                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-9-2003

Miah v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 01-3764




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                           PRECEDENTIAL

                                   Filed October 9, 2003

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                     No. 01-3764


                  BISMILLAH MIAH,
                           Petitioner
                          v.
JOHN ASHCROFT, Attorney General of the United States;
    IMMIGRATION & NATURALIZATION SERVICE,
                                   Respondents

         On Petition for Review of an Order of
          the Board of Immigration Appeals
                (INS No. A78 420 602)

             Argued on January 16, 2003
Before: ROTH, FUENTES and ALDISERT, Circuit Judges

           (Opinion Filed: October 9, 2003)
                   Brian P. Downey [Argued]
                   Pepper Hamilton
                   200 One Keystone Plaza
                   North Front & Market Streets,
                   P.O. Box 1181
                   Harrisburg, PA 17108
                   Barak A. Bassman
                   Pepper Hamilton
                   18th & Arch Streets
                   3000 Two Logan Square
                   Philadelphia, PA 19103
                             2


                      Angelo Stio
                      Pepper Hamilton
                      300 Alexander Park
                      Princeton, NJ 08543
                      Counsel for Petitioner
                      David V. Bernal
                      Christopher C. Fuller
                      William C. Minick
                      Anthony C. Payne [Argued]
                      United States Department of Justice
                      Office of Immigration Litigation
                      P.O. Box 878
                      Ben Franklin Station
                      Washington, DC 20044
                      Counsel for Respondents


                OPINION OF THE COURT

FUENTES, Circuit Judge:
   Bismillah Miah (“Miah”), a national of Bangladesh,
petitions for review of a decision of the Board of
Immigration Appeals (“BIA” or “Board”) ordering him
removed to his home country. The Immigration Judge had
denied Miah’s petition for political asylum and withholding
of removal on the basis that Miah’s testimony lacked
sufficient credibility and corroboration to sustain the
burden of proof. The BIA, rejecting the Immigration Judge’s
adverse credibility determination, nonetheless dismissed
the appeal because the petitioner failed to corroborate the
events on which he based his claim. We agree with
petitioner that the BIA failed to properly analyze the issue
of corroboration in accordance with previous rulings of this
Court. We therefore vacate the BIA’s order and remand the
matter for further proceedings consistent with this opinion.

                     I.   Background
  A.   Procedural
  Miah attempted to enter the United States on November
11, 2000, at John F. Kennedy International Airport in New
                              3


York, New York. He was denied admission to the United
States and detained by the Immigration and Naturalization
Service for a full asylum hearing after an INS officer
determined that Miah had established a credible fear of
persecution if returned to Bangladesh. The INS initiated
removal proceedings against Miah, charging him as
inadmissible pursuant to Section 212(a)(6)(C)(I) of the
Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1182(a)(6)(C)(I), as an alien who sought admission by
fraud or willful misrepresentation. Miah was also charged
as inadmissible under Section 212(a)(7)(A)(i)(I) of the INA, 8
U.S.C. § 1182(a)(7)(A)(i)(I), as an immigrant not in
possession of a valid entry document. On January 29,
2001, Miah appeared before an Immigration Judge (“IJ”)
and denied that he was removable under section
1182(a)(6)(C)(I). He conceded removability under section
1182(a)(7)(A)(i)(I); but, he requested political asylum,
withholding of removal, and relief under the United Nations
Convention Against Torture.
  The IJ held a hearing on Miah’s application for relief on
February 21, 2001. Thereafter, on April 11, 2001, the IJ
denied Miah’s application on all grounds of requested relief.
Two aspects of the IJ’s decision are relevant to this appeal.
First, the IJ determined that Miah’s testimony was not
credible because it lacked sufficient detail. A.R. 34. Second,
the IJ concluded that the documentation submitted by
Miah failed to corroborate any of the incidents described in
his testimony. Id. at 35.
   Specifically, the IJ noted that a letter from Miah’s father
lacked detail regarding any of the alleged incidents. Id. The
IJ also commented that, other than the letter from his
father, Miah neglected to submit any letters or affidavits
from any witnesses to the alleged incidents, such as other
members of his political party, his employees, or other
family members. Id. Finally, the IJ found that, while Miah
submitted a doctor’s note indicating that he received
treatment during three periods of time, the note lacked
details regarding Miah’s injuries and treatments and
contained some dates that did not coincide with the dates
described in Miah’s testimony and written application. Id.
                              4


   On May 11, 2001, Miah filed a Notice of Appeal of the IJ’s
decision with the BIA. The BIA dismissed the appeal on
September 17, 2001. Although the BIA dismissed the
appeal, it did not accept all of the IJ’s conclusions. After
indicating that the IJ placed undue weight on Miah’s
airport statement and mistakenly relied on the fact that
Miah escaped harm until 1999, the BIA rejected the IJ’s
adverse credibility finding. Id. at 3. However, the BIA agreed
with the IJ that Miah failed to meet his burden of proof due
to a lack of corroboration. Id. In reaching this conclusion
the BIA took note of several findings made by the IJ: (1) the
letter from Miah’s father did not provide specific details
regarding any of the incidents described by Miah; (2) the
doctor’s note supplied by Miah was unpersuasive; and (3)
Miah failed to obtain specific factual statements from his
employees, other members of his political party, or family
members who witnessed the incidents on which his claim
is based. Id. After observing that Miah neglected to offer an
explanation for these shortcomings on appeal, the BIA
concluded that the IJ correctly ruled that Miah failed to
carry his burden of proof.
  On October 3, 2001, Miah filed a Petition for Review and
Motion to Stay Removal with this Court. Thereafter, we
granted a Motion to Stay Removal pending the outcome of
the instant appeal.
  B.   Miah’s Account and Supporting Evidence
  Miah, a thirty-six year old citizen of Bangladesh, joined
the Bangladesh National Party (“BNP”) on April 17, 1992. At
that time, the BNP held power in Bangladesh. Initially,
during 1992 and 1993, Miah worked as a supporter of the
party, helping with donations, participating in meetings and
processions, and engaging in publicity using a loudspeaker.
  Gradually, Miah rose through the BNP hierarchy. In
1994, he became the local publicity secretary in the city of
Noakhali. As local publicity secretary, Miah hung posters,
put up banners, and used a loudspeaker to announce BNP
activities and meetings. He also served the branch
committee of the party. In 1998, Miah was elected
organizing secretary in the Noakhali district. He served as
one of three BNP officials in charge of organizing party
                             5


activities in a city of two million. His responsibilities
included organizing volunteers, ensuring participation at
meetings, and arranging for publicity.
   On March 30, 1996, the BNP lost the national election in
Bangladesh and a rival political party, the Awami League,
came to power. Under control of the Awami League, the
government has harassed political opponents through the
use of various tactics, including arbitrary detentions and
limitations on the freedom of assembly. Because of his work
on behalf of the BNP, Miah became a target of Awami
League supporters.
  In Miah’s case, the harassment started on July 9, 1999,
when Awami League supporters beat Miah and his brother
outside of their home. The men warned Miah to quit the
BNP and join the ruling party. Five months later, on
December 1, 1999, Awami League activists kidnaped Miah
on his way home from the store that he operated. The men
stopped their car on the street in front of Miah, forced him
into their car, and blindfolded him. They brought Miah to
a room where he was held and beaten for two days. The
Awami League supporters released Miah only after he
promised to quit the BNP and join the ruling party.
  Despite his promise to the contrary, Miah continued to
work on behalf of the BNP. On August 15, 2000, while he
walked the streets of Noakhali, Miah used a loudspeaker to
publicize an upcoming BNP meeting. In response to this
conduct, the police seized Miah, took him to the local
station, and beat him. Upon learning of the situation, other
BNP party members protested in front of the police station
until Miah was released.
  Two weeks later, on September 1, 2000, Awami League
supporters looted and burned Miah’s store and attacked
two of his employees. Because Miah was not present in the
store at the time of the incident, the Awami League
supporters came looking for him at his house later that
night. After hearing the sounds of cars and gunfire on the
streets surrounding his home, Miah climbed to the roof to
see what was happening outside. He saw men enter his
home. Once inside, the men beat Miah’s mother and father
and demanded to know the whereabouts of Miah. Upon
                                   6


hearing the screaming and shouting from inside of the
house, Miah jumped to the roof of the next house, which
was owned by his uncle, and escaped to the street. Miah’s
brother was kidnaped by the Awami League workers who
raided the house. No one has heard from Miah’s brother
since that night and the police refused to register a
complaint against the ruling party when Miah’s father went
to report the kidnaping.
   Miah fled to a nearby city and hid in the homes of BNP
leaders. While there, he learned that the police were
seeking to arrest him and file false charges against him. He
also learned that Awami League activists had been seen in
cars circling his home. They continued to threaten Miah’s
friends and relatives in an attempt to locate him.
  On September 9, 2000, Miah returned to Noakhali, where
Awami League workers attacked him again after learning
that he had returned. A few weeks later, on October 20,
2000, Miah was on his way to a BNP leader’s home when
he noticed Awami League workers waiting outside the
house in a car. As soon as he saw them, Miah ran away.
The men shot at Miah as he ran, but he escaped
unharmed.
  After consulting with BNP leaders about the situation,
Miah secured a passport with their assistance and made
plans to leave Bangladesh. He left Bangladesh on November
10, 2000, and arrived at John F. Kennedy International
Airport the following day.
   Miah submitted various documents in support of his
application including: photographs; evidence of his
membership in the BNP; a letter from his father; a note
from a medical doctor; newspaper articles; and a birth
certificate. The letter from Miah’s father and the note from
the doctor are the pieces of documentary evidence most
relevant to this appeal.
   In his letter, Miah’s father describes the situation in
Bangladesh and warns Miah not to return.1 Specifically, his
father writes that: “[w]e have not yet got any information
about your brother. I went to the police station. They did

1. The letter has been translated from Bengali into English.
                               7


not register any case. At the directive of the ruling party
leaders the police and the ruling party people have become
united.” A.R. 290. The father continues by describing the
activities of “the ruling party people,” who circle the house
in cars, threaten to set the house on fire, and search the
residences of Miah’s relatives in an attempt to find Miah.
Id. Finally, the father ends the letter by telling Miah not to
return to Bangladesh and “[d]on’t write letters home.” Id.
   In the note, Dr. Md. Salahuddin Sharif writes that he
treated Miah for injuries on three different occasions. Id. at
288. He writes that Miah was treated from July 9 to August
8, 1999, from December 3 to December 18, 1999, and from
August 15 to August 25, 2000. Id. The note indicates that
the care received during the first stay was for a leg injury,
but the note contains no details about the treatment
received during the other two periods. Id. Dr. Sharif
concludes by stating that “[t]his facts is [sic] consistent with
his injuries.” Id.

                       II.   Discussion
  The Attorney General may exercise his discretion to grant
asylum to an applicant “if the Attorney General determines
that such alien is a refugee within the meaning of section
1101(a)(42)(A).” 8 U.S.C. § 1158(b)(1). Section 1101(a)(42)(A)
defines “refugee” as
    any person who is outside any country of such
    person’s nationality or, in the case of a person having
    no nationality, is outside any country in which such
    person last habitually resided, and who is unable or
    unwilling to return to, and is unable or unwilling to
    avail himself or herself of the protection of, that
    country because of persecution or a well-founded fear
    of persecution on account of race, religion, nationality,
    membership in a particular social group, or political
    opinion . . . .
8 U.S.C. § 1102(a)(42)(A). The asylum applicant bears the
burden of establishing that he or she qualifies as a
“refugee.” See 8 C.F.R. § 208.13(a) (2001). A grant of
asylum allows a removable alien to remain in the United
States.
                                   8


   “Withholding of removal, in contrast, confers only the
right not to be deported to a particular country — not a
right to remain in this one.” Abdulai v. Ashcroft, 239 F.3d
542, 545 (3d Cir. 2001) (citing INS v. Aguirre-Aguirre, 526
U.S. 415, 419 (1999)). An alien is entitled to withholding of
removal “if the alien’s life or freedom would be threatened
in that country because of the alien’s race, religion,
nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1231(b)(3)(A). In contrast to the
discretionary relief available to individuals who qualify for
political asylum, “if an alien qualifies for withholding of
deportation . . . then the Attorney General is prohibited
from deporting the alien to the country where the
prosecution will occur.” Lin v. INS, 238 F.3d 239, 244 (3d
Cir. 2001) (citing INS v. Cardoza-Fonseca, 480 U.S. 421,
429 n.6 (1987)). To qualify for mandatory relief under
withholding of deportation, an applicant must show that it
is more likely than not that he will face persecution if he is
deported. See id. (citing Cardoza-Fonseca, 480 U.S. at 430).
  We have jurisdiction to review a final order of removal
pursuant to 8 U.S.C. § 1252(a)(1). The final order we
normally review is the decision of the BIA, unless the BIA
defers to the IJ’s findings. See Abdulai, 239 F.3d at 549
n.2. In this case we need to consider both the decision of
the IJ and the BIA because the BIA adopted the IJ’s
analysis on corroboration while rejecting the IJ’s conclusion
regarding credibility, a conclusion which influenced the IJ’s
corroboration analysis.
  A.   Corroboration
  On appeal, Miah claims that the BIA erred in finding that
he did not adequately corroborate his testimony in support
of his application for asylum and withholding of removal.2
In particular, Miah makes two main points. First, Miah

2. On appeal, Miah also argues that “[t]he BIA erred in dismissing [his]
appeal of the Immigration Judge’s decision denying him relief under the
Convention Against Torture.” Br. Pet. at 24. We will not consider this
issue because we find that Miah failed to raise the IJ’s decision on his
Torture Convention claim as an issue to be considered by the BIA. This
Court may not consider particular questions not raised in an appeal to
the Board. See Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir. 1989).
                              9


argues that the BIA has placed a non-specific corroboration
requirement on an otherwise credible witness in direct
violation of this Court’s holding in Abdulai. Second, Miah
claims that the BIA sought to impose that requirement on
a record in which every fact that could be corroborated had
been corroborated.
  In Abdulai we held that “the BIA may sometimes require
otherwise-credible applicants to supply corroborating
evidence in order to meet their burden of proof.” 239 F.3d
at 554. In particular, we recognized a three-part test for
determining whether an applicant could be required to
provide corroborating evidence: “(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.” Id. (setting
forth BIA’s own test from In re S-M-J-, Interim Decision
3303 (BIA 1997), available at 1997 WL 80984).
   In assessing whether the BIA properly applied this test in
Abdulai, we found that the BIA focused on inquiry (2) and
ignored the other two aspects of the test. See id.
Specifically, while the BIA emphasized that Abdulai failed to
produce documentary evidence corroborating the specifics
of his claim, the BIA neglected to explain which “particular
aspects of [his] testimony it would have been reasonable to
expect him to have corroborated.” Id. (emphasis in original).
We noted that Abdulai attempted to meet his burden of
corroboration by submitting his Nigerian passport and
trying to explain his inability to document his membership
in a particular political party. See id. at 555. However,
because the BIA never identified the aspects of Abdulai’s
story for which it would have been reasonable to expect
corroboration, we concluded that we could not decide
whether its decision that Abdulai failed to produce
sufficient corroborating evidence was supported by
substantial evidence. See id. While acknowledging that “our
standard of review is extraordinarily deferential to the BIA,”
we ruled that the BIA’s failure to explain its rationale
precluded a meaningful review and remanded the matter
for further proceedings. Id.
                              10


   Similarly, in this case the BIA’s failure to provide its own
rationale precludes meaningful review. The BIA merely
reiterated the IJ’s findings regarding Miah’s attempts to
corroborate his story. A.R. 3-4. In relevant part, the BIA
stated as follows: (1) “[w]hat the Immigration Judge found
lacking, in light of the weaknesses in the respondent’s oral
and written testimony, was specific corroboration of the
events on which he bases his claim;” (2) “[t]he Immigration
Judge noted that the letter from the respondent’s father did
not provide specific information corroborating any of the
incidents described by the respondent;” (3) “[s]he also found
the letter from the doctor who claims to have treated the
respondent unpersuasive;” (4) “[t]he Immigration Judge also
specifically noted the lack of any apparent attempt on the
part of the respondent to obtain specific factual statements
from employees, BNP members, or family members who
reportedly witnessed the 1999 and 2000 incidents on which
it [sic] his claim is based and seemingly could have
provided corroboration regarding what transpired;” and (5)
“[w]e accordingly agree with the Immigration Judge that the
respondent failed to meet his burden of proof.” Id. at 3-4.
   While it might be appropriate for the BIA to adopt an IJ’s
findings regarding corroboration in certain cases, the BIA
erred by doing so in this case. Here, the IJ found Miah to
be not credible because his “testimony regarding the alleged
incidents lacked sufficient detail.” Id. at 34. As a result, the
IJ believed that Miah needed to present additional
corroborating evidence in order to carry his burden of proof
as “none of the documentation submitted by [Miah]
specifically corroborates any of the alleged incidents.” Id. at
35. In contrast, the BIA found Miah to be credible, stating
that it would “not adopt the Immigration Judge’s adverse
credibility finding.” Id. at 3. Nonetheless, the BIA essentially
adopted the IJ’s corroboration findings. Given that the IJ’s
corroboration ruling was informed by its adverse credibility
determination, we conclude that the BIA should have
conducted an independent corroboration analysis.
   In this case, testimony found to be incredible by the IJ
was transformed into credible testimony by the BIA.
However, the BIA does not explain how the transformation
affects the degree of corroboration now required for Miah to
                             11


sustain his burden of proof. In other words, now that Miah
is deemed to be a credible asylum applicant, which of the
events on which he bases his claim must he now
corroborate and to what degree? Is the level of
corroboration the same as when his testimony was deemed
incredible?
   Rather than simply restating the findings of the IJ
regarding corroboration, the BIA either should have
explored the issue and reached its own conclusion, or
remanded the case to the IJ with instructions to conduct
another corroboration analysis given that the BIA had
deemed Miah credible. While we acknowledge that our
standard of review is extremely deferential to the BIA, we
find that we cannot conduct a meaningful review of the
BIA’s decision in this case given that it adopted a
conclusion of the IJ after rejecting the finding of the IJ
which informed that conclusion. See Abdulai, 239 F.3d at
551. Here, “[b]ecause the BIA’s failure of explanation makes
it impossible for us to review its rationale,” id. at 555, we
remand the matter to the BIA so that it can refer the case
to the IJ with instructions to assume credibility and
conduct a new corroboration analysis.
  B.   Further Proceedings
  In analyzing corroboration on remand the IJ should
consider whether specific corroboration of the events on
which Miah bases his claim is necessary now that the BIA
has deemed Miah to be credible. If the IJ determines that
corroboration is still warranted, then the IJ must identify
“the facts for which it is reasonable to expect
corroboration.” Id. at 554. In her original opinion, the IJ
found that “none of the documentation submitted by the
respondent specifically corroborates any of the alleged
incidents” and that, other than the letter from his father,
Miah “has not submitted any letters or affidavits from any
witnesses to the alleged incidents.” A.R. 35. We note that,
for many of the incidents described by Miah, there were no
witnesses present who could now attest to what occurred.
For example: (1) on July 9, 1999, Awami League workers
attacked Miah and his brother, who is now missing; (2) on
December 1, 1999, Awami League workers kidnaped Miah
while he was walking home alone from work; and (3) on
                             12


September 9, 2000, Awami League workers again attacked
Miah upon his return to Noakhali. It is also unclear
whether there are any potential witnesses available from
the one incident — the attempted shooting of October 20,
2000 — that the IJ specifically cited in her opinion as
requiring corroboration. While Miah indicated in his
testimony that he was going to the home of a BNP leader
after a party meeting when he noticed the Awami League
men waiting outside in a car, he did not testify that anyone
else was walking with him or that anyone else fled the
scene with him.
   The BIA has stated that an applicant can be expected to
corroborate “facts which are central to his or her claim and
easily subject to verification,” such as “evidence of [an
applicant’s] place of birth, media accounts of large
demonstrations, evidence of a publicly held office, or
documentation of medical treatment.” In re S-M-J-, supra.
The BIA has further stated that in most circumstances an
applicant can reasonably be expected to produce letters
from family members remaining in the applicant’s home
country. See In re M-D-, Interim Decision 3339 (BIA 1998),
available at 1998 WL 127881. Miah has produced evidence
of his place of birth, evidence of party membership and
activities, documentation of medical treatment, and a letter
from his father, who remains in Bangladesh. There are
certain incidents, such as the September 1, 2000 attack on
Miah’s store and home, which other individuals witnessed
and for which Miah has produced no specific corroboration.
Assuming credibility, the IJ must now determine whether it
is reasonable to expect such specific corroboration, or
whether Miah’s credible testimony about specific incidents,
coupled with the documentary evidence that corroborates
his claim in general, is sufficient.
  If the IJ decides that it is reasonable to expect
corroboration, then the IJ will have to determine whether
Miah has provided specific information corroborating the
relevant facts. Previously, in describing the IJ’s findings,
the BIA noted that the doctor’s letter “was created long after
the purported medical treatment and is not fully consistent
with the time frame alleged by the respondent” and does
not describe his injuries or treatment. A.R. 4. While we
                               13


agree that the note lacks information regarding Miah’s
injuries and treatment, the time periods contained in the
note coincide with incidents described in Miah’s claim.
Each treatment period immediately follows an attack on
Miah. The IJ should also consider whether it is reasonable
to expect contemporaneously created records from a doctor
in a developing country, where the level of medical care and
record-keeping may not rise to the level of that available in
the United States.
  As to the father’s letter, the IJ indicated that it “is lacking
in detail regarding any of the alleged incidents.” Id. at 35.
While Miah’s father may not provide details about any
attacks on Miah, he does confirm other allegations made in
Miah’s claim. Though the letter is not translated into
perfect English, the father confirms that Miah’s brother is
missing and that the police, acting in conjunction with the
Awami League, are refusing to cooperate in finding him. He
further indicates that Awami League workers are circling
the family’s home in cars and threatening the family in an
attempt to learn the whereabouts of Miah. Again, the IJ
must determine whether Miah has sustained his burden of
proof by producing such corroborating evidence in addition
to his credible testimony.
   If the IJ nonetheless determines that Miah has not
corroborated the relevant facts, then the IJ must determine
“whether the applicant has adequately explained his or her
failure to do so.” Abdulai, 239 F.3d at 554. The IJ
previously concluded that Miah had “not provided or
indicated that he attempted to obtain letters or affidavits”
from the employees at the store, other members of the BNP,
or from other members of his family. A.R. 35. While offering
no opinion at this time as to whether it would be
reasonable to expect Miah to obtain letters or affidavits
from employees and other members of the BNP, we
recognized above that the BIA has indicated that, generally,
an applicant can reasonably be expected to produce letters
from family members remaining in the applicant’s home
country. See In re M-D-, supra. We instruct the IJ to
consider the letter from Miah’s father in assessing whether
Miah has adequately explained his failure to corroborate
certain relevant facts. In the letter, the father admonishes
                              14


Miah “[d]on’t write letters home.” The IJ failed to consider
this fact in her opinion and it is clearly relevant to
determining whether Miah has explained his failure to
corroborate.

                     III.   Conclusion
  Accordingly, for the reasons stated above, we grant
Miah’s Petition to Review the Order of the BIA, vacate the
BIA’s order, and remand the matter to the BIA to instruct
the IJ to conduct further proceedings consistent with this
opinion.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
