## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 17 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MAHMOUD SHEIK ELZOUR, Petitioner,

v. JOHN ASHCROFT, Attorney General, Respondent. No. 04-9507

Petition for Review of a Decision of the Board of Immigration Appeals (BIA No. A78-602-705)

William Michael Sharma-Crawford, Overland Park, Kan sas, for Petitioner. John M. McAdams, Jr., United States Department of J ustice, Civil Division, Office of Immigration Litigation, Washington, D.C. (Peter D. Keisler, Assistant Attorney General, Washington, D.C., and Linda S. We rnery, United States Department of Justice, Civil Division, Office of Im migration Litigation, Washington, D.C., with him on the brief) for Respon dent.

Before EBEL , HENRY and HARTZ , Circuit Judges.

EBEL , Circuit Judge.

Petitioner Mahmoud Sheik Elzour (“Petitioner”), a S yrian national, entered the United States without authorization in April 20 00. The government now seeks- 2 -

to remove him from the country. In response, Petit ioner claims that he was subjected to a history of persecution at the hands of Syrian authorities and that he is entitled to asylum in the United States and/or r estriction on removal to Syria. The Immigration Judge (“IJ”) denied Petitioner’s ap plication for asylum on the sole ground that Petitioner had firmly resettle d in Canada prior to entering this country. He denied Petitioner’s’s application for restriction on removal because he found Petitioner’s tale of persecution implausib le. The IJ then ordered Petitioner removed to Canada, or, in the alternativ e, to Syria. The Board of Immigration Appeals (“BIA”) affirmed without opinio n. We hold that the IJ’s firm resettlement determinati on lacks record support, and that the IJ failed to support his adverse credi bility finding with specific, cogent reasons as required by our precedent. Accor dingly, we VACATE the BIA’s order and REMAND for further proceedings.

BACKGROUND Petitioner’s account of his alleged persecution in Syria is in dispute. For background purposes, we first describe the facts as serted by Petitioner in his testimony and affidavit, then provide a brief overv iew of conditions in Syria, and finally recount this case’s procedural history.- 3 -

Petitioner’s Allegations Petitioner was born and raised in Hamah, Syria. Hamah is closely associated with the Muslim Brotherhood, a religious -based movement opposed to the current Syrian regime. Although Petitioner did not favor the Syrian government, he did not support the Muslim Brotherho od either. However, Petitioner’s brother Abdul did speak favorably of the Muslim Brotherhood on occasion, and he once let a Muslim Brotherhood memb er stay at his house for a few days. In June 1981, Petitioner began a 30-month term of o bligatory military service, working as an air traffic controller. In July 1983, he was arrested and taken to an air force security area. On that same day, his brother Abdul was arrested in a different location in Syria. After six or seven days, Petitioner was transferredto an underground cell in
Damascus. He was beaten daily, suffering a broken nose and br oken ribs, and a bright light was kept on at all times. He was inte rrogated about his knowledge of the Muslim Brotherhood, asked to identify friends i n the Muslim Brotherhood, and specifically questioned about his brother Abdul ’s activities. Petitioner was released in May 1985. The Syrian government treated the time he spent in custody as military service and awarded him retroac tive compensation.- 4 -

From 1985 to 1990, Petitioner worked with his fathe r selling home improvement products. In February 1991 he was arre sted for a second time. He was held for several months at a military facility in Hamah, where he was questioned about giving money to his brother’s wife . Petitioner testified that he wanted to support her while his brother was in pris on, but that his behavior was perceived by Syrian authorities as raising money fo r families of the Muslim Brotherhood. He was beaten daily, and his injuries included eye injuries, a broken nose, a broken arm, and broken ribs. In September 1991, Petitioner was transferred to Si dna (or Seydnaya) Prison, where he was held in a single room with mor e than 100 detainees. Conditions were poor. At some point, he was notifi ed that he had been tried in absentia by a military court and sentenced to life in prison, although he was not informed of the charge against him. In December 19 95, Petitioner was released as part of a general amnesty given to about 2,500 p olitical prisoners. After his release, Petitioner stayed at his father’ s home for five or six months and had two operations on his injured eye. In June 1996, he used his brother’s passport to leave Syria for the Czech Rep ublic. He soon obtained a false Swedish passport and headed to Canada. Within days of his arrival in Canada in June 1996, Petitioner applied for asylum. Canadian authorities sent him notices to appear regarding his asylum1 Our record does not contain a copy of the Canadia n deportation order.

However, in its brief to this Court the government relates that “Elzour missed his Canadian asylum hearing and was ordered deported to Syria.”

2 Unbeknownst to Petitioner, Canadian officials dec ided to reopen his asylum case about the time he left the country. Ho wever, Canadian authorities ultimately determined that Petitioner had again aba ndoned his asylum claim, (continued...) - 5 - claim in February and April 1998, but Petitioner di d not receive them and he therefore failed to attend a mandatory hearing. Co nsequently, Canada deemed his asylum claim abandoned and apparently ordered Petit ioner to be deported to Syria. 1Petitioner was unaware of these developments at the time, and he thought that his application was simply taking a long time to be processed. Meanwhile, in January 1998, Petitioner married a Canadian woman, and they had a daughter later that year. Petitioner had also obtained authorizat ion to accept employment in Canada, and he took a job as a carpenter. In June 1999, believing that Canada had still not a cted on his asylum request, Petitioner’s wife filed a spousal applicat ion on his behalf. Canadian officials denied the application on the ground thatthe marriage had not been entered into in good faith. In late 1999 or early 2000, Petitioner learned thathis asylum application had been deemed abandoned. Fearing deportation, he fled for the United States on April 25, 2000. 22 (...continued)

having failed to appear at a hearing in February 20 01. - 6 - Country Conditions The administrative record contains the State Depart ment’s 1999 Country Report on Human Rights Practices for Syria, which d escribes a pattern of human rights abuses in Syria. That report generally depi cted a regime that tolerated no organized political opposition. In particular, the report noted that “[a]rbitrary a rrest and detention are problems.” In cases involving security matters, su spects could be detained incommunicado for prolonged periods without being tried or charged. The government also commonly detained relatives of deta inees or fugitives. Further, Syria’s security services were known to commit torture and other human rights abuses, particularly in military detention centers. “Serious abuses include[d] reports of extrajudicial killings; the widespread u se of torture in detention; poor prison conditions; arbitrary arrest and detention; [and] prolonged detention without trial.” Other human rights reports in the administrative re cord show that a significant percentage of Syria’s political detaine es had been arrested for known or suspected affiliation with the Muslim Brotherhoo d. A 1992 Human Rights Watch report stated that about 75 percent of the po litical detainees at that time3 Petitioner does not allege that he was held in Ta dmor Prison.

4 In the late 1970s and early 1980s, terrorist groups associated with a faction of the Muslim Brotherhood were involved in numerous assassinations of Syrian government officials. The Muslim Brotherhoo d also staged an uprising against the Syrian government in Hamah in February 1982. - 7 - were suspected of having an affiliation with the Mu slim Brotherhood. Another Human Rights Watch report, discussing Tadmor Prison , 3 noted that “[a]mong those arbitrarily arrested ... in the early 1980s w ere large numbers of young men, including teenagers, who were relatives, friends oracquaintances of suspected or known Muslim Brothers, or individuals whose names w ere elicited when suspects were tortured during interrogation.” 4

Procedural History Before the IJ, Petitioner admitted that he entered the United States without inspection, but applied for asylum pursuant to 8 U. S.C. § 1158 and restriction on removal pursuant to 8 U.S.C. § 1231 and the Convent ion Against Torture. The IJ denied his application for asylum on the ground that Petitioner had firmly resettled in Canada before entering the United Stat es, noting that he had been given the right to work and to apply for asylum the re.5 Restriction on removal was known as “withholding of removal” prior to

the Illegal Immigration Reform and Immigrant Respon sibility Act of 1996. See Wiransane v. Ashcroft , 366 F.3d 889, 892 n.1 (10th Cir. 2004). We use t he newer terminology “restriction on removal” throughout thi s opinion. For simplicity, as the IJ denied Petitioner’s applications under 8 U.S .C. § 1231 and the Convention Against Torture on the same ground, we will refer t o these two potential bases for relief collectively as Petitioner’s application forrestriction on removal. - 8 - Next, the IJ denied his application for restriction on removal because he found that Petitioner was not a credible witness. 5 The IJ’s adverse credibility finding was based solely on his conclusion that Pet itioner’s story was implausible. More specifically, the IJ found the following aspec ts of Petitioner’s story unworthy of belief: (1) that Syria would arrest a m ember of the military in the manner Petitioner described; (2) that Syria would b e interested in Petitioner more than a year after the 1982 Hamah uprising; (3) thatSyria would arrest Petitioner even though neither he nor his brother were support ers of the Muslim Brotherhood; (4) that Petitioner was detained arbitrarily for the length of time he claims; and (5) that Petitioner was compensated by the Syrian military after his first release from prison. The IJ did not rely on Petitioner’s demeanor but rather simply referred to the above factors to support his conclusion that parts of Petitioner’s story were implausible. The IJ ordered Petitioner removed to Canada (or, if Canada refused to accept him or advise whether it would accept him wi thin 90 days, then to Syria).- 9 -

The BIA affirmed without opinion. We have jurisdic tion to review the final removal order pursuant to 8 U.S.C. § 1252(a).

DISCUSSION I. Introduction An alien who fears persecution if removed from the United States has two possible avenues of relief: asylum and restriction on removal. See Tsevegmid v. Ashcroft , 336 F.3d 1231, 1234 (10th Cir. 2003). Asylum gen erally permits the alien to remain in the United States, whereas restr iction on removal forbids removal to the country where persecution is likely to occur. See id. ; Wiransane v. Ashcroft , 366 F.3d 889, 893 (10th Cir. 2004).

A. Asylum “An alien who has been granted asylum may not be de ported or removed unless his or her asylum status is terminated.” 8 C.F.R. § 208.22. To be eligible for asylum, an alien must be a “refugee,” meaning t hat he or she must generally be outside his or her country of nationality and “u nable or unwilling to return to ... that country because of persecution or a well-f ounded fear of persecution on account of race, religion, nationality, membership in a particular social group or6 Other circuits have held that persecution on acco unt of political opinion

can include persecution based on imputed political opinion. See Ravindran v. INS , 976 F.2d 754, 760 (1st Cir. 1992) (“An imputed po litical opinion, whether correctly or incorrectly attributed, may constitute a reason for political persecution within the meaning of the Act.”); Aguil era-Cota v. INS , 914 F.2d 1375, 1379 (9th Cir. 1990) (“If the persecutor thin ks the person guilty of a political opinion, then the person is at risk.”) (q uotation omitted).

7An alien will not be considered “firmly resettled ,” even upon receiving some sort of offer of permanent resettlement, if he or she establishes (1) that the alien’s entry into the third country was a necessary consequence of his or her (continued...) - 10 - political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 11 58(b)(1). 6 As a general matter, once refugee status is established, whether to grant or deny an asylum application is within the discretion of the Attorney General. INS v. Cardoza-Fonseca , 480 U.S. 421, 428 n.5 (1987) (“[T]he Attorney General i s not requiredto grant asylum to everyone who meets the definition of refugee.”) (emphasis in original). However, some categories of aliens are, by statute, ineligible to receive asylum even if they fall within the definition of arefugee. As relevant to our case, asylum is not available if the alien was firm ly resettled in another country prior to arriving in the United States. 8 U.S.C. § 1158(b)(2)(A)(vi). Applicable regulations explain that, with exceptions not relev ant in the instant case, an alien is considered to be firmly resettled in a third cou ntry when “prior to arrival in the United States, he or she entered into another count ry with, or while in that country received, an offer of permanent resident st atus, citizenship, or some other type of permanent resettlement.” 8 C.F.R. § 208.15

. 77 (...continued)

flight from persecution, the alien stayed there onl y so long as necessary to arrange onward travel, and he or she established no signifi cant ties there, or (2) that the conditions in the third country were so substantial ly and consciously restricted that the alien was not in fact resettled there. Se e 8 C.F.R. § 208.15. - 11 - B. Restriction on Removal under 8 U.S.C. § 1231 Generally speaking, an alien may not be removed to a particular country if he or she can establish a clear probability of pers ecution in that country on the basis of race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1231(b)(3)(A); INS v. Stevic , 467 U.S. 407, 429-30 (1984); Woldemeskel v. INS , 257 F.3d 1185, 1193 (10th Cir. 2001). This test requires the alien to show that such persecuti on is more likely than not. Stevic , 467 U.S. at 429-30; Woldemeskel , 257 F.3d at 1193. It is therefore “more demanding than the ‘well-founded fear’ standard app licable to an asylum claim.” Tsevegmid , 336 F.3d at 1234. The statutory provision governing restriction on r emoval also contains a different set of exceptions than does the asylum st atute. Significantly, firm resettlement in a third country is not a bar to res triction on removal to the country where persecution is likely. See 8 U.S.C. § 1231(b)(3)(B); Salazar v. Ashcroft , 359 F.3d 45, 52 (1st Cir. 2004) (“Although firm res ettlement is ... a bar to the grant of asylum, we have found no statute or regulation that bars the relief of withholding of [removal] on the basis of firm resettlement.”). Additionally,8 The Convention Against Torture is formally referr ed to as The United

Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T. S. 85. The United States implemented the Convention Against Torture through the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112 Stat. 2681 (1998). See Batalova v. Ashcroft , 355 F.3d 1246, 1248 n.2 (10th Cir. 2004). - 12 - unlike asylum, the decision to grant restriction on removal is mandatory once the statutory criteria are satisfied. Woldemeskel , 257 F.3d at 1193.

C. Convention Against Torture The Convention Against Torture provides another bas is for restricting removal to a particular country. 8 Pursuant to this treaty, an alien is entitled notto be removed to a country if he or she can show that it is more likely than not that he or she would be tortured if removed to that coun try. 8 C.F.R. §§ 208.16(c)(2), (4). This protection is narrower than restriction on removal under 8 U.S.C. § 1231 in some respects, but broader in others. Se e Kamalthas v. INS , 251 F.3d 1279, 1283 (9th Cir. 2001). The alien must show th at the persecution at issue would be so severe as to rise to the level of tortu re, but he or she need not show that it would be on account of a protected classifi cation. See id.

D. Principles of Judicial Review Because the BIA summarily affirmed the IJ’s decisio n without opinion, we review the IJ’s order as the final agency determination. Sviridov v. Ashcroft , 3589 Desta v. Ashcroft , 329 F.3d 1179, 1181, 1187 (10th Cir. 2003), sugge sts

that we review the firm resettlement question for a buse of discretion. Most other circuits review this question for substantial evide nce. See Salazar , 359 F.3d at 50 (1st Cir.); Abdille v. Ashcroft , 242 F.3d 477, 483 (3d Cir. 2001); Mussie v. INS , 172 F.3d 329, 331 (4th Cir. 1999). The cases we ci ted in Destareferred to the Attorney General’s discretionary power to grant asy lum relief, not to mandatory statutory bars such as firm resettlement. See Kapcia , 944 F.2d at 708; Woldemeskel , 257 F.3d at 1189. Moreover, both before and afte r Desta , we have held generally (albeit outside the firm resettlemen t context) that we review IJ and BIA factfinding for substantial evidence. See, e.g

. , Sviridov , 358 F.3d at 727; Lockett v. INS , 245 F.3d 1126, 1128 (10th Cir. 2001). In any eve nt, in this case our conclusion is unaffected by the standard of rev iew. Committing a legal error or making a factual finding that is not supported b y substantial record evidence is necessarily an abuse of discretion. - 13 - F.3d 722, 727 (10th Cir. 2004). We consider any le gal questions de novo, and we review the agency’s findings of fact under the subs tantial evidence standard. Under that test, our duty is to guarantee that fact ual determinations are supported by reasonable, substantial and probative evidence c onsidering the record as a whole. See id. ; Kapcia v. INS , 944 F.2d 702, 705 (10th Cir. 1991). 9 The IJ’s credibility determinations, like other fin dings of fact, are subject to the substantial evidence test. See Cordero-Trejo v. INS , 40 F.3d 482, 487 (1st Cir. 1994); Abdulrahman v. Ashcroft , 330 F.3d 587, 597 (3d Cir. 2003); Osorio v.
INS , 99 F.3d 928, 931 (9th Cir. 1996). In particular, we have held that in order to determine that an alien is not a credible witness, the IJ must give “specific, cogent reasons” for disbelieving his or her testimony. Sv iridov , 358 F.3d at 727.- 14 -

Finally, our review is confined to the reasoning gi ven by the IJ, and we will not independently search the record for alternative bases to affirm. See SEC v. Chenery Corp. , 318 U.S. 80, 95 (1943); Secaida-Rosales v. INS , 331 F.3d 297, 305 (2d Cir. 2003). If an agency “decides a case o n a ground believed by an appellate court to be wrong, the case has to be rem anded to the agency.” See Palavra v. INS , 287 F.3d 690, 693 (8th Cir. 2002). Thus, in the instant case, our review of Petitioner’s asylum application is limite d to the IJ’s firm resettlement determination, and our review of his restriction of removal application is limited to whether the IJ’s adverse credibility determinati on is sustainable.

II. Firm Resettlement The firm resettlement bar generally mandates a deni al of asylum if a third country in which an alien has resided offers him orher permanent resettlement before the alien enters the United States. See Andriasian v. INS , 180 F.3d 1033, 1043 (9th Cir. 1999). 8 C.F.R. § 208.15 “explicitl y centers the firm resettlement analysis on the question whether a third country is sued to the alien an offer of some type of official status permitting the alien t o reside in that country on a permanent basis.” Abdille v. Ashcroft , 242 F.3d 477, 485 (3d Cir. 2001). If a third country has simply allowed the alien to resid e there temporarily, the firm resettlement bar does not apply. See Cheo v. INS , 162 F.3d 1227, 1230 (9th Cir.- 15 -

1998) (“This does not mean that as soon as a personhas come to rest at a country other than the country of danger, he cannot get asy lum in the United States. Another country may have allowed only a temporary a nd not a permanent refuge.”). We have recognized that an offer of permanent resettlement may be proven by either direct or circumstantial evidence. See Abdalla v. INS , 43 F.3d 1397, 1399-1400 (10th Cir. 1994). Specifically, when an alien enjoys a lengthy undisturbed stay in a third country, “in the absenc e of evidence to the contrary, it would be a reasonable inference from the duration t hat [the third country] allowed the [alien] to stay indefinitely.” See Cheo , 162 F.3d at 1229; see also Abdille , 242 F.3d at 487 (“[I]f direct evidence of an offer is unobtainable, such non-offerbased elements can serve as a surrogate for direct evidence of a formal offer of some type of permanent resettlement, if they rise t o a sufficient level of clarity and force.”). In Abdalla , for example, evidence that an alien lived for 20 years in the United Arab Emirates and possessed a “‘residenc e’ visa/permit” was sufficient to suggest permanent resettlement in the absence of contrary evidence. 43 F.3d at 1399; see also Cheo , 162 F.3d at 1229 (“Three years of peaceful reside nce ... [is]10 Once the government presents evidence indicating th e alien was firmly

resettled, the burden shifts to the alien to show t hat this mandatory bar does not apply. See Abdalla , 43 F.3d at 1399; Abdille , 242 F.3d at 491, 491 n.12. - 16 - sufficient to support an inference of permanent res ettlement in the absence of evidence to the contrary.”). 10 However, in this case, Petitioner’s stay of nearly four years in Canada does not support an inference that he had received some sort of permanent refuge there. On the contrary, the record contains undisputed evi dence that Canada both refused to grant Petitioner asylum and refused to g rant him permanent status based on his marriage to a Canadian national. Inst ead, Canada ordered Petitioner deported to Syria. These facts negate any inferenc e that could otherwise be drawn from the length of Petitioner’s stay in Canad a that he had found permanent refuge there. Cf. Abdalla , 43 F.3d at 1399 (inferring firm resettlement from an “extended, officially sanctioned stay”); Cheo , 162 F.3d at 1229 (inferring firm resettlement from a “three year undisturbed stay”); Andriasian , 180 F.3d at 1043 (finding no firm resettlement because “[t]here is n o evidence in the record that [petitioner] was offered resettlement by Armenia – quite the opposite; he was told to go back to Azerbaijan”). There remains the question of whether Petitioner’s ability to apply for asylum in Canada was itself an “offer of ... perman ent resettlement” which Petitioner declined by failing to appear at a mandatory hearing. The firm- 17 -

resettlement bar looks to whether permanent refuge was offered , not whether permanent status was ultimately obtained. Refugees may not flee to the United States and receive asylum after having unilaterally rejected safe haven in other nations in which they established significant ties along the way. See 8 C.F.R. § 208.15; Abdalla , 43 F.3d at 1400 (an alien may not “bootstrap[] an asylum claim simply by unilaterally severing his existing ties t o a third country”); Cheo , 162 F.3d at 1230 (“A persecuting regime does not entitl e its victims to choose one country of asylum over another which first affordedpermanent refuge.”). An offer of permanent resettlement need not come in any particular form, and a third country may generally define what an al ien must do in order to accept its offer. As relevant here, a third country’s off er of permanent resettlement may consist of providing a defined class of aliens a pr ocess through which they are entitled to claim permanent refuge. If an alien wh o is entitled to permanent refuge in another country turns his or her back on that country’s offer by failing to take advantage of its procedures for obtaining r elief, he or she is not generally eligible for asylum in the United States. In contr ast, a mere possibility that an alien might receive permanent refuge through a thir d country’s asylum procedures is not enough to constitute an offer of permanent r esettlement.11 The burden of proof is on the applicant to show e ligibility for restriction

on removal, although his or her testimony alone, if credible, may be enough to satisfy this burden. See 8 C.F.R. §§ 208.16(b), 208.16(c)(2). - 18 - In the instant case, the IJ based his decision thatPetitioner was firmly resettled in Canada exclusively on two grounds: (1) Petitioner was given the right to work in Canada, and (2) he was given the opportu nity to apply for asylum there. Yet the fact that Petitioner was allowed to work in Canada does not mean that Canada offered him “permanent resident status, citizenship, or some other type of permanent resettlement.” Cf. 8 C.F.R. § 208.15. Further, although the IJ noted that Petitioner had the right to apply for as ylum in Canada, he did not examine whether that right constituted an offer of permanent resettlement. We hold that the IJ’s reasons for finding Petitione r subject to the firm resettlement bar are inadequate, and we remand for further consideration of this issue in light of the guidance provided in this opi nion.

III. Credibility As noted above, the IJ refused to restrict removal to Syria because he found Petitioner’s account of persecution there implausib le. 11 We will uphold an IJ’s adverse credibility determination so long as the IJ provides “specific, cogent reasons” for disbelieving the witness’ testimony. Sviridov v. Ashcroft , 358 F.3d 722, 727 (10th Cir. 2004). This standard of reviewis a deferential one, but we do- 19 -

not blindly accept an IJ’s determination that an alien seeking asylum or restriction on removal is not credible. Osorio v. INS , 99 F.3d 928, 931 (9th Cir. 1996); see also Aguilera-Cota v. INS , 914 F.2d 1375, 1381 (9th Cir. 1990) (“The fact th at an IJ considers a petitioner not to be credible consti tutes the beginning not the end of our inquiry.”). An IJ’s adverse credibility determination may appro priately be based upon such factors as inconsistencies in the witness’ tes timony, lack of sufficient detail, or implausibility. See Capric v. Ashcroft , 355 F.3d 1075, 1085 (7th Cir. 2004); Dia v. Ashcroft , 353 F.3d 228, 249 (3d Cir. 2003) (en banc). Addi tionally, an IJ may find a witness not to be credible because of hi s or her testimonial demeanor.
See Mendoza Manimbao v. Ashcroft , 329 F.3d 655, 662 (9th Cir. 2003) (“[W]e grant special deference to the IJ’s eyewitness obse rvations regarding demeanor evidence.”) In our case, the IJ did not fault Peti tioner’s testimony for containing inconsistencies or lacking detail, nor did he make any findings regarding Petitioner’s demeanor. Rather, the IJ’s adverse cr edibility finding was based solely on his conclusion that Petitioner’s account of persecution was implausible. An IJ’s finding that an applicant’s testimony is implausible may not be based upon speculation, conjecture, or unsupported personal opinion. See Wiransane v. Ashcroft , 366 F.3d 889, 898 (10th Cir. 2004) (“Adverse cred ibility determinations based on speculation or conjecture are reversible.”) (quotation and- 20 -

alterations omitted); see also Vera-Villegas v. INS , 330 F.3d 1222, 1231 (9th Cir. 2003) (“[C]onjecture is not a substitute for substantial evidence.”) (quotation omitted). Accordingly, when an IJ finds that the a lleged behavior of a foreign government is implausible, that conclusion must be supported by substantial evidence in the record. See Dia , 353 F.3d at 249 (“Where an IJ bases an adverse credibility determination in part on ‘implausibility,’ ... such a conclusion will be properly grounded in the record only if it is made against the background of general country conditions.”); El Moraghy v. Ashcro ft , 331 F.3d 195, 205 (1st Cir. 2003) (“While we defer to the IJ on credibility questions, that deference is expressly conditioned on support in the record.”). Under such circumstances, it would be error for the IJ to fail to explain the ba sis in evidence for his or her credibility finding. See El Moraghy , 331 F.3d at 205 (quoted with approval in Wiransane , 366 F.3d at 898). In other words, the IJ may not rest an adverse cred ibility determination on “his own unsupported opinion as to how an authoritarian government operates.” Gao v. Ashcroft , 299 F.3d 266, 278 (3d Cir. 2002); see also Cordero-Trejo v. INS , 40 F.3d 482, 490 (1st Cir. 1994) (implausibility fi nding may not be “based upon ‘expectations’ without support in the record”); Abd ulrahman v. Ashcroft , 330 F.3d 587, 598 (3d Cir. 2003) (“[T]he IJ fell well s hort of what we are entitled to expect from judicial officers – her commentary was not confined to the evidence- 21 -

in the record and smacked of impermissible conjectu re”); Mosa v. Rogers , 89 F.3d 601, 604-05 (9th Cir. 1996) (holding that the IJ improperly surmised, without record support, that the Afghan army would not be so desperate as to parachute a suspected mujahidin sympathizer into mu jahidin territory after only one week of training) (superceded by statute on oth er grounds). Although the IJ in the instant case identified seve ral parts of Petitioner’s testimony that he found implausible, he failed to s ubstantiate his skepticism with any record support. The IJ found it “impossible to believe” that Syria would detain Petitioner for such a prolonged period of ti me, particularly when neither he nor his brother supported the Muslim Brotherhood fi nancially, in writing, or in person. However, uncontradicted materials in the a dministrative record indicate that lengthy arbitrary detention was problematic in Syria, and that suspected Muslim Brotherhood members and their relatives were among those likely to be detained. The IJ did not explain by reference to a nything in the record how these aspects of Petitioner’s story were implausible. Along similar lines, the IJ pointed to no record support for his conclusions that Syria would not arrest and detain a “military man” in such a manner, that any interest Syria might have had in Petitioner due to the 1982 Hamah uprising would have subsided by July 1983, and that Syria would no t have compensated Petitioner after his first release from prison in 1 985. These conclusions were- 22 -

based not on any record evidence, but rather on the IJ’s own expectations as to how the Syrian government operated. We hold that t he IJ’s reasoning fell short of his obligation to “provide a foundation for his dis belief of [Petitioner’s] testimony on these points.” Cf. Gao , 299 F.3d at 278. Our decision is a limited one. The question we fac e is not whether we share the IJ’s skepticism about particular aspects of Petitioner’s story, but only whether the IJ adequately supported his adverse cre dibility determination with specific, cogent reasons. That requirement demands that there be record support for a finding that Syria’s alleged behavior was imp lausible in light of prevailing country conditions. The IJ provided no such recordsupport in this case, and we therefore remand for further consideration of this issue. We emphasize that “we are not finding [Petitioner] credible. Rather, we are concluding ... that because of the lack of subs tantial evidence to support the adverse credibility determination, we will remand i n order for the agency to further explain or supplement the record.” Cf. Dia , 353 F.3d at 260; INS v.
Ventura , 537 U.S. 12, 16 (2002) (“[T]he law entrusts the a gency to make the ... decision here in question. In such circumstances ajudicial judgment cannot be made to do service for an administrative judgment.” ) (citations omitted).- 23 -

IV. Conclusion For the foregoing reasons, we GRANT the petition fo r review, VACATE the decision of the BIA summarily affirming the IJ’ s order, and REMAND to the BIA for further proceedings consistent with this op inion.