2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-6-2005

Voci v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 04-1807

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respondent pursuant to Fed. R. App. P. 43(c).

PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Case No: 04-1807

ALKET VOCI,

 Petitioner

 v.

ALBERTO GONZALES , Attorney General of the United *

States,

 Respondent

On petition for review of a final order

of the Board of Immigration Appeals

File No: A79-098-188

__________________________________

Argued May 5, 2005

Before: MCKEE, SMITH, and VAN ANTWERPEN, Circuit

Judges
2

(Filed: June 6, 2005 )

COUNSEL: Mark A. Goldstein, Esq. (Argued)

Goldstein & Associates

The Gulf Tower, Suite 2330

707 Grant Street

Pittsburgh, PA 15219

Attorney for Petitioner

Peter D. Keisler Esq., Assistant Attorney 

 General, Civil Division

Christopher C. Fuller, Esq.

Dennis J. Dimsey, Esq.

Lisa Wilson Edwards, Esq. (Argued)

U.S. Department of Justice

Ben Franklin Station

PO Box 14403

Washington, D.C. 20044-4403

Attorneys for Respondent

_____________________

OPINION OF THE COURT

_____________________

SMITH, Circuit Judge.
 Voci has only presented substantive argument in support 1

of his asylum claim, and only sought review of his asylum

claim in his Notice of Appeal. Thus, issues concerning

withholding of removal and protection under the CAT have

essentially been waived. See Kopec v. Tate, 361 F.3d 772,

775 n.5 (3d Cir. 2004) (“An issue is waived unless a party

raises it in its opening brief, and for those purposes a passing

reference to an issue . . . will not suffice to bring that issue

before this court”) (quoting Laborer’s Int’l Union v. Foster

Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994)). 

3

Appellant Alket Voci, a native of Albania, appeals a

decision of the Board of Immigration Appeals (“BIA”), in which

the BIA affirmed the Immigration Judge’s (“IJ’s”) denial of

Voci’s application for asylum, withholding of removal, and

protection under the United Nations Convention Against Torture

(“CAT”). The BIA rejected the IJ’s determination that Voci 1

lacked credibility, but agreed nonetheless that Voci had failed to

demonstrate eligibility for asylum or for other relief. Because

Voci’s testimony has been accepted by the BIA as credible, we

hold that the BIA erred in determining that the incidents of

police mistreatment described by Voci did not rise to the level

of persecution under the Immigration and Nationality Act

(“INA”). While we take no position concerning whether Voci

will ultimately be entitled to the relief he seeks, the absence of

analysis in the BIA’s decision requires remand to the BIA, in

order to permit the BIA explicitly to address the issues

implicated by Voci’s application for asylum. In addition, if
4

upon remand Voci is able to establish that he suffered past

persecution, it may be appropriate for the agency to address

whether the government has shown that conditions in Albania

have changed, such that Voci no longer has a reasonable fear of

facing persecution if he were to return. 

I. FACTUAL BACKGROUND AND PROCEDURAL

HISTORY

A. Voci’s Testimony

Voci testified extensively concerning his background and

family history in Albania. While Voci discussed various forms

of mistreatment that his grandfather experienced under the

Communist regime, these issues have little bearing on Voci’s

eligibility for asylum. With respect to his own persecution, Voci

testified that in 1990 he became involved in the “democracy

movement” that was taking hold in Albania. Voci indicated that

he and other students at his high school, along with four

professors, began holding meetings to discuss ways in which

they could seek democratic reform. Voci indicated that the

movement grew over time, and on February 20, 1991, a large

protest rally was held in Korca, Albania. At this rally, protesters

pulled down a large statue of Enver Hoxha, a former Communist

Prime Minister of Albania. Voci testified that he was beaten by

police officers at this protest, and he suffered cuts which

required stitches, ultimately resulting in a lengthy hospital stay

when his wounds became infected. 
5

 Voci testified that during the early 1990s, as the

Democratic Party gained power and influence, he and other

activists received a number of anonymous threatening letters

warning them to cease their political activities. Voci also

indicated that from 1990 through 1994, the police repeatedly

came to his home searching for him, and they threatened his

mother with harm if Voci did not cease his political activities.

Voci explained that the police had videotaped the February 20,

1991, protest rally in Korca, and by reviewing these videotapes

they identified Voci as one of the leaders of the rally. Along

with the visits to his home, Voci also indicated that on several

occasions during this same period the police came to his school

looking for him, and that on these occasions Voci managed to

get out of the school building without being caught. 

The Democratic Party won elections in 1994, but

according to Voci this did not end his persecution by the police.

Voci indicated that in the years leading up to 1997, when the

Socialist Party regained power, he was beaten up on many

occasions by the police. Voci testified that seven of these

beatings were severe, resulting in bleeding and scars. Three of

these beatings occurred in connection with demonstrations in

which Voci participated, and four occurred on occasions when

the police accosted Voci on a street or alleyway as he walked

through town. On one occasion, the police beat Voci with the

blunt end of a gun, breaking his knee and causing Voci to spend

several weeks in the hospital. 
Voci also presented corroborating testimony from his sister, 2

Ingrid Lama, and his former Albanian business partner, Ilir

Drenesku. Lama is now a lawful permanent resident, a benefit she

obtained as a result of the U.S. government’s “diversity lottery” for

immigrants seeking permanent resident status. Drenesku, like

Voci, came to the U.S. using fake documents, and is an applicant

for asylum. 

6

Voci testified that the Socialist Party regained power in

1997, and that its leadership was comprised of former

Communist Party officials operating under a new name. Voci

stated that he continued to face persecution after the Socialists

regained power in 1997, culminating in a 1998 incident in which

the police came to his parents’ house, destroyed a number of the

family’s belongings, and beat Voci, his mother, and his sister.

Voci also explained that during the mid to late-1990s he faced

police harassment in connection with a restaurant that he

operated with a friend and fellow Democratic Party activist.

Police would come to the restaurant, harass and threaten patrons,

break glasses and windows, and generally disrupt the business.

Voci indicated that although the men who beat him and attacked

his restaurant were often dressed in plain clothes, he recognized

them as local police officers. Voci indicated that as a result of

the persecution he faced, he attempted to relocate to a different

part of Albania to stay with his uncle. This arrangement was

only temporary, however, and he eventually fled Albania and

came to the United States, arriving on March 14, 2001. 

2
7

B. The IJ’s Opinion

At the conclusion of Voci’s June 24, 2002, hearing, the

IJ stated that he would deny Voci’s petition for relief. The IJ

memorialized his findings and rationale in a separate oral

decision and order. The IJ indicated that he did not view Voci’s

testimony as credible, and concluded as well that “nothing the

respondent has testified to amounts to persecution in the

considered opinion of the Court.” The IJ noted that “the

Communists have been gone from Albania since 1991 and []

there is absolutely no evidence that the Socialists have

persecuted the respondent prior to his coming to the United

States and absolutely no proof that he is going to be persecuted

again if he returns to his country.” The IJ also stated that Voci

had failed to prove his various allegations “to this Court’s

satisfaction insofar as he has not submitted any supporting

documentation.” 

The IJ went on to discuss country conditions in Albania,

noting that the State Department reports contained in the record

reflected favorably on the political climate in Albania. Based

upon these materials, the IJ stated:

Assuming arguendo that the respondent had indeed

proven to the Court that he had been persecuted before

the fall of communism and after the Socialists had taken

power in Albania, the Court would nonetheless deny his

instant application under 8 C.F.R. 208.13 insofar as
8

based on the State Department Reports the Court finds

that there has been a fundamental change in the

circumstances in Albania such to the effect that the

respondent would no longer have a well-founded fear of

persecution in his country if he were indeed returned to

Albania. 

C. The BIA’s Opinion

Voci appealed the IJ’s denial of his petition to the BIA,

and on February 25, 2004, the BIA issued a one-page opinion

dismissing Voci’s appeal. The BIA’s opinion states:

The Immigration Judge’s decision dated June 24, 2002,

accurately sets forth the facts asserted by the respondent

in support of his claim for relief from removal. While

we do not agree with the Immigration Judge’s adverse

credibility finding, we agree that the respondent has not

demonstrated eligibility for asylum and also affirm the

Immigration Judge’s determination that the respondent

has failed to establish grounds for granting the other

forms of relief requested. In sum, the respondent has not

demonstrated that he has suffered past persecution in

Albania. Nor has he demonstrated a well-founded fear

of persecution based on a protected ground under the Act

were he to return to Albania. Likewise, the respondent

has not established that it is more likely than not that he

would be persecuted or tortured upon return to Albania.
9

We note that the respondent contends on appeal that the

manner in which the Immigration Judge conducted the

hearing, as well as the Immigration Judge’s attitude

toward him, deprived him of his right to a fair hearing.

A review of the hearing transcript does not reveal,

however, that the respondent suffered any prejudice.

Inasmuch as we are in agreement with the Immigration

Judge’s decision, we affirm his decision based upon and

for the reasons set forth herein. Accordingly, the

respondent’s appeal is dismissed. 

(internal citations omitted). 

II. JURISDICTION

We have jurisdiction over an appeal from a final order of

the BIA affirming a decision of the IJ to deny an alien’s asylum

application. 8 U.S.C. § 1252(a)(1); see Berishaj v. Ashcroft, 378

F.3d 314, 316 (3d Cir. 2004). In this case, although the BIA

agreed with the IJ’s decision to deny relief, it did not adopt or

defer to the findings of the IJ. Instead, it expressed

disagreement with the IJ’s adverse credibility finding, but stated

in a conclusory fashion that Voci had failed to show that he

suffered past persecution in Albania. In such cases the final

order we review is the decision of the BIA, not the decision of

the IJ. See Miah v. Ashcroft, 346 F.3d 434, 439 (3d Cir. 2003)

(“The final order we normally review is the decision of the BIA,

unless the BIA defers to the IJ’s findings”); Abdulai v. Ashcroft,
10

239 F.3d 542, 549 (3d Cir. 2001) (“Congress has granted us

power to review only ‘final orders 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.”) (citations omitted). 

We recognize that in some instances, we review both the

decisions of the IJ and the BIA. However, because our

jurisdiction is restricted to reviewing “final orders of removal,”

this approach is meant to be the exception rather than the rule.

See Abdulai, 239 F.3d at 545 (“We begin by clarifying that,

absent special circumstances not present here, we review only

decisions by the BIA and not those by immigration judges”)

(emphasis added). When first addressing this issue in Abdulai,

we characterized situations in which the IJ’s decision would be

reviewed as those in which the BIA “expressly adopted [a]

portion of the IJ’s opinion” or “announced that it was deferring”

to the IJ’s findings. See id. at 549 n.2. Our subsequent cases

have followed this approach. See, e.g., Korytnyuk v. Ashcroft,

396 F.3d 272, 286-87 (3d Cir. 2005) (analyzing BIA’s use of

passive voice to conclude that BIA had adopted specific factual

finding made by IJ); Chen v. Ashcroft, 376 F.3d 215, 221-22 (3d

Cir. 2004) (where BIA’s opinion listed flaws in applicant’s

testimony, and stated that “for those reasons and others cited in

the Immigration Judge’s decision, the Immigration Judge

correctly denied the respondent’s application,” court would
11

review both decisions) (emphasis added); Xie v. Ashcroft, 359

F.3d 239, 242, 246 n.9 (3d Cir. 2004) (reviewing both decisions

where BIA stated that it was giving “significant weight” to IJ’s

adverse credibility finding, and disclaiming reliance on IJ’s

“demeanor” analysis where applicant’s demeanor was not

referenced in BIA opinion); Miah, 346 F.3d at 439 (explaining

need to review both decisions where BIA rejected IJ’s adverse

credibility finding, and explicitly adopted IJ’s corroboration

analysis, noting that issues were intertwined because IJ’s

credibility findings influenced IJ’s views concerning necessity

of corroboration). 

In sum, the cases in which we have reviewed both

decisions have all involved situations in which the language of

the BIA’s opinion directly states that the BIA is deferring to the

IJ, or invokes specific aspects of the IJ’s analysis and factfinding in support of the BIA’s conclusions. Here, in contrast,

the BIA expressed disagreement with the IJ’s adverse credibility

finding, and did not specifically reference or adopt other

portions of the IJ’s analysis. In agreeing with the decision

reached by the IJ, the BIA stated that it was doing so “based

upon and for the reasons set forth herein.” A1:2 (emphasis

added). In this situation, we must restrict our review to the

question of whether the underlying record provides substantial

evidence for the BIA’s conclusions. As discussed below, we

cannot rescue the BIA from its paucity of analysis by injecting

issues that were raised by the IJ, but were neither addressed nor
We recognize that the large number of cases on the BIA’s 3

docket imposes practical limitations on the length of the BIA’s

written opinions. The difficulties in this appeal stem not from a

BIA opinion that is too short, but rather from the BIA’s failure to

identify the portions of the IJ’s analysis that it was adopting in

support of its conclusion that Voci had not demonstrated past

persecution. In cases where the BIA agrees with the IJ’s analysis

and conclusions, we have upheld the BIA’s streamlining

procedure, in which it effectively adopts the IJ’s opinion as its

own. See Dia v. Ashcroft, 353 F.3d 228, 243-45 (3d Cir. 2003) (en

banc). In cases where the BIA rejects portions of the IJ’s analysis,

but nonetheless agrees with the IJ’s decision to deny relief, the BIA

need not write a lengthy opinion. However, it must either briefly

state its own reasons for rejecting the petitioner’s claim, or identify

the portions of the IJ’s analysis that it has adopted in support of its

decision to deny relief. 

12

relied upon in the BIA’s opinion. 

3

III. ANALYSIS

An asylum applicant must demonstrate either past

persecution or a well-founded fear of future persecution. See

Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). In order to

establish eligibility on the basis of past persecution, an applicant

must show: “(1) an incident, or incidents, that rise to the level of

persecution; (2) that is on account of a statutorily protected

ground; and (3) is committed by the government or forces the

government is either unable or unwilling to control.” See Gao,

299 F.3d at 272. An applicant has a well-founded fear of future
13

persecution if he shows that he has a subjectively genuine fear,

and that a reasonable person in his circumstances would fear

persecution if returned to his native country. See id. 

Whether an asylum applicant has demonstrated past

persecution or a well-founded fear of future persecution is a

factual determination reviewed under the substantial evidence

standard. See id. (citing Abdille v. Ashcroft, 242 F.3d 477, 483

(3d Cir. 2001). 

[T]he 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. 

Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc). 

The BIA accepted Voci’s testimony as credible, and yet

determined that Voci had not shown that he experienced past

persecution in Albania. The BIA’s opinion does not explain

how the BIA reached this result. It appears there are two paths

the BIA may have taken, neither of which is satisfactory on the
We have excluded from our calculus the incident in which 4

Voci claimed to have been knocked down and beaten up by police

14

current record. First, the BIA could have determined that even

accepting Voci’s testimony as true, the beatings and other

mistreatment he experienced simply did not rise to the level of

persecution under the INA. Alternatively, the BIA could have

determined that even if Voci’s testimony was credible, and even

if the events described in the testimony would be sufficiently

severe to constitute persecution, Voci’s failure to provide

corroborative documentary evidence meant that Voci had not

carried his burden of proof with respect to demonstrating past

persecution. 

A. The “Severity” Theory

The first theory, that the alleged mistreatment suffered by

Voci at the hands of the police was not sufficiently severe to

constitute persecution, appears to be inconsistent with existing

BIA and federal appellate decisions. While the INA does not

define the term “persecution,” we have indicated that

persecution denotes “extreme conduct,” and that “the concept of

persecution does not encompass all treatment that our society

regards as unfair, unjust or even unlawful or unconstitutional.”

See Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). Voci

alleged that he suffered multiple beatings, seven of which he

characterized as severe, and at least one of which resulted in a

broken knee and an extended hospital stay. He also alleges that 4
in connection with the February 1991 Democratic Party protest

rally in Korca. Voci’s testimony indicated that this protest

involved vandalism by the protesters, in which they pulled down a

large statue of the former Prime Minister of Albania. Police

violence arising in response to civil unrest and violent protests,

even police violence that might involve excessive force, is not

necessarily considered persecution on account of an applicant’s

political beliefs. See, e.g., Shardar v. Ashcroft, 382 F.3d 318, 323-

24 (3d Cir. 2004) (upholding IJ’s finding of no persecution where

evidence indicated that detention of petitioner arose as a result of

petitioner’s participation in an unlawful violent demonstration);

Mullai v. Ashcroft, 385 F.3d 635, 638 (6th Cir. 2004) (petitioner’s

evidence that she was beaten by police and jailed for two days

following participation in protest rally “could reasonably be viewed

as motivated by her status as a protester rather than religious

persecution”). 

15

he was threatened on multiple occasions, and that police

attempted to intimidate his family members and threatened their

safety if Voci refused to abandon his political activities.

Taken together, we believe the mistreatment alleged by

Voci rises to the level of “persecution.” If Voci indeed faced

multiple beatings from police, including beatings that caused

injury and that in one instance broke his knee and resulted in

extended hospitalization, all as a result of his political beliefs, it

can fairly be said that the police were engaged in a “program or

campaign to . . . drive away or subjugate [Voci] because of [his]

beliefs.” See Fatin, 12 F.3d at 1240 n.10 (discussing definition

of “persecution”). Prior BIA precedent supports this view. For
16

example, in a case where an asylum applicant suffered physical

attacks on three occasions, where his son suffered a physical

attack that resulted in an injury to the son’s knee requiring

hospitalization, where the applicant’s apartment was broken into

and his possessions stolen or destroyed, and where the applicant

and his son were verbally harassed and threatened on multiple

occasions, the BIA held that “these incidents constitute more

than mere discrimination and harassment. In the aggregate, they

rise to the level of persecution as contemplated by the Act.” See

In re O-Z & I-Z, 1198 BIA LEXIS 12, *6-*7 (April 2, 1998). 

While this Court has not yet drawn a precise line

concerning where a simple beating ends and persecution begins,

our cases suggest that isolated incidents that do not result in

serious injury do not rise to the level of persecution. See, e.g.,

Chen v. Ashcroft, 381 F.3d 221, 234-35 (3d Cir. 2004) (holding

that BIA reasonably found that respondent’s alleged beating at

the hands of government officials did not constitute persecution,

and stating “Chen’s scuffle with the local officials does not

appear to have been serious. For example, the government

points out that Chen has never alleged that this altercation

resulted in any injuries that required medical treatment”);

Woldermariam v. Ashcroft, 112 Fed. Appx. 189, 193 (3d Cir.

2004) (“[T]he purported beating of Woldermariam by the

Eritrean authorities, a solitary incident causing no serious

injuries, does not evince conduct so severe that it constitutes a

real threat to life or freedom”). In contrast to the respondents in

Chen and Woldermariam, Voci alleged that he suffered repeated
The “other harassment” in Voci’s case would include the 5

threatening letters received by Voci during the early 1990s, the

multiple occasions between 1990 and 1994 where the police came

to Voci’s home and threatened his mother, and the 1998 incident in

which the police came to Voci’s parents’ house, forced their way

in, destroyed a number of the family’s belongings, and beat Voci,

his sister, and his mother. 

17

beatings over a period of several years, and that seven of these

beatings were “severe,” resulting in bleeding, scars, and “health

problems.” This mistreatment apparently culminated in a 1997

beating where Voci’s knee was broken by a police officer

wielding a gun, after which Voci was left by the side of the road

until a passerby summoned assistance. Voci testified that this

injury to his knee resulted in a hospital stay of approximately

three months. Voci’s testimony with respect to the number of

beatings he suffered, and the injuries resulting therefrom,

distinguishes his situation from Chen and Woldermariam, and

is instead more analogous to O-Z & I-Z, in which the BIA held

that multiple beatings, including one resulting in a knee injury,

coupled with other harassment, constituted persecution under

the INA. 

5

The conclusion that Voci experienced past persecution is

also consistent with the approach taken by the Seventh Circuit,

which has addressed on multiple occasions the question of

whether a beating or series of beatings rises to the level of

persecution under the INA. The Seventh Circuit’s basic
18

approach is that if a beating is an isolated incident, and if it

results in minor, but not severe, physical injury, then it will be

unlikely to constitute persecution under the INA. See Dandan

v. Ashcroft, 339 F.3d 567, 573-74 (7th Cir. 2003) (single threeday detention, in which respondent was deprived of food and

suffered a swollen face as a result of beatings from police, did

not compel reversal of BIA’s decision that respondent had not

suffered persecution). In contrast, multiple beatings inflicted on

the same respondent on multiple occasions are more likely to

give rise to a finding of persecution, although the existence of

multiple incidents is not a requirement. See id. at 573

(“Although the frequency issue is not dispositive, it does figure

significantly in the analysis . . . While, obviously, multiple

incidents create a more compelling case for finding persecution,

the number of times that a petitioner has been subject to

detention or physical abuse is merely one variable in the analysis

of the whole of the petitioner’s claim of past persecution”). The

Seventh Circuit has also indicated that even a single beating can

constitute persecution, assuming that the beating results in

significant physical injury. See, e.g., Asani v. INS, 154 F.3d

719, 722-23 (7th Cir. 1998) (respondent suffered past

persecution where he was detained by police, beaten, and had

two of his teeth knocked out); Vaduva v. INS, 131 F.3d 689, 690

(7th Cir. 1997) (single beating in which petitioner’s face was

bruised and his finger broken constituted past persecution). It

appears that Voci’s mistreatment at the hands of the Albanian

police would constitute past persecution under the Seventh

Circuit’s approach. We likewise conclude that if Voci is able to
19

meet his burden of proof and show that the incidents he

described actually occurred, these incidents would be

sufficiently severe, when taken together, to satisfy the first

prong of Gao’s three-part test for establishing past persecution.

Finally, with respect to this issue, we are unaware of any

prior BIA or federal appellate cases in which treatment similar

to that experienced by Voci was found to not rise to the level of

persecution. The government argues that the BIA reasonably

concluded that the incidents described by Voci did not satisfy

the “severity” threshold established by the first Gao prong.

However, the only cases cited by the government on this issue

are invoked for purposes of the boilerplate proposition that

persecution must involve extreme conduct, and does not

necessarily encompass all treatment that might be unpleasant or

cause suffering. These citations are not particularly helpful in

addressing the question at hand, and the government has cited

to no authority, from this Court or any other, which would

indicate that mistreatment of the sort experienced by Voci does

not rise to the level of persecution under the INA. We therefore

hold that to the extent the BIA determined that the pattern of

mistreatment allegedly suffered by Voci was not sufficiently

severe to constitute persecution, the BIA’s finding was not

supported by substantial evidence.

B. The “Corroboration” Theory

The government argues that an alternative theory that
“In setting out this summary of the [BIA’s] case law, we 6

express no opinion as to whether we agree that it is ‘reasonable’ to

expect applicants for asylum or withholding of removal to

corroborate these types of information.” Abdulai, 239 F.3d at 555

n.9. 

20

supports the BIA’s denial of Voci’s claim relates to the absence

of corroborative evidence for portions of Voci’s testimony. The

IJ complained that Voci had not produced documentation or

medical records to corroborate his claims of having been

hospitalized after being beaten by the Albanian police. We have

held that “the BIA may sometimes require otherwise-credible

applicants to supply corroborating evidence in order to meet

their burden of proof.” See Abdulai, 239 F.3d at 554. We have

noted that the BIA’s prior decisions establish that it is

reasonable to expect an applicant to corroborate facts “which are

central to his or her claim and easily subject to verification.”

See id. We observed in Abdulai, without expressing agreement,6

that the BIA has included in this category “evidence of an

applicant’s place of birth, media accounts of large

demonstrations, evidence of a publicly held office, or

documentation of medical treatment.” See id. (emphasis added).

While our analysis in Abdulai highlights the fact that the

BIA might permissibly seek corroboration from Voci

concerning his past medical treatment, our holding in Abdulai

also illustrates why this case must be remanded for further
21

proceedings. In Abdulai, we noted that the BIA’s rule

concerning corroboration contemplates a three-part inquiry: (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. See id. at 554.

The government argued in Abdulai that the petitioner should

have submitted medical records relating to his hospital stay after

being released from military detention. See id. at 555. We

declined to rule on the issue because we found that the BIA’s

opinion addressed only the second element of the three-part

inquiry described above, and did so using general language that

failed to identify the specific facts for which the BIA sought

additional corroboration. See Abdulai, 239 F.3d at 555. We

stated “[t]hough we are uncertain whether it would be

reasonable to hold Abdulai’s failure to procure Nigerian hospital

records against him (assuming such records even exist), that

concern is ultimately beside the point. Because the BIA never

stated which aspects of his story it would have been reasonable

to corroborate, we have no way of reviewing the Board’s actual

reasoning.” Id. We concluded that “[b]ecause the BIA’s failure

of explanation makes it impossible for us to review its rationale,

we grant Abdulai’s petition for review, vacate the Board’s order,

and remand the matter to it for further proceedings consistent

with this opinion.” Id. 

Here, the BIA through its opinion has provided even less
Our view is reinforced by the fact that the IJ’s concern 7

regarding Voci’s failure to provide medical records may have

arisen in the context of the IJ’s broader attack on Voci’s credibility. 

The BIA disagreed with the IJ’s adverse credibility finding. In

these circumstances, we can do little more than speculate

concerning what weight, if any, the BIA placed on Voci’s failure to

introduce Albanian hospital records in support of his otherwise

credible testimony. Cf. Wu v. Ashcroft, 393 F.3d 418, 425 (3d Cir.

2005) (“[W]here, as here, the Immigration Judge finds a witness to

be credible, but then renders a decision that is contrary to that

testimony without explaining why, we cannot say at this point that

such a decision is supported by substantial evidence”). 

22

information than was provided in Abdulai. It is not even clear

from the BIA’s opinion whether the BIA believed that Voci had

failed to provide adequate corroboration, and the BIA’s opinion

does not apply the three-part inquiry that we discussed in

Abdulai. In this situation, it would be improper for us to

speculate as to whether the BIA, sub silentio, believed that Voci

had not shown past persecution because he failed adequately to

corroborate his testimony. Instead, to the extent that Voci’s lack

of documentary corroboration for his testimony may reflect a

failure on Voci’s part to carry his burden of proof, it raises an

issue that can and should be addressed explicitly by the agency

upon remand. 

7

C. Changed Country Conditions

Along with the two theories discussed above, the
23

government also contends that the BIA’s decision should be

affirmed on the basis of changed country conditions. The

government argues that conditions in Albania have improved

such that there is no longer an objective basis for a well-founded

fear of persecution if Voci were returned. The IJ’s decision

included a finding that even if Voci had experienced past

persecution in Albania, country conditions in Albania had

changed to the point where Voci no longer had a well-founded

fear of future persecution. The IJ stated that based on this

finding, as an alternative ground for his decision, he would deny

relief pursuant to 8 C.F.R. § 208.13. This regulation indicates

that where an asylum applicant has established past persecution,

the existence of that persecution gives rise to a presumption that

the applicant has a well-founded fear of future persecution. See

8 C.F.R. § 208.13(b)(1). This presumption may be rebutted,

however, if the government establishes, by a preponderance of

the evidence, that there has been “a fundamental change in

circumstances such that the applicant no longer has a wellfounded fear of persecution” in his or her home country. See 8

C.F.R. § 208.13(b)(1)(i)-(ii). 

Unfortunately, the BIA’s approach, as reflected in its

opinion, prevents us from reaching the merits of the

government’s argument concerning changed country conditions

in Albania. The BIA elected to question some aspects of the IJ’s

analysis, while affirming, using very general language, the result

the IJ reached. In this situation, we cannot simply assume that

the BIA somehow adopted the IJ’s changed conditions
24

reasoning without explicitly referring to the issue, and without

discussing or acknowledging the framework for the changed

conditions inquiry that is established by 8 C.F.R. § 208.13. 

We have emphasized that under 8 C.F.R. § 208.13, “[t]he

burden of proof in a changed-country-conditions rebuttal is

squarely on the government[.]” See Berishaj, 378 at 328. The

IJ explicitly referenced 8 C.F.R. § 208.13 in connection with his

changed-country-conditions analysis, and stated that for

purposes of this analysis he was assuming that Voci had indeed

established the existence of past persecution. These statements

support an inference that the IJ understood that the government

bore the burden of proof on the changed conditions inquiry, and

that he believed the evidence contained in the record satisfied

the government’s burden. In contrast, the BIA’s opinion does

not reference 8 C.F.R. § 208.13, and does not discuss the

possibility of changed country conditions in Albania. The BIA

states that “the respondent has not demonstrated that he has

suffered past persecution in his native Albania,” but its opinion

provides no basis for assuming that it used the same analysis

used by the IJ. There is no indication that the BIA (1) assumed

that Voci had experienced past persecution, (2) shifted the

burden of proof concerning changed country conditions to the

government, and then (3) analyzed whether the record evidence

provided a basis for holding that the government had satisfied

this burden. In the absence of such analysis, it would be

inappropriate for us to attribute the IJ’s reasoning to the BIA.

See INS v. Ventura, 537 U.S. 12, 17-18 (2002) (summarily
25

reversing Ninth Circuit and holding that court of appeals may

not address issue of changed country conditions in instance

where that issue was addressed by the IJ, but was not reached by

the BIA). Instead, to the extent the question of changed country

conditions in Albania has a potential bearing on Voci’s

application for relief, we must remand to the BIA in order to

permit the BIA to assess the issue in light of its own expertise.

See Ventura, 537 U.S. at 17-18; see also Amanfi v. Ashcroft, 328

F.3d 719, 730 (3d Cir. 2003) (remanding to BIA for

determination of whether applicant had presented credible

testimony in support of his claim, in instance where IJ had made

adverse credibility determination and BIA had affirmed IJ’s

holding on alternate ground). 

IV. CONCLUSION

For the reasons discussed above, Voci’s petition for

review is granted, and the case is remanded to the BIA for

further proceedings consistent with this opinion.