2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit

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D ocke t N o . 03-1338

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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

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. It h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n author i z e d a dmini s tr at or of V i l l a no va U nive r sit y S choo l of L a

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IN T HE UNI TED ST ATES C OURT OF

APPEALS FO R T HE TH IRD CIR CU IT

_______________________________

NO. 03-1338

___________
LEK BER ISHA J, Petitioner

v.
JOHN ASHCROFT, ATTORNEY

GENERAL OF THE U NITED STATES

_______________________________
On Petiti on for Review of an Order of

the Bo ard o f Imm igration Ap peals (Board No. A74-881-632)

_______________________________ Argued June 25, 2004

Before: AMBR O, BECK ER and GR EE NB ER G, Circuit Judges
(Fil ed: August 5, 2004 )

VIS UVANATHAN RUDRAKUMARAN ( ARGUED) 875 Avenue of the Americas New Y ork, NY 10001
Attorneyfor Peti tioner BRENDA M. O’MALL EY ( ARGUED) LYLE D. JENTZER LY NN E R . HA RR IS United States Department of Justi ce Office of Immigration Lit igati on P.O. Box 878 Ben Franklin St ation Washington, DC 20044
Attorney s for Responde nt

________________________
OPINI ON OF THE COURT

________________________

BE CK ER , Circuit

Judge.
Lek Beris haj, an eth nic Albanian fr om Montenegro, petitions for re view of a decisi on of the Board of I mmigrati on Ap peals (BIA), which a ff irmed without opinionthe deci sion of an immigrat ion judge (IJ) deny ing him asy l um and reli ef underthe Conventi on Aga inst Torture and Ot he r Cruel, Inhuman or Degrading Treatment

or P uni shm ent ( CA T). U nde r
our cas elaw , see Dia v. Ash croft , 353 F.3d 228 (3d Cir. 2003) ( en banc ), it is the IJ’s decisi on th at

we review, no meantask here because the IJ’s o pin ion is cu rsory, thinly reasoned, and discuss es the ca se without anyreferenc e to the governing l egal standards. No neth eles s, we underst and the IJ to have co ncluded that Berishaj’s test imonyregarding past per secuti on was not credib le; that, ev en tak in g B erishaj’s test imonyas tr

ue, country

conditi ons in the Federal Rep ubli c o f Yugoslavia (which embraced Montenegro at t he time of the IJ’s decisi on) had changeds uch that Berishaj could no lo nger have a w ell-2

founded fear of

f uture per secuti on; and that Beris haj’s C AT claim fail e d because there wa s no o bjectiv e evid ence that a return to M onten egro wo uld ex pose him to tort ure.
Rev iewin g the IJ ’s deci sion under the “substantialevidence” s tandard, see id. at 247-50, we conclude that the IJ ’s rej ecti on of Berishaj ’s asylum clai m can n ot st and. First, the IJ’s adve rse cre dibili t y determi nationhas no b asis in the record. Se cond , the IJ m isapp lied the law in concludi ng that ch ange d con ditions in Mo ntenegro ha ve ob vi ate d a ny p ersecu tio n clai m that Ber ishaj might once have ha d

. In suc h a po sture , the burden of showing changed country conditi ons is o n the gov ernm ent, see 8 C.F.R. 20 8.13(b)(1)(ii),

a nd we ho ldth atth e go ver nment mu s t

re but the alien’s we ll founded fear o f future perse cution with spec ific evidence, which itdid not p rodu ce. W e w ill therefore gran t the pe ti tio n for revi ew of the decisi on insofar

as it rejec ted B erishaj’s asy lum clai m, and his r elat e d claim for withh oldi ng of r em ov al

. We leave it to th e Ag ency to make a proper determi nationin the f

irst inst anc e of the merits of those cl aims. Wit h respe ct to Berishaj ’s CAT claim, the I J’s deci sion passes muster (thou gh barely), and we will denythe pe tit io n for review of the IJ’s CAT decision.
As we will ex plain in greate r de ta il , w e think this case to be a pa rti cularly apt

exam ple of a disturb ing t rend we often

enc ounter

in petitions for revi ew of t h e BIA

. In m a ny cases in wh ich coun try conditi ons are a t i ssue, the admini strative r ecords are gros sly out-of- date, requiring

us to engage in the rather artificialexercise of ruli ng on sit

uations that

exist ed several years in th e p as t, b ut do no t ex ist to da y. Here, we work fr om anadmin ist rati ve record in w hich th e mo st rece nt country conditi ons report is over fo ur years out-ofdate. While SEC v. Chenery Corp. , 318 U.S. 80 (1943), an d the const raint s of process- based review of admini strative d ecisi on making preventus fro m supplementing a gr ossly out-o f-date administ rati ve record, theydo not command blindness to the e merging pattern of s tale r eco rds. C on sider ing the rapid, frequ ent po litical cha nges in countri es fr om wh ic h a sylum an d CAT applic ants usuall y co me, a nd th e poten tiallydire cons equences of sending
s uch an appli cant back t o his coun try o f origin to face pos sibl e persecution or torture on the bas is o f suc h a stale repo rt,

we callon Congress, the De partment of Justi ce, th e Department of Homeland Se cu rity, and the B IA to imp ro v e the structure and operation of the syst em, so that a ll ma y have t

he confidence t

hat the ultima te dispositi on of a removal case be ar s a meaningful c onnecti on to the merits of the petition er’s cla i m(s) in l ight of contemporary world affairs.

I. The Adminis trative Record and t he IJ’s Decision
As will bec ome clear, the IJ ’s credib ilitydeterm ination rested on h is rejec tionof a fair ly

narrow sli ce of Berishaj’s tes tim on y. But we w ill di scuss3

Berishaj’s testimo ny in full, b ecau se his clai ms depend on aspect s of it beyond t he sp ecific test imony on which t he IJ bas e d his adverse cr e dibil ity determi nation. CAT clai ms and questi ons of c han ged country co ndi tions ar e, for th e mo st part,

eva lua tedwith referen ce to docu mentary evidenc e of con tempora ry coun tr y conditions; questi ons of corrobora tion are

e valuat ed with refe rence t o document ar y evidence of p ast c ond ition s. We will ther efore address the documentar y mate rials in the record with a focus on both pas t and con tem por ary ev ents

. To set the co nt ex t f

orBer is ha

j’ s t es timon y , w e setforth in the m argin a caps ule chronology

of e ven ts inth e Ba lk ans from 1991 to 2001. 1 A. Berishaj ’s Test imony and Co rrobo rating A ffida vit Berishaj is an et

hnic Albani an who spenthis y outh in Montenegr o, at th e t ime part of Yugoslavia. 2 In th e summer of 1991, he went to Kosovo, a ne ighbori ng province of Yugoslavia, to attend a univ ersity that co ndu cted c lasses in his nativ e A lban ian to ngu e. (At that time, no univ ersity in Montenegro conduct ed class es in Albanian.) Ser b forces h ad takencon trol in Ko sov o in 199 0, a nd ha d of fic ially closed the un iversity, but it

1 The follow ing ch rono logy— wh ich is not take n from the admini strative record—is excer

pted from the United Nations High Commissi oner for Refugees document “A Brief His tory of the Balkans ,” which i s avail able at the High Commissioner’ s web site , http: //www.unhcr.c h. Yugoslavia was cr eated fol lowing Wo rld War I, and after W orld W ar II beca me a socialist federa l repub lic comprisi ng Bosnia and Herzegovi na, Croatia , Sloveni a, Serbi a, Macedonia, and M onten egro . Slobo dan M ilosevic

wa s ele cted Pre side nt o f Se rbia in 1 989

. On June 25, 19 91, C roatia a nd S loven ia proclaimed their

independence from Yu gosla via, an d Se rb fo rces im med iately overran t hirt y per cent of Croatian territor y. Bosnia and Herzegovi na proclaimed their independence on March 3, 199 2, and Serb force s seize d sev enty percent of the count

ry ’s te rri tory . War between Serbi a and Bosnia cont inued untilthe Dayton Peace Accord on November 21, 1995. In 1998, fi ghting er

upted in Kosovo, a province of Serbia, between Serbi ans and ethni c Albanians, displ acing hundreds of t

housands of peopl e. Peace ta lks fai le d, and i n March1999 NATO ai r s tr ike s be gan. In June 1 999, NATO and Russian for ces ente red Kosovo after Yug os lavi a a cc ep te d ape ac e p lan. On October 6, 2000, Milosevic c onceded defeat i n a presi dentia l ele ction, and was placed under

house arr est. He was handed over t o the Int ernati onal Tribunal in the Hague on June 28, 2001.

2 The discuss ion in t

his sec tion i s taken from Berishaj ’s te sti mony, whic h for

eas e of exp ositio n w e pr ese nt as true

. We addr ess the IJ’s ad verse credib ility determ ination in deta il infra Part I II. A.1.4

continue d to fu nc tion un derg roun d, w ith class es held in private hom es in Pris tina, a maj or city

in Kosovo. Beri shaj’ s uncl e , Palok, wit

h wh om B eris haj lived at the time, was one of the l eading organizers of the ill egal uni versi ty , and he re cruit ed Berishaj to find private hom es in w hich to hold class es. Because of his activities, Palok was a rrested in 19 91, an d aga in in 1994, when he was detai ned and beaten for severaldays. Be rishaj w as arre sted in Pristina in the spring of 1 992 for h is assis tance to the i llega l univers ity ; he was beatenwith a rifl e butt and detai ned

over nigh t. Not trusting the Ser bian doctors at the hospit al, Berishaj was treat ed by an Albani an doctor practi cing ill egal l y, and retur

ned to Montenegro a few w eeks later.
Sho rtlyafter

retur ning to Montenegro, Berishaj wa s indu cted in to the army; he

was sentto serve in Se rbia, where he spent eleven months . He w as eas il y recog nizable as an ethni c Albanian, among
a pred om inantly Serbian a r my —“ B eris haj ” is a well-known Albani an name; indee d,

one Sali Beri shaj was the former pre sident of Albania. In the ar

my, Ber ishaj served

as a tank gunman foll owing a three-m onth training period in w hich h e learn ed to oper ate the tan k gu n fro m ins truction s in Serbian. In the tank crew of three or fou r, Be ris haj was the lowest in rank, taking orders from Serbs i n charge of the t ank. Berishaj did not , i n these eleven months, go to warinBosn ia . Be ri shaj at tributed this to the Serbian officers not trusting Al banians enough to send t hem to w ar

. Berishaj’s dut i es mostl y cons ist ed of cleani ng the tank gun and guarding t he tank. He was be aten at the directi on of Serbianofficer s for singing son gs in Albanian, and he stopped sp eaking Albanianpub licly, rel yi ng on the Serbi an he learne d w hile in the army . After completi ng el eve n mon th s of mi lit ary servic e, Ber is ha

j wa s d is ch ar ge d. He retur ned to Montenegro, then to Kosovo briefly to take univers ity examina tio ns, and then b ack to his p arents ’ hom e in Montenegro.
I n Decem ber 1993, fou r police men

— appa rently milit a r y po lic e—came to his parents ’ house at midnight and took him t o fight in Bosnia. He served again as a gunman, and was orderedto dest

roybuildings, house s, and shootat the army and at Muslim ci vili ans in Bosnia. Berishaj explai ned that he had

no choice but

to sho o t civilians : “I w ould eith er , you know, shoot or [the Serbians]

wo uld ki ll me. ” Ethnic Albani ans in t he

armywere not tr

usted t o s hoot without being und er Se rbian c ontro l. For example, Berishaj explai ned, “When we were in the tank, you kn ow , using the gu n, w e w ould have somebodybehind us [aSerb ian] w ith

an automati c gun. . . . Their functi on was that if s om eb od y d oes not obey the order to sho ot w ith a gun, they w oul d ki ll him .” Berishaj spen t two mo nths in the arm y this time, and escaped durin g the n ight in Februa ry1994. He returned to his parents’ home in Montenegro. Fearing that he would be arres ted and retur ned to the army, Berishaj crossed i llegally from Montenegro int o Albani a , whe re he sp ent the next fourtee n m onth s in5

hiding at his cousin’s hom e. He soug ht, b ut was unable to obtain, legalstat us i n Albania; as a res ult, the Albani an authori ties learne d of him. His c ousin, feari ng the Albani an polic e, c onvinced Berishaj to return to M onten egro in A pril 1995. Up on re turning to his par ent s’ home in Montenegro, Ber ishaj learne d that he

was wa nted b y the polic e, and he w ent to resi de with his sist er, who lived in another vill age sev eral miles from his parents’ home. The f

ive m onths with his si ster

were spent mostly indoors, as were the following months, whichhe sp ent w ith an uncle i n yet

another vi llage

. Beris haj ultim ately was locate d by t he Mo ntenegri n police in September 1996, and deta i ned for two day s. They asked him why he deser

ted from the army, and why he did not fin ish his s tudies a t t h e offici al univers ity

(i. e., the Serbi an-run university); it was cl ear that the p oli ce knew he had part icipated in t he ill egal

un iv er sit y. Berisha

j was releas ed from

cus tody apparent ly

whe n an uncl e fabric ateda st or y about Beri shaj needing to visit an il l f

amily member and posted bail for him. Berishaj retur ned illegally to Albania, wh ere he reside d un ti l F ebruary 1997, when he was smuggled to Belgrade, and from the re to France, then Brazil , the n the United States.
Since being in the United States, Berishaj has h ad lim ited co nta c t with fam ilymem b ers i n Montenegro, fearing that his fam ily wou ld be coerced by the police into r eveali ng his whereabou ts. In January 200 1, Be rishaj sp oke to his father forthe first time since leaving Mo ntenegro nearly four y ears befor e. His fat her expl ain ed, in Beris haj’s words “that once I left , the [Montenegrin] police came three times and checked the ho u se insi de out looking fo r me af

te r Iha d e sc ap ed . A t this time, they

asked him ‘W here is he? Wh ere
can w e find hi m?’ And his response wa s he did n’t kn ow . . . . After I le ft, my father

was tell ing me that

m any incident s they

cam e and checked the house insi de out th ree ti mes, and at one point were also guarding t he hou se overni ght to s ee if I

wo uld com e ho me .” The police stopped searching for Beris haj wh en his fathe r told them that Ber ishaj had left perman entl y. Berishaj also lea rned from his fath er that his brother

was serving a

five-year sentence f

or helpi ng the K osova r resist anc e during the w ar. Berishaj’s sister, a natura lize d A m erican citi zen,
co nfirmedin an affi davit made in lat e 1997 t hat she had r eceived s imil ar
acco unts from thei r fa ther, brother , and sist erregard ing p olice a ctivity a t their parents ’ home. B. Documentary

Evidence in t

he Adm inistrative Record 1. Contemporar

y Countr y Conditions
Much of th e record addr esses cont empo ra ry treat ment of ethni c Albanians in K o sovo or else wh ere in Serbia; as this is not es pecia lly relevant to the situation in M onte neg ro, w e w ill

conc entrate on ly o n do cumentary evidence addressing Montenegro. We b eg in w ith the State Department’s 1 99 9 Co untry Rep orts o n Hum an Rights Practices: Serbia- Montenegro, issued in Fe bruary6

2000 (the “1999 Cou ntryRep ort”); this is th e l atest

country report avail able i n the admi nistrati ve record. While on the o n e hand th e BI A m ay n ot “‘hi de behind the State Dep artment’s letterhead’” and place full and u ncrit ic al reliance on a c ountry rep or t, Ezea gw una v. Ash croft , 325 F.3d 39 6 (3d Cir. 2003) (quot ing Li Wu Lin v

. INS , 238 F .3d 239, 24 6 (3 d Cir. 2001)), neithe r is it permissible for the IJ an d BIA not to addres s the r ele vant cou ntry report i n some d etai l. The first l ine of the 1999 Cou ntry Report rea ds: “Ser bi a
Mo ntenegro is dominat ed by Sl obodan M ilose vic,” thou gh it go es on to no te that M il o sevic’s primary

influe nce is over Serb ia proper ( and e ven there, n ot in Kosovo) and l ess over Montenegro. Nonetheless, given Milosevi c’s cont rol

overthe Serbi an army and federalpolice , the 1999 Country

Report est ablis hes that a pr ime force i n the pers ecuti on (or worse) of ethnic Albanians was stillin power at the time t

he administ

rati ve reco rd was compiled. 3

On the other han d, the 1999 Cou ntry R eport repres ents t hat Montenegro w a s
m aking progress toward democracy , holding free and fair el ecti ons, and that1999 saw even further escape from the federalcontrolof

Milosevic’ s regi me. The 1999 Co untry R epor t furth er stat es that wh ile the Montenegri n governmen t gene rally respect ed its citi zens’ human rights, there were report s of extr ajudic ial kill ings by federa l tr oop s, forcib le

co nscri ption, and viole nce an d discrim in ation a gainst minorit ies

. Ac adem ic fr eed om i s said to have been respect ed. In early 19 99, the government began a program of devol ving authori ty on localgovernment offi cial s in eth nic Albaniancommuniti es. Th e Y ugoslav Parli ament passed an amnest y for draft evaders and dese rters in late 1995, and the M onten egrin Parli ament passed a simil ar law in late 1 999 . Acc ordin g to d ocum ents in the record from Am nesty Intern ationa l, how ever, there is evidence t hatat le ast t

he latterlaw w as no t fully observed, as federalYu gosla v auth orities an d m ili tary police control led the treatment of e vaders and deserters.
The 199 9 C oun try Repo rt g en erally sounds of rela tive stab ility and dem ocratic pr og ress, but other pa rts of the record suggest th at even ts we re very flu id in 1999. For e xam ple , a s er ie s o f n ews
ar ticle s from the New York Times and repo rts from human right s organi zati ons sugg ests that paramilitary gro up s
assoc iated w ith ethnic cleansing of eth nic Albanians in K osov o had mo ved in to Mo nt enegro, perhaps at the behest

of the Montenegrin pol ice. 3 We note that the final h earing before the IJ in this cas e w as co ndu cted in Janu ary 200 1, by w hich p oint M ilosevic

wa s no lon ger in p ow er in Ser bia. Although thi s is not

documented in t

he administrative reco rd, at the January 2001 hearing in this case, t he IJ di d refer to “Mr. Milose vic [bei ng] taken out of power.” No documentary evidence in the administ rati ve record di scusses the effect of M ilosevic ’s fall on cond itions in Montenegro.7

2. Co rrobo rating M aterials
We turn now to materials in the reco rd that could corro bora te Be rishaj’s a ccou nts fro m the ear ly

1990s—specifi cally his tim e at the illeg al univ ersity in K osov o and his milita ry se rv ic e f

ro m 19 92 to 19 94. Two pieces are worthy

of note. First, Berishaj’s storyabout the operat io n of the i llega l univ ersity in K osov o, and police hosti lit y to it, i s pe rfect ly

corrobor ated by

an Am nesty Inter

nationa l Report f

rom 19 94, which is in the a dm inistr ative reco rd. This report describes the cr eati on in 1990 and 1991 by et

hnic Albani ans of

“ a paral lel educati onal sys tem using [pre-Serbi an] curri cula, ” wi th “less ons . . . he ld in private homes.” The report also des cribes severals pecifi c episodes of polic e
v iolenc e against ethnic Albanians o n accountof thi s paralle l e duc at io nalsy st em.
Se cond, and also in the admini strative record before the IJ, a 1992 arti cle fr om the Bronx-publi shed Englis h-language Albanian-Ameri can new spaper Illyria profil es a young e thni c Albanian, Adem Kra sniqi, whose experienc e as a fo rced inducte e in to the S erbian army clo sely paralle ls Beri sh aj’s . Krasni qi was one of many Alba nia n “tanker s” (i .e. , tank operators or gun men). In an atta ck on Vuk ovar, Croatia , he was force d to move forw ard in the firs t wave; the stor y quot es Krasniqi as say ing, “ Behind us were the Serbianirr egulars uniformed as s oldi e rs. Anyone tr ying to de sert w ould be sh ot. We had two cho ices

. Kee p firing or get shotfrom people behind you. ” Krasniqi also desc ribes in discrim inate shell ing, and being forced t o fire at innocent civil ians; th i s is again con sistent with Be rishaj’s

acco unt.
C. The IJ’s Decision
The IJ’s decisi on (which, s ave for irr elevant

intr oductory

and concludi ng remarks, is re counted in full in t he paragraphs that fo llow ) beg ins w ith his adverse cr edibil ity

determi nation:
The case at

bar is affli cted b y test imonythat is inc redible in nature. The Ap plican t’s statem ents

as to how he was recrui ted and pla ced in a posi tion of c ombat by th e Ser bs wh il e at

th e s ame time

a dducing to an attit

ude of tot al disda in an d bi as to wa rd the Applicant

is justincredul ous to t

he Co urt. This fact

is dramatized and magnifiedby the Respo ndent’s test imonythat a lthough he was d e spised byth e Se rb s i n the army he was placed i n comman d of a tank

. T he test imony fur ther developedhow the Applicant learne d to operat e the t ank by reading the ins tructions i n it and how , albei t they

were writt en in a language he did not under stand, he

w as able t o famili arize with the

o perat ion of the t ank in jus t thr ee months. As fantastic and ludicrous
as th at s tat em en t m ay a p pear, t he Cou rtwas dazzled and as toun de d bythe decl arati on that although he

was in control of the t ank he had a Serbianofficer

behind his back pointing a gun at

hi m at all times! A bette r script could not have been8

thoughtabou t by ki ngs of comedy like Peter Sell ers or Mel Brooks.
This ridi culous t esti mony is not supporte d by one s cinti lla of evidence and in ad d iti on to be

com pletely abs u rd it

borders in an offensive and arrogant attitude toward the C ourt. The App licant’s deme anor, throughout

the ses sion s of test imony, was charact erize d by

an arrogant

disposi tion in thinking that he deserves what he is as king for.
The IJ next

turned t o a brief

discuss ion of the t hen- curren t c onditions i n Montenegro:
The amount of time this case has been pending has made the Res pon dent’ s claim even weak er. H ist or ica lly, Mont en eg ro wa s consider ed a satel lit e or puppet nationof str ongman Slobodan Milosovic. Und er M ilosovic’s

re gi me the R e spondent’ s position of o pp osit ion to s ervice in the Serbianar m y m ay hav e ha d so me
va lid ity. I t w as not until very

recen tlythat th e G overnment of Montene gro has taken a n independent

positio n w ith rega rd to the treat ment of ethni c Albanians in th e r egion. Once the apparent defeat of the Milosov i c administ rati on, the Governm e nt of Mo ntenegro has shown s i gns of self- determi nation. This change of events, contrary to the Ap plicant’s posit ion ben ef

its the Respondent and makes his re turn t o Mon ten egro reaso nable

. Monteneg ro has granted a n amnest y t o desert ers and dr aft dodgers. No thing in Respo ndent’s arg um ents con vi nce s thi s Co urt tha t hi s return to M onten egro wo uld place him in any

ty pe of dan ger a t the present

time. In conc ludi ng as I do I have det ermined t hat the Ap pl icant’s possibi lit y of any f uture persecut ion i s nil

. Respo ndent’s attorne y’s argum ents that the new adminis tration of electe d presid ent V ojisla w Kostunicais a mir

ror i mage of h i s predecess or is not

persuasive nor establ ished.
The finalsubstantive portion of the IJ’s decisio n r eiterates his ad verse credib ility determi nation:
The Court has statedits opinion earli eras to how sk eptic al the Cou rtis abo ut the A ppli ca nt’s claim of p ast p ers ecuti on

. Testimony

that ha s been plague d by fanta stic anecdo tes a n d uncorrobor atedinforma tion is very diffic u ltto accept

even as plausibl e. The Ap plican t’s case is prec isely affected by these c harac teris t ics and therefore m akes it im pos sible for th e Court to ac cord it any credence.
The BIA affirmed t

his deci sion without opinion.9

II. Standard of Revi ew
Because the BIA affirmed t he decisi on of the IJwithout opini o n, see 8 C .F.R . § 3.1(e)(4), the deci sionof the IJ is the fi nal agencydetermi nation, which we are cal led upon to re view

. Se e Di a , 353 F.3d 228. We have juri sdict ion unde r 8 U.S .C. § 1252 overthis timel y petiti on forreview of a f in al de te rmina ti on o f the BIA

. We review the Agency’s findings o f fact —such as the IJ’ s cred ibilit y determinations, hi s f

in di ngs on t

he CAT cl ai m, and his fi ndings regarding changed country cond it io ns— und er 8 U.S .C. § 1252(b )(4)(B), which provi des th a t “a dm inis trative findings o f fact are conclusi ve un les s a ny reaso nabl e adjudic at o r wo uld b e com pelled to conclude to th e c ont rary .” As we explai ned in Dia , we h ave “ read th is standard to require that

the agenc y support it s f indings with subst antia l evide nce, as arti culat ed bythe Sup reme C ourt in INS v. Elias- Zacarias , 50 2 U.S. 478, 481- 84 [(1 992 )].” 353 F.3d at 2 47; se e also Sevoian v. Ash croft , 290 F.3d 166, 171 (3d Cir. 2002) (“[The Il legalImmigrat ion Refo rm and Immigrant Respo nsibility Ac t] codifi es the language the Suprem e Cou rt used in Elias- Zacarias to describe the substant ial evid ence s tandard i n immigrat ion cases .”). W e con clude d in Dia that
the ques tion w heth e r an agency determi nationis suppo r ted by substantial evidence i s the sa me as the ques tion w hethe r a reas onab le fact finder c ould make such a determi nationbased upon the administrati ve record. If a
reaso nable fact fi nder could make a part icula r findin g on th e adm i nistrati ve record, then the finding is suppor

ted by sub st antia l evidence

. Conversely , if no

reaso nable fact fi nder cou ld make that finding on t

he administ

rati ve record, the fin ding is not supporte d by subs tanti al evi dence.
353 F.3d at 249.

III. Berishaj ’s Applic ation f or Asylum
A. T he A sylum C laim
1. Th e A dver se C redibility Determinat ion Berishaj a p plied f

or asy lum and withho l ding of removal based on past persecution and a w ell-f o unded fear of futur e perse cution if he is re mo ved to Montenegro. In Ga o v. A shcro ft , 299 F.3d 266 (3 d Ci r. 200 2) , w e l aid out t he stat ut o ryframework for asylum clai ms and the releva nce o f adv erse cr edibility de ter m in ati on s to th e a sylu m in qu iry:
A g r ant of asylum u nder § 11 58(b)(1) of the Immigr ation an d Na tionality Act

(INA ) allows an otherwise removable al ien to s tay in the Unite d States . The Attor ney Gene ral “may” gr ant asylum to an alie n who demonstrates that he/she is a refugee: a person unabl e or unwilling to ret

urn to t he country

of that person’s nationa lit

y or habitua l10

re sidence because o f pas t persecution or be cause of a well-fo un ded fear of fut ur e persecution on accountof his r ace, reli gion, nation alit y, mem bersh ip i n
a pa r ticul ar soci al group, or politicalopin io n. See INA § 208(b)(1), 8 U.S.C. § 1158(b) (1) (requi ring as y lu m a pplica n t confo rm to definitio n o f refuge e); [§] 10 1(a )(42 )(A ), 8 U .S.C . § 1101(a)( 4 2 ) ( A ) ( prov idin g defini tionof ref

ugee ). In ord er to

e st ablish eligibili ty

for asylum on the basis of

past per secuti on, an applic antmu s t show: “( 1) an incide nt , or incid ents, tha t rise to th e lev el of p ersecu tion; (2) th at is ‘on acco unt of’ one of the stat utor i ly -prot ectedgrounds; and (3) is committed by

the government

or forces t

he government i s eit

her ‘una ble or un willi ng’ to co ntro l.” Navas v. INS , 217 F.3d 646, 655 (9th Cir. 2000 ).
An applic ant ca n dem onstra te that s he has a well-f

ounded fearof future persecution by

showing that

s he has a genu ine fe ar, and that a

reaso nable person in he r circ umst ances would fea r persecution if ret

urned to her

native

co unt ry. Eln age r v . I

NS , 930 F.2d 78 4, 786 (9th C ir. 1991 ). Alie n s have the burden of

supp orting th eir asy lum clai ms through cr ed ib le tes tim on y. Abd ille v. Ash croft , 242 F.3d 477, 482 (3d Cir. 2001 ). Te sti m on y, by itself, is sufficien t to meet this burden, i f “credible. ” 8 C.F .R. § 20 8.13 (a), Chan d v. INS , 222 F.3d 10 66, 1077 (9th Cir. 2000). In som e cases t

he INS may req u ire docu men tary evide nce to suppor t a clai m, even from otherwise credib le app licants, to

me ettheir

burden of

proof

. Abdulai[ v. Ash croft ], 239 F. 3d [542,] 55 4 [(3d C ir. 2001)].

. . . . [A]dverse c red ibility determi nations are revi ewed for subs t a n tial evidence

. Bala subr am anrim v. INS , 143 F.3d 157, 161 (3d Cir . 199 8). . . . Adverse credibi lit

y det erminat ions based on speculation or conj ecture , ra therthan on evi dence in t he

reco rd, are r eve rsibl e. Salaam v. INS , 229 F .3d 1234 , 1238 (9th C ir. 2000). Gen era lly , mino r inco n sist encies and mino r admissi ons that “revealnothing aboutan asy lum appli cant’s fear for his safety are not an adeq uate b asis for an a dve rse c red ibility fin din g.” Vilori o-Lopez v. INS , 852 F.2d 113 7, 1142 (9th Cir . 1988). The d iscr epancies must invol ve the “heart of the asylum cl aim .” Ceba llos-C a stillo v. INS , 904 F.2d 519, 520 (9th Cir. 1990 ).
Gao , 299 F.3d at271-72. Furthermore, an alie n who offers credible te sti mony regarding past persecution is presu med to have a well-f

ounded fe ar of future per secu tio n. See Abdulrahman v

. Ash croft , 330 F .3d 587, 59 1-92 (3d Cir. 2003) (c itin g 8 C .F .R . § 208 .1 3 ( “An11

applic ant w ho has been found t o have establ ishedsuch past persecution shall als o be p resumed to have a well-f ounded fe a r of persecution on the ba sis of t he original claim.”)). Here, if t he IJ’s adve rse cre dibility determi nationis suppor ted by substantial

ev idence, Beris haj’s a sylum cla im w ould argu ably fa i l beca use th e IJ ref used to credit signif

icant tes ti mo ny at

the core of Berishaj’s story of p ast per secu tion— his being subje cted to persecution by Serbs on accountof

his st atus as an ethni c Albanian. We setaside for

the time being that the IJ fa iled altoge ther to a ddre ss Be rishaj’ s test imonyabout how he wa s tre ated outsi d e t he mili tary . Tha t testi mony —from his civilia n life —ar guab ly coul d ind epen dentl y support his asylum clai m. In li ght of our conclusi on that

the IJ’s a dver se cred ibility determi nationis notsup port ed b y substantialevidence, we need not address whetherthe IJ ’s adver se c r edibility determi nationwith res pect t o Berishaj ’ s accountof his mil itary service could prop erly be used to reject his a c counts of arguable persecution as a civili an.
As noted, we conclud e that the IJ’s adverse credibi lit

y det erminat ion is not supporte d by subs tantial e v idence. In te rms of the l anguage we used in Gao , the IJ’s credibi lit

y det erminat ion w as “based

o n speculation [and] c onject ure, r athe r than on evidence in the rec ord.” 299 F.3d at272 (citing Salaa m v. INS , 229 F.3d 1234, 1 238 (9th Cir . 2000)) . Without further elaboration, the IJsimply rejec ted Berishaj’s testi mo ny regarding his m ilitary serv ice as “jus t incred ulou s [sic] to th e Co urt,” as “fant asti c and ludi crous, ” and “as tou nd[ ing ],” wo rth y of “kings of comedy like Peter Sell ers or Mel Bro oks .” The IJ ’s comme nts ar e not onl y intem perate but si ngular ly u nhe lp fu l. At best they

amount to a fin ding that Berishaj ’s test imony was i mplausibl e or inhere ntly improbable wh en, as w e w ill demo nstrate, the te sti mony appea r s emin entl y re asonable. At all e vents, the IJ ’s comments are not tethe red to t

he record, owing what lit

tle s upport t

hey have to hyperbole and appeals t o p opular

cu lt ur e—t wo utterly

inappropriate bases for an asylum decisi on. The BI A ha s o f c our se he ld , and w e ha v e agree d, that an adve rse cre dibility determi nationmay properly be based on impla usibility or inher ent improba b il ity. See In re S-M-J- , 21 I . & N. Dec. 722, 729-30 (BIA 1997) (holding that an ad ve rse credibi lit

y det erminat ion may be “app ropria tely based on incons ist ent statements, contradictory evidence, and inhere ntly improbable test imony . . . in view of the backgr ound evidence on country conditions”); Dia , 353 F.3dat 249 (“Wh ere an IJ base s an a dver se cred ibility determi nationin part on ‘implau sibility [,]’

. . . su ch a c onc lu si on w i ll b e pro perly grounded in the reco rd only if it is made againstthe ba c kground of the ge neral country conditi ons.” ( citing Gao , 299 F.3d at278 -79; He v. A s hcro ft , 328 F.3d 593, 603 (9th Cir . 2003)) ). As these cases i llus trat e, however, the re must be r ec or d

su pp ort and specif

ic, cogent re asons for such an adverse credib ilitydetermi nation.12

The en b anc Court in Dia emphasized

exac tlythi s p oint in rej ecting the adverse credib ilitydetermi nation made by t he IJ in that c ase: “[W ]hile we d efer to th e IJ on credib ility ques ti ons, t

hat defer ence is expressly condi tioned onsupport in the record, ” Nagi El Moraghy [ v. Ash croft ], 331 F.3d [195,] 205 [(1st Cir. 2003)], and “[d]eference is not due wher e find ings and conclusions

are based on inferences o r pr esumptions that are no t

reaso nably grounded in t he rec ord. ” Id. at 2 02 (cit ation and inter nal quotati on mark s om itted); see also Abdulrah ma n , 330 F.3d at 597 (stati ng that “ substantial de ference ” to a find ing is to b e “a ffo rde d . . . whe re it is grou nded in evid ence in the record ”). To this end, i t is clear that “[a]dverse cre dibilit y determ i n ati ons based o n speculation or conjec ture, rather tha n o n eviden ce in the record , are
rev ersib le,” Gao , 299 F. 3d at 272, and that an IJ must s upport her adverse credibi lit

y fi nd ings w ith “sp ecif ic[,] cog ent r eas ons .” Id. at 276; Abdulrahman , 330 F.3d at 597; see als o Secaida-Rosal es [ v. Ash croft ], 331 F.3d [297,] 307 [(2d Cir. 2003)] (“ When an IJ rejec ts an applicant’s test imony, the I J must provide ‘spe cific , c og ent’ r easons fordoin g so.” ); He , 328 F.3d at 595 (“[T]he IJandBI A mu st offer a ‘speci fic, c og ent rea son for any stat ed disbel ief. ’” (quo tin g Hartooniv. INS , 21 F.3d 336, 342 (9th Cir.1994 ))).
If the IJ’ s conclusi on is not based on a specifi c, cogent reason, but, inst ead, i s based o n speculation, conject

ure, or an otherwise unsupporte d personal opinion, we w ill not up hold it beca use it wil l not have been supporte d by suc h releva n t evidence as a rea sona ble mi nd

wo uld find ade qu ate. In other words, it wil l not have been supporte d by subs tanti al evi dence.
Id. at 249 -50 (so me a lteration s in original).
None o f t he IJ’s reasons f or finding Berishaj incredible withs tan d scru tiny in li ght of the record . We addr ess th e m
se ri at im. Most obviously wrong is the IJ’s conclusi on that Berishaj’s test imony about his ex pe rie nc e in th e m ilit ar y was “not

su p portedby on e sc intilla of e vid enc e.” As we hav e alre ady d esc ribe d, see supra Part I.B.2, th ere is at le ast on e striking ly simil arpublis he d a ccount fr om another et hnic Alb ania n in the Serb ia n army—Adem K rasniq i’ s story as publis he d in Illyria . Ir

respective of Illyria ’s reliability vel non as an unbiased s ource of

ne ws fro m th e Ba lkans , the article wa s in the administ

rati ve record and the I J was

o bliged to addres s it . Moreover, the IJ i s in no posit ion t o c omme ntfr om h is own experie nce on the pla

usibi lit y of t he cruel practi ces employe d in one of the most h einous confli cts of t

he modern er a. I f anyt hing, th e ta ctic of

forcin g on e ethn ic mino rityto ki l l anoth er is en tirely13

consistent with mul tipar ty ethnic warfare, and there i s no subst antia l evide nce on wh ic h to con cl ude other wis e. It se ems emin ently plausible that the Ser bians

wo uld require the Albani ans to be the ones to shootthe Bosnians, and th at they w ould enforce that r ole in the manne r described—by having a gunman b ehind each Alb anian . To d escrib e th is as a Mel Bro oks sce nar io se em s to u s biz arre

. We also ca nno t und erstan d th e IJ’s in c redu lityat Berishaj’s ability to learn enough Serbian t o clean andoper ate a tank gun as a low -rank ing so ldie r. Berishaj test ifie d that he did not find Serbian diffic ult to learn , a nd that he had to st op speaking A lbania n publ icly— wh ic h sugg ests that he was effecti vely immersed in Serbian for severa l mon ths. These are bot h cand id and credib le statem ents th a t the IJ did not address. What is more, even though the IJ’s hearing in Jan uary of 1998 (no more than ayear

after Berishaj arri ved in the U nited S tates) w as co ndu cted w ith

an Alb anian inte rpreter, Beri sha j repea tedly demonstrat ed that he was lis teningto t

he qu estion s i n En gli sh, and not wa iting for the interpr eter’ s tran slation

. At times, B erisha

j even respo nded in English. English is a diff icult lang uage to learn, but

Ber is haj app ar ently

has som e facility for picking up languages, and th is only enha nces the cre dibility of h is claim to havin g learn ed ba sic Se rbia n in a few months. In li ght of

all t his, we do not see how a reasonabl e fac tfinde r cou ld conclud e that hi s clai m that he l earned enough Serbian t o clean and oper ate the tank gun was not wort

hy of bel ief. We also n ote the basic misst atement of the record in t he IJ ’s descripti on of Berishaj’s te st imo ny— Beris haj neve r test ifie d that he wa s “plac ed in command” of the tank, or“in control of t he tank”; he test ifie d t hat he was at

the bottom of the cha in of command. There is no evide nc e contra

. In sum, nothing of the IJ’s adverse credib ilitydet ermi n ation s urvives even basic scrut iny , and we cannot ac cept the IJ’s determi nation a s support ed by substantial e vidence
The IJ also r ejected Be rishaj’s test imonyon the gro und that it was “pl agued b y . . . uncorro bora te d info rma tion .” To th e exte nt th at the IJ meant thatBeris haj’s a ccou nt of h is mi lit ary experie nce could not be squared with the e xper ience s of o ther eth nic Albanians inth e Se rb ian ar myin the mi d1990s, we think our di scussi on above amp lyrefutes any notion tha t Berishaj’s experie nce was implausible. To the extent that the I J c omplained of t he absence of test imonialor do cum entary m aterials in the record t o support a spects of the fact ual accountgiven by

Berishaj , we are at

a loss to com preh end th e IJ— requ irin g corrobor at iv e evidence in this sit uation

wo uld run cou nter to our prec edent, BIA precedent , and common sense.

In Abdulai , 2 39 F .3d at 5 54, w e held t hat“the BIA may somet imes requir e otherw ise-cred ible applic ants to s upp ly

corr obo rating evidence in order t o meet their burd en o f p ro of

.” Inso doing, we refusedto ho ld in vali d the rul e of corrobor ationlaid down by th e BIA in SM-J- , 21 I. & N. Dec. 722. We explained14

that S-M-J

- “contem plates a three-part in qu iry: (1) an identif

ication of the facts forwhich it is reasonabl e to expect corrobor ation; (2) an inqu iryas to whether the applic ant has pr ovided i nf ormation corrobor atingthe relevant facts; and, if he

or she has n ot, ( 3) an anal ysi s of whether the applic anthas a dequ ately expla ined h is

or her failure to do so.” Abdulai , 239 F.3d at554 (int ernal quotation mar ks omitted);

se e also M ulan ga v. A shcro ft , 349 F. 3 d 123, 133 -37 (3d C ir. 2003).
The IJ pla inly

did nothee d even the first step, which is simple common sense: The re are m atters on wh ich it is pla in l y
unre ason able to expect an y ki nd of corrobor ation. Wartime pers ecut ion is surely among t he se m att er s— ex ig en cy, stri f e, and d estruc tion all co nspire to destr oywhat records the r e might once have been. Evidenc e documenting militaryperse c ution a nd ab use is ra rely

ma de in the first p lace. T estimo ny is nearly impo ssible to come by becaus e of death and dispers al in the ranks. Th e IJ had no grounds on which t o expect

corro bora tion fro m B erisha j. 2. Changed Country

Conditions
The IJ’s alte rnati ve reasonfor rej ecti ng Berish aj’ s asylum claim w as that coun try cond it i ons in Montenegro had i mproved by200 0 to the point

that Ber ishaj ’s st ories of past persecu tion— even if they w ere credibl e—no longer

provided a basis for a well-f oun ded fear of fut

ure pers ecuti on. As we have noted, a n alien w ho offers credib le tes tim on y r egarding p as t persecution is pre sumed to ha v e a w ellf ounded fea r of

futu re p erse cutio n. See 8 C.F .R. § 208.13 (b)(1); Abdulrahman , 330 F.3d 587. Bu t 8 C .F.R. § 208 .13(b )(1)(i) also pr ovides t

hat

an immigrat ion judge

. . . shalldeny the as yl um application of an al ien found to be a re fugee on the bas i s of past pers ec ution i f [it ] is f ound bya preponderanc e of the evi dence [that] [t]her e has bee n a fun damental chang e i n ci rcumstance s such thatth e applic a nt no lo nger has a we llfounded fe a r of pers ecuti on in the applic an t’ s co un try o f n ati on ali ty .

. . on a cco unt of r ace , r eligi on, nationa l ity, membership i n a parti cular

socialgroup, or

political opinion
The burden of proof

in a c ha ng ed -c ou nt ryconditi ons rebu ttal is on th e gov ernm ent. 8 C.F.R . § 208.13(b )(1)(ii).
Ot herCourts of Appeals ha v e recogniz ed a limita tionon the inf erences th at may be drawn from evidence of changed cou ntry cond itions. T he F irst, Se ven th, Ninth, and Tenth Circui ts agr ee thatevide nce of change d cou ntr y conditi ons can s uccessful ly rebut an alien’s fearof future pe rsecut ion based on past perse cution only if that e vidence addresse s the sp ecific basis f or the alien’s fear of pe rsec ution; general ize d impro vem ents in co unt ry cond itions w ill not suffice as rebuttal s t o credib le test imonyand other e vidence es tabli shing past persecution. The ot her Cou rt s of Appeals, includ ing this Co urt, app ear to15

have had no occasi on to consi der the matter.
A s the Court of

Appeals for t

he Nint h Circu ithas e xplain ed, “[ the] IN S is obligated to int

roduce evi dence that, on an indivi dualiz ed basis, rebuts a parti cu l ar applicant’s spec ific gro und s for h is well-founde d fear of f utu re pers ecuti on. Informati on about gener al chan ge s in the country is not

suffici ent. ” Rios v

. Ash croft , 287 F .3d 895, 90 1 (9th C ir. 2002) (in ternal quotation marks and citations om itted); accordKr aste v v. INS, 292 F.3d 1268, 1276- 77 (10th C ir. 2002) (gran tin g p etition for r eview, not ing that the coun try report relie d on by the B IA d id nothing to rebu t peti tio ner’s f ear from local , not national , authorit ies i n Bulgaria); Gailius v. INS , 147 F.3d 34, 36 (1stCir. 199 8) (“It is well est ablis hed that generalchanges in c ountry conditi ons do not rend er an a pplica nt in eli gible f or asy lum when, despit e those gene ral changes, there is a spec if ic d anger to t

he app lican t.” (citing Fer giste v. INS , 1 3 8 F.3d 14, 19 (1st Cir. 19 98)); Kaczmarczyk

v. INS , 933 F.2d 588 , 593-95 (7th Cir. 1991 ) (explai ni ng that, though i t appro p riately rebutt ed peti tioner s’ fear of f uture persecution in t

hat case , the B I A could no t use the election of S olidarity Party membe rs in Po land to reject all asy lum cl ai ms by

Po l i shnat i on al s)

. We agre e w ith these cases and a pply their prece pts to the case before us. The rule is

a naturalcoroll ary

of the more gen era l proposition that the IJ is requ ired to consider the rec ord a s a w hole in ruli ng on
an alien ’s cla im. See, e. g. , Tarrawal ly v

. Ash croft , 338 F.3d 180, 184 (3d Cir . 2003) (c it ing Bala subr am anrim , 143 F.3d at 161).
To t he ex tent tha t the IJ p ropo sed to proceedon a n in terp retat ion of 8 C.F .R. § 20 8.13 (b)(1) that de parts from the one stat ed by our

sister Courts of Appeals, the IJ off ered no reasoni ng and cit ed no autho rity

— not even the per tinen t regulation itself

. Acc or di ngly , w e have no basis on which to conclude that the IJ’s reading and appli cati on of the re gul atio n
was “reasonabl e” and therefore entitled to deference under Chevron U.S.A., Inc. v. Natural Resour c es D efense Co uncil , 467 U.S. 8 37 ( 198 4). Cf., e.g. , Valansi v. Ash croft , 278 F .3d 203, 20 8-09 (3d Cir. 2002) (qu otin g, inter alia , Lewi s v . I NS , 194 F.3d 539, 544 (4th Ci r. 199 9) (“ If we conclude th at Co ngre ss has not d irectly addresse d the qu estion a t issue in a statute

or its intent

is ambiguous, we must defe r to the Board ’s i nterpr etation of the statute providedi t i s no t an u nre aso nab le on e.” (int ernal citations and q u otati on marks omitted))). Subject to our di scussi on of the staleness of the coun try report in the administ rati ve record he re, the IJ’s reli ance on changed co u ntry conditi ons
was only in part supporte d by subs tanti al evidence. Su bstant ial e vidence does sup port the IJ ’s conclusion that Beri shaj could no longer hav e a n ob jectively

reaso nable fearof future pe rsecut ion in the military— after a ll, as eve n the 1 997 State Department Co untr y Report fo r Serb ia / Mo ntenegro notes , the w ar in Bo snia ended with the 1995 Dayton Peac e16

Accord, and the Yugoslav parli ament had approvedan am nesty for tho se who had avoidedmilitaryservi ce between 1991 and 1995. Wh ile there w ere sca ttered re ports of forcibl e co nscription, it was cl ear by 2000 that t

his was the excepti on.
On the othe r hand, not hin g in the country reports, or elsew here in the record, rebu ts Berishaj ’s fear

of persecution at the hands of M ontenegrin police authorities. Berishaj te st if

ie d that th e po li ce h ad c ome to his parents’ home looking for him aft er he had left M onteneg ro , and th at his brother had been put in jail. Beri sh aj ’s

s ist ercorrobor ated Beri shaj’ s account of his parents ’ report of the police searches. The IJ’s extremely gener al obser va tion that, in the wake of M ilos evic’ s withdrawal of

influe nce over Montenegro, “th e government of Montenegro ha s sh own signs of self-d eterm ina tion” doe s nothing to refut e Berishaj ’s clai ms of p olice -ini tiated persecution. 4 Sim ilarly insuffi ci e nt is the go vern men t’ s obse rvatio n (notre li edon b yth e I J, we note ) th at ethn ic Alb anian s particip ate in the p oliticalprocess in Montenegro and have won seats in parliamen taryelections. There may be sp ecific reasons to think t hat Berishaj’s fear of

persecution is no longer reasonabl e, but th e I J o ff er s n one , and w e will not scour

a 700 -plus p age re cord (we ll

overhalf of w hich is d evote d to docum entary materials) for e vidence unnotice d and u nana lyzed by the IJ to uph old the IJ ’s deci sion. The burden of proof in a ch ange d-co untry-co nditi on s rebutt al is squarely

on the government, and

no reasonabl e fact fi nder could c onclude that the governmenthas carried it s burden of present ing spec if

ic evi dence to r ebut Berishaj ’s pres umed well-foundedfear of future pe rsecut ion.

In sum, subst antia l evide nce doe s not support the IJ’s rejection of B eri s haj’s claim of persecuti on b y Mo ntene grin pol ice authori ties ; we will t herefore grant his petition for r eview of the I J’s dis posit ion of

hi s a syl um cl ai m. We d o not hold that Bershaj’s asylum claim must succeed; it may

be that his obj ecti ve fear of future pe rsecut ion is rebutt ed by evidence in the re cord , but w e certa inly will not mine the rec ord to i nvent our own
reasons to reject Berishaj’s application. It

ma y al so be that

the event s of which Berishaj complains do not amo unt to persecution, but i t wo uld b e ma nifestly inapp ropria te for us, rather tha n the 4 Berishaj also t esti fied at length a bout how he believed t

he new leader of Montenegro in 2001, Milo Djukonovic, to be cl osely

alli ed with Milosevi c, even tho ugh the la tter w as n o lo nge r in p ow er. The IJ did not

address t

he effects of Djukonovic’s government on condi tions in Montenegro, and in vie w of the limi ted admini strative record and conf used (dare w e say Ba lkaniz ed) sta te of political affairs in the reg ion, we a re unable to sa y whether B erishaj’s

assess ment is cor

rect. If anything, the IJ’s fail ure to s pecifi call y addr ess the post-M ilosevic political s ituation in Montenegro support s grant ing the pe titi on f orre vi ew.17

A ge nc y, to undert ake t hat inquir y i n the first insta nce

. See I

NS v. Ve ntura , 537 U.S. 12 ( 200 2). Finally—as we discu ss in great e r detail infra Part I II. B— it may be that the pass age of consi derable time since the origin al agencydisposi tion wil l all ow t he administ rati ve recor d to b e supplemente d in a wa y that sheds more li ght on Be rs haj ’s cl ai m for

as y lum.
B. T he T roub le with Stale Administr ative Records

Itis a sa lutar

y pr incipl e of administ rati ve law revie w that the reviewing court ac t up on a closed r ecord. Th i s modus procedendisecures to an administ rati ve agencythe necess ary
measu re of au thority and discre tion w ithin its sp her e of speci al competenc e, by preventi ng undue inte r fere nce b y generalist

cour ts that are charge d only w ith ensuri ng pr oc ed ur al r eg ul ar ity i n the agency’s actio ns. This in turn translate s to long-term stabi lit

y and pred ictability in outcom es in matters w ithin the agenc y’s experti se. Wh ile the principle yi elds good results in most cas es, i n the are a of asy lum l aw, where clai ms are heavi ly dependent

on co un try c onditi ons, i t can become an albatross. Mo re sp ecifica lly, the dispu te

o ften centers on the govern men t’ s assertion, based upon a Stat e Depa rtment Cou ntryRe por t, t hat conditions have so changed fr om tho se repr esented in the asy lum applic ation th at th ere is no l onger
a basis f or the al ien’s clai m of persecut ion in the c oun try of pro pose d rem oval.

Ithas b ecom e com mo n that thos e country report s in the administ rati ve record are thre e or fo ur years o ld by th e

ti me the petition for review come s before us, and th ey frequ ently do not fai rly refle ct what our kno wle dge o f w orld ev ents sugges ts is the true s tate of affair s in t h e proposedcountry

of removal, or the r egion embracing it. It almos t g oes w ithout say ing that, in the t

roubled ar eas of

the planet from which a sylum claim s tend to come, the p ace of change i s
ra pid —oppressive regim es rise a nd fall, and conditi ons improve and worse n for vuln erable ethnic , rel igious , and po li tica l minorities. As a co nse que nce , we bec ome like astronom ers whose telescopes ca pture light ray s that have take n millions of years to traver se the cosmos, r eveali ng things as t hey once were, but

are no longe r. But unlike ast ronomers, who can o nly spec ulate abou t wh at is hap penin g at this moment in a f

ar -o ff ga laxy , w e often know very we ll wh at h as happ ened in the years since an adm inistrative record wa s compiled.
As we hav e su gge sted abo ve, th e process- based review of agency actions is, in theory at lea st, justthat—process- based, withoutregard to the m erits. Th at sho uld make it ea sier , not harder, to judge lon gcold record s. Ho we ver, in c ontras t to the traditio na l adm inistrative law c ase, this ty pe of revie w can give ri se to pot ent i ally devastating consequences to an appli cant who face s the p ossibility of persecution (or worse) if he is r emoved.
This case is a good example of how much can c hang e in the tim e b etween the creat ion of the adm inistrative record before the IJ a nd th e judg men t of this18

Co urt. On the one hand, Sl obodan M ilosevic is now gone from the r egion, the Federal Rep ublic of Yugoslavia no l onger exists, andBe rishaj’s nat ive M onten egro is

now within t

h e recently

formed loose federat ion of

Serb ia an d Mon te ne gr o. On the other h an d, Beri shaj cl aims—at least as of his t esti mony in early 2001—that the leaders i n power are in pr acti ce “mirr or image[ s]” of M ilosevic

. Fou r-year-old country reports are si n g ularl y unenlight ening when faced with this kind of sit uation. Spe cific to Berishaj’s fear of persecution— we a re looking now to the State Department’ s 2003 Co untry R epor ts

on Human R ights Practi ces: Ser bia and Monteneg r o, relea sed in Febr uary 2004, which we have dow nload ed fro m the State Dep artment’s web site (the “2003 Cou ntry Rep ort” )—we note that

police occas ionall y beatsuspect s during arres t a nd detent ion, b ut there ha s been genera lly improved respect by the poli ce for human rights. Rec ently enacted criminal procedu re
re for ms are aim ed tow ard eli mi nating arbitraryarres t a nd detent ion, and the M onten egrin HelsinkiCommittee (HC M),

a recog niz e d hu man -rights m onitor, d id not record any incidents of arbitrary arrest

or detent ion duri ng 2003 . In t he cases whe re a rre st di d not lea d to prose cution, the HC M did n ot find (in cont rast to previous years) a ny political , ethnic, or reli gious motivat ion by

the police

. Ethn ic Albanians parti cipat e in the political pro cess, and though the y ar e prop ortiona tely underrepr esented, they do have seats in the M onten egrin Parliam ent. Fi na lly, with respe ct to Berishaj ’s troubles atthe il legalunivers ity in Kosovo, t

he State Department not e s that th e government in Kosovo “did not restrict

access to the In ternet o r acad emic free dom .” But this 2003 Cou ntryRep ort is not part of the admini strative record.
There ar e s ome applic ants t o whom our

concerns simply

do not apply— applic ants from c ountries w here conditi ons have not changed signi fica nt ly

for the be tter

or
worse in m an y ye ar s. And in ot her

coun tr ies , the fl ux of world event s is t oo great t o ho pe fo r perfect, up -to-da te decisi ons in every

immigrat ion case. Su re ly, howeve r, w e can do much bett er than we are do ing n ow , espec ially in cases f rom volatile c oun tries and wit h

exce ptiona llystale records. Th e precise problem is not just

that the admini strative records in so m an y c ase s are o ut-of- date (thoughtha t is a cont

ribut ing fact or), but

conc om itantly that we do n ot h ave a
reas onab ly recent final agenc y determi nationto review. It is one thing to supplement

the record before us; it is quite another to dec id e a case base d on this expanded recor d.
We are aw are tha t the C ourt o f A ppea ls for th e S ev en th C irc ui t ap pa re nt ly t ake s judici al notice of post- fi nal-age nc yd etermi nationdevelop ments, in the fo rm of new coun try reports, an d at tim es rests its disposi tion on t

hose d ev elopments. See, e.g. , Pelinkovic v. Ash croft , 366 F.3d 532, 54 0-41 (7th Cir. 2004) (taking judici al notice t h at countryconditi ons for ethni c Albanians i n Serbia an d Mo ntenegro in 2004 are much- improved

over cond it ion s i n th e earl y 1 990s ). Th i s19

prac tice might go a long w ay toward

s olving the probl em we face, but wit h a l l respect we are un able to squa re this practi ce with the clear

command fr om SEC

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

cour ts reviewing t

he deter minati on of an administ rati ve agencymust approve or rejec t the agency ’s act ion purely on t he basis of t he reasons offered by , and the record compiled befor e, the agencyits elf. Mo reover, we are not es pecia llysanguine aboutthe Seventh Circuit ’s rel axed approach to age ncy revie w. It no t only

carr ies w ith it the po tential fo r wh olesale reli tigation of many i mmigrati on -l aw claims, but the Co urts of Ap peals a re illequipped to recei ve supplement ar y evidence. At all e v ents , the asy lum clai mant shou ld hav e the o ppo rtunity to chall enge the updat ed country report that the government

would rely

on. Congress could, of course, modify t he rules norm ally applica ble to p etitions for review of a final de cision of the B IA withoutscrap ping the str ictures of administ r ative agency review altogether. Congress cou l d requir e the Court s of Appeals, in their sound dis creti on , o n motion or sua s

pon te , to grantpetitions for review o f t he B IA, an d rem and w hen it appears from judic ial lynotice abl e mate ria ls that the record co mpiled b efore the agencydoes not ge ner ally refle ct contemporary country

conditions.
Better yet , the part ies to these proceedi ngs might t ake advantage of t he procedures in 8 U.S .C. § 12 29a(c)( 6) (perm itt in g alie ns to move to reopen proceedi ngs on t he b asis of “new facts”) and 8 C.F .R. § 100 3.2 (permit ting an a lien

or the go vern men t to mo ve the BIA to reopen proc eedin gs, an d auth oriz i ng the BIA to do so sua spon te ). I ndeed, both the statute and regulationsee m to e xplicitly contemplat e the si tuati on we comment on here; they

permit reopeni ng o f asy lum proce e dings “based o n chan ged co untry conditi ons arising in the c oun tr y of

n atio nality or the count ryto which removal h as b een ord ered .” 8 U .S.C . § 122 9a( c) (6 )( C) (ii ); see also 8 C .F.R . § 100 3.2(c)( 3)(ii) (permit ting r eopening “basedon ch ange d circu mstan ces aris i ng in the c ou ntry

of nati onalit

y or in the country to which deportation ha s been ordered” ). Co unse l for alie ns ge nerally

seem to be zeal ous in purs uing th ese motions to reopenwhen appropriat e. But if this panel had to ch aracterize the po sture of petitions before it for

review o f the BIA

on an outdat ed rec ord, we would say that in the m ajor ity, c ou ntry conditi ons had improved , we aken ing the alie n’s case for reli ef. Accor din gly , we encourage t he Departmento f J usti ce to adopt a polic y that enco urag es its attorn eys to fi le motions to reopen when the adjudi cati on of an applic ant’s clai m would benefit from
an updat ed administ

rati ve record. The device of the moti on to reopen is far from perfe ct, thou gh, as it may ad ditiona lly delay an alr eady protract ed process.
We come at las t to t

he one actor

not directly discuss ed s o far : the BIA. The tri ggerfor the r ecent spate of out -of- dat e records is, we susp ect, the s tream li n ing regulations notedabov e, wh ich pe rmit the BIA to sum ma rily affirm an I J’s deci sion withoutissu ing its ow n op inio n. See 820

C.F .R. § 3.1(e)( 4) . The natur al—though surely unintende d—conseq ue nce of the stre amlini ng regulations is sum mary affirmance bythe BIA of stal e, backl ogged decisi ons by IJs. Wh en it does so, the B IA may have shir

ked its r ole and duty of ensuri ng that t he f ina l agenc y determi nationin an im migra tion ca se is reasonab ly soun d and reaso nably cu rrent. The decisi on here o n rev iew is neithe r, and itis an embar rassment

to the Agency

on
mu ltiple level s. The “reasoni ng” of the IJ is open to ri dicule , as we think our discuss ion in P art III .A illustrates; and the adm inis trative record i s a hoary reli c: For example, the m ost rec ent cou ntry report

was thir ty -five months out-of

-da te at the ti me the BIA rendere d its decisi on, and as of this writi ng, is fi fty -fourmonths out- ofdate. 5 Though the en banc Court in Dia ap proved the stre amlini ng regulations over

a stat utory and Constit

utionalchall enge, it does not foll ow that the regulations are not subject to misus e and even abuse. Setting aside our perpl exity athow the BIA apparent ly

though t t he IJ’s opinion worthyof being the “fi nal agency dete rmin ation ,” we do not underst and why the BIA did not inter

vene to suppl ement the record in a weak case, arising out of a high lyvolati le an d evolving region of the world. The streamlining regulati ons exist to s av e an overburde ned BIA from

unnec essary and redund anttasks. They are not a lic en se for t he BIA to say “not our pr obl em. ” O utdate d adm inistrativ e records are the BIA’s probl em, at l east as things now s tand , and th e BIA need s to confrontthem. We ther efore cal l on th e BIA to adopt—by opi nion, r egulat ion, or otherwis e—polici es that wil l avoid t he Cou rtof A ppeals hav ing to re vi ew administ rati ve record s so o ut-of- date as to verge on meaningless.

In view of this discuss ion, we di rect t he Clerk o f the C ourt to s end a copy of this opinion, call ing particular attention to this Part III. B, to the Chair, Ranking Me mber, Chief Majority

Couns el , and M inority Counsel of the S e nate Committ ee on the Ju di cia ry, and the Chair and Ranking Membe r of t he Subcommittee o n Immi grati on, Border Securi ty an d C iti zenship; to the Chai r, Ranki ng Me mber, C hi ef

M ajo rity Cou nsel, and M inority Counsel of the House Comm itt ee
on the Judi ciary , and the Chair and Ranking Member of

the Subcommitt ee on Immigrat ion, Bo rde r Se cur ity, a nd Cl aims; to the Attor

ney Generalof th e United States , the Assist ant Attor neyGeneral for the Civil D iv isi on , Un ited Sta te s Depa r tmentof Ju stice, an d the D eputy Assist antAttorney G eneral in charg e o f 5 Of course, i t is not strictly the chronologi cal age of t

he administ

rati ve record that co ncerns us h ere; there are old records that

may st illrefle ct contemporar

y condi tions (as, for example, in a country

that ha s been rul ed for several d ecades b y the same dictator), and there are y ounger records that may not reflect contemporary conditions (as, for example, in a countrythat experie nced a recent

coup d’état). But general ly speaking, the chronol ogicalage of the re cord is a good rough proxy for how we ll the reco rd ref lects contemporary conditions.21

the Office o f Imm igratio n Litigatio n; to the Secretaryof Homeland Securit y and the General Counselof

the Department of Homeland Secu rity; and to the Chair of the Board of Imm igration Appeals.

IV. Beris haj’s Applicat ion for Pr otect ion

Und er th e CAT
A n ap pl ic an t f

orre li ef und er th e CAT must show that i t is “more li kely than not” that he would be tort

ured in the c ountry

of

rem ova l. See Wang v. Ash croft , 368 F.3d 347, 348 (3d Cir. 200 4) (quot in g 8 C. F. R. § 120 8.16( c)(2) (2 004 )); see a lso D ia , 353 F.3d at 233 n. 1. It

is the alien’s burd en to show this , and obj ecti ve evi d ence is requir ed. See Sevoian , 290 F.3d at 175. Th e g overnment simply argues that Berishaj’s CA T claim fails because the IJ found him n ot cred ible, and it was only his

ow n test imony t

hat formed t

he basis fo r the obje ctive likel ihood of bei ng tort ured. Berishaj coun te rs that t he IJ’s analy sis of the CA T cla im is so curso ry th at it is impo ssible to t ell whethe r (1) the IJ thoughtthat a

C AT clai m could not st and if the asylum claim fell, or (2) the IJ analyzed the country conditions ev idence and concl u ded th at it did n ot sup port a CAT clai m. The firs t alternative would be

a legal error, and w ould be g ro u nds for granting the pet iti on be ca use asy lum and CAT claim s are “an alytica lly sepa rate.” See Zub eda v . Ashc roft , 333 F.3d 463, 476 (3d Cir. 2003) (quoti ng Kamalth as v . I NS , 251 F .3d 1279 , 1283 (9th C ir. 2001)).
We th in k the better readin g of the IJ’s decisi on to be the sec ond alte rnati ve—that the record as a whole does not s how that Berishaj is more l ikely

to be tor turedthan not if removed t o Monten egro

. Pr eli m in ar ily, we note that Berishaj’s own test imony—whethercredibl e o r not—has nothing to do w it

h hi s CAT cl ai m; CAT cl ai ms are ent irely conce rne d with the obje c tive likel ihood of tor ture in the future, and B erisha

j’s testi mo ny di d not address co nt em po ra ry t re at me nt o f dis favo red persons in Montenegro in any pa rtic ul ar ize d w ay. The balance of t

he record de s c ribes mis tr eat me nt and in dign ities, but th ere is scant evidence—let al one compelling evidence—thatit is more lik ely than not that Berishaj would be tort

ured if r emoved to Monten egr o. To b e sure, the record sugg ests that, at the time of i ts making, there wa s politicalinst ability in the fledgl ing Fed eral R epub lic of Y ugo slavia ( many newspaper article s in the reco r d at testto thi s), and that

Serbs cont inue d t o perp etrate abuses and massacres i n Kosovo (this is well -chroni c led in t he 1999 Cou ntryRep ort). Bu t the fo rmer does not, of course, amount to t ortur e, and t he latter

was in Kosovo, not

Montenegro. As for Mo ntenegro itself, there are re port s of extraj u dicia l kill ings per petrat ed by t

he Yugoslav army, but such action seem ed to be outsi de of g overnment cont rol or direction, and at al l event s, was not “more likely than not” to be th e fate of a M onten egrin like Berishaj. Th ere was also forcib le conscription of e thnic Albanians in Montenegro, but

again, this is not tort ure. M ost t roub ling pe rhap s is that a human right s group, the Int ernati onal Crisis Group, claims that as of 1999,22

“Yugos l av forces ha[ve ] undert aken li mi ted ethnic clean sing c amp aig n s direct ed again st ethnic Alb anian s in northern M ont ene gro .” Similar reports are scatt eredthrou gho ut t he administ rati ve record.
U ltim ate ly, even i f this ac tivity

amo unts to to rt

ur e i n so me instances, there is no suggesti on that it is ne ar ly frequent

e nough to compel t

he conclusi on tha t Berishaj hims elf w ould mo re likely than not suffer tortu re upo n rem oval to Monteneg r o. Thus we must deny t he petition for re view of B erisha j’ s CA T cl ai m. We also note t

hatour observations regarding stale adm inistr ative reco rds, see supra Par t III.B , ca n apply with si milar force to cla ims for pr ot ectio n under the CAT, even though i n this parti cu larcase the CA T issu e is no t p rese nted in as stark a reli ef as the asy lum iss ue.

V. Conclusion
For the fo re goin g reas ons, w e w ill gr antthe pe tition fo r review , and v acate the IJ’s decision w ith respect to Be rishaj’s asy lum clai m. Because the IJ’s disposi tion

o f Berishaj ’s cl aim for withholding o f removal rest ed on the same gr ounds t hat

we have found insuff

icie n t t o sup port h is rej ecti on of

Ber is ha j’ s a sylum cl ai m, we will also gr ant the petition forreview, and

va cate the IJ’s d ecision , with re spec t t o Beri sha j’s clai m for withholding of

remo val. See Mulang a , 3 49 F.3d at 132 (descr ibing relationship between a sylum cl ai ms and clai ms for mand ator y withholding of rem oval). We will deny the petiti on fo r review with respe ct to Berishaj’s clai m under the CA T. We direct the Clerk of the Court to s end copies of thi s opini on to the of ficer s and legis lator s ident ifie d in Part III. B above.