2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-5-2004

Berishaj v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 03-1338

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PRECEDENTIAL

IN THE UNITED STATES COURT OF

APPEALS

FOR THE THIRD CIRCUIT

_______________________________

NO. 03-1338

___________

LEK BERISHAJ,

 Petitioner

 v.

JOHN ASHCROFT, ATTORNEY

GENERAL

 OF THE UNITED STATES 

 _______________________________

On Petition for Review of an Order of

the

Board of Immigration Appeals

(Board No. A74-881-632)

_______________________________

Argued June 25, 2004

Before: AMBRO, BECKER and

GREENBERG, Circuit Judges

(Filed: August 5, 2004 )

VISUVANATHAN 

RUDRAKUMARAN (ARGUED)

875 Avenue of the Americas

New York, NY 10001

Attorney for Petitioner

BRENDA M. O’MALLEY (ARGUED)

LYLE D. JENTZER

LYNNE R. HARRIS

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Attorneys for Respondent

________________________

OPINION OF THE COURT

________________________

BECKER, Circuit Judge.

Lek Berishaj, an ethnic Albanian from

Montenegro, petitions for review of a

decision of the Board of Immigration

Appeals (BIA), which affirmed without

opinion the decision of an immigration

judge (IJ) denying him asylum and relief

under the Convention Against Torture and

Other Cruel, Inhuman or Degrading

Treatment or Punishment (CAT). Under

our caselaw, see Dia v. Ashcroft, 353 F.3d

228 (3d Cir. 2003) (en banc), it is the IJ’s

decision that we review, no mean task here

because the IJ’s opinion is cursory, thinly

reasoned, and discusses the case without

any reference to the governing legal

standards. Nonetheless, we understand the

IJ to have concluded that Berishaj’s

testimony regarding past persecution was

not credible; that, even taking Berishaj’s

testimony as true, country conditions in the

Federal Republic of Yugoslavia (which

embraced Montenegro at the time of the

IJ’s decision) had changed such that

Berishaj could no longer have a well-
2

founded fear of future persecution; and

that Berishaj’s CAT claim failed because

there was no objective evidence that a

return to Montenegro would expose him to

torture.

Reviewing the IJ’s decision under the

“substantial evidence” standard, see id. at

247-50, we conclude that the IJ’s rejection

of Berishaj’s asylum claim cannot stand.

First, the IJ’s adverse credibility

determination has no basis in the record.

Second, the IJ misapplied the law in

concluding that changed conditions in

Montenegro have obviated any persecution

claim that Berishaj might once have had.

In such a posture, the burden of showing

changed country conditions is on the

government, see 8 C.F.R. 208.13(b)(1)(ii),

and we hold that the government must

rebut the alien’s well founded fear of

future persecution with specific evidence,

which it did not produce. We will

therefore grant the petition for review of

the decision insofar as it rejected

Berishaj’s asylum claim, and his related

claim for withholding of removal. We

leave it to the Agency to make a proper

determination in the first instance of the

merits of those claims. With respect to

Berishaj’s CAT claim, the IJ’s decision

passes muster (though barely), and we will

deny the petition for review of the IJ’s

CAT decision.

As we will explain in greater detail, we

think this case to be a particularly apt

example of a disturbing trend we often

encounter in petitions for review of the

BIA. In many cases in which country

conditions are at issue, the administrative

records are grossly out-of-date, requiring

us to engage in the rather artificial exercise

of ruling on situations that existed several

years in the past, but do not exist today.

Here, we work from an administrative

record in which the most recent country

conditions report is over four years out-ofdate. While SEC v. Chenery Corp., 318

U.S. 80 (1943), and the constraints of

process-based review of administrative

decision making prevent us from

supplementing a grossly out-of-date

administrative record, they do not

command blindness to the emerging

pattern of stale records. Considering the

rapid, frequent political changes in

countries from which asylum and CAT

applicants usually come, and the

potentially dire consequences of sending

such an applicant back to his country of

origin to face possible persecution or

torture on the basis of such a stale report,

we call on Congress, the Department of

Justice, the Department of Homeland

Security, and the BIA to improve the

structure and operation of the system, so

that all may have the confidence that the

ultimate disposition of a removal case

bears a meaningful connection to the

merits of the petitioner’s claim(s) in light

of contemporary world affairs.

I. The Administrative Record and the

IJ’s Decision

As will become clear, the IJ’s

credibility determination rested on his

rejection of a fairly narrow slice of

Berishaj’s testimony. But we will discuss
3

Berishaj’s testimony in full, because his

claims depend on aspects of it beyond the

specific testimony on which the IJ based

his adverse credibility determination.

CAT claims and questions of changed

country conditions are, for the most part,

evaluated with reference to documentary

evidence of contemporary country

conditions; questions of corroboration are

evaluated with reference to documentary

evidence of past conditions. We will

therefore address the documentary

materials in the record with a focus on

both past and contemporary events. To set

the context for Berishaj’s testimony, we

set forth in the margin a capsule

chronology of events in the Balkans from

1991 to 2001.1

A. Berishaj’s Testimony and

Corroborating Affidavit

Berishaj is an ethnic Albanian who

spent his youth in Montenegro, at the time

part of Yugoslavia.2 In the summer of

1991, he went to Kosovo, a neighboring

province of Yugoslavia, to attend a

university that conducted classes in his

native Albanian tongue. (At that time, no

university in Montenegro conducted

classes in Albanian.) Serb forces had

taken control in Kosovo in 1990, and had

officially closed the university, but it

 

1The following chronology—which is

not taken from the administrative

record—is excerpted from the United

Nations High Commissioner for

Refugees document “A Brief History of

the Balkans,” which is available at the

High Commissioner’s web site,

http://www.unhcr.ch.

Yugoslavia was created following

World War I, and after World War II

became a socialist federal republic

comprising Bosnia and Herzegovina,

Croatia, Slovenia, Serbia, Macedonia,

and Montenegro. Slobodan Milosevic

was elected President of Serbia in 1989. 

On June 25, 1991, Croatia and Slovenia

proclaimed their independence from

Yugoslavia, and Serb forces immediately

overran thirty percent of Croatian

territory. Bosnia and Herzegovina

proclaimed their independence on March

3, 1992, and Serb forces seized seventy

percent of the country’s territory. War

between Serbia and Bosnia continued

until the Dayton Peace Accord on

November 21, 1995.

In 1998, fighting erupted in Kosovo,

a province of Serbia, between Serbians

and ethnic Albanians, displacing

hundreds of thousands of people. Peace

talks failed, and in March 1999 NATO

air strikes began. In June 1999, NATO

and Russian forces entered Kosovo after

Yugoslavia accepted a peace plan. On

October 6, 2000, Milosevic conceded

defeat in a presidential election, and was

placed under house arrest. He was

handed over to the International Tribunal

in the Hague on June 28, 2001.

 

2The discussion in this section is taken

from Berishaj’s testimony, which for

ease of exposition we present as true. 

We address the IJ’s adverse credibility

determination in detail infra Part III.A.1.
4

continued to function underground, with

classes held in private homes in Pristina, a

major city in Kosovo. Berishaj’s uncle,

Palok, with whom Berishaj lived at the

time, was one of the leading organizers of

the illegal university, and he recruited

Berishaj to find private homes in which to

hold classes. Because of his activities,

Palok was arrested in 1991, and again in

1994, when he was detained and beaten for

several days. Berishaj was arrested in

Pristina in the spring of 1992 for his

assistance to the illegal university; he was

beaten with a rifle butt and detained

overnight. Not trusting the Serbian

doctors at the hospital, Berishaj was

treated by an Albanian doctor practicing

illegally, and returned to Montenegro a

few weeks later.

Shortly after returning to Montenegro,

Berishaj was inducted into the army; he

was sent to serve in Serbia, where he spent

eleven months. He was easily

recognizable as an ethnic Albanian, among

a predominantly Serbian army—“Berishaj”

is a well-known Albanian name; indeed,

one Sali Berishaj was the former president

of Albania. In the army, Berishaj served

as a tank gunman following a three-month

training period in which he learned to

operate the tank gun from instructions in

Serbian. In the tank crew of three or four,

Berishaj was the lowest in rank, taking

orders from Serbs in charge of the tank.

Berishaj did not, in these eleven months,

go to war in Bosnia. Berishaj attributed

this to the Serbian officers not trusting

Albanians enough to send them to war.

Berishaj’s duties mostly consisted of

cleaning the tank gun and guarding the

tank. He was beaten at the direction of

Serbian officers for singing songs in

Albanian, and he stopped speaking

Albanian publicly, relying on the Serbian

he learned while in the army. After

completing eleven months of military

service, Berishaj was discharged. He

returned to Montenegro, then to Kosovo

briefly to take university examinations,

and then back to his parents’ home in

Montenegro.

I n Decem ber 1993, fou r

policemen — appa rently milit a r y

police—came to his parents’ house at

midnight and took him to fight in Bosnia.

He served again as a gunman, and was

ordered to destroy buildings, houses, and

shoot at the army and at Muslim civilians

in Bosnia. Berishaj explained that he had

no choice but to shoot civilians: “I would

either, you know, shoot or [the Serbians]

would kill me.” Ethnic Albanians in the

army were not trusted to shoot without

being under Serbian control. For example,

Berishaj explained, “When we were in the

tank, you know, using the gun, we would

have somebody behind us [a Serbian] with

an automatic gun. . . . Their function was

that if somebody does not obey the order

to shoot with a gun, they would kill him.”

Berishaj spent two months in the army this

time, and escaped during the night in

February 1994. He returned to his parents’

home in Montenegro.

Fearing that he would be arrested and

returned to the army, Berishaj crossed

illegally from Montenegro into Albania,

where he spent the next fourteen months in
5

hiding at his cousin’s home. He sought,

but was unable to obtain, legal status in

Albania; as a result, the Albanian

authorities learned of him. His cousin,

fearing the Albanian police, convinced

Berishaj to return to Montenegro in April

1995. Upon returning to his parents’ home

in Montenegro, Berishaj learned that he

was wanted by the police, and he went to

reside with his sister, who lived in another

village several miles from his parents’

home. The five months with his sister

were spent mostly indoors, as were the

following months, which he spent with an

uncle in yet another village.

Berishaj ultimately was located by the

Montenegrin police in September 1996,

and detained for two days. They asked

him why he deserted from the army, and

why he did not finish his studies at the

official university (i.e., the Serbian-run

university); it was clear that the police

knew he had participated in the illegal

university. Berishaj was released from

custody apparently when an uncle

fabricated a story about Berishaj needing

to visit an ill family member and posted

bail for him. Berishaj returned illegally to

Albania, where he resided until February

1997, when he was smuggled to Belgrade,

and from there to France, then Brazil, then

the United States.

Since being in the United States,

Berishaj has had limited contact with

family members in Montenegro, fearing

that his family would be coerced by the

police into revealing his whereabouts. In

January 2001, Berishaj spoke to his father

for the first time since leaving Montenegro

nearly four years before. His father

explained, in Berishaj’s words “that once

I left, the [Montenegrin] police came three

times and checked the house inside out

looking for me after I had escaped. At this

time, they asked him ‘Where is he? Where

can we find him?’ And his response was

he didn’t know. . . . After I left, my father

was telling me that many incidents they

came and checked the house inside out

three times, and at one point were also

guarding the house overnight to see if I

would come home.” The police stopped

searching for Berishaj when his father told

them that Berishaj had left permanently.

Berishaj also learned from his father that

his brother was serving a five-year

sentence for helping the Kosovar

resistance during the war. Berishaj’s

sister, a naturalized American citizen,

confirmed in an affidavit made in late

1997 that she had received similar

accounts from their father, brother, and

sister regarding police activity at their

parents’ home.

B. Documentary Evidence in the

Administrative Record

1. Contemporary Country Conditions

Much of the record addresses

contemporary treatment of ethnic

Albanians in Kosovo or elsewhere in

Serbia; as this is not especially relevant to

the situation in Montenegro, we will

concentrate only on documentary evidence

addressing Montenegro. We begin with

the State Department’s 1999 Country

Reports on Human Rights Practices:

Serbia-Montenegro, issued in February
6

2000 (the “1999 Country Report”); this is

the latest country report available in the

administrative record. While on the one

hand the BIA may not “‘hide behind the

State Department’s letterhead’” and place

full and uncritical reliance on a country

report, Ezeagwuna v. Ashcroft, 325 F.3d

396 (3d Cir. 2003) (quoting Li Wu Lin v.

INS, 238 F.3d 239, 246 (3d Cir. 2001)),

neither is it permissible for the IJ and BIA

not to address the relevant country report

in some detail. The first line of the 1999

Cou ntry Report reads: “SerbiaMontenegro is dominated by Slobodan

Milosevic,” though it goes on to note that

Milosevic’s primary influence is over

Serbia proper (and even there, not in

Kosovo) and less over Montenegro.

Nonetheless, given Milosevic’s control

over the Serbian army and federal police,

the 1999 Country Report establishes that a

prime force in the persecution (or worse)

of ethnic Albanians was still in power at

the time the administrative record was

compiled.3

On the other hand, the 1999 Country

Report represents that Montenegro was

making progress toward democracy,

holding free and fair elections, and

that1999 saw even further escape from the

federal control of Milosevic’s regime. The

1999 Country Report further states that

while the Montenegrin government

generally respected its citizens’ human

rights, there were reports of extrajudicial

killings by federal troops, forcible

conscri ption, and violence and

discrimination against minorities.

Academic freedom is said to have been

respected. In early 1999, the government

began a program of devolving authority on

local government officials in ethnic

Albanian communities. The Yugoslav

Parliament passed an amnesty for draft

evaders and deserters in late 1995, and the

Montenegrin Parliament passed a similar

law in late 1999. According to documents

in the record from Amnesty International,

however, there is evidence that at least the

latter law was not fully observed, as

federal Yugoslav authorities and military

police controlled the treatment of evaders

and deserters.

The 1999 Country Report generally

sounds of relative stability and democratic

progress, but other parts of the record

suggest that events were very fluid in

1999. For example, a series of news

articles from the New York Times and

reports from human rights organizations

suggests that paramilitary groups

associated with ethnic cleansing of ethnic

Albanians in Kosovo had moved into

Montenegro, perhaps at the behest of the

Montenegrin police.

 

3We note that the final hearing before

the IJ in this case was conducted in

January 2001, by which point Milosevic

was no longer in power in Serbia. 

Although this is not documented in the

administrative record, at the January

2001 hearing in this case, the IJ did refer

to “Mr. Milosevic [being] taken out of

power.” No documentary evidence in the

administrative record discusses the effect

of Milosevic’s fall on conditions in

Montenegro.
7

2. Corroborating Materials

We turn now to materials in the record

that could corroborate Berishaj’s accounts

from the early 1990s—specifically histime

at the illegal university in Kosovo and his

military service from 1992 to 1994. Two

pieces are worthy of note. First, Berishaj’s

story about the operation of the illegal

university in Kosovo, and police hostility

to it, is perfectly corroborated by an

Amnesty International Report from 1994,

which is in the administrative record. This

report describes the creation in 1990 and

1991 by ethnic Albanians of “a parallel

educational system using [pre-Serbian]

curricula,” with “lessons . . . held in

private homes.” The report also describes

several specific episodes of police

violence against ethnic Albanians on

account of this parallel educational system.

Second, and also in the administrative

record before the IJ, a 1992 article from

the Bronx-published English-language

Albanian-American newspaper Illyria

profiles a young ethnic Albanian, Adem

Krasniqi, whose experience as a forced

inductee into the Serbian army closely

parallels Berishaj’s. Krasniqi was one of

many Albanian “tankers” (i.e., tank

operators or gunmen). In an attack on

Vukovar, Croatia, he was forced to move

forward in the first wave; the story quotes

Krasniqi as saying, “Behind us were the

Serbian irregulars uniformed as soldiers.

Anyone trying to desert would be shot.

We had two choices. Keep firing or get

shot from people behind you.” Krasniqi

also describes indiscriminate shelling, and

being forced to fire at innocent civilians;

this is again consistent with Berishaj’s

account.

C. The IJ’s Decision

The IJ’s decision (which, save for

irrelevant introductory and concluding

remarks, is recounted in full in the

paragraphs that follow) begins with his

adverse credibility determination:

The case at bar is afflicted by

testimony that is incredible in

nature. The Applicant’s statements

as to how he was recruited and

placed in a position of combat by

the Serbs while at the same time

adducing to an attitude of total

disdain and bias toward the

Applicant is just incredulous to the

Court. This fact is dramatized and

magnified by the Respondent’s

testimony that although he was

despised by the Serbs in the army

he was placed in command of a

tank. The testimony further

developed how the Applicant

learned to operate the tank by

reading the instructions in it and

how, albeit they were written in a

language he did not understand, he

was able to familiarize with the

operation of the tank in just three

months. As fantastic and ludicrous

as that statement may appear, the

Court was dazzled and astounded

by the declaration that although he

was in control of the tank he had a

Serbian officer behind his back

pointing a gun at him at all times!

A better script could not have been
8

thought about by kings of comedy

like Peter Sellers or Mel Brooks.

This ridiculous testimony is not

supported by one scintilla of

evidence and in addition to be

completely absurd it borders in an

offensive and arrogant attitude

toward the Court. The Applicant’s

demeanor, throughout the sessions

of testimony, was characterized by

an arrogant disposition in thinking

that he deserves what he is asking

for.

The IJ next turned to a brief discussion

of the then-current conditions in

Montenegro:

The amount of time this case

has been pending has made the

Respondent’s claim even weaker.

Historically, Montenegro was

considered a satellite or puppet

nation of strongman Slobodan

Milosovic. Under Milosovic’s

regime the Respondent’s position

of opposition to service in the

Serbian army may have had some

validity. It was not until very

recently that the Government of

Montenegro has taken an

independent position with regard to

the treatment of ethnic Albanians in

the region. Once the apparent

defeat of the Milosov i c

administration, the Government of

Montenegro has shown signs of

self-determination. This change of

events, contrary to the Applicant’s

position benefits the Respondent

and makes his return to

Mon ten egro reaso nable .

Montenegro has granted an

amnesty to deserters and draft

dodgers. Nothing in Respondent’s

arguments convinces this Court that

his return to Montenegro would

place him in any type of danger at

the present time. In concluding as

I do I have determined that the

Applicant’s possibility of any

f uture persecution is nil.

Respondent’s attorney’s arguments

that the new administration of

electe d presid ent V ojislaw

Kostunica is a mirror image of his

predecessor is not persuasive nor

established.

The final substantive portion of the IJ’s

decision reiterates his adverse credibility

determination:

The Court has stated its opinion

earlier as to how skeptical the

Court is about the Applicant’s

claim of p ast persecution.

Testimony that has been plagued by

fanta stic anecdo tes a n d

uncorroborated information is very

difficult to accept even as plausible.

The Applicant’s case is precisely

affected by these characteristics

and therefore makes it impossible

for the Court to accord it any

credence.

The BIA affirmed this decision without

opinion.
9

II. Standard of Review

Because the BIA affirmed the decision

of the IJ without opinion, see 8 C.F.R. §

3.1(e)(4), the decision of the IJ is the final

agency determination, which we are called

upon to review. See Dia, 353 F.3d 228.

We have jurisdiction under 8 U.S.C. §

1252 over this timely petition for review of

a final determination of the BIA.

We review the Agency’s findings of

fact—such as the IJ’s credibility

determinations, his findings on the CAT

claim, and his findings regarding changed

country conditions—under 8 U.S.C. §

1252(b)(4)(B), which provides that

“administrative findings of fact are

conclusive unless any reasonable

adjudicator would be compelled to

conclude to the contrary.” As we

explained in Dia, we 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)].” 353 F.3d at 247; see also

Sevoian v. Ashcroft, 290 F.3d 166, 171 (3d

Cir. 2002) (“[The Illegal Immigration

Reform and ImmigrantResponsibility Act]

codifies the language the Supreme Court

used in Elias-Zacarias to describe the

substantial evidence standard in

immigration cases.”). We concluded in

Dia that

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 findin g on th e

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.

353 F.3d at 249.

III. Berishaj’s Application for Asylum

A. The Asylum Claim

1. The Adverse Credibility

Determination

Berishaj applied for asylum and

withholding of removal based on past

persecution and a well-founded fear of

future persecution if he is removed to

Montenegro. In Gao v. Ashcroft, 299 F.3d

266 (3d Cir. 2002), we laid out the

statutory framework for asylum claims and

the relevance of adverse credibility

determinations to the asylum inquiry:

A grant of asylum under §

1158(b)(1) of the Immigration and

Nationality Act (INA) allows an

otherwise removable alien to stay

in the United States. The Attorney

General “may” grant asylum to an

alien who demonstrates that he/she

is a refugee: a person unable or

unwilling to return to the country of

that person’s nationality or habitual
10

residence because of past

persecution or because of a

well-founded fear of future

persecution on account of his race,

religion, nationality, membership in

a particular social group, or

political opinion. See INA §

208(b)(1), 8 U.S.C. § 1158(b)(1)

(requiring asylum applicant

conform to definition of refugee);

[§] 101(a)(42)(A), 8 U.S.C. §

1101(a)(4 2 ) (A ) ( prov idin g

definition of refugee). In order to

establish eligibility for asylum 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’ one of the

statutorily-protected grounds; and

(3) is committed by the government

or forces the government is either

‘unable or unwilling’ to control.”

Navas v. INS, 217 F.3d 646, 655

(9th Cir. 2000).

An applicant can demonstrate

that she has a well-founded fear of

future persecution by showing that

she has a genuine fear, and that a

reaso nable person in he r

circ umst ances would fea r

persecution if returned to her native

country. Elnager v. INS, 930 F.2d

784, 786 (9th Cir. 1991). Aliens

have the burden of supporting their

asylum claims through credible

testimony. Abdille v. Ashcroft, 242

F.3d 477, 482 (3d Cir. 2001).

Testimony, by itself, is sufficient to

meet this burden, if “credible.” 8

C.F.R. § 208.13(a), Chand v. INS,

222 F.3d 1066, 1077 (9th Cir.

2000). In some cases the INS may

require documentary evidence to

support a claim, even from

otherwise credible applicants, to

meet their burden of proof.

Abdulai [v. Ashcroft], 239 F.3d

[542,] 554 [(3d Cir. 2001)].

. . . . [A]dverse credibility

determinations are reviewed for

subs t a n tial evidence .

Balasubramanrim v. INS, 143 F.3d

157, 161 (3d Cir. 1998). . . .

Adverse credibility determinations

based on speculation or conjecture,

rather than on evidence in the

record, are reversible. Salaam v.

INS, 229 F.3d 1234, 1238 (9th Cir.

2000). Gen era lly, minor

incon sistencies and minor

admissions that “reveal nothing

about an asylum applicant’s fear for

his safety are not an adequate basis

for an adverse credibility finding.”

Vilorio-Lopez v. INS, 852 F.2d

1137, 1142 (9th Cir. 1988). The

discrepancies must involve the

“heart of the asylum claim.”

Ceballos-Castillo v. INS, 904 F.2d

519, 520 (9th Cir. 1990).

Gao, 299 F.3d at 271-72. Furthermore, an

alien who offers credible testimony

regarding past persecution is presumed to

have a well-founded fear of future

persecution. See Abdulrahman v.

Ashcroft, 330 F.3d 587, 591-92 (3d Cir.

2003) (citing 8 C.F.R. § 208.13 (“An
11

applicant who has been found to have

established such past persecution shall also

be presumed to have a well-founded fear

of persecution on the basis of the original

claim.”)).

Here, if the IJ’s adverse credibility

determination is supported by substantial

evidence, Berishaj’s asylum claim would

arguably fail because the IJ refused to

credit significant testimony at the core of

Berishaj’s story of past persecution—his

being subjected to persecution by Serbs on

account of his status as an ethnic Albanian.

We set aside for the time being that the IJ

failed altogether to address Berishaj’s

testimony about how he was treated

outsi d e t he military. Tha t

testi mony —from his civilia n

life—arguably could independently

support his asylum claim. In light of our

conclusion that the IJ’s adverse credibility

determination is not supported by

substantial evidence, we need not address

whether the IJ’s adverse credibility

determination with respect to Berishaj’s

account of his military service could

properly be used to reject his accounts of

arguable persecution as a civilian.

As noted, we conclude that the IJ’s

adverse credibility determination is not

supported by substantial evidence. In

terms of the language we used in Gao, the

IJ’s credibility determination was “based

on speculation [and] conjecture, rather

than on evidence in the record.” 299 F.3d

at 272 (citing Salaam v. INS, 229 F.3d

1234, 1238 (9th Cir. 2000)). Without

further elaboration, the IJ simply rejected

Berishaj’s testimony regarding his military

service as “just incredulous [sic] to the

Court,” as “fantastic and ludicrous,” and

“astound[ing],” worthy of “kings of

comedy like Peter Sellers or Mel Brooks.”

The IJ’s comments are not only

intemperate but singularly unhelpful. At

best they amount to a finding that

Berishaj’s testimony was implausible or

inherently improbable when, as we will

demonstrate, the testimony appears

eminently reasonable. At all events, the

IJ’s comments are not tethered to the

record, owing what little support they have

to hyperbole and appeals to popular

culture—two utterly inappropriate bases

for an asylum decision.

The BIA has of course held, and we

have agreed, that an adverse credibility

determination may properly be based on

implausibility or inherent improbability.

See In re S-M-J-, 21 I. & N. Dec. 722,

729-30 (BIA 1997) (holding that an

adverse credibility determination may be

“appropriately based on inconsistent

statements, contradictory evidence, and

inherently improbable testimony . . . in

view of the background evidence on

country conditions”); 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 the general

country conditions.” (citing Gao, 299 F.3d

at 278-79; He v. Ashcroft, 328 F.3d 593,

603 (9th Cir. 2003))). As these cases

illustrate, however, there must be record

support and specific, cogent reasons for

such an adverse credibility determination.
12

The en banc Court in Dia emphasized

exactly this point in rejecting the adverse

credibility determination made by the IJ in

that case:

“[W]hile we defer to the IJ on

credibility questions, that deference

is expressly conditioned on support

in the record,” Nagi El Moraghy [v.

Ashcroft], 331 F.3d [195,] 205 [(1st

Cir. 2003)], 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 credibilit y

determ i n ati ons based o n

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 [v.

Ashcroft], 331 F.3d [297,] 307 [(2d

Cir. 2003)] (“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.

Id. at 249-50 (some alterations in original).

None of the IJ’s reasons for finding

Berishaj incredible withstand scrutiny in

light of the record. We address them

seriatim. Most obviously wrong is the IJ’s

conclusion that Berishaj’s testimony about

his experience in the military was “not

supported by one scintilla of evidence.”

As we have already described, see supra

Part I.B.2, there is at least one strikingly

similar published account from another

ethnic Albanian in the Serb ian

army—Adem Krasniqi’sstory as published

in Illyria. Irrespective of Illyria’s

reliability vel non as an unbiased source of

news from the Balkans, the article was in

the administrative record and the IJ was

obliged to address it. Moreover, the IJ is

in no position to comment from his own

experience on the plausibility of the cruel

practices employed in one of the most

heinous conflicts of the modern era. If

anything, the tactic of forcing one ethnic

minority to kill another is entirely
13

consistent with multiparty ethnic warfare,

and there is no substantial evidence on

which to conclude otherwise. It seems

eminently plausible that the Serbians

would require the Albanians to be the ones

to shoot the Bosnians, and that they would

enforce that role in the manner

described—by having a gunman behind

each Albanian. To describe this as a Mel

Brooks scenario seems to us bizarre. 

We also cannot understand the IJ’s

incredulity at Berishaj’s ability to learn

enough Serbian to clean and operate a tank

gun as a low-ranking soldier. Berishaj

testified that he did not find Serbian

difficult to learn, and that he had to stop

speaking Albanian publicly—which

suggests that he was effectively immersed

in Serbian for several months. These are

both candid and credible statements that

the IJ did not address. What is more, even

though the IJ’s hearing in January of 1998

(no more than a year after Berishaj arrived

in the United States) was conducted with

an Albanian interpreter, Berishaj

repeatedly demonstrated that he was

listening to the questions in English, and

not waiting for the interpreter’s translation.

At times, Berishaj even responded in

English. English is a difficult language to

learn, but Berishaj apparently has some

facility for picking up languages, and this

only enhances the credibility of his claim

to having learned basic Serbian in a few

months. In light of all this, we do not see

how a reasonable factfinder could

conclude that his claim that he learned

enough Serbian to clean and operate the

tank gun was not worthy of belief.

We also note the basic misstatement of

the record in the IJ’s description of

Berishaj’s testimony—Berishaj never

testified that he was “placed in command”

of the tank, or “in control of the tank”; he

testified that he was at the bottom of the

chain of command. There is no evidence

contra. In sum, nothing of the IJ’s adverse

credibility determination survives even

basic scrutiny, and we cannot accept the

IJ’s determination as supported by

substantial evidence

The IJ also rejected Berishaj’s

testimony on the ground that it was

“plagued by . . . uncorroborated

information.” To the extent that the IJ

meant that Berishaj’s account of his

military experience could not be squared

with the experiences of other ethnic

Albanians in the Serbian army in the mid1990s, we think our discussion above

amply refutes any notion that Berishaj’s

experience was implausible. To the extent

that the IJ complained of the absence of

testimonial or documentary materials in

the record to support aspects of the factual

account given by Berishaj, we are at a loss

to comprehend th e IJ—requiring

corroborative evidence in this situation

would run counter to our precedent, BIA

precedent, and common sense.

In Abdulai, 239 F.3d at 554, we held

that “the BIA may sometimes require

otherwise-credible applicants to supply

corroborating evidence in order to meet

their burden of proof.” In so doing, we

refused to hold invalid the rule of

corroboration laid down by the BIA in SM-J-, 21 I. & N. Dec. 722. We explained
14

that S-M-J- “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.” Abdulai, 239 F.3d

at 554 (internal quotation marks omitted);

see also Mulanga v. Ashcroft, 349 F.3d

123, 133-37 (3d Cir. 2003).

The IJ plainly did not heed even the

first step, which is simple common sense:

There are matters on which it is plainly

unreasonable to expect any kind of

corroboration. Wartime persecution is

surely among these matters—exigency,

strife, and destruction all conspire to

destroy what records there might once

have been. Evidence documenting

military persecution and abuse is rarely

made in the first place. Testimony is

nearly impossible to come by because of

death and dispersal in the ranks. The IJ

had no grounds on which to expect

corroboration from Berishaj.

2. Changed Country Conditions

The IJ’s alternative reason for rejecting

Berishaj’s asylum claim was that country

conditions in Montenegro had improved

by 2000 to the point that Berishaj’s stories

of past persecution—even if they were

credible—no longer provided a basis for a

well-founded fear of future persecution.

As we have noted, an alien who offers

credible testimony regarding past

persecution is presumed to have a wellfounded fear of future persecution. See 8

C.F.R. § 208.13(b)(1); Abdulrahman, 330

F.3d 587. But 8 C.F.R. § 208.13(b)(1)(i)

also provides that

an immigration judge . . . shall deny

the asylum application of an alien

found to be a refugee on the basis

of past persecution if [it] is found

by a preponderance of the evidence

[that] [t]here has been a

fun damental chang e i n

circumstances such that the

applicant no longer has a wellfounded fear of persecution in the

applicant’s country of nationality .

. . on account of race, religion,

nationality, membership in a

particular social group, or political

opinion

The burden of proof in a changed-countryconditions rebuttal is on the government.

8 C.F.R. § 208.13(b)(1)(ii).

Other Courts of Appeals have

recognized a limitation on the inferences

that may be drawn from evidence of

changed country conditions. The First,

Seventh, Ninth, and Tenth Circuits agree

that evidence of changed country

conditions can successfully rebut an

alien’s fear of future persecution based on

past persecution only if that evidence

addresses the specific basis for the alien’s

fear of persecution; generalized

improvements in country conditions will

not suffice as rebuttals to credible

testimony and other evidence establishing

past persecution. The other Courts of

Appeals, including this Court, appear to
15

have had no occasion to consider the

matter.

As the Court of Appeals for the Ninth

Circuit has explained, “[the] INS is

obligated to introduce evidence that, on an

individualized basis, rebuts a particular

applicant’s specific grounds for his

well-founded fear of future persecution.

Information about general changes in the

country is not sufficient.” Rios v.

Ashcroft, 287 F.3d 895, 901 (9th Cir.

2002) (internal quotation marks and

citations omitted); accord Krastev v. INS,

292 F.3d 1268, 1276-77 (10th Cir. 2002)

(granting petition for review, noting that

the country report relied on by the BIA did

nothing to rebut petitioner’s fear from

local, not national, authorities in

Bulgaria); Gailius v. INS, 147 F.3d 34, 36

(1st Cir. 1998) (“It is well established that

general changes in country conditions do

not render an applicant ineligible for

asylum when, despite those general

changes, there is a specific danger to the

applicant.” (citing Fergiste v. INS, 138

F.3d 14, 19 (1st Cir. 1998)); Kaczmarczyk

v. INS, 933 F.2d 588, 593-95 (7th Cir.

1991) (explaining that, though it

appropriately rebutted petitioners’ fear of

future persecution in that case, the BIA

could not use the election of Solidarity

Party members in Poland to reject all

asylum claims by Polish nationals). We

agree with these cases and apply their

precepts to the case before us. The rule is

a natural corollary of the more general

proposition that the IJ is required to

consider the record as a whole in ruling on

an alien’s claim. See, e.g., Tarrawally v.

Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003)

(citing Balasubramanrim, 143 F.3d at

161).

To the extent that the IJ proposed to

proceed on an interpretation of 8 C.F.R. §

208.13(b)(1) that departs from the one

stated by our sister Courts of Appeals, the

IJ offered no reasoning and cited no

authority—not even the pertinent

regulation itself. Accordingly, we have no

basis on which to conclude that the IJ’s

reading and application of the regulation

was “reasonable” and therefore entitled to

deference under Chevron U.S.A., Inc. v.

Natural Resources Defense Council, 467

U.S. 837 (1984). Cf., e.g., Valansi v.

Ashcroft, 278 F.3d 203, 208-09 (3d Cir.

2002) (quoting, inter alia, Lewis v. INS,

194 F.3d 539, 544 (4th Cir. 1999) (“If we

conclude that Congress has not directly

addressed the question at issue in a statute

or its intent is ambiguous, we must defer to

the Board’s interpretation of the statute

provided it is not an unreasonable one.”

(internal citations and quotation marks

omitted))).

Subject to our discussion of the

staleness of the country report in the

administrative record here, the IJ’s

reliance on changed country conditions

was only in part supported by substantial

evidence. Substantial evidence does

support the IJ’s conclusion that Berishaj

could no longer have an objectively

reasonable fear of future persecution in the

military—after all, as even the 1997 State

Department Co untry Report for

Serbia/Montenegro notes, the war in

Bosnia ended with the 1995 Dayton Peace
16

Accord, and the Yugoslav parliament had

approved an amnesty for those who had

avoided military service between 1991 and

1995. While there were scattered reports

of forcible conscription, it was clear by

2000 that this was the exception.

On the other hand, nothing in the

country reports, or elsewhere in the record,

rebuts Berishaj’s fear of persecution at the

hands of Montenegrin police authorities.

Berishaj testified that the police had come

to his parents’ home looking for him after

he had left Montenegro, and that his

brother had been put in jail. Berishaj’s

sister corroborated Berishaj’s account of

his parents’ report of the police searches.

The IJ’s extremely general observation

that, in the wake of Milosevic’s

withdrawal of influence over Montenegro,

“the government of Montenegro has

shown signs of self-determination” does

nothing to refute Berishaj’s claims of

police-initiated persecution.4 Similarly

insufficient is the go vernmen t’s

observation (not relied on by the IJ, we

note) that ethnic Albanians participate in

the political process in Montenegro and

have won seats in parliamentary elections.

There may be specific reasons to think that

Berishaj’s fear of persecution is no longer

reasonable, but the IJ offers none, and we

will not scour a 700-plus page record (well

over half of which is devoted to

documentary materials) for evidence

unnoticed and unanalyzed by the IJ to

uphold the IJ’s decision. The burden of

proof in a changed-country-conditions

rebuttal is squarely on the government, and

no reasonable factfinder could conclude

that the government has carried its burden

of presenting specific evidence to rebut

Berishaj’s presumed well-founded fear of

future persecution.

In sum, substantial evidence does not

support the IJ’s rejection of Berishaj’s

claim of persecution by Montenegrin

police authorities; we will therefore grant

his petition for review of the IJ’s

disposition of his asylum claim. We do

not hold that Bershaj’s asylum claim must

succeed; it may be that his objective fear

of future persecution is rebutted by

evidence in the record, but we certainly

will not mine the record to invent our own

reasons to reject Berishaj’s application. It

may also be that the events of which

Berishaj complains do not amount to

persecution, but it would be manifestly

inappropriate for us, rather than the

 

4Berishaj also testified at length about

how he believed the new leader of

Montenegro in 2001, Milo Djukonovic,

to be closely allied with Milosevic, even

though the latter was no longer in power. 

The IJ did not address the effects of

Djukonovic’s government on conditions

in Montenegro, and in view of the

limited administrative record and

confused (dare we say Balkanized) state

of political affairs in the region, we are

unable to say whether Berishaj’s

assessment is correct. If anything, the

IJ’s failure to specifically address the

post-Milosevic political situation in

Montenegro supports granting the

petition for review.
17

Agency, to undertake that inquiry in the

first instance. See INS v. Ventura, 537

U.S. 12 (2002). Finally—as we discuss in

greater detail infra Part III.B—it may be

that the passage of considerable time since

the original agency disposition will allow

the administrative record to be

supplemented in a way that sheds more

light on Bershaj’s claim for asylum.

B. The Trouble with Stale

Administrative Records

It is a salutary principle of

administrative law review that the

reviewing court act upon a closed record.

This modus procedendi secures to an

administrative agency the necessary

measure of authority and discretion within

its sphere of special competence, by

preventing undue interference by

generalist courts that are charged only with

ensuring procedural regularity in the

agency’s actions. This in turn translates to

long-term stability and predictability in

outcomes in matters within the agency’s

expertise. While the principle yields good

results in most cases, in the area of asylum

law, where claims are heavily dependent

on country conditions, it can become an

albatross. More specifically, the dispute

often centers on the government’s

assertion, based upon a State Department

Country Report, that conditions have so

changed from those represented in the

asylum application that there is no longer

a basis for the alien’s claim of persecution

in the country of proposed removal.

It has become common that those

country reports in the administrative

record are three or four years old by the

time the petition for review comes before

us, and they frequently do not fairly reflect

what our knowledge of world events

suggests is the true state of affairs in the

proposed country of removal, or the region

embracing it. It almost goes without

saying that, in the troubled areas of the

planet from which asylum claims tend to

come, the pace of change is

rapid—oppressive regimes rise and fall,

and conditions improve and worsen for

vulnerable ethnic, religious, and political

minorities. As a consequence, we become

like astronomers whose telescopes capture

light rays that have taken millions of years

to traverse the cosmos, revealing things as

they once were, but are no longer. But

unlike astronomers, who can only

speculate about what is happening at this

moment in a far-off galaxy, we often know

very well what has happened in the years

since an administrative record was

compiled.

As we have suggested above, the

process-based review of agency actions is,

in theory at least, just that—process-based,

without regard to the merits. That should

make it easier, not harder, to judge longcold records. However, in contrast to the

traditional administrative law case, this

type of review can give rise to potentially

devastating consequences to an applicant

who faces the possibility of persecution (or

worse) if he is removed.

This case is a good example of how

much can change in the time between the

creation of the administrative record

before the IJ and the judgment of this
18

Court. On the one hand, Slobodan

Milosevic is now gone from the region, the

Federal Republic of Yugoslavia no longer

exists, and Berishaj’s native Montenegro is

now within the recently formed loose

federation of Serbia and Montenegro. On

the other hand, Berishaj claims—at least as

of his testimony in early 2001—that the

leaders in power are in practice “mirror

image[s]” of Milosevic. Four-year-old

country reports are sin g ularl y

unenlightening when faced with this kind

of situation.

Specific to Berishaj’s fear of

persecution—we are looking now to the

State Department’s 2003 Country Reports

on Human Rights Practices: Serbia and

Montenegro, released in February 2004,

which we have downloaded from the State

Department’s web site (the “2003 Country

Report”)—we note that police occasionally

beat suspects during arrest and detention,

but there has been generally improved

respect by the police for human rights.

Recently enacted criminal procedure

reforms are aimed toward eliminating

arbitrary arrest and detention, and the

Montenegrin Helsinki Committee (HCM),

a recognized human-rights monitor, did

not record any incidents of arbitrary arrest

or detention during 2003. In the cases

where arrest did not lead to prosecution,

the HCM did not find (in contrast to

previous years) any political, ethnic, or

religious motivation by the police. Ethnic

Albanians participate in the political

pro cess, and though they are

proportionately underrepresented, they do

have seats in the Montenegrin Parliament.

Finally, with respect to Berishaj’s troubles

at the illegal university in Kosovo, the

State Department notes that the

government in Kosovo “did not restrict

access to the Internet or academic

freedom.” But this 2003 Country Report is

not part of the administrative record.

There are some applicants to whom our

concerns simply do not apply—applicants

from countries where conditions have not

changed significantly for the better or

worse in many years. And in other

countries, the flux of world events is too

great to hope for perfect, up-to-date

decisions in every immigration case.

Surely, however, we can do much better

than we are doing now, especially in cases

from volatile countries and with

exceptionally stale records. The precise

problem is not just that the administrative

records in so many cases are out-of-date

(though that is a contributing factor), but

concomitantly that we do not have a

reasonab ly recent final agency

determination to review. It is one thing to

supplement the record before us; it is quite

another to decide a case based on this

expanded record.

We are aware that the Court of Appeals

for the Seventh Circuit apparently takes

judicial notice of post-final-agencydetermination developments, in the form

of new country reports, and at times rests

its disposition on those developments.

See, e.g., Pelinkovic v. Ashcroft, 366 F.3d

532, 540-41 (7th Cir. 2004) (taking

judicial notice that country conditions for

ethnic Albanians in Serbia and

Montenegro in 2004 are much-improved

over conditions in the early 1990s). This
19

practice might go a long way toward

solving the problem we face, but with all

respect we are unable to square this

practice with the clear command from SEC

v. Chenery Corp., 318 U.S. 80 (1943), that

courts reviewing the determination of an

administrative agency must approve or

reject the agency’s action purely on the

basis of the reasons offered by, and the

record compiled before, the agency itself.

Moreover, we are not especially sanguine

about the Seventh Circuit’s relaxed

approach to agency review. It not only

carries with it the potential for wholesale

relitigation of many immigration-law

claims, but the Courts of Appeals are illequipped to receive supplementary

evidence. At all events, the asylum

claimant should have the opportunity to

challenge the updated country report that

the government would rely on.

Congress could, of course, modify the

rules normally applicable to petitions for

review of a final decision of the BIA

without scrapping the strictures of

administrative agency review altogether.

Congress could require the Courts of

Appeals, in their sound discretion, on

motion or sua sponte, to grant petitions for

review of the BIA, and remand when it

appears from judicially noticeable

materials that the record compiled before

the agency does not generally reflect

contemporary country conditions.

Better yet, the parties to these

proceedings might take advantage of the

procedures in 8 U.S.C. § 1229a(c)(6)

(permitting aliens to move to reopen

proceedings on the basis of “new facts”)

and 8 C.F.R. § 1003.2 (permitting an alien

or the government to move the BIA to

reopen proceedings, and authorizing the

BIA to do so sua sponte). Indeed, both the

statute and regulation seem to explicitly

contemplate the situation we comment on

here; they permit reopening of asylum

proceedings “based on changed country

conditions arising in the country of

nationality or the country to which

removal has been ordered.” 8 U.S.C. §

1229a(c)(6)(C)(ii); see also 8 C.F.R. §

1003.2(c)(3)(ii) (permitting reopening

“based on changed circumstances arising

in the country of nationality or in the

country to which deportation has been

ordered”). Counsel for aliens generally

seem to be zealous in pursuing these

motions to reopen when appropriate. But

if this panel had to characterize the posture

of petitions before it for review of the BIA

on an outdated record, we would say that

in the majority, country conditions had

improved, weakening the alien’s case for

relief. Accordingly, we encourage the

Department of Justice to adopt a policy

that encourages its attorneys to file

motions to reopen when the adjudication

of an applicant’s claim would benefit from

an updated administrative record. The

device of the motion to reopen is far from

perfect, though, as it may additionally

delay an already protracted process.

We come at last to the one actor not

directly discussed so far: the BIA. The

trigger for the recent spate of out-of-date

records is, we suspect, the streamlining

regulations noted above, which permit the

BIA to summarily affirm an IJ’s decision

without issuing its own opinion. See 8
20

C.F.R. § 3.1(e)(4). The natural—though

surely unintended—consequence of the

streamlining regulations is summary

affirmance by the BIA of stale, backlogged

decisions by IJs. When it does so, the BIA

may have shirked its role and duty of

ensuring that the final agency

determination in an immigration case is

reasonably sound and reasonably current.

The decision here on review is neither, and

it is an embarrassment to the Agency on

multiple levels. The “reasoning” of the IJ

is open to ridicule, as we think our

discussion in Part III.A illustrates; and the

administrative record is a hoary relic: For

example, the most recent country report

was thirty-five months out-of-date at the

time the BIA rendered its decision, and as

of this writing, is fifty-four months out-ofdate.5

 Though the en banc Court in Dia

approved the streamlining regulations over

a statutory and Constitutional challenge, it

does not follow that the regulations are not

subject to misuse and even abuse.

Setting aside our perplexity at how the

BIA apparently thought the IJ’s opinion

worthy of being the “final agency

determination,” we do not understand why

the BIA did not intervene to supplement

the record in a weak case, arising out of a

highly volatile and evolving region of the

world. The streamlining regulations exist

to save an overburdened BIA from

unnecessary and redundant tasks. They are

not a license for the BIA to say “not our

problem.” Outdated administrative

records are the BIA’s problem, at least as

things now stand, and the BIA needs to

confront them. We therefore call on the

BIA to adopt—by opinion, regulation, or

otherwise—policies that will avoid the

Court of Appeals having to review

administrative records so out-of-date as to

verge on meaningless.

In view of this discussion, we direct the

Clerk of the Court to send a copy of this

opinion, calling particular attention to this

Part III.B, to the Chair, Ranking Member,

Chief Majority Counsel, and Minority

Counsel of the Senate Committee on the

Judiciary, and the Chair and Ranking

Member of the Subcommittee on

Immigration, Border Security and

Citizenship; to the Chair, Ranking

Member, Chief Majority Counsel, and

Minority Counsel of the House Committee

on the Judiciary, and the Chair and

Ranking Member of the Subcommittee on

Immigration, Border Security, and Claims;

to the Attorney General of the United

States, the Assistant Attorney General for

the Civil Division, United States

Department of Justice, and the Deputy

Assistant Attorney General in charge of

 

5Of course, it is not strictly the

chronological age of the administrative

record that concerns us here; there are

old records that may still reflect

contemporary conditions (as, for

example, in a country that has been ruled

for several decades by the same dictator),

and there are younger records that may

not reflect contemporary conditions (as,

for example, in a country that

experienced a recent coup d’état). But

generally speaking, the chronological age

of the record is a good rough proxy for

how well the record reflects

contemporary conditions.
21

the Office of Immigration Litigation; to

the Secretary of Homeland Security and

the General Counsel of the Department of

Homeland Security; and to the Chair of the

Board of Immigration Appeals.

IV. Berishaj’s Application for Protection

Under the CAT

An applicant for relief under the CAT

must show that it is “more likely than not”

that he would be tortured in the country of

removal. See Wang v. Ashcroft, 368 F.3d

347, 348 (3d Cir. 2004) (quoting 8 C.F.R.

§ 1208.16(c)(2) (2004)); see also Dia, 353

F.3d at 233 n.1. It is the alien’s burden to

show this, and objective evidence is

required. See Sevoian, 290 F.3d at 175.

The government simply argues that

Berishaj’s CAT claim fails because the IJ

found him not credible, and it was only his

own testimony that formed the basis for

the objective likelihood of being tortured.

Berishaj counters that the IJ’s analysis of

the CAT claim is so cursory that it is

impossible to tell whether (1) the IJ

thought that a CAT claim could not stand

if the asylum claim fell, or (2) the IJ

analyzed the country conditions evidence

and concluded that it did not support a

CAT claim. The first alternative would be

a legal error, and would be grounds for

granting the petition because asylum and

CAT claims are “analytically separate.”

See Zubeda v. Ashcroft, 333 F.3d 463, 476

(3d Cir. 2003) (quoting Kamalthas v. INS,

251 F.3d 1279, 1283 (9th Cir. 2001)).

We think the better reading of the IJ’s

decision to be the second alternative—that

the record as a whole does not show that

Berishaj is more likely to be tortured than

not if removed to Montenegro.

Preliminarily, we note that Berishaj’s own

testimony—whether credible or not—has

nothing to do with his CAT claim; CAT

claims are entirely concerned with the

objective likelihood of torture in the

future, and Berishaj’s testimony did not

address contemporary treatment of

disfavored persons in Montenegro in any

particularized way.

The balance of the record describes

mistreatment and indignities, but there is

scant evidence—let alone compelling

evidence—that it is more likely than not

that Berishaj would be tortured if removed

to Montenegro. To be sure, the record

suggests that, at the time of its making,

there was political instability in the

fledgling Federal Republic of Yugoslavia

(many newspaper articles in the record

attest to this), and that Serbs continued to

perpetrate abuses and massacresin Kosovo

(this is well-chronicled in the 1999

Country Report). But the former does not,

of course, amount to torture, and the latter

was in Kosovo, not Montenegro. As for

Montenegro itself, there are reports of

extrajudicial killings perpetrated by the

Yugoslav army, but such action seemed to

be outside of government control or

direction, and at all events, was not “more

likely than not” to be the fate of a

Montenegrin like Berishaj. There was also

forcible conscription of ethnic Albanians

in Montenegro, but again, this is not

torture. Most troubling perhaps is that a

human rights group, the International

Crisis Group, claims that as of 1999,
22

“Yugoslav forces ha[ve] undertaken

limited ethnic cleansing campaigns

directed against ethnic Albanians in

northern Montenegro.” Similar reports are

scattered throughout the administrative

record.

Ultimately, even if this activity

amounts to torture in some instances, there

is no suggestion that it is nearly frequent

enough to compel the conclusion that

Berishaj himself would more likely than

not suffer torture upon removal to

Montenegro. Thus we must deny the

petition for review of Berishaj’s CAT

claim. We also note that our observations

regarding stale administrative records, see

supra Part III.B, can apply with similar

force to claims for protection under the

CAT, even though in this particular case

the CAT issue is not presented in as stark

a relief as the asylum issue.

V. Conclusion

For the foregoing reasons, we will

grant the petition for review, and vacate

the IJ’s decision with respect to Berishaj’s

asylum claim. Because the IJ’s disposition

of Berishaj’s claim for withholding of

removal rested on the same grounds that

we have found insufficient to support his

rejection of Berishaj’s asylum claim, we

will also grant the petition for review, and

vacate the IJ’s decision, with respect to

Berishaj’s claim for withholding of

removal. See Mulanga, 349 F.3d at 132

(describing relationship between asylum

claims and claims for mandatory

withholding of removal). We will deny

the petition for review with respect to

Berishaj’s claim under the CAT. We

direct the Clerk of the Court to send copies

of this opinion to the officers and

legislators identified in Part III.B above.