Cir. 1996)).

We also made clear that “[t]here are some situations in

which a court of appeals effectively reviews an IJ’s decision,

but [that Abdulai’s was] not one of them.” Id. One of those

situations arises, we noted, when the BIA “defers” to the IJ.

Id. In that situation, “a reviewing court must, as a matter

of logic, review the IJ’s decision to assess whether the BIA’s

decision to defer was appropriate.” Id.; see also

Abdulrahman, 330 F.3d at 591. And so, here, where the

BIA directs us to the opinion and decision of the IJ who

originally assessed Dia’s application, we review the IJ’s

opinion. 

Dia, nonetheless, also insists that the streamlining

regulations violate his right to an “individualized

determination” because they specifically state that an AWO

does not necessarily imply approval of all of the reasoning

of the IJ’s decision. See 8 C.F.R. § 3.1(a)(7)(iii) (2002). But

he fails to articulate why or how this is so. We are unaware

of any requirement, let alone any constitutional

requirement, that an agency adjudicator must commit to

writing or otherwise verbalize his or her reasoning, where,

as here, the agency has directed us to an opinion for

14
review. In Dia’s case, the due process right to an

“individualized determination” was accorded to Dia at the IJ

level, where the IJ “reasoned” her decision, and the BIA

gave the result its imprimatur pursuant to its regulations.

Certainly, the BIA could have articulated its reasons for

affirming the IJ’s order, but just because it had the power

to do so, does not mean the Constitution required it to

exercise that power.7 See Abdulai, 239 F.3d at 549 n.3

(“Having the power to do something and being required to

do it are not the same thing.”). 

Equally unavailing is amici’s argument that “fundamental

rule[s] of administrative law” enunciated by the Supreme

Court in SEC v. Chenery Corp., 332 U.S. 194, 196-97

(1947), support Dia’s argument that the BIA’s failure to

adopt the reasoning of the IJ, in accordance with the

streamlining regulations, violated his constitutional right to

due process. In fact, we believe that Chenery actually

supports the opposite conclusion. In Chenery, the Court

emphasized a “simple but fundamental rule of

administrative law . . . that a reviewing court, in dealing

with a determination or judgment which an administrative

agency alone is authorized to make, must judge the

propriety of such action solely by the grounds invoked by

the agency.” Id. at 196 (emphasis added). The “corollary” of

this rule is that the basis of an administrative action “must

be set forth with such clarity as to be understandable.” Id.

The Court therein was concerned with ensuring that a

7. In fact, we see the summary affirmance process in the streamlining

regulations to be little different from the process employed by our court

by which we have summarily affirmed rulings of the district court. See

3d Cir. Internal Operating Procedures § 10.6. In the past, we often

affirmed via “judgment orders,” with no mention of whether or not we

agreed with the reasoning provided by the district court. Indeed, the

parties, and, at times, the Supreme Court were left to guess on what

grounds we affirmed. It is well-established, however, that this procedure

is constitutional. See Furman v. United States, 720 F.2d 263, 264 (2d

Cir. 1983) (“There is no requirement in law that a federal appellate

court’s decision be accompanied by a written opinion.”); United States v.

Baynes, 548 F.2d 481, 482 (3d Cir. 1977) (holding that an affirmance by

judgment order without an opinion did not constitute a denial of due

process of law); see also Fed. R. App. P. 36(a)(2) (outlining the procedure

for entering a judgment “rendered without opinion”). 

15
reviewing court may “test” administrative action. Id. Under

the streamlining regulations, this requirement is met. The

BIA clearly “invokes” the IJ’s opinion as the grounds on

which the agency’s decision rests; we thus “judge the

propriety” of the IJ’s action in order to “test” the agency’s

action. As the Court of Appeals for the First Circuit said: 

[Petitioner and Amici] both overlook the plain language

of Chenery, which refers to agencies in their entirety,

not individual components of agencies. Here, the

relevant agency — the INS — has presented a

statement of reasons for its decision, albeit from the IJ

rather than the BIA. Chenery does not require that this

statement come from the BIA rather than the IJ. 

Albathani, 318 F.3d at 377; see also Nagi El Moraghy v.

Ashcroft, 331 F.3d 195, 206 (1st Cir. 2003) (“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, and the AWO procedure did not prevent

there being meaningful review.” (citation omitted));

Dominguez v. Ashcroft, 336 F.3d 678, 680 (8th Cir. 2003)

(stating that “the opinion of the immigration judge is

sufficient to satisfy th[e] requirement” in Chenery Corp. that

“an agency must set out the basis of its decision”).

Dia asserts three other ways in which the AWO violated

his due process right: it denied him “meaningful review”; it

prevented our court from providing meaningful review; and

it was not “fair.” Although Dia does not match these due

process arguments with any of the three-requirements for

due process we outlined in Abdulai, they appear to be

variations on his theme that the issuance of an AWO

denied him of his right to an “individualized determination.”

Regardless of their label, we reject these contentions as

well. 

Dia’s claim that the AWO denied him his so-called “due

process right to meaningful review” lacks substance. Dia

specifically maintains that he has the right to meaningful

review by the BIA. Other than pointing generally to the Due

Process Clause, however, Dia does not identify the source

of this alleged right. We are unaware of any authority

16
supporting a due process right to “meaningful review” by an

administrative appellate body. 

The “right to meaningful review” that Dia alleges is clearly

distinguished from “[t]he fundamental requirement of due

process [that] is the opportunity to be heard at a

meaningful time and in a meaningful manner,” Mathews,

424 U.S. at 333, that we discussed above. The

“meaningfulness” requirement of Mathews pertains to “the

opportunity to be heard” and the “manner” in which one is

heard, not to a review by an administrative appellate body.

Id. Moreover, any recognized right to “meaningful review,”

as we note more fully in the margin, has been confined to

the context of review by federal courts, and not extended to

review by an administrative appellate body.8 See also, e.g.,

Awolesi v. Ashcroft, 341 F.3d 227, 232 (3d Cir. 2003) (“In

order for us to be able to give meaningful review to the

BIA’s decision, we must have some insight into its

reasoning.”); Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d

8. See, e.g., Dickinson v. Zurko, 527 U.S. 150, 162 (1999) (“The APA

requires meaningful review; and its enactment meant stricter judicial

review of agency factfinding than Congress believed some courts had

previously conducted.”); Salve Regina Coll. v. Russell, 499 U.S. 225, 234

(1991) (“Although some might say that this Court has not spoken with

a uniformly clear voice on the issue of deference to a district judge’s

determination of state law, a careful consideration of our cases makes

apparent the duty of appellate courts to provide meaningful review of

such a determination.”); United States v. Mendoza-Lopez, 481 U.S. 828,

837-38 (1987) (stating that “there must be some meaningful review of

[an] administrative proceeding” where a determination made therein will

“play a critical role in the subsequent imposition of a criminal sanction”

and that, “at the very least that where the defects in an administrative

proceeding foreclose judicial review of that proceeding, an alternative

means of obtaining judicial review must be made available . . . .”

(citations omitted)); Int’l Bhd. of Teamsters v. United States, 431 U.S.

324, 376 (1977) (“We observe only that when the court exercises its

discretion in dealing with the problem of laid-off employees in light of the

facts developed at the hearings on remand, it should clearly state its

reasons so that meaningful review may be had on appeal.”); Fein v.

Selective Serv. Sys. Local Bd. No. 7, Yonkers, N.Y., 405 U.S. 365, 380

(1972) (“The rationale is that some statement of reasons is necessary for

‘meaningful’ review of the administrative decision when the registrant’s

claim has met the statutory criteria or has placed him prima facie within

the statutory exemption, and his veracity is the principal issue.”). 

17
Cir. 2003) (“When deficiencies in the BIA’s decision make it

impossible for us to meaningfully review its decision, we

must vacate that decision and remand so that the BIA can

further explain its reasoning.”). Quite clearly, “[a]n alien

has no constitutional right to any administrative appeal at

all,” Albathani, 318 F.3d at 376; see also Guentchev v. INS,

77 F.3d 1036, 1037 (7th Cir. 1996), and, therefore, no

constitutional right to a “meaningful” administrative appeal.

Nor are we persuaded by Dia’s related argument that the

streamlining regulations — or, their “opaque” nature, as

amici describe them — prevent us as a court of appeals

from engaging in a meaningful review of the agency’s

actions. See Simmons v. Beyer, 44 F.3d 1160, 1169 (3d Cir.

1995) (stating that due process requires that a guaranteed

“appellate procedure must furnish the components

necessary for meaningful review”). We cannot agree with

amici’s claim that “the summary affirmance process

impermissibly strips the federal courts of the ability to

properly review critical agency action.” The streamlining

regulations in no way restrict our ability to review the

agency’s denial of relief from removal. An agency, not a

particular administrative appellate body, must set forth the

basis for its order with sufficient specificity to permit

meaningful review by this court. See Albathani, 318 F.3d at

377. Here, as we discuss in the next section, we have no

doubt as to the basis for the agency’s decision as put forth

for review by the BIA. The BIA presents for our review the

reasoning and decision of the IJ as that of the Attorney

General. See Executive Office of Immigration Review: Board

of Immigration Appeals Streamlining, 64 Fed. Reg. at

56,137-38. 

All that is required for our meaningful review is that the

agency — as represented by an opinion of the BIA or IJ —

put forth a sufficiently reasoned opinion. See Mendoza, 327

F.3d at 1289 (“[T]he meaningful review of the INS’s

removability determination is not precluded by the brevity

of the BIA’s summary affirmance decision because an

appellate court ‘will continue to have the IJ’s decision and

the record upon which it is based available for review.’ ”

(quoting Albathani, 318 F.3d at 377)). While in many

instances knowing the BIA’s reasoning might prove helpful

18
to our review, the BIA’s failure to express it does not

amount to a constitutional violation. Neither the

Constitution nor Congress guarantee a de novo review by

the BIA, Abdulai, 239 F.3d at 549 n.3, nor do they

guarantee a right to a fully reasoned opinion by the BIA.

And, as we have noted, we see no constitutional

significance in the fact that an AWO does not necessarily

imply approval of all of the reasoning of the IJ. We are able

to meaningfully review the final determination of the

agency, and, in this context, that is all that due process

requires. 

We are similarly unmoved by Dia’s argument that the

streamlining regulations violate basic due process

requirements of “fairness.” See Bridges v. Wixon, 326 U.S.

135, 154 (1945) (“Meticulous care must be exercised lest

the procedure by which he is deprived of that liberty not

meet the essential standards of fairness.”). We have made

clear that “[w]hen Congress directs an agency to establish

a procedure, . . . it can be assumed that Congress intends

that procedure to be a fair one.” Marincas, 92 F.3d at 203.

What is “fair” within the context of immigration

proceedings, however, need not always measure up to the

requirements of fairness in other contexts, especially

because “[a]liens only have those statutory rights granted

by Congress.” Id.; see also Mathews v. Diaz, 426 U.S. 67,

79-80 (1976) (“In the exercise of its broad power over

naturalization and immigration, Congress regularly makes

rules that would be unacceptable if applied to citizens.”). 

We find nothing “unfair” in a constitutional sense about

the INS’s streamlining procedures. An applicant retains a

full and fair opportunity to make his case to the IJ, and has

a right to review of that decision by the BIA, and then by

a court of appeals. See Guentchev, 77 F.3d at 1038 (“The

combination of a reasoned decision by an administrative

law judge plus review in a United States Court of Appeals

satisfies constitutional requirements.”); cf. Zubeda, 333

F.3d at 480 (“Justice requires that an applicant for asylum

or withholding of deportation be afforded a meaningful

opportunity to establish his or her claim.”); Abdulrahman,

330 F.3d at 596 (stating that an alien threatened with

deportation has a right to a “full and fair hearing”). The fact

19
that the review is done by one member of the BIA and that

the decision is not accompanied by a fully reasoned BIA

decision may be less desirable from the petitioner’s point of

view, but it does not make the process constitutionally

“unfair.” Neither Dia nor amici has provided any reason for

us to conclude otherwise. 

Our dissenting colleagues who disagree on this point

would strike down the regulations, contending that they

alter an established administrative scheme under the INA.

However, upon further scrutiny, it becomes clear that

Judge Stapleton is not really taking issue with the

regulations as a perversion of the statute or even agency

practice, but rather as a violation of principles of judicial

review that we have espoused in our case law.9 Admittedly,

the regulations will cause us to review cases affirmed by

the Board without opinion. But, they do not force us to

venture “through the looking glass” (like Alice in

Wonderland), because we have the IJ’s reasoning and the

record necessary to exercise our function of review. We

have always required that the review process be a

meaningful one, aided by a reasoned opinion from the

agency.10 We do not today cast that principle aside. Rather,

we hold that when the issue before us is the validity of an

agency’s regulations establishing its procedures, unless

they violate Congressional dictates or give rise to a due

process violation, the regulations must stand, especially

where, as here, Congress has specifically delegated the

power to establish procedures by regulation.11

9. While arguing that we should not give Chevron deference to the

streamlining regulations, Judge Stapleton’s reasoning does not really

track Chevron, as he is not decrying the agency’s interpretation of the

law. Rather, he is decrying the agency’s establishment of a process that,

he believes, runs counter to principles of judicial review. This is not a

Chevron analysis. 

10. See Abdulai, 239 F.3d at 555 (“the availability of judicial review

necessarily contemplates something for us to review”). 

11. See Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council,

Inc., 435 U.S. 519, 524-25 (1978) (“[T]his Court has for more than four

decades emphasized that the formulation of procedures was basically to

be left within the discretion of the agencies to which Congress had

confided the responsibility for substantive judgments. In FCC v.

20
Furthermore, Judge Stapleton’s dissent focuses on a

perceived “inability to review” in the abstract, doing a

disservice to, and seemingly ignoring, what we have done

and will continue to do in reviewing, in a meaningful

manner, the cases that come to us from the BIA. When,

after scouring the record, we are still unable to determine

the agency’s reasoning, we have remanded to the BIA for

further explanation.12 In actuality, these regulations do not

prevent us from adhering to the very principles that Judge

Stapleton’s dissent contends are being abandoned. Today

we face no such “inability to review” in this case, as we can

clearly review, and are reviewing, what the agency did

without the aid of the BIA’s particular take on the matter.13

Thus, there is no basis for a blanket declaration of

invalidity, or a declaration that the regulations are invalid

as applied here. 

Accordingly, we hold that the Attorney General’s

implementation of the streamlining regulations and the

BIA’s issuance of an AWO in this case did not violate either

the INA or the Constitution.

II. THE AGENCY’S DENIAL OF RELIEF

We now turn to Dia’s substantive attack on the Attorney

Schreiber, 381 U.S. 279, 290 (1965), the Court explicated this principle,

describing it as ‘an outgrowth of the congressional determination that

administrative agencies and administrators will be familiar with the

industries which they regulate and will be in a better position than the

federal courts or Congress itself to design procedural rules adapted to

the peculiarities of the industry and the tasks of the agency involved.’ ”).

12. See Awolesi, 341 F.3d at 229 (suggesting that “we might scour the

record for supporting evidence” in cases “in which the BIA affirmed the

decision of the IJ without explanation”). 

13. Judge Stapleton points to Ezeagwuna v. Ashcroft, 325 F.3d 396 (3d

Cir. 2002), as a good example of the conundrum we could face, but

there, the BIA had raised and decided the case based on an issue not

relied upon by the IJ. We disagreed with the BIA’s view of the issue, and

actually had to undo what the BIA had done. The BIA’s opinion was a

diversion, not a help, in our reasoning, which, in the end, focused

exclusively on the record and the IJ’s analysis. 

21
General’s denial of his claim for relief from removal. As

outlined above, when the BIA issues an AWO under the

streamlining regulations, we review the IJ’s opinion and

scrutinize its reasoning. Because Dia’s credibility was the

basis on which the IJ rested her decision to deny relief, the

sole issue before us is that credibility determination. In

addressing this issue, we first will detail Dia’s testimony

before the IJ, augmenting it with details from the

administrative record. We then will discuss our standard of

review. Lastly, we will apply that standard of review to the

IJ’s opinion, explaining why we must vacate it.

A. Dia’s Testimony

Dia, an ethnic Fula, was born in Selouma, Dinguiraye,

Guinea. He has had only two years of education, has a

limited ability to read and write, and does not speak

English. He joined the Rassemblement du Peuple de Guineé

(“Rally of the People of Guinea Party” or “RPG”) in 1998, at

the age of twenty-two. His father had been a member of the

RPG before his death in 1997. Dia worked in the field

rallying support for RPG’s imprisoned leader, Alpha Conde

— a member of parliament and a candidate in the 1998

presidential election — and monitored voting polls to help

prevent election fraud. The Country Report for Guinea

assembled by the U.S. Department of State — included in

the administrative record — reveals a country in a state of

turmoil. Guinea’s political system appears “deeply flawed”

and its human rights record even worse. See U.S.

Department of State, 2000 Country Reports on Human

Rights Practices: Guinea (Feb. 2001) (hereinafter “Country

Report”). The Country Report states: 

The Government’s human rights record was poor;

although there were some improvements in a few areas

serious problems remained in others. The

Government’s tight and sometimes partisan control of

the electoral process both in the 1998 presidential

election and the deeply flawed June municipal

elections; its refusal to create an independent electoral

oversight mechanism; and its prohibition of

nongovernmental broadcast media, effectively restricted

citizens’ right to change their government. Major

22
human rights abuses include: Extrajudicial killings;

disappearances; use of torture, beatings and rape by

police and military personnel; and police abuse of

prisoners and detainees. Soldiers, police, and civilian

militia groups killed, beat, and raped citizens, as well

as refugees from Sierra Leone and Liberia. Security

forces used arbitrary arrest and detention. Members of

the security forces committed abuses with impunity.

. . . Violence and societal discrimination against

women, prostitution of young girls, female genital

mutilation (FGM), ethnic discrimination and interethnic

violence, child labor, reports of trafficking of women

and children, and vigilante actions by victims or others

persisted. 

Id. This report is important because the picture it paints

provides a background against which to assess Dia’s

credibility. See Nagi El Moraghy, 331 F.3d at 204 (stating

that State Department reports “provide a context for

assessing the credibility of a petitioner’s case . . . ,

depending on whether or not they corroborate the

petitioner’s tale”); see also Zubeda, 333 F.3d at 477

(“Official as well as unofficial country reports are probative

evidence and can, by themselves, provide sufficient proof to

sustain an alien’s burden under the INA.”). 

Dia testified that the problems that directly affected him

began on November 22, 2000. At that time, he was

approached in his home in Nzerekore, Guinea, by a man

named Bangora, who was the chief of his neighborhood,

and two other men, who asked him to join the Guinean

military to fight Liberian and Sierra Leonean rebels fighting

in Guinea. When Dia refused to join the military, Bangora

and the other men accused Dia of sympathizing with the

rebels. Dia testified that he refused to join the military

because members of the military had killed his father and

he feared they wanted to kill him as well.14 He also testified

that the three men associated the RPG with the rebels,

knew that Dia belonged to the RPG, and “wanted to create

some problems for [him] so that they could accuse [him] of

14. In her opinion, the IJ wrongly stated that the rebels had killed Dia’s

father. 

23
something.” He told the IJ that he believed that Bangora

and the two men knew he would not join them because

members of the RPG, such as Dia, oppose the government

and, thus, refuse to give it aid. 

Later that day, Dia, concerned for his welfare, went to his

uncle’s home outside of town to seek advice. Apparently,

his uncle was not at his home and Dia waited three days

until his uncle finally returned. After the two consulted,

Dia’s uncle agreed to return with Dia to town to talk to

Bangora. When they arrived, Dia discovered his home

burned to the ground.15 Eventually, he found his wife, who

was bruised, and daughter at his in-laws’ home. In

response to questions about her bruises, Dia’s wife told him

that, on November 24, about twenty-five military men had

come to their home searching for Dia, and, upon finding

that Dia was not home and hearing Dia’s wife’s claim not

to know where Dia was, the men beat and raped her and

burned the house. The men told his wife that Dia was

aiding the rebels so that Conde could be released. After

consulting with his wife who pled with him to flee the

country, Dia decided not to talk with Bangora and to flee

from the village, leaving her and their child behind. 

For four months, Dia remained in Guinea, living at the

home of his friend, Abdoulaye Sow.16 Sow eventually made

arrangements for Dia to secure a new Guinean passport

and a U.S. visa with his “friend who was a person who

ma[de] arrangement[s] for people who want to travel.” Dia

gave the man his old passport and six photographs. Dia did

not learn either the man’s name or how the man procured

the documents. The man told Dia to tell U.S. immigration

officials that he went to work in Italy as a “tomato picker”

and was on his way to Honduras to work on a ship. The

man gave Dia a new Guinean passport, a U.S. visa, “a letter

packet” ostensibly supporting the story that he worked in

Italy, and an airline ticket. Dia paid the man 2 million

Guinean francs (about $1000 U.S.). Dia also secured the

services of a Guinean policeman to help him pass through

15. It is not clear whether all or only part of his home was destroyed. 

16. Sow is referred to as “Ableso” in the hearing transcript. 

24
the police roadblocks. Dia paid that officer 300,000

Guinean francs (about $150 U.S.). 

Upon his arrival in the U.S., Dia attempted to enter the

country using the story that the smuggler recommended.

The INS official, noticing that Dia did not have a ticket to

go to Honduras, did not believe his story. The INS then

sought to remove Dia. Dia conceded removability, but

sought relief from deportation based on asylum,

withholding of removal, and relief under the CAT. Dia was

twenty-six years old at the time of his hearing before the IJ.

Represented by counsel, and speaking in Fulani through an

interpreter, he testified at the hearing and called a

handwriting expert to support his story that the visa and

passport did not contain his handwriting. The IJ issued a

written opinion, denying relief because she found that Dia

was not credible. As mentioned, the BIA, through a single

member of the Board, affirmed without opinion pursuant to

8 C.F.R. § 3.1(a)(7) (2002). 

B. Burden and Standard of Review

An alien has the burden of supporting his claim for relief

from removal. An alien’s credibility, by itself, may satisfy

his burden, or doom his claim. Gao, 299 F.3d at 272

(“Aliens have the burden of supporting their asylum claims

through credible testimony. Testimony, by itself, is

sufficient to meet this burden, if ‘credible.’ ” (quoting

8 C.F.R. § 208.13(a)) (citation omitted)); see also Mulanga v.

Ashcroft, 2003 WL 22683042, at *7 (3d Cir. Nov. 14, 2003)

(stating that an applicant’s credible testimony “may be

sufficient to sustain the burden of proof without

corroboration”). The IJ here concluded that Dia was not

credible based on “the inconsistencies in Dia’s testimony

and its overall implausibility.” This adverse credibility

determination — fatal to Dia’s claim — was a finding of

fact. See Gao, 299 F.3d at 272; see also Mulanga, 2003 WL

22683042, at *6; Secaida-Rosales v. INS, 331 F.3d 297, 307

(2d Cir. 2003) (“Generally, courts have treated credibility

questions in deportation proceedings as questions of fact

. . . .”). 

We review the agency’s findings of fact under the

standard found in the Illegal Immigration Reform and

25
Immigrant Responsibility Act of 1996, Pub. L. No. 104-208,

div. C, 110 Stat. 3009 (enacted April 1, 1997) (IIRIRA or

“Reform and Responsibility Act”), which provides: 

[T]he administrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled

to conclude to the contrary. 

8 U.S.C. § 1252(b)(4)(B). 

Since the enactment of the Reform and Responsibility

Act, various courts of appeals, including our court, have

read this standard to require that the agency support its

findings with substantial evidence, as articulated by the

Supreme Court in INS v. Elias-Zacarias, 502 U.S. 478, 481-

84 (1992).17 There, the Court framed the standard as

follows: 

The BIA’s determination that Elias-Zacarias was not

eligible for asylum must be upheld if “supported by

reasonable, substantial, and probative evidence on the

record considered as a whole.” 8 U.S.C. § 1105a(a)(4).

It can be reversed only if the evidence presented by

Elias-Zacarias was such that a reasonable factfinder

would have to conclude that the requisite fear of

persecution existed. NLRB v. Columbian Enameling &

Stamping Co., 306 U.S. 292, 300 (1939). 

Id. at 481. And, in the case relied upon by the Court in

Elias-Zacarias for that principle, the Court stated: 

17. See, e.g., Alvarez Santos v. INS, 332 F.3d 1245, 1254 (9th Cir. 2003)

(citing Elias-Zacarias, 502 U.S. at 481, for the proposition that the court

must “uphold the BIA’s decisions if they are supported by reasonable,

substantial and probative evidence in the record”); Albathani, 318 F.3d

at 372 (same); Nyirenda v. INS, 279 F.3d 620, 623 (8th Cir. 2002)

(same); Mansour v. INS, 230 F.3d 902, 905 (7th Cir. 2000) (same); see

also Lukwago v. Ashcroft, 329 F.3d 157, 167 (3d Cir. 2003); Amanfi v.

Ashcroft, 328 F.3d 719, 724-25 (3d Cir. 2003); Rivera-Jimenez v. INS,

214 F.3d 1213, 1216 n.4 (10th Cir. 2000) (“[N]o federal court has held

that this statutory provision modifies the substantial evidence standard

previously applied.”). For its part, the Supreme Court has continued to

refer to the standard of review language from Elias-Zacarias, in spite of

the modified description of the standard in the subsequently-enacted

IIRIRA. See INS v. Ventura, 537 U.S. 12, 15 (2002) (quoting EliasZacarias, 502 U.S. at 481 n.1). 

26
Substantial evidence is more than a scintilla, and must

do more than create a suspicion of the existence of the

fact to be established. “It means such relevant evidence

as a reasonable mind might accept as adequate to

support a conclusion,” . . . and it must be enough to

justify, if the trial were to a jury, a refusal to direct a

verdict when the conclusion sought to be drawn from

it is one of fact for the jury. 

Columbian Enameling & Stamping Co., 306 U.S. at 300

(citation omitted). 

Our court has explicitly stated that “[t]he Reform and

Responsibility Act codifies the language the Supreme Court

used in Elias-Zacarias to describe the substantial evidence

standard in immigration cases.”

18 Sevoian v. Ashcroft, 290

18. In response to our request for their views on the matter, the parties

and amici, in their submissions to the en banc court, stated that they

agree with our view that § 1252(b)(4)(B) codified Elias-Zacarias. Scholars

have agreed with this view as well. See 8 Gordon, Mailman, & YaleLoehr, Immigration Law and Procedure, § 104.13 (stating that

§ 1252(b)(4)(B) “essentially codified the standard set forth in INS v. EliasZacarias and should have little practical consequence”); Lenni B.

Benson, The New World of Judicial Review of Removal Orders, 12 Geo.

Immigr. L.J. 233, 239 (1998) (concluding that the standard currently set

forth in § 1252(b)(4)(B) is “simply a new way of saying the same thing

Congress wrote in former INA § 106 [8 U.S.C. § 1105(a)(a)(4)]”); see also

Pamela Goldberg, Analytical Approaches in Search of Consistent

Application: a Comparative Analysis of the Second Circuit Decisions

Addressing Gender in the Asylum Law Context, 66 Brook. L. Rev. 309,

317 n.66 (2000) (“As in the pre-1996 law, this standard [§ 1252(b)(4)(B)]

has been construed to mean that the circuit court must examine the

record to determine whether the conclusions reached by the agency are

supported by substantial evidence.”). While the fact that the current

version of the standard does not contain a reference to substantial

evidence (as did the previous version) is curious, we will not read into

this omission a substantive change in this well-established standard. See

Dewsnup v. Timm, 502 U.S. 410, 419-20 (1992) (refusing “to effect a

major change in pre-Code practice that is not the subject of at least

some discussion in the legislative history”); see also United Sav. Ass’n of

Tex. v. Timbers of Linwood Forest Assocs., Ltd., 484 U.S. 365, 380 (1988)

(“a major change in the existing rules would not likely have been made

without specific provision in the text of the statute, . . . it is most

improbable that it would have been made without even any mention in

the legislative history.”). 

27
F.3d 166, 171 (3d Cir. 2002). The substantial evidence

standard has historically been, and continues to be, the

standard governing the relationship between administrative

agencies and courts of review.19

The application of the substantial evidence standard is

well-established. See, e.g., Allentown Mack Sales & Serv.,

Inc. v. NLRB, 522 U.S. 359, 366-67 (1998) (indicating that

the substantial evidence test requires court to decide

“whether on this record it would have been possible for a

reasonable jury to reach the Board’s conclusion”); FTC v.

Indiana Fed’n of Dentists, 476 U.S. 447, 545 (1986) (noting

that the substantial evidence test requires court to “accept

Commission’s findings of fact if they are supported by ‘such

relevant evidence as a reasonable mind might accept as

adequate to support a conclusion’ ”). Thus, the question

whether an agency determination is supported by

substantial evidence is the same as the question whether a

reasonable fact finder could make such a determination

based upon the administrative record. If a reasonable fact

finder could make a particular finding on the administrative

record, then the finding is supported by substantial

evidence. Conversely, if no reasonable fact finder could

make that finding on the administrative record, the finding

is not supported by substantial evidence. 

Thus, where we review an IJ’s credibility determination,

we must ask whether the determination is supported by

evidence that a reasonable mind would find adequate. We

19. Indeed, the history of the standard in the administrative context is

evident from the Supreme Court’s citation in Elias-Zacarias to Columbian

Enameling & Stamping Co., 306 U.S. at 300, which predated EliasZacarias by over fifty years. See 502 U.S. at 481. In addition, the

substantial evidence standard itself has a long history of application to

our review of administrative proceedings under the INA. See 75 Stat. 651

(1961); see also 8 U.S.C. § 1229a(c)(3)(A) (2003) (“[N]o decision of

deportability shall be valid unless it is based upon reasonable,

substantial, and probative evidence.”); 66 Stat. 210 (1952) (same); 8

U.S.C. § 1252(b)(7) (2003) (setting forth the substantial evidence

standard for district court review of a defendant’s claim of nationality as

a challenge to an order of removal stemming from a violation of 8 U.S.C.

§ 1253(a)). See generally Woodby v. INS, 385 U.S. 276, 281-82 (1966)

(discussing the standard of judicial review then found in the INA). 

28
look at an adverse credibility determination to ensure that

it was “appropriately based on inconsistent statements,

contradictory evidences, and inherently improbable

testimony . . . in view of the background evidence on

country conditions.” In re S-M-J- (Interim Decision), 21 I. &

N. Dec. 722 (BIA 1997). Where an IJ bases an adverse

credibility determination in part on “implausibility” as the

IJ did here, such a conclusion will be properly grounded in

the record only if it is made against the background of the

general country conditions. See Gao, 299 F.3d at 278-79;

see also He v. Ashcroft, 328 F.3d 593, 603 (9th Cir. 2003).

Therefore, “[w]hile we defer to the IJ on credibility

questions, that deference is expressly conditioned on

support in the record,” Nagi El Moraghy, 331 F.3d at 205,

and “[d]eference is not due where findings and conclusions

are based on inferences or presumptions that are not

reasonably grounded in the record.” Id. at 202 (citation and

internal quotation marks omitted); see also Abdulrahman,

330 F.3d at 597 (stating that “substantial deference” to a

finding is to be “afforded . . . where it is grounded in

evidence in the record”). To this end, it is clear that

“[a]dverse credibility determinations based on speculation

or conjecture, rather than on evidence in the record, are

reversible,” Gao, 299 F.3d at 272, and that an IJ must

support her adverse credibility findings with “specific[,]

cogent reasons.” Id. at 276; Abdulrahman, 330 F.3d at 597;

see also Secaida-Rosales, 331 F.3d at 307 (“When an IJ

rejects an applicant’s testimony, the IJ must provide

‘specific, cogent’ reasons for doing so.”); He, 328 F.3d at

595 (“[T]he IJ and BIA must offer a ‘specific, cogent reason

for any stated disbelief.’ ” (quoting Hartooni v. INS, 21 F.3d

336, 342 (9th Cir. 1994))). 

If the IJ’s conclusion is not based on a specific, cogent

reason, but, instead, is based on speculation, conjecture, or

an otherwise unsupported personal opinion, we will not

uphold it because it will not have been supported by such

relevant evidence as a reasonable mind would find

adequate. In other words, it will not have been supported

by substantial evidence. Guided by this examination of our

principles of deference regarding an IJ’s credibility

determination, we conclude that the IJ’s determination here

fails this test.

29
C. The Immigration Judge’s Decision

The IJ rejected numerous aspects of Dia’s testimony, as

well as the entire testimony of Dia’s expert handwriting

witness. For purposes of our analysis, we will divide the

testimony rejected by the IJ into three areas: past

persecution, the circumstances surrounding Dia’s

procurement of a passport and visa, and future

persecution. Dia insists that the IJ’s findings of fact

underpinning the adverse credibility determination as to

each of these categories of testimony are not supported by

evidence in the record, and are not otherwise sufficient to

support the conclusions reached by the IJ.20 We must,

therefore, examine the IJ’s analysis and reasons put forth

in order to determine whether she based the adverse

credibility determination on substantial evidence. Doing so,

we find that the IJ’s conclusions do not flow in a reasoned

way from the evidence of record and are, at times, arbitrary

and conjectural in nature. Repeatedly, we are left

wondering how the IJ reached the conclusions she has

drawn. Her opinion consists not of the normal drawing of

intuitive inferences from a set of facts, but, rather, of a

progression of flawed sound bites that gives the impression

that she was looking for ways to find fault with Dia’s

testimony. 

Accordingly, we find that the IJ’s adverse credibility

determination is not supported by substantial evidence in

the administrative record, and we will remand for the IJ to

either state, or seek, the necessary foundation to augment

her opinion.

Before reviewing the specific aspects of the IJ’s ruling

that we find troubling, however, it is appropriate that we

note our agreement with the view expressed by Judge Alito

that asylum cases are difficult ones — for us, as well as for

immigration judges. And, as Judge Alito points out, some

leeway must be given to the administrative arbiters to draw

inferences based on common sense and logic as well as on

20. Dia bears the burden of establishing eligibility for relief from removal.

8 C.F.R. § 208.13 (regarding asylum); Mendoza, 327 F.3d at 1287

(regarding withholding of removal); 8 C.F.R. § 208.16 (regarding the

CAT). 

30
personal experience and background knowledge gained

from exposure to certain situations. 

However, perhaps because of the difficult nature of these

types of cases, and the critical importance of resolving them

properly — for the stakes are very high indeed — the

soundness of the basis of the decision making, even if

experiential or logical in nature, must be apparent. The

process of drawing inferences cannot be left to whim, but

must withstand scrutiny.21

Here, we are presented with a unique setting in which, as

we will catalog, the inferences drawn and conclusions

reached are in some instances non sequiturs, and in

others, counterintuitive. The flow of the reasoning process

appears to break down as the IJ, repeatedly, draws an

unreasonable conclusion from a fact susceptible to differing

interpretations. Numerous such instances do not, as the

dissent suggests, add up to a totality of circumstances that

supports a finding that Dia’s testimony was not credible.

Rather, they are an aggregation of empty rationales that

devolve into an unsupported finding of adverse credibility.

Moreover, rather than standing our standard “on its head,”

as the dissent suggests, our appropriate insistence on

“substantial evidence” upholds that standard by requiring

that there be a sound basis — whether supplied by the

record evidence or by background knowledge — to support

the IJ’s findings.22

21. We also agree with Judge Alito that an IJ is free to assess

plausibility. Yet the very law review article that he uses to support the

permissibility of drawing inferences is skeptical of plausibility, noting

that it is “a highly uncertain standard. ‘Sure, that makes sense’ . . . [is]

hardly [a] reaction[ ] by which a complex patchwork of past events may

be stitched together with confidence.” H. Richard Uviller, Credence,

Character, and the Rules of Evidence: Seeing Through the Liar’s Tale,

42 Duke L.J. 776, 784 (1993). This skepticism surely applies when the

reaction is “that doesn’t make sense.” We must be vigilant to ensure that

when an IJ’s conclusion is based on the implausibility of testimony, the

IJ provides at least some insight into why he or she finds that testimony

implausible. 

22. Judge Alito makes no reference to the need for “substantial

evidence,” but, instead, applies the “no reasonable adjudicator” standard

31
Here, the conclusions of the IJ are more puzzling than

plausible, more curious than commonsense. Judge Alito

suggests that if we refuse to defer to the IJ’s reasoning

here, we would gut the substantial evidence standard. To

the contrary, we suggest that to require sound reasoning

breathes life into that standard. 

We do not, as Judge Alito implies, conclude that the IJ

was bound to find Dia credible. Rather, we recognize the

possibility that the IJ’s conclusions might ultimately be the

correct ones. However, we cannot affirm the IJ’s findings

and conclusions on the record presented to us, as the

reasons she does provide in support of her decision do not

logically flow from the facts she considered. Accordingly, we

conclude that the best course is to remand for further

explanation by the IJ as to the basis for her various

conclusions. 

1. Past Persecution

We first address the various parts of Dia’s testimony

regarding past persecution that the IJ rejected. We begin

with a statement made by the IJ that foretells many of the

errors that also infect other parts of her opinion: the IJ’s

rejection of Dia’s testimony that, in her words, “members of

the Guinean police are actively looking for him.” The IJ

rejected this testimony as not credible for two reasons: “this

conclusion . . . is, in fact, contrary to the evidence in the

to restrict our review of the IJ’s adverse credibility determination to the

situation in which all reasonable adjudicators would affirmatively find

Dia to be credible. We have not applied the statutory standard in this

manner. See Mulanga, 2003 WL 22683042, at *10-*12 (finding

alternative plausible explanations for “inconsistencies” in an applicant’s

testimony where the IJ did not “articulate a foundation for her disbelief,”

and rejecting the IJ’s credibility determination as not supported by

substantial evidence); Gao, 299 F.3d at 272-73 (indicating that while the

substantial evidence standard is highly deferential, we may reverse

where adverse credibility determinations appear to be based on

speculation, conjecture, or minor inconsistencies alone). We suggest that

to read the “no reasonable adjudicator” standard in a way that does

away with the need for “substantial evidence” not only guts the statutory

standard, but ignores our precedent. 

32
Record of Proceedings”; and “this conclusion [was] not

supported by any documentation in the Record of

Proceedings.” On examination, these reasons for rejecting

Dia’s testimony are patently inadequate. 

The IJ’s conclusion that Dia’s testimony that “members of

the Guinean police are actively looking for him . . . [was]

contrary to the evidence in the Record of Proceedings” is

based on a misreading of Dia’s testimony. Dia did not

testify that the police were after him, but, rather that the

military was after him. Even assuming that the IJ

concluded that the police in Guinea necessarily would be

looking for a man wanted by the military, there is nothing

in the record, nor any reasoning set forth by the IJ in her

opinion, to support that conclusion. In fact, the Country

Report depicts a country where the military, as well as the

civilian militias, act independently from the formal

government. 

Even more troubling is the fact that, considering the

testimony as the IJ presented it — i.e., that the police were

after Dia — the IJ’s rejection of this testimony still is not

explained, nor does it have any basis in the record. The IJ

stated, rhetorically, that she “question[ed] how [Dia] was

able to procure a police stamp if he was actively being

sought by the police.” But Dia explained how. He testified

that a policeman helped him bypass the police and that

Sow’s friend had procured the police stamp. The IJ

dismissed this testimony as “unconvincing,” but failed to

say why or point to any evidence that contradicted this

testimony. Absent a reason such as implausibility or

inconsistency based in the record, or that Dia’s demeanor

in some way led her to question his veracity, the IJ should

not have summarily dismissed Dia’s testimony on this point.23

23. We note that the IJ did not rely on her personal observations of Dia’s

demeanor or any other observations to which we must accord an even

greater degree of deference. See Aguilar-Solis v. INS, 168 F.3d 565, 570-

71 (1st Cir. 1999) (“[A] witness’s demeanor is often a critical factor in

determining his veracity.”); In re A- S- (Interim Decision), 21 I. & N. Dec.

1106 (BIA 1998) (stating that, since an Immigration Judge is in the

unique position to observe the testimony of an alien, a credibility finding

which is supported by a reasonable adverse inference drawn from an

alien’s demeanor generally should be accorded a high degree of

deference, especially where such inference is supported by specific and

cogent reasons for doubting the veracity of the substance of the alien’s

testimony), cited in Rusu v. INS, 296 F.3d 316, 323 (4th Cir. 2002). 

33
We are perplexed by the IJ’s rejection of Dia’s explanation

that a Guinean policeman helped him cross the police

border for 300,000 Guinean francs (about $150). The IJ

stated that she “question[ed] why this policeman would risk

his reputation, not to mention, his life, to assist the

respondent, a wanted political opponent, evade detection by

the police . . . for the equivalent of $150 United States

Dollars.” This conclusion is not explained, and appears to

be pure conjecture. It is not only not based on the record,

but, in fact, it contravenes key parts of it. The Country

Report confirms that Guinean police extort money from

citizens at road blocks and that corruption at road

checkpoints is widespread and “systematic.” In addition,

figures contained in the record show that $150 U.S. is

nearly a quarter of the per capita GDP in Guinea for 1999,

a sum likely tempting to a policeman in a poor country

replete with corruption within its police force. 

As for the IJ’s reference to a lack of “supporting

documentation” in the record that “members of the

Guinean police are actively looking for” Dia, the IJ failed to

explain what type of “documentation in the Record” she

expected or required. We cannot imagine how Dia could

have provided documentary support for the fact that the

military (or the police as the IJ stated) was after him. At

most, an applicant must provide corroborating evidence

only when it would be reasonably expected. See In re S-M-J-

(Interim Decision), 21 I. & N. Dec. 722 (BIA 1997). As we

have cautioned: 

It is obvious that one who escapes persecution in his

or her own land will rarely be in a position to bring

documentary evidence or other kinds of corroboration

to support a subsequent claim for asylum. It is equally

obvious that one who flees torture at home will rarely

have the foresight or means to do so in a manner that

will enhance the chance of prevailing in a subsequent

court battle in a foreign land. Common sense

establishes that it is escape and flight, not litigation

and corroboration, that is foremost in the mind of an

alien who comes to these shores fleeing detention,

torture and persecution. Accordingly, corroboration is

not required to establish credibility. The law allows one

34
seeking refugee status to “prove his persecution claim

with his own testimony if it is credible.” 

Senathirajah v. INS, 157 F.3d 210, 215-16 (3d Cir. 1998)

(quoting Mosa v. Rogers, 89 F.3d 601, 604 (9th Cir. 1996)).

Dia was not in a position to corroborate his testimony in

this regard. See Qui v. Ashcroft, 329 F.3d 140, 153-54 (2d

Cir. 2003) (“Unless the BIA anchors its demands for

corroboration to evidence which indicates what the

petitioner can reasonably be expected to provide, there is a

serious risk that unreasonable demands will inadvertently

be made . . . . What is (subjectively) natural to demand may

not . . . be (objectively) reasonable.”). 

In any event, the IJ failed to acknowledge, let alone

adhere to, the parameters that we have adopted regarding

such corroboration. In Abdulai, we recognized that, under

certain circumstances, the BIA may require corroboration,

and we found the three-part inquiry that the BIA has

developed in this respect to be consistent with the INA.

According to this inquiry, we require the following from an

IJ: “(1) an identification of the facts for which ‘it is

reasonable to expect corroboration;’ (2) an inquiry as to

whether the applicant has provided information

corroborating the relevant facts; and, if he or she has not,

(3) an analysis of whether the applicant has adequately

explained his or her failure to do so.” Abdulai, 239 F.3d at

554 (quoting In re S-M-J-, 21 I. & N. at 725). Here, the IJ

failed to analyze whether Dia adequately explained his

failure to present corroborating evidence. 

In fact, it appears that the IJ actively discouraged — if

she did not indeed prohibit — Dia from presenting such

evidence. At one of the hearings, Dia’s counsel told the IJ

that Dia had been “trying to contact friends or family to

substantiate his case. And over the weekend, a friend of his

faxed a letter to [counsel’s] office, which [counsel] had only

obtained on Monday and [ ] had to get translated.” The IJ

then marked it for “identification purposes only.” At the end

of that hearing, the IJ made clear that she was skeptical of

Dia’s claims and “need[ed] more information.” But, when

Dia’s counsel stated that he understood and noted that he

was “somewhat encouraged that over the weekend, [he was]

able to make contact with this friend who sent the fax,” the

35
IJ remarkably stated: “I’m not interested about the friend.

These friends any more . . . . I’m not going to give any

credence whatever any ‘friend’ has to say about it.” She

further made clear that her only concern after the hearing

was the authenticity of Dia’s passport and visa, and asked

the Government to provide that information. Thus, the IJ

expressed a desire for corroboration (i.e., “supporting

documentation”), then discouraged Dia from providing it,

only to criticize and penalize Dia for not providing it. Such

arbitrariness necessarily undermines the IJ’s reasoning. 

In a recent case involving similar issues, we opined that

an IJ’s adverse credibility determination does not pass

muster under the substantial evidence rubric when it is not

supported by an adequate explanation of the IJ’s reasoning.

In Mulanga, 2003 WL 22683042, at *1, we encountered and

criticized the very same type of analysis that we find

problematic here. There, the IJ: 1) faulted the petitioner’s

failure to provide corroboration in a situation in which that

failure seemed quite reasonable; 2) found the petitioner’s

account — which we found plausible in light of State

Department reports — to lack “common sense,” without

further explanation; and, 3) dissuaded the petitioner from

producing evidence, the lack of which was later criticized.

Id. at *9-*11. There, too, we found a lack of substantial

evidence to support the adverse credibility determination,

and concluded that the order should be vacated and the

matter remanded for further proceedings. Id. at *12. 

An even more significant aspect of Dia’s testimony

rejected by the IJ was his report that twenty-five members

of the military went to his home to find him, and, upon

realizing that Dia was not there, beat and raped his wife.

One reason the IJ gave for discrediting this story was that

Dia did not present any evidence that the men who did this

were from the military, other than hearsay of his wife. We

have two problems with this reasoning. The first is that the

IJ again failed to engage in the three-pronged analysis we

require when an IJ expects documentary evidence or

corroboration, discussed above. The second is that,

“[t]hough the hearsay nature of evidence certainly affects

the weight it is accorded, it does not affect its admissibility

in immigration [removal proceedings].” Kiareldeen v.

36
Ashcroft, 273 F.3d 542, 549 (3d Cir. 2001); cf. Ezeagwuna

v. Ashcroft, 325 F.3d 396, 406 (3d Cir. 2003) (referring to

a letter as “multiple hearsay of the most troubling kind”).

By matter-of-factly dismissing the evidence as “hearsay,”

the IJ failed to explain why it should be accorded no

weight. We submit that such seemingly reliable hearsay

evidence should not be rejected in such a perfunctory

manner. 

The other reasons that the IJ proffered for rejecting this

testimony are similarly based on unsustainable grounds,

namely, pure conjecture. The IJ “question[ed] why so many

men would go to the respondent’s home searching for him,”

and stated that “[i]t seems, to th[e] Court, [ ] an unusually

large number for that purpose.” The IJ also noted that Dia

gave no explanation why the men raped his wife and stated

that “[i]t seems unlikely to th[e] Court that men who were

looking for the respondent would attack his wife.” The basis

for the IJ’s having “questioned” this testimony is not

explained, and appears speculative at best. Why would the

IJ expect Dia to know why such a large group of men were

seeking him or why they raped his wife? Twenty-five was an

“unusually large number” — compared to what, or based

on what? Without some explanation we are hard-pressed to

understand why the IJ would find it so difficult to believe

that a group of about twenty-five men would have come to

Dia’s home. Not only does this account seem consistent

with common accounts of the practice of armed groups in

war-torn countries, but the record contains documentary

evidence confirming that police and civilian militias —

groups of roving bands in large numbers — rape and attack

suspected rebel supporters, as well as civilians, often

burning and looting in the process. On what basis did the

IJ determine that these aspects of Dia’s account were

“unlikely”? Again, we are left wondering. 

We also conclude that the IJ unreasonably penalized Dia

for presenting “no explanation as to why these men would

beat and rape his wife.” Dia testified that his wife told him

that they were military and that they were looking for him

because he supported the rebels. He showed a temporal

proximity between Bangora’s visit to his home and the

raping of his wife. He also testified that Bangora knew of

37
his affiliation with the RPG. So, Dia did, in fact, present

some testimony as to why the men came to his home. It

seems reasonable for Dia to believe that the militia

consisted of government soldiers or was sent by the

government. Yet, the IJ rejected this account without

explanation. It can hardly be said that Dia had an

obligation to investigate further the specific identity of the

men who he claims raped his wife and burned his home.

How could he have known this? Would not any explanation

he might offer be criticized by the IJ as a fabrication, since

surely they would not have shared their motivation with

him? There is no authority that would require Dia to

present direct evidence of the men’s motives; rather,

circumstantial evidence was sufficient. See Elias-Zacarias,

502 U.S. at 483; Navas v. INS, 217 F.3d 646, 659 n.18 (9th

Cir. 2000) (“Where police beat and threaten the spouse of a

known dissident, it is logical, in the absence of evidence

pointing to another motive, to conclude that they did so

because of the spouse’s presumed guilt by association.”). As

a result, the IJ’s conclusion in this regard, too, was

unsupported either in the record or by a commonsense

explanation. 

The IJ’s disbelief of Dia’s testimony that his wife urged

him to flee the country without her also lacked foundation

in any logical reasoning or any support in the record, and

thus seems to demonstrate more speculation and

arbitrariness on the part of the IJ. Dia testified that “[his]

wife told [him] if he would really like to see her again, next

time in the future, that the best thing was for [him] to try

to just flee and try to find a place. And [he] decided to leave

her with her family members.” The IJ stated that she found

“it highly unlikely that a woman, who allegedly had just

been beaten and raped, would urge her husband to leave

her and not suggest that she accompany him out of the

country.” Why? The IJ also stated that “it appears unlikely

that a man whose wife has just been beaten and raped by

military personnel would not suggest that they flee the

country together.” Why? We can think of any number of

reasons why Dia’s wife might have urged him to leave

without her.24 The IJ failed to share any basis for her

24. For example, Dia and his wife may have determined that he could

move more quickly and elude detection more easily if he was traveling

38
conclusions and, without proper support, we cannot help

but view them as not constituting substantial evidence.25

2. Procurement of a Passport and Visa

The second general aspect of Dia’s story that the IJ

rejected dealt with the circumstances surrounding his

procurement of a passport and visa. The reasons put forth

as support for the rejection, however, do not, again, satisfy

the test for substantial evidence. 

First, the IJ expressed incredulity that “a man” — i.e.,

Sow’s friend, the “smuggler” — procured a new passport

and a U.S. visa for Dia. Essentially, she concluded that the

man did not exist because she found it unbelievable that

Dia did not know the identity of a man who helped him

leave the country and to whom he “paid a large sum of

money.” In fact, during the hearing she went so far as to

dismiss Sow’s friend out of hand as an “imaginary person.”

But she did so without inquiry into this aspect of Dia’s

alone, not burdened by having to care for a wife and daughter, and that

once he was safely out of the country, he could arrange for them to join

him. Perhaps the Dias were motivated by concern for their young child,

believing that it was in their daughter’s best interest that she and her

mother remain at a relative’s home rather than go on the run with her

father. Maybe the injuries Dia’s wife sustained during her assault made

it impossible for her to travel, and the knowledge that her husband was

on his way to safety was more important to her than having him risk his

life to stay with her. It is also possible that Dia simply feared so much

for his own life that he was willing to abandon his family. The IJ rejected

Dia’s testimony without indicating any consideration of these equally

likely scenarios. 

25. The Attorney General states that “one inconsistency looms large over

the record. Dia testified that when he returned to his home after visiting

his uncle, he discovered that his home had been burned, yet when he

saw his wife, she does not tell him that their home had been burned

along with her alleged report to him that she had been raped and

beaten.” The IJ, however, never mentioned this alleged inconsistency;

thus, it is not support for the IJ’s credibility determination. See Chenery,

318 U.S. at 95 (“We merely hold that an administrative order cannot be

upheld unless the grounds upon which the agency acted in exercising its

powers were those upon which its action can be sustained.”). 

39
story, and, in her written opinion, she failed to articulate

why she considered it so unbelievable. What is more, as

mentioned earlier, she inconsistently asked for more

information about how Dia got the passport and visa, but

stated that Dia could not provide any supporting evidence

from any more “friends.” As it is presented in her opinion,

then, the dismissal of this aspect of Dia’s testimony

constitutes conjecture as to how the IJ believed Dia should

have acted. But it seems highly unreasonable for the IJ,

without inquiry into the underlying reasons, to assume that

Dia would have, without fail, learned Sow’s friend’s name,

given that Sow was his friend and that it was Sow, not Dia,

who dealt with the smuggler.26 Why would someone in Dia’s

position care about the smuggler’s name? 

The IJ also inappropriately rejected Dia’s testimony that

he had never been to Italy. Dia testified that he was told by

Sow’s friend who procured his passport to say that he was

a tomato picker in Italy on his way to Honduras, and that

he told this story to the immigration officer at the airport.

In rejecting Dia’s testimony that he had never been to Italy,

the IJ listed a litany of reasons: the U.S. visa in Dia’s

passport was issued in Italy; the visa and passport are

“valid”; Dia’s non-immigrant visa contains a signature of

“Saidou Dia”; an INS memo to file, derived from an airport

interview, states that Dia was a “tomato picker” in Italy; the

“tomato picker” lie does not make sense because the fact

that he was a tomato picker in Italy was “not beneficial to

him as far as his intention to remain in the U.S”; Dia

possessed employment documents from Houcon Cargo

Shipping Company addressed to “Dia’s” address in Italy;

Dia’s alleged ignorance as to how these documents came to

be (and explanation that the smuggler got them for him)

was unbelievable; and because she “question[ed] how this

[shipping] company would know of an address of the

respondent in Italy unless the respondent provided an

Italian address to them.”

26. Perhaps most importantly, we fail to see why the IJ placed any

emphasis on this particular aspect of Dia’s testimony. The name of Sow’s

friend did not at all pertain to Dia’s claim for relief from removal and

Dia’s testimony on this point seemed consistent. 

40
The problems with these “reasons” are manifold. As Dia

points out, the testimony and reports regarding the

passport and visa bore out the fact that the passport and

visa given him were “genuine” and seemingly issued in

Italy, but not that they were necessarily legitimately

obtained or even obtained by Dia. Dia explained

consistently how he came into possession of the “genuine”

documents and why he told the INS officials that he was a

tomato picker on his way to Honduras. Dia also points out

that, as discussed below, he presented an expert witness

who gave unrebutted testimony that the handwriting on the

documents was not Dia’s. As for the letter from the

shipping company, a purported address for Dia certainly

does not render it authentic. The existence of the address

on the letter does not mean that the address exists or that

the letter was ever mailed, or even that the cargo company

existed. In fact, to conclude that because the documents

listed an Italian address, therefore the shipping company

actually knew of Dia’s address in Italy, strikes us as

bizarre. Dia testified that he got the documents from the

smuggler and, thus, that they were totally fraudulent. The

record contains no evidence contradictory to this story, and

the IJ does not explain why it was not plausible. 

Basically, the IJ seemed confused by the fact that the

documents that Sow’s friend procured for Dia could be so

good that the documents appeared genuine and that the

supporting documentation would support Dia’s Italy story.

The only evidence in the record that the IJ used to support

her conclusion was the INS memo regarding the airport

interview, which states that “[h]is last employment appears

to be as a Tomato picker while living illegally in Italy.” But,

if we are to rely on this memo, assuming it was probative,

we must do so with care. 

First, we are generally skeptical of reliance on reports of

airport interviews. In Balasubramanrim v. INS, we stated

that the airport interview is usually not “valid grounds

upon which to base a finding that an applicant is not

credible.” 143 F.3d 157, 164 (3d Cir. 1998) (citation and

internal quotation marks omitted). We noted: 

We do not know how the interview was conducted or

how the document was prepared. We do not know

41
whether the questions and answers were recorded

verbatim, summarized, or paraphrased. We cannot tell

from the document the extent to which [the petitioner]

had difficulty comprehending the questions, whether

questions had to be repeated, or when and how sign

language was used. Nor does the document reveal

whether [the petitioner’s] responses actually

correspond to those recorded or whether the examiner

recorded some distilled or summary version based on

his best estimation of the response. 

Id. at 162; see also Mulanga, 2003 WL 22683042, at *11

(refusing to rely too heavily on the content of an airport

interview and noting that “immaterial discrepancies

between airport interviews and subsequent testimony

should not be used to make adverse credibility

determinations”); Zubeda, 333 F.3d at 477 (stating that

“[c]aution is required” when considering what weight to give

even to an asylum affidavit); Senathirajah, 157 F.3d at 216

(warning against placing too much reliance on an airport

interview). Here, too, there does not appear to be any such

information. In fact, it appears that much of the memo

memorializes information not taken under oath, including

the “tomato picker” story, and that the IJ completely

disregarded the INS official’s expressed lack of certainty, as

evidenced by his use of “appears.” And, the INS official

noted that the information not taken under oath came forth

during a conversation in French, a language the official

noted Dia was only “able to converse somewhat in,” and

that Dia “asked for a Malinge interpreter for the sworn

statement.” AR237. But even more important is the fact

that, even if we take the information from the airport

interview as accurate, it does not contradict Dia’s story, but

is, in fact, consistent with it. Dia explained that the

smuggler told him a story to present to the immigration

officials in the U.S., which he clearly did. This does not

prove that Dia had lived in Italy; rather, it bolsters his

testimony that this was the story he was told to tell. 

In addition, we cannot fathom why the IJ rejected the

testimony of Dia’s expert witness, Gregory McNally. McNally

testified that the signatures on the passport and visa were

not Dia’s. He came to this conclusion after comparing six of

42
Dia’s known signatures with that on Dia’s Republic of

Guinea passport and with that on Dia’s Non-Immigrant

Visa Application for the U.S. visa found in the passport.

Presumably, the purpose of the testimony was to show that,

even though the passport and visa issued in Italy were

“authentic,” they were not in fact really Dia’s because they

did not contain Dia’s actual signature. Establishing this

fact certainly would buttress Dia’s testimony that he never

went to Italy or obtained the visa and passport himself.

This testimony totally undercuts the IJ’s reasoning, and it

is especially important in that it undermines both the IJ’s

expressed skepticism that the passport and visa were not

valid and her apparent conclusion that Dia must have been

a tomato picker in Italy simply because the documents were

“genuine.” Surely she should have realized that they were

“genuine” but were not Dia’s. If her experience led her to

reject that as improbable, she should have explained her

thinking. 

The IJ explained her rejection of McNally’s testimony that

the signatures on the passport and visa were not Dia’s, by

opining that handwriting analysis is too uncertain to accord

it much weight. This outright rejection of McNally’s

testimony was unfounded. McNally’s expertise was

unchallenged. McNally was trained by and worked for the

U.S. government, has testified as an expert in various

courts more than one hundred times, and belongs to two

relevant professional societies, one of which has officially

certified him an examiner of questioned documents. In his

testimony, he clearly concluded that the signatures on the

passport and visa were not Dia’s, thus lending support to

Dia’s story. McNally only qualified this conclusion by noting

that he preferred to use original documents (some of the

documents he had examined were not originals), and by

conceding that “anything is possible” with regard to

signatures. 

The IJ supported her conclusion that handwriting

analysis is not probative evidence by referring to United

States v. Van Wyk, 83 F. Supp. 2d 515 (D.N.J. 1997).

However, Van Wyck does not stand for this proposition,

but, instead, deals with the admissibility of a forensic

stylistics expert’s testimony under the Federal Rules of

43
Evidence. Evidence presented in an immigration hearing

needs to be “fair,” “reliable,” and “trustworthy,” not

necessarily admissible in federal court. Ezeagwuna, 325

F.3d at 405. More importantly, we have found that “[e]xpert

testimony as to the similarities in handwriting is generally

admissible” in federal court, United States v. McGlory, 968

F.2d 309, 346 (3d Cir. 1992), and McNally’s curriculum

vitae lists dozens of courts in which he has testified as an

expert. Therefore, for this reason as well, the chief reason

articulated by the IJ for her rejection of Dia’s testimony on

this count — her conclusion that these were Dia’s

authentic documents — is not supported by coherent

reasoning or by record evidence.27

3. Future Persecution

The final area of Dia’s testimony rejected by the IJ

pertained to whether Dia would suffer future persecution if

returned to Guinea. We emphasize that we address this

aspect only to determine any errors in the IJ’s credibility

determination, not whether Dia should be found eligible for

relief from removal. With that said, the IJ’s conclusion here,

again, lacks the necessary support. 

The IJ decried that “[t]here is no evidence that lowranking persons in the RPG are being arrested and

detained,” and noted that the only incidence of violence

involving Dia during the approximately three years after Dia

joined the RPG involved his wife, not Dia. The IJ also

expressed doubt about Dia’s testimony that the military

was pursuing him because it thought that he was helping

Alpha Conde escape from jail. She stated that it made little

sense that the military thought Dia could enable Conde to

escape, although she did not explain this further. 

27. The IJ also stated that, if the signatures were not legitimate, she

could not consider the passport and visa as evidence, and Dia, in turn,

would have no documentation establishing his country of citizenship.

Even if this would have proven fatal to Dia’s claim, Dia effectively

contradicts this point by noting that the authenticity of his Guinean

nation identification card (required by the Government for all citizens) or

his RPG membership card, both submitted to the INS, have not been

questioned; therefore, he could prove his citizenship without the

questioned documents. 

44
Once again, there are a number of problems with the IJ’s

fact-finding regarding this aspect of Dia’s testimony. First,

Dia did present evidence that the Government persecuted

low-ranking persons in the RPG. He testified to his own

past persecution, the rape of his wife as a means of

menacing him, and the beating of local RPG members at

the local headquarters, including the beating of Dia’s father

that resulted in death. See Baballah v. Ashcroft, 335 F.3d

981, 988 (9th Cir. 2003) (“Threats and attacks can

constitute persecution even where an applicant has not

been beaten or physically harmed . . . . Violence directed

against an applicant’s family members provides support for

a claim of persecution and in some instances is sufficient

to establish [a well-founded fear of] persecution.”). There

are also reports in the record documenting the Guinean

government’s persecution of RPG members on all levels,

including poll watchers like Dia, and a letter from the RPG

attesting to the fact that the chief of the neighborhood and

military officers attempted to force Dia to fight and that

they beat his wife. In fact, Dia points out that the IJ

actually states in her opinion that the Guinean government

had arrested demonstrators who sought the release of

Conde.28

Dia also urges that the IJ placed far too much weight on

the fact that neither Dia nor his wife was the victim of any

violence for the two years between the time Dia joined the

RPG and the alleged rape of his wife and burning of his

house, or after that time. He highlights parts of the record

that show that the persecution of RPG members “increased

significantly” in September of 2000 due to rebel attacks on

border towns such as his. He also points out that Amnesty

International reported on May 29, 2001, that the

government security forces used violence, including torture

and rape, “routinely” against members of opposition

28. The IJ’s error here appears similar to the one we discussed in Gao v.

Ashcroft, 299 F.3d 266 (3d Cir. 2002), where we rejected an IJ’s

“unsupported opinion as to how an authoritarian government operates,

including his troubling remarks that he found ‘implausible . . . the

preoccupation of Chinese authorities for someone who is a mere adjunct

to the activity that the government is trying to stop or prevent, but that

is not at all involved in it herself.’ ” Id. at 278. 

45
parties, such as the RPG, and that the security forces

“continue to act with impunity.” The report stated that

“[t]he long-standing pattern of human rights violations by

the Guinean security forces is clear.” As for the four

months after the military came to his home but prior to his

flight from the country, Dia notes that he was hiding at

Sow’s home during that time. Lastly, and perhaps most

tellingly, the IJ, again, misstated Dia’s testimony. Dia never

testified that the military thought that he was helping

Conde escape prison. Rather, he testified that the military

told his wife that Dia was helping the rebels so that Conde

could be released from prison. When an IJ bases her

conclusion on an erroneous interpretation of the

testimonial and documentary evidence in the record, it

undoubtedly is not supported by substantial evidence. 

In sum, the IJ’s adverse credibility determination was

based on a combination of misstatements of Dia’s

testimony, unreasonably speculative or arbitrary

conclusions, inaccurate or insufficiently explained findings

of contradictions, and an arbitrary rejection of probative

testimony. The “inconsistencies” that the IJ claimed to have

found were illusory, and the claimed “implausibility”

stemmed solely from conjecture. While we owe deference to

the IJ’s findings, our focus, and the essence of our review

function, must be on the IJ’s stated reasons. The reasoning

in the IJ’s opinion must “bear a legitimate nexus to the

finding.” Balasubramanrim, 143 F.3d at 162. We are not to

invent explanations that may justify the IJ’s conclusion.

Accordingly, we conclude that the IJ’s opinion was not

based on substantial evidence; thus, the BIA improperly

affirmed the IJ’s decision.29

29. In Abdulrahman v. Ashcroft, 330 F.3d 587 (3d Cir. 2003), we

expressed concern over similar credibility determinations made by the IJ,

but affirmed. In that case, the IJ seemingly had misread some of the

testimony, id. at 597, placed “a wholly unrealistic burden” on the

petitioner to corroborate specific testimony, id. at 598, and expressed

doubt unsupported by the record. Id. The chief differences between that

case and the one presently before us is that, despite the “troubling”

aspect of the IJ’s credibility judgment, id. at 599 (Becker, J. concurring),

the IJ engaged in “otherwise appropriate adverse credibility

determinations,” id. at 598, and that the IJ’s troubling statements often

did not pertain to the findings of facts that were crucial to the ultimate

determination. 

46
III. CONCLUSION

Dia asks that we reverse the BIA and grant the relief he

seeks. But we are not finding Dia credible. Rather, we are

concluding, as we have repeatedly before, that because of

the lack of substantial evidence to support the adverse

credibility determination, we will remand in order for the

agency to further explain or supplement the record. Gao,

299 F.3d at 279. Moreover, as we have recently said: “We

will not assess [Dia’s] entitlement to relief based on the

record as we have required it to be modified by this opinion

because the agency should have the opportunity to do so.”

Ezeagwuna, 325 F.3d at 411 (citing Ventura, 537 U.S. at

17-18); see also Secaida-Rosales, 331 F.3d at 313 (stating,

under similar circumstances, that “[t]he IJ should then

reach the questions of asylum and withholding of

deportation in light of such evidence, but without regard to

its prior adverse credibility determination”); Senathirajah,

157 F.3d at 222 (remanding to BIA with instructions to

remand to IJ for decision on asylum and withholding

application, but without consideration of erroneous adverse

credibility finding reversed on appeal). Instead, we will

vacate the BIA order.30

* * *

Accordingly, we will grant the petition for review, vacate

the BIA’s order summarily affirming the IJ’s decision, and

remand to the BIA.

30. Dia also contends that the Board did not follow the streamlining

regulations when it issued an AWO in his case. The Government, in

turn, contends that we do not have authority to review whether the

Board complied with the streamlining regulations. Because we have

found that the IJ erred, we need not address this issue. 

47
Volume 2 of 2

48
ALITO, Circuit Judge, with whom Judges SLOVITER and

ROTH, join, concurring in part and dissenting in part. 

I join Part I of the opinion of the Court. However, because

I believe that the Court’s method of analyzing the

Immigration Judge’s credibility determination is seriously

flawed, I would deny the petition for review. 

I.

Cases in which aliens seek asylum or withholding of

removal based on the likelihood or probability of

persecution if they are returned to their own countries are

among the most difficult that we face. Much is obviously at

stake, but the evidentiary record is very often meager.

Indeed, it is common for an Immigration Judge (IJ) to have

little other than the testimony of the applicant on which to

base the decision, and this presents obvious and serious

problems. 

On the one hand, it is often unreasonable to demand that

asylum-seekers provide corroborating evidence regarding

their personal experiences in their home countries. Such

incidents are often not memorialized (at least not in any

records that are available to anyone outside the home

government), and aliens fleeing persecution may be lucky to

escape at all and may have no opportunity to secure any

documentary evidence that exists or to obtain statements

from witnesses who are willing to help. In addition, once

asylum-seekers reach this country, they may find it very

hard to obtain corroborating evidence. It may be difficult to

contact people at home, and persons who might assist may

be prevented by the home government from doing so or may

be reluctant to help for fear of governmental retribution.

Thus, it is often not reasonable to demand corroboration. 

On the other hand, however, testimony by asylumseekers cannot simply be accepted without question.

Persons wishing to escape deplorable conditions that fall

short of persecution have a strong motive to fabricate tales

of persecution, and it must be recognized that such stories

are not hard to construct. An asylum-seeker may have

heard another person’s account of persecution and may

substitute himself or herself as the victim. Or an asylum

50
seeker may take an incident in which he or she was

actually involved and may exaggerate the conduct of the

military or police so as to make it reach the high standard

needed to constitute persecution. 

As Professor David A. Martin, former general counsel of

the INS, has written, the government is rarely able to

conduct a field investigation of matters such as applicants’

“past political activities, or specific abuses or threats

directed against them or their families or friends.” David A.

Martin, “Reforming Asylum Adjudication: On Navigating the

Coast of Bohemia,” 138 U. Pa. Law Rev. 1247, 1280 (1990).

As a result, “[a]sylum determinations often depend critically

on a determination of the credibility of the applicant, for

she will usually be the only available witness to the critical

adjudicative facts of the case. Because that person has

substantial incentives to lie or to embroider the truth (and

few disincentives), this makes for a system vulnerable to

manipulation.” Id. at 1281-82 (footnotes omitted).1 These

two factors — the frequent unavailability of corroboration

and the ease of fabricating a persecution claim — make

determinations regarding the credibility of asylum-seekers

critically important. 

In deciding how such determinations are to be made in

this country, Congress could have taken a variety of

different approaches. The approach that it chose, however,

was to entrust the responsibility for making these

important determinations to the Attorney General, with very

limited judicial participation. Specifically, we must accept a

credibility determination made by those to whom the

Attorney General’s authority has been delegated “unless

any reasonable adjudicator would be compelled to conclude

to the contrary.” 8 U.S.C. § 1252(b)(4)(B). This limited role

sometimes puts us in the uncomfortable position of

deferring to a credibility determination about which we are

skeptical. But the statute leaves us no alternative. 

1. Professor Martin goes on to express his belief that most applicants are

honest, id. at 1282 — a fact that I do not question — but some

applicants may not be not truthful, and our current system relies on IJ’s

to identify those applicants. 

51
II.

In analyzing the IJ’s credibility decision in this case, the

Court makes three fundamental mistakes. First, the Court

fails to recognize that it is entirely proper for a fact finder

to take into account “background knowledge” about human

behavior in assessing the plausibility of testimony. Second,

although the Court pays lip service to the very limited

standard of review that we must apply, the Court in effect

inverts that standard and refuses to sustain the IJ’s

credibility finding, not because a reasonable adjudicator

could not find that Dia lacked credibility, but because, in

the Court’s view, a reasonable fact finder could make a

contrary finding. Third, the Court errs in failing to take the

totality of the circumstances into account in reviewing the

IJ’s credibility determination. Instead, the Court focuses

one by one on specific statements that were made by Dia

and asks whether each of those statements is plausible.

The Court fails to recognize that a series of statements may,

taken together, provide a reasonable basis for finding a

witness to be incredible even if each statement standing

alone might be credible. 

A.

“Background knowledge.” In assessing the credibility of

testimony, fact finders commonly ask whether the

testimony is consistent with their own understanding of

how people usually behave. Judge Weinstein uses the term

“background knowledge” to describe the “ ‘vast storehouses

of commonly-held notions about how people . . . generally

behave,’ ” and he explains that credibility determinations

may be based on such knowledge even though it is not in

the record. United States v. Shonubi, 895 F.Supp. 460, 479

(E.D.N.Y. 1995)(citation omitted). 

Professor Uviller has provided a useful description of the

process used by a fact finder in deciding whether testimony

comports with such “background knowledge.” He writes:

The process by which a juror tests a story for

plausibility involves some sort of cerebral matching. A

juror juxtaposes a set of recounted actions and events

against her experience, imagination, and derived

52
intelligence concerning the behavior and reactions of

real and fictitious others: “Is this the sort of thing that

I might do in those circumstances?” “Would anyone I

know have reacted that way?” . . . . These are the sorts

of guides to plausibility on which the juror must rely.

H. Richard Uviller, “Essay: Credence, Character, and the

Rules of Evidence: Seeing Through the Liar’s Tale,” 42 DUKE

L.J. 776, 783 (1993). 

Professor Uviller also explains the weaknesses of this

process:

The trouble, of course, is that frequently the cultural

context and customs of the actors in the events

recounted by the witnesses are totally alien to the

jurors seeking a plausibility match. Neither the jurors

nor anyone they are likely to know have had any

experiences comparable to those now described from

the witness stand by an adolescent drug dealer or a

professional underworld hoodlum. 

Id. Nevertheless, this process of judging credibility is

employed every day in criminal and civil cases, and there is

no reason why it cannot also be used in asylum cases.2 In

other words, an IJ in an asylum case may properly judge a

2. The Court notes (Maj. Op. 31 n.21) — as have I — that this method

of judging credibility is hardly foolproof. What the Court does not

recognize, however, is that the same is true of virtually all of the other

methods of assessing credibility that are available to IJ’s. Two of the

most common methods involve assessment of demeanor and

impeachment based on prior inconsistent statements. As to demeanor,

Judge McKee’s opinion notes that the reliability of credibility

determinations based on demeanor has been challenged and that there

are special reasons for questioning this technique when the witness

testifies through an interpreter and comes from a different cultural

background. As to impeachment with prior inconsistent statements, the

Court notes the problems with undue reliance on airport statements (see

Maj. Op. 41-42), and reliance on statements made in asylum

applications and subsequent interviews may also present difficulties due

to translation problems and the volume of cases that must be processed.

In sum, virtually all of the methods of assessing credibility that are

available to IJ’s are fraught with problems, but it is nevertheless

essential that IJ’s make such assessments using the admittedly

imperfect tools that are at hand. 

53
witness’s credibility by comparing that testimony to the IJ’s

background knowledge about human behavior in general

and about the behavior of those seeking entry into the

United States. 

In this case, however, the Court faults the IJ for

employing this very process. As the Court notes, Dia

testified that his wife told him that about 25 soldiers had

come to their home looking for him and that, when Dia’s

wife told them that she did not know his whereabouts, the

men beat and raped her and burned the house. AR 86. Dia

stated that, at his wife’s urging, he fled the country alone,

leaving his wife and child behind. AR 86. In finding that

Dia was not credible, the IJ expressed the belief that a

woman in the position of Dia’s wife would probably not urge

her husband to leave her behind. AR 43. The IJ also

expressed the belief that a man in Dia’s position would

probably “suggest that they flee the country together.” AR

43. The IJ thus engaged in precisely the mental process

that Professor Uviller described: she compared what Dia’s

wife allegedly did (urging that her husband flee without her)

with what the IJ thought a woman in that position would

likely do, and the IJ compared what Dia did (leaving alone)

with what she thought a man in that situation was likely to

do. Because the IJ concluded that spouses in the position

of Dia and his wife would not likely behave in the way that

Dia described, the IJ found it unlikely that Dia’s story was

true. 

Although the mental process in which the IJ engaged was

routine and entirely permissible, the Court rejects the IJ’s

approach. The Court criticizes the IJ for failing to explain

her reasoning (Maj. Op. 38), but the basis for her

conclusion could not be any clearer: the IJ’s “background

knowledge,” “her experience, imagination, and derived

intelligence concerning the behavior and reactions of . . .

others” told her that a woman was not likely to urge her

husband to flee alone if she had just been beaten and

raped by soldiers who were looking for him. Similarly, the

IJ’s “background knowledge” told her that a man was not

likely to leave his wife and child behind under such

circumstances. What more the Court expects the IJ to have

said on this point is a puzzle. Does the Court expect the IJ

54
to have cited to empirical evidence about how couples

generally behave when the wife has just been beaten and

raped by soldiers who are looking for the husband for

political reasons? 

B.

Reversing the standard of proof. We are required to

sustain the IJ’s findings “unless any reasonable adjudicator

would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B). The Court, however, repeatedly turns this

standard on its head and finds that aspects of Dia’s

testimony should have been found to be credible because a

reasonable person might have found them believable. 

The Court’s evaluation of Dia’s testimony about his

decision to flee by himself is again instructive. Rejecting the

IJ’s determination that it was “unlikely” that a couple in the

position of Dia and his wife would agree that the husband

should escape alone, the Court states: “We can think of any

number of reasons why Dia’s wife might have urged him to

leave without her,” such as a belief that Dia “could move

more quickly and elude detection more easily if he was

traveling alone.” Maj. Op. at 38 & n. 23. In other words, the

Court inverts the statutory test and refuses to accept the

IJ’s finding because the Court can imagine grounds for a

contrary finding. 

The Court performs the same slight of hand in evaluating

the “tomato picker” story. Although Dia testified at the

asylum hearing that he had never been in Italy (AR 102),

the INS memo regarding his interview upon arrival at JFK

Airport on March 27, 2001, reported that Dia had

apparently been employed as a tomato picker in Italy. AR

237. The memo also reported that Dia was en route to join

a ship in Honduras as an engine room technician (AR 237),

and there is documentary evidence that supports the

account in the memo. Dia had in his possession a valid

United States visa that bore his name and photo and that

had been issued in Milan. AR 225. He also possessed an

“Employment Letter” from Houcon Cargo Systems of

Rotterdam that was addressed to him at an address in

Brescia, Italy. AR 218-221. The letter stated that Dia had

55
been employed by the company for a two-year period as an

engine room technician and instructed that he was to board

a ship in Honduras by April 10, 2001. AR 218. When asked

about these documents, Dia stated that they had been

provided to him by the unnamed man who had procured

his passport, but the IJ found that account dubious. AR

44. 

Instead of asking whether a reasonable adjudicator could

infer from this proof that Dia had been in Italy and had

therefore lied at the hearing, the Court postulates all sorts

of possible explanations for the evidence pointing to

residence in Italy. Dia’s statement at the airport might have

been misunderstood because of his lack of facility in

French, the language in which he spoke at that time; if Dia

did say at the airport that he had been employed in Italy,

he might have told an untruth because his statement “was

not taken under oath” and he was simply parroting what

the man who provided the documents had told him to say.

Maj. Op. at 42. Although the visa was genuine, that did not

prove that it had been “necessarily legitimately obtained.”

Id. at 41. And although the visa bore Dia’s photo, it might

have been obtained by someone else. Id. Houcon Cargo

might not exist. Id. at 41. If it does, the letter might not be

authentic. Id. The address in Brescia, Italy, might be

fictitious, and even if it is not, the letter might have found

its way into Dia’s possession without being mailed to that

address. Id. The Court concludes:

Dia testified that he got the documents from the

smuggler and, thus, that they were fraudulent. The

record contains no evidence contradictory to this story.

Id. 

In effect, the Court says that the IJ was bound to accept

Dia’s testimony that he had never been in Italy unless there

was conclusive proof to the contrary. If we applied this

standard to the findings that are routinely made by judges

and juries in federal litigation, few findings could be

sustained. 

C.

Totality of the circumstances. In judging the credibility of

a witness’s story, a fact finder is entitled to consider

56
whether the story as a whole has the ring of truth. Suppose

that a witness asserts that something a bit out of the

ordinary happened. Since unusual things do happen, a fact

finder might credit that assertion if the witness does not

say anything else that is questionable. But suppose that

the witness goes on to assert that a whole series of unusual

things happened. At some point, the fact finder may —

reasonably — conclude that the witness’s testimony as a

whole is unbelievable. 

Here, the Court rejects the IJ’s determination that Dia’s

testimony was not credible because, taking each of his

contested statements one by one, the Court finds each

plausible. Thus, the Court fault’s the IJ’s credibility finding

because, in the Court’s view, it is plausible that about 25

men would be sent to Dia’s home to look for him; it is

plausible that Dia would flee alone and leave his wife and

child behind even though his wife had been beaten and

raped by soldiers looking for him; it is plausible that Dia

was able to procure a police stamp even though the

authorities were looking for him; it is plausible that a man

whose identity Dia did not know was able to obtain for Dia

a legitimate passport and legitimate United States visa; it is

plausible that even though Dia had never been in Italy, he

would say on arriving in this country, that he had been

employed in Italy as a tomato picker; and it is plausible

that even though Dia had never been in Italy, he would

have a United States visa that was stamped as issued in

Milan and an Employment Letter addressed to him at a

place in Italy. Even if the IJ was bound to view each of

these facts as plausible — and I do not think that she was

— it does not follow that she was bound, when considering

all of these facts together, to find Dia credible. 

III.

Viewing the record as a whole, I believe that a reasonable

fact finder could find that Dia’s testimony was not

believable and could deny his application on that basis. 

• In light of the previously mentioned documentary

evidence and Dia’s statement at the airport, it was

reasonable for the IJ to question whether Dia told the

57
truth when he testified at the hearing that he had never

been in Italy. While this evidence may not prove

conclusively that Dia had been in Italy, it certainly

provided a reasonable basis for the IJ to infer that he

had. And if Dia lied about this point, the IJ could

reasonably doubt the truthfulness of the remainder of

his testimony. 

• It was reasonable for the IJ to question Dia’s

truthfulness based on Dia’s statement that, even though

his wife had been raped and beaten by men who were

looking for him, he and his wife agreed that he should

flee alone. As explained above, the IJ’s belief about how

a couple would likely react under such circumstances is

just the sort of “background knowledge” about human

behavior that a fact finder is entitled to consider in

evaluating a witness’s credibility. Moreover, the

particular belief in question (that a couple, under the

circumstances, would not likely decide that the husband

should run away by himself) is at least reasonable. Since

Dia’s wife had allegedly been beaten and raped on one

occasion when she did not tell Dia’s pursuers where he

was, is it unreasonable to think that a couple in that

position would fear that something similar might recur if

the husband left alone and the wife was again

questioned? 

• It was reasonable for the IJ to question Dia’s testimony

that about 25 men went to his house looking for him. A

reasonable adjudicator could be skeptical that so many

men would be sent to look for a single, low-ranking

person. Similarly, it was reasonable for the IJ to

question whether, as Dia testified, his alleged pursuers

would think that a low-ranking person like Dia could

help the leader of an opposition political group to

escape. And it was reasonable for the IJ to question how

Dia was able to obtain a police stamp on his passport if

the authorities were searching for him. While each of

these statements standing alone may not give rise to a

strong inference of mendacity, each statement can be

questioned, and when taken together they can

reasonably contribute to a finding that Dia was not

credible. 

58
Whether I would have believed Dia if I had been given the

responsibility to make that determination I cannot say. But

viewing all of the evidence in the record and applying the

narrow standard of review prescribed by statute, I cannot

say that a reasonable adjudicator could not find Dia to be

incredible. 

59
STAPLETON, Circit Judge, dissenting, with whom Judges

McKee, Ambro, and Becker join: 

An applicant for asylum seeks to avoid removal to a

country where he insists he will be the victim of

persecution. In recognition of the serious consequences of

an erroneous denial of asylum, Congress, in the INA, has

given asylum seekers the right to present evidence to an

immigration judge (“IJ”), 8 U.S.C. § 1229a (2002),1 the right

to an administrative appeal of an adverse decision to the

Board of Immigration Appeals (“BIA”), 8 U.S.C. § 1229a(c)(4),2

and the right to judicial review by a Court of Appeals of a

final agency order denying asylum and directing removal. 8

U.S.C. § 1252 (2002).3

The Attorney General’s streamlining regulations direct a

single BIA member to make the final decision on whether a

denial of asylum is the “correct” decision, 8 C.F.R.

§ 1003.1(a)(7)(ii) (2002), and then instructs the Court of

Appeals to review the IJ’s explanation for his or her

disposition4 — an explanation that the BIA member

1. 8 U.S.C. § 1229a(b)(4)(B) provides that: “In proceedings under this

section, under regulations of the Attorney General—the alien shall have

a reasonable opportunity to examine the evidence against the alien, to

present evidence on the alien’s own behalf, and to cross-examine

witnesses presented by the Government . . . .” 

2. 8 U.S.C. § 1229a(c)(4) states: “If the immigration judge decides that

the alien is removable and orders the alien to be removed, the judge

shall inform the alien of the right to appeal that decision and of the

consequences for failure to depart under the order of removal, including

civil and criminal penalties.” 

3. 8 U.S.C. § 1252(a)(1) states: “Judicial review of a final order of removal

(other than an order of removal without a hearing pursuant to section

1225(b)(1) of this title) is governed only by chapter 158 of Title 28, except

as provided in subsection (b) of this section and except that the court

may not order the taking of additional evidence under section 2347(c) of

Title 28.” 

4. See Executive Office of Immigration Review: Board of Immigration

Appeals Streamlining, 64 Fed. Reg. at 56,138 (Oct. 18, 1999) (“The

decision rendered below will be the final agency decision for judicial

review purposes . . . . [T]he Immigration Judge’s decision becomes the

decision reviewed.”). 

60
expressly declines to adopt. 8 C.F.R. § 1003.1(a)(7)(iii).5

 By

thus severing the final decision-maker from the agency’s

explanation for its denial, the Attorney General effectively

says to asylum seekers, “You have a right to appeal to a

Court of Appeals, but asylum may be denied and you may

be removed for reasons that are not subject to its review.”

Today, our court sanctions this perversion of judicial

review. Chevron does not require us to defer to such a

perversion, and I would decline to do so. 

I.

The scheme of administrative and judicial review

established in the INA for asylum cases is a familiar one.

Comparable schemes have been before the Supreme Court

on numerous occasions, and its decisions in those cases

have articulated fundamental principles of administrative

law that govern review under such schemes. See, e.g., SEC

v. Chenery Corp., 332 U.S. 194, 196-97 (1947); Chevron

U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-

44 (1984); INS v. Orlando Ventura, 537 U.S. 12, 17 (2002).

Nothing in the INA or its legislative history suggests that

Congress intended that review in asylum cases would

depart from these well-established principles, and the

statute must be applied in light of them. I conclude that the

Attorney General’s streamlining regulations are inconsistent

with the INA scheme as so applied. 

In a number of ways, the Attorney General’s reading of

the statute is more straightforward than that of the Court.

The Court begrudgingly “assume[s] [that the Act]

contemplates that an alien will have the opportunity for an

administrative appeal.” Slip Op. at 10. It does so because

Congress has expressly mandated that an IJ, upon the

entry of an order denying asylum and granting removal,

“shall inform the alien of the right to appeal that decision.”

8 U.S.C. § 1229a(c)(4). The Attorney General has no doubts

about the matter, and his streamlining regulations provide

for such an appeal. Those regulations continue to recognize

5. The order of a single BIA member “approves the result reached in the

decision below; it does not necessarily imply approval of all of the

reasoning of that decision . . . .” 8 C.F.R. § 1003.1(a)(7)(iii). 

61
that, in accordance with the requirements of the statute,

there can be no final agency order until the BIA has acted

or the asylum seeker has foregone his right to appeal to the

BIA. 8 U.S.C. § 1101(a)(47)(B) (2002).6 Thus, in any case

where an appeal is taken, the final decision of the agency

subject to judicial review is that of the BIA. Moreover, the

Attorney General understands that, while the statute

substantially constrains judicial review of administrative

findings of fact,7 it contemplates de novo review by the BIA.

Even when streamlining occurs, the single BIA member,

before approving “the result reached in the decision under

review,” must determine that it “was correct.” 8 C.F.R.

§ 1003.1(a)(7)(ii). As we succinctly explained in Abdulai v.

Ashcroft, 239 F.3d 542, 548-49 (3d Cir. 2001):

Congress has granted [the federal courts] power to

review only “final order[s] of removal.” Because an alien

facing removal may appeal to the BIA as of right, and

because the BIA has the power to conduct a de novo

review of IJ decisions, there is no “final order” until the

BIA acts. Accordingly, we now expressly hold that the

“final order” we review is that of the BIA. 

See also Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.

2003) (“Our power of review . . . extends only to the

decision of the BIA . . . . Therefore, only if the BIA expressly

adopts or defers to a finding of the IJ, will we review the

decision of the IJ.”); Awolesi v. Ashcroft, 341 F.3d 227, 231

(3d Cir. 2003) (“We review the decision of the BIA, not that

of the IJ.”). 

The Attorney General also recognizes, as he must, that

an asylum seeker is entitled under the statute to judicial

6. 8 U.S.C. § 1101(a)(47)(B) states in part that: 

The [“order of deportation”] shall become final upon the earlier of (i)

a determination by the Board of Immigration Appeals affirming such

order; or (ii) the expiration of the period in which the alien is

permitted to seek review of such order by the Board of Immigration

Appeals. 

7. 8 U.S.C. § 1252(b)(4)(B) provides that, in the context of judicial review,

“the administrative findings of fact are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” 

62
review of the agency’s final decision, and the streamlining

regulations so provide. They go on, however, to deprive the

Court of Appeals of any basis for reviewing the agency’s

final decision, to deprive the Court of the benefit of the

agency’s expertise, and to deprive the asylum seeker of de

novo review of the IJ’s fact finding. These aspects of the

streamlining regulations are at odds with the statute as

applied in light of at least two well-established principles of

administrative law.

II.

First and foremost, judicial review necessarily requires

something to review and, if the agency provides only its

result without an explanation of the underlying fact finding

and analysis, a court is unable to provide judicial review.

See SEC v. Chenery Corp., 332 U.S. 194, 196-97 (1947) (“If

the administrative action is to be tested by the basis upon

which it purports to rest, that basis must be set forth with

such clarity as to be understandable.”);8 Dunlop v.

Bachowski, 421 U.S. 560, 572 (1975); Guentchev v. INS, 77

F.3d 1036, 1038 (7th Cir. 1996) (statement of reasons is

the “norm of administrative law”). As we also explained in

Abdulai in the specific context of the INA: 

[N]othing in the INA specifically requires the Board to

explain its decisions. But the availability of judicial

review (which is specifically provided in the INA)

necessarily contemplates something for us to review

8. The Court in Chenery stated that: 

It will not do for a court to be compelled to guess at the theory

underlying the agency’s action; nor can a court be expected to chisel

that which must be precise from what the agency has left vague and

indecisive. In other words, “we must know what a decision means

before the duty becomes ours to say whether it is right or wrong.”

332 U.S. at 196-97 (quoting U.S. v. Chicago M., St. P. & P.R. Co., 294

U.S. 499, 511 (1935)). This, according to the Court, is a corollary to the

rule that “a reviewing court, in dealing with a determination or judgment

which an administrative agency alone is authorized to make, must judge

the propriety of such action solely by the grounds invoked by the

agency.” Id. at 196. 

63
. . . . Because the BIA’s failure of explanation makes it

impossible for us to review its rationale, we grant the

petition for review, vacate the Board’s order, and

remand the matter . . . . 

Abdulai, 239 F.3d at 555. While we did not cite to Chenery

for this proposition in Abdulai, our holdings with respect to

judicial review of administrative decisions clearly embrace

Chenery’s reasoning. See, e.g., N.L.R.B. v. Permanent Label

Corp., 657 F.2d 512, 532 (3d Cir. 1981) (“Requiring the

Board to articulate its reasons for imposing a bargaining

order does not represent an unwarranted judicial

interference with administrative procedure. Indeed that

requirement, as we have pointed out, stems from the

Supreme Court’s instructions in [N.L.R.B. v. Gissel Packing

Co., 395 U.S. 575 (1969)], and from fundamental rules of

administrative law.” (citing Chenery, 332 U.S. at 196-97)).9

Whenever the streamlining regulations are invoked, they

deprive a reviewing court, by their express terms, of any

basis for knowing either the findings of fact or the rationale

upon which the BIA’s denial of asylum rests and they thus

make judicial review impossible. 8 C.F.R. § 1003.1(a)(7)(iii)

requires that the BIA’s order expressly state “the Board

affirms, without opinion, the result of the decision below.”

This means that the BIA accepts only “the result” of the IJ’s

deliberations. Indeed, the regulations, in addition to

foreclosing the BIA from giving “further explanation or

reasoning,” go on to state that the effect of the BIA’s order

is to “approve . . . the result reached in the decision below”

and to disavow any implication that the approval extends

any further. The BIA’s order thus does not only fail to adopt

the findings and reasoning of the IJ, it expressly disavows

9. The proposition that judicial review requires an administrative agency

to articulate the reasoning for its decisions also follows logically from our

holding that the Attorney General’s stated reasons for granting or

denying asylum must not be “arbitrary, irrational, or contrary to law.”

Ezeagwuna v. Ashcroft, 301 F.3d 116, 126 (3d Cir. 2002) (citing

Andriasian v. INS, 180 F.3d 1033, 1040 (9th Cir. 1999)). It is difficult, if

not impossible, for a reviewing court to apply this standard to an

agency’s action if the agency has not explained why it acted as it did.

See 1 Richard J. Pierce, Jr., Administrative Law Treatise § 8.5, at 546

(4th ed. 2002). 

64
endorsing those findings and that analysis. See 8 C.F.R.

§ 1003.1(a)(7)(iii) (requiring that the order to state that it

“does not necessarily imply approval of all of the reasoning

of [the IJ’s decision]”). The net and necessary result is that

the reviewing court has no findings or reasoning of the final

decision-maker to review. This result has already been

addressed in Chenery, 332 U.S. at 196-97, and Abdulai,

239 F.3d at 555, and it is rendered no less defective by

virtue of being authorized by the Attorney General’s

streamlining regulations. 

In short, judicial review, by definition, necessarily

involves an explanation for the agency’s final decision.

Congress has spoken directly to the issue of whether

asylum seekers will have a right to judicial review.

Accordingly, the situation before us is simply not one in

which Chevron deference is due. See Chevron, 467 U.S. at

842-843 (“First, always, is the question whether Congress

has directly spoken to the precise question at issue. If the

intent of Congress is clear, that is the end of the matter; for

the court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.”). The

Attorney General may not deprive asylum seekers of that

right by calling something judicial review even though relief

may be denied for undisclosed reasons not subject to

judicial review. 

It does not help that a summary affirmance signifies

under the regulations that the BIA views “any errors in the

decisions of the Immigration Judge [as] harmless or nonmaterial.” In any case where the BIA disagrees with the IJ

in whole or in part, but has an alternative and independent

basis for denial, the error of the IJ will be harmless or nonmaterial, yet that alternative and independent basis will

never be disclosed and, accordingly, will never be exposed

to judicial review. It necessarily follows that an alien may

be denied asylum and be put in serious jeopardy for a

reason that is never exposed to judicial review. 

Nor does it help that the regulations instruct the Court of

Appeals to review the fact finding and analysis of the IJ.

See Executive Office of Immigration Review: Board of

Immigration Appeals Streamlining, 64 Fed. Reg. at 56,138

(Oct. 18, 1999) (“The decision rendered below will be the

65
final agency decision for judicial review purposes . . . . [T]he

Immigration Judge’s decision becomes the decision

reviewed.”). In any case in which the BIA disagrees with the

IJ in whole or in part, but has an alternative and

independent basis for denying asylum, review of the IJ’s

fact finding and analysis is a meaningless exercise. The

Court’s suggestion that it makes no difference whether the

explanation is provided by the final decision-maker or the

IJ is reminiscent of Alice’s Wonderland. The difference is

between the asylum seeker’s having judicial review of the

reason for his removal and his having no such review.10

The Attorney General’s perversion of the judicial review

mandated by Congress is strikingly illustrated by the record

that was recently before us in Ezeagwuna v. Ashcroft, 301

F.3d 116 (3d Cir. 2002), a case that was not, but could

have been, affirmed without opinion under the streamlining

10. The Court’s opinion simply ignores the fact that the streamlining

regulations permit an asylum seeker to be removed for reasons

unexposed to judicial review. It does so with the ipse dixit: “The BIA

clearly ‘invokes’ the IJ’s opinion as the grounds on which the agency’s

decision rests; we thus ‘judge the propriety’ of the IJ’s action in order to

‘test’ the agency’s action.” Slip. Op. at 16. The Court fails to explain,

however, how a BIA order that does not “imply approval of all of the

reasoning of ” the IJ’s opinion can “clearly ‘invoke[ ]’ the IJ opinion as the

ground on which the agency’s decision rests.” Every court of appeals

that has engaged in judicial review of an IJ’s decision has done so

because the IJ’s reasoning was expressly adopted by the BIA. See Chen

v. INS, 87 F.3d 5, 7 (1st Cir. 1996) (citing cases from the Second, Fourth,

Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits, in each of which,

the BIA expressly adopted the reasoning of the IJ as its own).

Significantly, we held in Abdulai that the IJ’s opinion had not become

that of the BIA’s. 239 F.3d at 549 n.2. We came to this conclusion

because “the BIA never expressly ‘adopted’ any portion of the IJ’s opinion

or announced that it was deferring to any of the IJ’s findings.” Id.

Citing Albathani v. INS, 318 F.3d 365, 377 (1st Cir. 2003), our Court’s

opinion also asserts, without explanation, that “Chenery does not require

that [the agency’s] statement [of reasons] come from the BIA rather than

the IJ.” Slip Op. at 16. Chenery makes no sense, however, unless it is

read to require that the reasons given be the reasons of the agency’s

final decision-maker. Otherwise, as I have stressed, agency action may

be taken for reasons never exposed to the Congressionally mandated

judicial review. 

66
regulations. There, as here, the IJ concluded that the alien

was not credible and, accordingly, had not carried his

burden of persuasion. Id. at 123. The IJ reached this

conclusion because: (1) he found it implausible that the

alien had been abused in the manner she claimed; and (2)

the alien appeared to be giving testimony she had

rehearsed. Id. at 123-24. On appeal, the BIA found that the

record did not support the reasons given for the IJ’s

credibility decision. Nevertheless, it also found that the

alien lacked credibility and, accordingly, that the IJ had

reached the correct result. The BIA reached its conclusion

on the credibility issue for a reason different from those of

the IJ: the alien had impeached her own credibility by

submitting fraudulent documents in support of her asylum

application. The BIA accordingly ordered removal. Id. at

124-25. 

On appeal, we held that the evidence the BIA relied upon

in concluding that the documents were fraudulent was

unreliable and untrustworthy and that the BIA’s reliance

upon it had violated the alien’s right to Due Process. Id. at

130. 

Cases like Ezeagwuna can, consistent with the

streamlining regulations, be decided without an opinion. A

single BIA member could well have determined in good faith

that the errors of the IJ were harmless or immaterial

because the BIA member reached the same conclusion. He

could also have concluded in good faith that there was no

genuine dispute regarding the applicable law and that the

case did not involve the application of precedent to a novel

fact situation. Had a single BIA member made these

determinations and decided the case without opinion under

the streamlining regulations, we, as the reviewing court, (1)

would have been unaware of the basis for the agency’s final

decision and, accordingly, would not have had the

opportunity to vindicate the violation of the alien’s

constitutional rights; and (2) would have been unaware

that, in the expert eyes of the BIA exercising de novo

review, the fact finding done by the IJ was unacceptable

and, exercising restricted review, we might well have

allowed that fact finding to stand. Fortunately for the

asylum seeker in Ezeagwuna, her case was not streamlined

67
and her rights were vindicated. Had the streamlining

decision gone the other way, however, she might well have

been sent home to persecution without any judicial review

of the basis of the decision to deny asylum. 

This case may well be one like Ezeagwuna. The BIA

member could well have viewed the grounds for the IJ’s

credibility determination as impermissibly speculative and,

accordingly, may well have relied on alternative,

undisclosed grounds. If so, Dia will have been removed for

reasons that were unexposed to judicial review. 

III.

The streamlining regulations, and the Court’s sanctioning

of them, have further consequences that conflict with the

statutory scheme viewed in light of a second wellestablished principle of administrative law. A reviewing

court must defer to, and must insist upon the benefit of,

the application of the agency’s expertise in the context of

the matter before it. “[A] reviewing court, in dealing with a

determination or judgment which an administrative agency

alone is authorized to make, must judge the propriety of

such action solely by the grounds invoked by the agency. If

those grounds are inadequate or improper [or unknown] the

Court is powerless to affirm the administrative action by

substituting what it considers to be a more adequate or

proper basis.” Chenery, 332 U.S. at 196. The absence of an

explanation from the agency decision-maker not only

precludes judicial review, it also deprives the Court of the

benefit of the agency’s expertise and impairs the ability of

the Court to confine itself to its intended role. 

In a recent asylum case, the Court of Appeals for the

Ninth Circuit overturned an order of removal based on an

argument for asylum that had been addressed by the IJ but

not by the BIA. The argument turned on whether conditions

in Guatemala had improved to the point that no realistic

threat of persecution currently existed. The Supreme Court

held that the Court of Appeals had violated “wellestablished principles of administrative law” by proceeding

“without giving the BIA the opportunity to address the

[disputed] matter in the light of its own expertise.” INS v.

68
Orlando Ventura, 537 U.S. 12, 17 (2002). The Court

explained why the Ninth Circuit Court of Appeals’s action

“seriously disregarded the agency’s legally mandated role”:

Within broad limits the law entrusts the agency to

make the basic asylum eligibility decision here in

question. In such circumstances a “judicial judgment

cannot be made to do service for an administrative

judgment.” Nor can an “appellate court . . . intrude

upon the domain which Congress has exclusively

entrusted to an administrative agency.” A court of

appeals “is not generally empowered to conduct a de

novo inquiry into the matter being reviewed and to

reach its own conclusions based on such an inquiry.”

Rather, “the proper course, except in rare

circumstances, is to remand to the agency for

additional investigation or explanation. 

INS v. Orlando Ventura, 537 U.S. at 16 (citations omitted).

Just as Congress did not intend the Ninth Circuit Court

of Appeals to perform the BIA’s “legally mandated role,”

neither did it intend for our Court to address in the first

instance issues like whether Guinea is a “country where the

military, as well as civilian militias, act independently of the

federal government.” Slip Op. at 33. While our Court has

not usurped the role of the BIA as did the Ventura court, it

has permitted the agency to absolve itself, by regulation, of

the responsibility for fulfilling the BIA’s legally mandated

role. Given the Congressional mandate, our Court should

not allow this abdication of responsibility. 

IV.

The Attorney General’s desire to streamline the appeals

process is understandable. Moreover, I agree with the Court

that he has been given by Congress the authority to

simplify and expedite the process before the agency. I

perceive no reason, for example, why he cannot have a

single BIA member decide a category of appeals like the one

identified in the streamlining regulation. Moreover, a single

member can clearly decide appeals by adopting the opinion

of the IJ or by adopting it with specified exceptions. What

the Attorney General may not do consistent with the INA

69
and well-established principles of administrative law is to

deprive the reviewing court of the ability to provide the

judicial review mandated by Congress. More specifically, he

cannot foreclose the BIA from explaining its decision in

some way. 

Contrary to the Court’s suggestion, the Attorney

General’s streamlining scheme is not at all analogous to the

affirmance of District Court judgments by court of appeals

without an opinion. The BIA’s order is materially different

from a judgment order of a court of appeals that may be

reviewed by higher judicial authority. While an opinion of a

court of appeals may be helpful, it is not essential to the

intended operation of the federal judicial system. A court of

appeals possesses no special expertise that the Supreme

Court lacks and both courts review a court’s judgment

using the same standards of review. The INA, on the other

hand, contemplates an administrative review by an entity

which has special, relevant expertise and which will

exercise de novo review of the IJ’s findings of fact as well as

her conclusions of law. Both factors are very important in

cases like the one before us, and the Congressional scheme

cannot function as intended if the BIA does not tell us what

facts it found and what reasoning it relied upon. 

V.

I would grant the petition for review and remand to the

BIA with instructions to provide an explanation of the

grounds for its decision. 

70
McKEE, Circuit Judge, concurring in part and dissenting in

part.

I join Part II of the majority opinion because I agree that

we must grant the Petition for Review based upon the many

problems with the Immigration Judge’s adverse credibility

ruling that the majority explains. However, I must

respectfully dissent from Part I of the majority opinion

upholding the streamlining regulations. In my view, those

regulations should be invalidated for all of the reasons so

ably explained in Judge Stapleton’s thoughtful dissent. 

I write separately because I am troubled by the majority’s

suggestion that the IJ’s flawed and unsupportable

credibility ruling could somehow have been saved if it were

based upon Dia’s demeanor rather than the substance of

his testimony. The majority notes that “the IJ did not rely

on her personal observations of Dia’s demeanor or any

other observations to which we must accord an even

greater degree of deference.” Majority Opinion at 33 n.23. 

It is of course true that the law has traditionally

recognized a relationship between demeanor and credibility.

The Supreme Court has even noted that the opportunity to

observe a witness’s demeanor is embodied in the

Confrontation Clause of the Sixth Amendment. See

California v. Green, 399 U.S. 149, 158 (1970) (stating that

confrontation “permits the jury that is to decide the

defendant’s fate to observe the demeanor of the witness in

making his statement, thus aiding the jury in assessing his

credibility”).1 However, this principle has evolved in the

context of proceedings where the fact finder and witnesses

share a common culture. Fact finders who are unfamiliar

with the mannerisms and subtleties of a witness’s cultural

tradition have no advantage in assessing credibility based

upon demeanor. Moreover, to the extent that the customs

of a witness’s native land differ from the fact finder’s, the

1. See also Zilich v. Reed, 36 F.3d 317, 321 (3d Cir. 1994) (citing

Townsend v. Sain, 372 U.S. 293 (1963), as stating that “demeanor

evidence is a significant factor in adjudging credibility”); Cf. Amadeo v.

Zant, 486 U.S. 214, 223 (1988) (stating that an appellate court must give

due regard to the trial judge’s opportunity to judge the credibility of

witnesses). 

71
fact finder may be at a substantial disadvantage because

he/she may misinterpret subliminal clues that mean one

thing in the fact finder’s culture, but something entirely

different in the witness’s. 

Courts have addressed the extent to which ignorance

about an alien’s native land can shape conclusions. See

Senathirajah v. INS, 157 F.3d 210, 220-21 (3d Cir. 1998)

(finding that the IJ’s unsupported assumptions about the

Tamil Tigers group and the Sri Lankan government were

not an appropriate basis for her factual findings). However,

courts have not been as willing to recognize that

unfamiliarity with a witness’s cultural experience may

similarly color the intangible aspects of credibility

determinations. Moreover, case law demonstrates that even

experienced IJs who are accustomed to evaluating the

testimony of aliens are not immune from allowing their

conclusions to be colored by such cultural bias. 

In Chouchkov v. INS, the Court of Appeals for the Ninth

Circuit cautioned: “It must be stressed that what sounds

peculiar in one country may be the norm in another.” 220

F.3d 1077, 1083 n.15 (9th Cir. 2000). In doing so, the court

cited Perez-Alvarez v. INS, 857 F.2d 23, 24 (1st Cir. 1988).

There, the Court of Appeals for the First Circuit

incorporated the comments of the dissenting member of the

BIA into the court’s opinion. In his dissent from the

decision of the BIA, Board Member Heilman had

proclaimed:

[T]he evidence was cut off on the apparent assumption

that [evidence of] a 10-year-old membership in a union

was too old or too stale to constitute a ground for

persecution. Perhaps this is so, but there is nothing in

the record to sustain the immigration judge’s

assumption in this regard, except perhaps his general

perception of life or political conditions in El Salvador

which may or may not be grounded in fact. 

As a general rule, in considering claims of

persecution I think it highly advisable to avoid

assumptions regarding the way other societies operate.

Time and again this Board has considered appeals in

which assumptions of this nature have been proven to

72
be totally wrong, once the applicant has been given a

full hearing.

Id. (emphasis added). 

In Cordero-Trejo v. INS, 40 F.3d 482, 490 (1st Cir. 1994),

the IJ based an adverse credibility determination in part

upon the fact that petitioner’s wife had signed her full name

on several letters to petitioner and she had addressed the

letters using petitioner’s formal name rather than using a

more familiar reference. The IJ believed that was suspicious

based upon his assumption that “one would normally

expect the spouse to use the more familiar form” when

addressing letters to her husband. Id. (internal quotation

marks omitted). On appeal, the court rejected the IJ’s

skepticism because “there was [no] evidence in the record

to suggest that signing a letter to a spouse residing in a

foreign country by using one’s full name is contrary to the

common practice of someone of [the petitioner’s wife’s]

cultural background.” Id.

The cultural bias at the heart of the adverse ruling of the

IJ in Barapind v. Rogers, No. 96-55541, 1997 WL 267881

(9th Cir. May 15, 1997) (reported at 114 F.3d 1193 as an

unpublished summary affirmance), furnishes an even more

dramatic example of the dangers of assessing credibility

across a cultural divide and also illustrates the danger of

placing too much emphasis on demeanor without

elaboration or explanation.2 There, the IJ rejected an alien’s

testimony based in part upon the IJ’s belief that the alien’s

“stoic” demeanor while testifying was inconsistent with

having been subjected to the kind of gruesome torture he

testified about in support of his asylum claim. The IJ thus

concluded that the alien’s “ ‘stoic’ ” demeanor as he testified

about torture by the Indian police was a sign that he was

lying.” Id. at *2. On appeal, the court recognized that the

2. Barapind is an unpublished opinion and is therefore of no

precedential value. See 9TH CIR. R. 36-3(a). I cite it not as relevant

precedent but as an example of the kind of cultural bias that may all too

frequently burrow its way into the mind of even a well-intentioned and

conscientious fact finder, thus undermining the fact finding process to

such an extent that factual conclusions may rest upon nothing more

substantial than the quicksand of cultural bias. 

73
alien petitioner’s demeanor reflected his cultural tradition.

The court explained that “stoic acceptance of misfortune is

expected from persons of constancy and courage,” and

Sikhs had “long enjoyed the reputation of being

“ ‘unsurpassed’ as soldiers. Id. (quoting LEPEL HENRY

GRIFFIN, RANJIT SINGH 36-37 (1892)). 

The IJ also doubted that the alien was 29 years old as he

testified. Based only upon her personal observation of the

alien during his testimony, the IJ “thought he looked 40.”

Id. The court quickly rejected the purported age

discrepancy as a basis for concluding that the alien was not

credible. The court stated: “We see no basis for the IJ to

have thought her own sizing up of the physical appearance

of an alien gave her a superior insight into the age of the

Sikh before her; still less do we see how her hunch showed

that Barapind was lying.” Id. The court dismissed the IJ’s

conclusion that the alien lied about his age as nothing

more than a “hunch” improperly based upon “personal

conjecture.” Id. at *2, *3. The court concluded, “[a]gain, the

inference by the IJ seems to reflect her own cultural bias.”

Id. at *2. Indeed, given the alien’s testimony that he was

subjected to torture that included applying electric shock to

various “parts of his body,” id., it would have been

surprising if he had not appeared to be older than he was.

These cases primarily exemplify tangible manifestations

of bias. However, resting factual conclusions upon

unexplained and unarticulated demeanor poses an even

greater risk of biased fact finding that can deny a petitioner

due process of law.3

3. See Deborah E. Anker, Determining Asylum Claims in the United

States, 19 N.Y.U. REV. OF LAW AND SOCIAL CHANGE 433, 451-52 (1992)

[hereinafter Anker Study] (concluding, after conducting an empirical

study of U.S. immigration court decisions, that “immigration judges

generally evaluated asylum claims without consideration of political

realities in the [petitioners’] home countries while also imposing their

own cultural and political assumptions in assessing [petitioners’]

credibility”); see also Walter Kaelin, Troubled Communication: CrossCultural Misunderstandings in the Asylum-Hearing, 20 INT’L MIGRATION REV.

230, 234 (1986) (stating that cross-cultural miscommunication in

asylum hearings occurred due to the cultural relativity of words, notions,

and concepts together with the lack of consciousness of these differences

in communication). 

74
For example, eye contact plays a central role in

evaluating the credibility of a witness in our own culture.

The central issue in Morales v. Artuz, 281 F.3d 55 (2d Cir.

2002), was whether the defendant’s constitutional right of

confrontation had been violated by the trial judge allowing

a key defense witness to testify while wearing sunglasses

that were so dark that the jury could not see her eyes. In

writing for a unanimous panel, Judge Newman thoughtfully

outlined the importance of the role that eye contact has

traditionally been afforded in this society.4 The analysis

began by explaining that the sunglasses created no obstacle

to the right of confrontation insofar as the Confrontation

Clause seeks to guarantee cross-examination, but

conceivably infringed on the right of confrontation to the

extent the Confrontation Clause “assures an opportunity for

the defendant, especially jurors to see the witness’s eyes in

order to consider her demeanor as an aid to assessing her

credibility . . . .” Id. at 60. The court cited several cases in

noting that “ ‘eye contact’ [is] among [the] factors aiding the

fact-finder in assessing a witness’s credibility.” Id. (quoting

Churchill v. Waters, 977 F.2d 1114, 1124 (7th Cir. 1992)).

Similarly, in Coy v. Iowa, 487 U.S. 1012, 1019 (1988), the

Court stated that the trier of fact could “draw its own

conclusions” from a witness who looked away from the

defendant while testifying. 

Even assuming arguendo the presumed relationship

between such demeanor and credibility in the usual

context, I submit that the relationship is often non-existent

when the fact finder and witness are from different

cultures. Thus, while the failure to look someone in the eye

while speaking is usually interpreted as an indication of

deception by people in Western cultures, avoiding eye

contact has a very different meaning in some other

cultures. See Joanna Ruppel, The Need for a Benefit of the

Doubt Standard in Credibility Evaluation of Asylum

4. Judge Newman noted that eye contact has played a role in evaluating

“reasonable suspicion” for purposes of a Terry stop, grounds for

exercising a peremptory challenge during voir dire, reliability of criminal

confessions, remorse during sentencing, and the reasonableness of a

police officer’s conduct for purposes of evaluating probable cause to

arrest. Morales, 281 F.3d at 60 n.2 (citing cases). 

75
Applicants, 23 COLUM. HUM. RTS. L. REV. 1, 12-13, 13

n.44 (1992) (quoting panelist Ira J. Kurzban, Esquire, as

saying the assumptions made about the relationship

between eye contact and credibility can be “the product of

culture and not credibility” in Annual Judicial Conferences,

Second Judicial Circuit of the United States, 115 F.R.D.

349, 440 (Sept. 4, 1986)). For example, in certain Asian

cultures, avoiding eye contact is a sign of respect, and

direct eye contact is considered inappropriate in traditional

Navajo society. See Paul R. Tremblay, Interviewing and

Counseling Across Cultures: Heuristics and Biases, 9

CLINICAL L. REV. 373, 394 (2002). A witness from a

culture where it is disrespectful to “look someone in the

eye” would naturally be expected to testify in a manner that

reflected the solemnity and respect inherent in all judicial

proceedings, including proceedings before an immigration

court. It would be very unlikely that such a witness would

maintain eye contact while answering questions out of

respect for the interrogator, the judge, and the proceedings.

Yet, this very manifestation of respect may cause the fact

finder to conclude that such a witness is not credible and

therefore view all of his/her testimony with a jaundiced eye.5

When this happens, “inconsistencies” that ought to convey

nothing more than cultural differences or the fragile

imperfections of memory can assume unwarranted

importance. 

Once a fact finder begins to doubt the veracity of a

witness, it will be exceedingly difficult for even the most

compelling witness to offer testimony sufficient to sustain

his/her burden under the immigration laws. We have

recognized that aliens often have to flee their native land

with precious little documentation or corroboration.

Senathirajah, 157 F.3d at 216 (“[O]ne who flees torture at

5. I submit that this problem is not easily overcome even by skilled and

knowledgeable counsel. An attorney familiar with this dynamic and

his/her client’s cultural proclivity to avoid eye contact may try to correct

for this cultural disconnect by advising his/her client to maintain eye

contact while testifying. However, this may well only make the situation

worse because the alien will attempt to answer questions in a manner

that causes discomfort and thereby exhibit a demeanor that will

undermine the client’s credibility. 

76
home will rarely have the foresight or means to do so in a

manner that will enhance the chance of prevailing in a

subsequent court battle in a foreign land.”). The alien trying

to qualify as a “refugee” or for relief under the Convention

Against Torture will therefore usually have precious little

other than his/her own testimony to take before an IJ. See

Matter of Mogharrabi, 19 I. & N. Dec. 439, 445 (B.I.A. 1987)

(“The alien’s own testimony may in some cases be the only

evidence available [to support his or her claims], and it can

suffice where the testimony is believable, consistent, and

sufficiently detailed to provide a plausible and coherent

account of the basis for his fear.”). 

Moreover, cross-cultural misunderstandings about the

veracity of petitioners’ testimony can be exacerbated by

difficulty understanding the procedure and structure of

immigration proceedings. The proceedings are conducted in

English, and petitioners are generally not provided with

simultaneous translation. See Anker Study, supra note 3,

at 505-06. In addition, the structure of the hearings is not

transparent to petitioners. An empirical study of U.S.

immigration court hearings and decisions found that “the

simultaneously ambiguous and rigid structure of the

hearing and the judges [sic] perceived need to control and

limit the scope of the hearing, in many instances made it

difficult for [petitioners] to communicate intelligibly the

essential facts that formed the basis of their claims.” Id. at

515. 

Furthermore, petitioners often fear government officials

because of past persecution in their native country. Cf.

Balasubramanrim v. INS, 143 F.3d 157, 163 (3d Cir. 1999)

(“[A]n arriving alien who has suffered abuse during

interrogation sessions by government officials in his home

country may be reluctant to reveal such information during

the first meeting with government officials in this

country.”); Senathirajah, 157 F.3d at 218 (stating that a

petitioner may be reluctant to disclose the breadth of his

suffering in his home country to a government official upon

arriving in the United States). This may only exacerbate the

difficulties of articulating the basis of a valid claim during

77
immigration proceedings even if the petitioner does not

exhibit the kind of demeanor that will suggest deception.6

It can not be overstated that “[c]aution is required

because of the numerous factors that might make it

difficult for an alien to articulate his/her circumstances

with the degree of consistency one might expect from

someone who is neither burdened with the language

difficulties, nor haunted by the traumatic memories, that

may hamper communication” between a government agent

and a petitioner. Zubeda v. Ashcroft, 333 F.3d at 476 (3d

Cir. 2003). 

The majority’s thoughtful rejection of the IJ’s adverse

credibility determination here is yet another example of how

even experienced IJs can place too much reliance on their

own experiences in evaluating the testimony of petitioners

from very different cultures. Although the IJ’s credibility

determination here does not rest upon Dia’s demeanor, it is

no less important to note that the IJ did not properly allow

for differences between Dia’s circumstances and the IJ’s

own in evaluating Dia’s credibility. Rather, she failed to

demonstrate any awareness of the context in which Dia’s

claim arose. 

6. Another barrier to understanding the demeanor of petitioners who

have experienced trauma is the likely repression of traumatic memories.

Such repression only adds to the difficulty of answering questions. Their

“detachment when recounting tragic events, sometimes perceived as an

indication of fabrication, may reflect psychological mechanisms employed

to cope with past traumatic experiences, rather than duplicity.” Ruppel,

supra, at 20; see also Zubeda v. Ashcroft, 333 F.3d 463, 477 (3d Cir.

2003). One such mechanism is post-traumatic stress disorder, a disorder

catalogued by the American Psychiatric Association in its Diagnostic and

Statistical Manual of Mental Disorders (“DSM”) as having symptoms

including “impaired memory, difficulty in concentrating and a numbing

of responsiveness to the external world.” Zubeda, 333 F.3d at 20 (citing

to the third edition of the DSM published in 1980). Various psychological

responses to torture have been noted and catalogued in the Manual on

the Effective Investigation and Documentation of Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment submitted to the

United Nations Office of the High Commissioner for Human Rights. Id. at

477 n.16. 

78
For example, the majority notes that the IJ rejected Dia’s

testimony about giving a $150 bribe to a Guinean police

officer because she believed that the amount of the bribe

was too small given the level of risk the police officer

allegedly undertook on Dia’s behalf. As my colleagues point

out however, the amount of the bribe Dia said he gave is

about a quarter of the average annual per capita income in

Dia’s country. See Maj. Op. at 34. Accordingly, $150 was a

very substantial sum indeed.7 Moreover, the IJ’s rationale

assumes that the police officer actually exposed himself to

a substantial risk in accepting the bribe. A more neutral

assessment of this testimony would readily have lead to the

realization that bribery is a way of doing business in some

countries and that in such countries it is highly doubtful

that any risk attends a police officer taking a bribe. The IJ’s

failure to realize this certainly ought to give us pause before

assuming that IJs necessarily possess the kind of expertise

in evaluating testimony of aliens that would insulate their

conclusions from the bias I am concerned about. Such bias

is only masked, not eliminated, if we uphold an adverse

credibility ruling simply because we are told it rests upon

the alien’s demeanor with no further explanation. 

I am, of course, aware of our limited standard of review

when we adjudicate appeals in immigration cases. See INS

v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). We have

wrestled with that narrow scope of review on more than one

occasion when troubled by credibility rulings that appeared

both unfair and unfounded. For example, we concluded

that we were forced to affirm the IJ’s ruling in Abdulrahman

v. Ashcroft, 320 F.3d 587 (3d Cir. 2003), even though the

panel was very troubled by the IJ’s findings. There, the IJ

based her rejection of Abdulrahman’s testimony on such

“inconsistencies” as his assertion that he relied upon

traditional herbal medicine administered by family

members rather than visiting a hospital following alleged

torture at the hands of government officials. 330 F.3d at

594. Given our standard of review, we were constrained to

7. Given the significance of $150 in the Guinean context, I need not

mention that a search of bribery convictions in this country would no

doubt disclose instances where officials in the United States had risked

career and liberty for $150 or less. 

79
affirm and we rejected the alien’s claim of bias. However, in

doing so, we noted:

it must be added that there were places where the IJ

did go beyond the bounds of propriety to make some

additional and problematic generalized assertions of

her own. While as discussed below we are

understandably troubled by some of those comments,

in the context of the record as a whole there is

insufficient evidence to conclude that the overall

proceedings were biased in violation of Abdulrahman’s

right to due process.

330 F.3d at 595. In his concurring opinion, Judge Becker

commented on some of the more troubling aspects of the

IJ’s analysis. He explained:

The opinion of the Immigration Judge (IJ) is laden with

statements such as the following, which I find

troubling in terms of their viability as credibility

judgments:

(1) ‘The respondent testified that he was treated

with herbs, by his grandmother and mother, and told

the Court these are the way things are done in

Sudan, people do not go to the hospital as they do

here in the Western World. Again, that is not the

case, all countries all [sic] have hospitals and

doctors, however, he wish [sic] to provide this false

information regarding the medical institution about

his country, so be it.’

However, based upon available information about the

Sudan, the Respondent’s contention seems reasonable.

At all events, the basis for the IJ’s conclusion seems far

from clear; rather, it seems quite tenuous.

Id. at 599-600. 

Judge Becker also cautioned:

The Immigration Judge’s statements barely cross the

line into the realm of fact finding, although Judge

Shadur [author of the opinion] is correct that, in view

of our extremely narrow standard of review, we are

constrained to view them as so doing. While I join in

80
Judge Shadur’s opinion, I write separately to highlight

these statements and to express my extreme

discomfiture with them, as they border on the cavalier.

Indeed, in my view, they come extremely close to

constituting reversible error. 

Id. at 600. Judge Becker’s concurring opinion was joined by

the entire panel. 

However, even given our narrow scope of review, we still

require that specific reasons be given for adverse credibility

determinations so that we can review the BIA’s decision. In

Balasubramanrim, where the BIA made its own credibility

ruling based upon the record before the IJ, we stated: “[t]he

Board should give specific reasons for its determination

that a witness is not credible. We must evaluate those

reasons to determine whether they are valid grounds upon

which to base a finding that the applicant is not credible.

The reasons must bear a legitimate nexus to the finding.”

143 F.3d at 162 (internal citations and quotation marks

omitted). See also Mulanga v. Ashcroft, 2003 WL 22683042

at *6 (3d Cir. Nov. 14, 2003) (“Adverse credibility

determinations are . . . reviewed for substantial evidence.”).

We should require nothing less than “specific reasons” for

rejecting an alien’s credibility when that assessment is

based upon the alien’s demeanor while testifying. Unless we

require the IJ to explain those aspects of a witness’s

demeanor that undermine credibility, such as eye contact

or similar factors that may be culturally determined, we

simply can not afford the meaningful review the law

requires. 

In In re B-, 21 I & N Dec. 66 (BIA 1995) (Interim

Decision), the BIA rejected the IJ’s negative credibility

assessment where that conclusion rested largely upon the

alien’s “tendency during his testimony to look down at the

table or at the wall behind the interpreter instead of at the

Immigration Judge” while testifying. 21 I & N Dec. at 70.

The BIA explained its reasons for rejecting the IJ’s negative

assessment of that demeanor as follows: 

Although, of course, we have not been able to observe

this behavior by the applicant, we do not find that it

necessarily indicates deception. Instead, it may

81
indicate the applicant’s concentration on the questions

being asked of him through the interpreter. We note

that the applicant seems to have been listening

carefully, as the transcript contains about half a dozen

instances where the applicant requested clarification of

a question before he answered. These requests for

clarification appear to have been conscientious

attempts to provide the information sought by the

questioner rather than attempts to evade answering.

Id. at 71. 

Although the BIA’s concern with the IJ’s reliance on

demeanor in In re B- does not implicate the cultural bias I

am concerned about here, the BIA’s opinion clearly shows

the danger of placing too much reliance upon one person’s

interpretation of a witness’s demeanor. It also demonstrates

why we must not be content with allowing credibility

determinations to rest upon “demeanor” with no further

explanation by the IJ. 

Requiring the fact finder to specify, and thereby think

about and identify, those aspects of an alien’s demeanor

that are troubling will also enhance the quality of the entire

process by affording IJs an opportunity to reflect upon

perceptions that may simply reflect differing customs.

Suggesting that adverse credibility rulings will be affirmed

whenever they rest upon an alien’s demeanor, with no

further explanation or elaboration, will substantially

undermine the process and open the door to no small

amount of mischief. 

I obviously I do not intend to suggest that all claims for

relief under the immigration laws are valid or that

petitioners do not sometimes fabricate testimony in order to

avoid removal. Similarly, I do not minimize the difficulty of

distinguishing valid claims from invalid ones at times.

However, those difficulties are not resolved by unjustifiable

deference to an IJ’s unexplained interpretation of a

witness’s demeanor. Rather, they are exacerbated.

Accordingly, for all of the reasons I have noted, I take this

opportunity to express my concern with the import of

82
footnote 23 in the majority opinion even though I join that

portion of my colleague’s analysis.8

8. I have elaborated upon my concerns while accepting arguendo the

proposition that demeanor testimony is of substantial assistance in

evaluating credibility. I am willing to accept that proposition for purposes

of my discussion given the long legal tradition that I have noted above.

That tradition is not, however, without its skeptics. Empirical studies

have lead some to conclude that “[a]lthough highly regarded by . . .

judges and attorneys, the value of demeanor evidence as a means of

determining testimonial reliability has yet to be demonstrated factually.”

Morales v. Artuz, 281 F.3d 55, 62 n.3 (2d Cir. 2002) (discussing the

debate over the validity of this evidence, and citing empirical studies that

raise substantial doubt about the validity of the age old presumption

about the relationship between demeanor and veracity). 

Judge Duniway of the Court of Appeals for the Ninth Circuit aptly

explained the problem as follows: 

The notion that special deference is owed to the determination

of a trier of fact, whether judge, trial examiner, hearing officer

(administrative law judge), or jury, because the trier sees the

witnesses and hears them testify, while the [reviewing agency or]

court look[s] only at cold records is deeply imbedded in the law.

There must be thousands of appellate decisions that state and

restate it in an infinite variety of ways. 

* * *

I am convinced, both from experience as a trial lawyer and

from experience as an appellate judge, that much that is thought

and said about the trier of fact as a lie detector is myth or

folklore. Every trial lawyer knows, and most trial judges will

admit, that it is not unusual for an accomplished liar to fool a

[fact finder] because his demeanor is so convincing. . . . . 

Conversely, many trial lawyers, and some trial judges, will

admit that the demeanor of a perfectly honest but

unsophisticated or timid witness may be or can be made by an

astute cross-examiner to be such that he will be thought by the

jury or the judge to be a liar. He may be unable to face the

cross-examiner, the jury, or the judge; he may slouch and

squirm in the chair; he may be obviously tense and nervous; his

answers to questions may be indirect, rambling, and inaudible;

he may hesitate before answering; he may alternately turn pale

and blush. In short, he may, to the trier of fact, be a liar, but in

fact be entirely truthful. Again, however, another fact finder,

83
A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

seeing and hearing the same witness, may attribute his

demeanor to the natural timidity of the average not very well

educated and non-public sort of person when dragged to court

against his will and forced to testify and face a hostile crossexaminer, and conclude that the witness is telling the truth. 

Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1084-85 (9th Cir.

1977) (Duniway, J. concurring). 

84