                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-5-2004

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Precedential or Non-Precedential: Precedential

Docket No. 03-1338




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                     PRECEDENTIAL        BRENDA M. O’MALLEY (ARGUED)
                                         LYLE D. JENTZER
                                         LYNNE R. HARRIS
IN THE UNITED STATES COURT OF            United States Department of Justice
            APPEALS                      Office of Immigration Litigation
     FOR THE THIRD CIRCUIT               P.O. Box 878
 _______________________________         Ben Franklin Station
                                         Washington, DC 20044
              NO. 03-1338
              ___________                Attorneys for Respondent

            LEK BERISHAJ,                      ________________________
                  Petitioner
                                                OPINION OF THE COURT
                     v.                        ________________________

   JOHN ASHCROFT, ATTORNEY
                                         BECKER, Circuit Judge.
            GENERAL
     OF THE UNITED STATES                    Lek Berishaj, an ethnic Albanian from
  _______________________________        Montenegro, petitions for review of a
                                         decision of the Board of Immigration
 On Petition for Review of an Order of   Appeals (BIA), which affirmed without
                  the                    opinion the decision of an immigration
    Board of Immigration Appeals         judge (IJ) denying him asylum and relief
      (Board No. A74-881-632)            under the Convention Against Torture and
 _______________________________         Other Cruel, Inhuman or Degrading
                                         Treatment or Punishment (CAT). Under
         Argued June 25, 2004            our caselaw, see Dia v. Ashcroft, 353 F.3d
                                         228 (3d Cir. 2003) (en banc), it is the IJ’s
    Before: AMBRO, BECKER and            decision that we review, no mean task here
     GREENBERG, Circuit Judges           because the IJ’s opinion is cursory, thinly
                                         reasoned, and discusses the case without
        (Filed: August 5, 2004 )         any reference to the governing legal
                                         standards. Nonetheless, we understand the
VISUVANATHAN                             IJ to have concluded that Berishaj’s
RUDRAKUMARAN (ARGUED)                    testimony regarding past persecution was
875 Avenue of the Americas               not credible; that, even taking Berishaj’s
New York, NY 10001                       testimony as true, country conditions in the
                                         Federal Republic of Yugoslavia (which
Attorney for Petitioner                  embraced Montenegro at the time of the
                                         IJ’s decision) had changed such that
                                         Berishaj could no longer have a well-
founded fear of future persecution; and            records are grossly out-of-date, requiring
that Berishaj’s CAT claim failed because           us to engage in the rather artificial exercise
there was no objective evidence that a             of ruling on situations that existed several
return to Montenegro would expose him to           years in the past, but do not exist today.
torture.                                           Here, we work from an administrative
                                                   record in which the most recent country
    Reviewing the IJ’s decision under the
                                                   conditions report is over four years out-of-
“substantial evidence” standard, see id. at
                                                   date. While SEC v. Chenery Corp., 318
247-50, we conclude that the IJ’s rejection
                                                   U.S. 80 (1943), and the constraints of
of Berishaj’s asylum claim cannot stand.
                                                   process-based review of administrative
First, the IJ’s adverse credibility
                                                   decision making prevent us from
determination has no basis in the record.
                                                   supplementing a grossly out-of-date
Second, the IJ misapplied the law in
                                                   administrative record, they do not
concluding that changed conditions in
                                                   command blindness to the emerging
Montenegro have obviated any persecution
                                                   pattern of stale records. Considering the
claim that Berishaj might once have had.
                                                   rapid, frequent political changes in
In such a posture, the burden of showing
                                                   countries from which asylum and CAT
changed country conditions is on the
                                                   applicants usually come, and the
government, see 8 C.F.R. 208.13(b)(1)(ii),
                                                   potentially dire consequences of sending
and we hold that the government must
                                                   such an applicant back to his country of
rebut the alien’s well founded fear of
                                                   origin to face possible persecution or
future persecution with specific evidence,
                                                   torture on the basis of such a stale report,
which it did not produce. We will
                                                   we call on Congress, the Department of
therefore grant the petition for review of
                                                   Justice, the Department of Homeland
the decision insofar as it rejected
                                                   Security, and the BIA to improve the
Berishaj’s asylum claim, and his related
                                                   structure and operation of the system, so
claim for withholding of removal. We
                                                   that all may have the confidence that the
leave it to the Agency to make a proper
                                                   ultimate disposition of a removal case
determination in the first instance of the
                                                   bears a meaningful connection to the
merits of those claims. With respect to
                                                   merits of the petitioner’s claim(s) in light
Berishaj’s CAT claim, the IJ’s decision
                                                   of contemporary world affairs.
passes muster (though barely), and we will
deny the petition for review of the IJ’s
CAT decision.
                                                     I. The Administrative Record and the
    As we will explain in greater detail, we                   IJ’s Decision
think this case to be a particularly apt
                                                       As will become clear, the IJ’s
example of a disturbing trend we often
                                                   credibility determination rested on his
encounter in petitions for review of the
                                                   rejection of a fairly narrow slice of
BIA. In many cases in which country
                                                   Berishaj’s testimony. But we will discuss
conditions are at issue, the administrative

                                               2
Berishaj’s testimony in full, because his              A. Berishaj’s Testimony and
claims depend on aspects of it beyond the                Corroborating Affidavit
specific testimony on which the IJ based
                                                     Berishaj is an ethnic Albanian who
his adverse credibility determination.
                                                 spent his youth in Montenegro, at the time
CAT claims and questions of changed
                                                 part of Yugoslavia.2 In the summer of
country conditions are, for the most part,
                                                 1991, he went to Kosovo, a neighboring
evaluated with reference to documentary
                                                 province of Yugoslavia, to attend a
evidence of contemporary country
                                                 university that conducted classes in his
conditions; questions of corroboration are
                                                 native Albanian tongue. (At that time, no
evaluated with reference to documentary
                                                 university in Montenegro conducted
evidence of past conditions. We will
                                                 classes in Albanian.) Serb forces had
therefore address the documentary
                                                 taken control in Kosovo in 1990, and had
materials in the record with a focus on
                                                 officially closed the university, but it
both past and contemporary events. To set
the context for Berishaj’s testimony, we
set forth in the margin a capsule
chronology of events in the Balkans from         proclaimed their independence on March
1991 to 2001.1                                   3, 1992, and Serb forces seized seventy
                                                 percent of the country’s territory. War
                                                 between Serbia and Bosnia continued
                                                 until the Dayton Peace Accord on
  1
    The following chronology—which is            November 21, 1995.
not taken from the administrative                    In 1998, fighting erupted in Kosovo,
record—is excerpted from the United              a province of Serbia, between Serbians
Nations High Commissioner for                    and ethnic Albanians, displacing
Refugees document “A Brief History of            hundreds of thousands of people. Peace
the Balkans,” which is available at the          talks failed, and in March 1999 NATO
High Commissioner’s web site,                    air strikes began. In June 1999, NATO
http://www.unhcr.ch.                             and Russian forces entered Kosovo after
    Yugoslavia was created following             Yugoslavia accepted a peace plan. On
World War I, and after World War II              October 6, 2000, Milosevic conceded
became a socialist federal republic              defeat in a presidential election, and was
comprising Bosnia and Herzegovina,               placed under house arrest. He was
Croatia, Slovenia, Serbia, Macedonia,            handed over to the International Tribunal
and M ontenegro. Slobodan M ilosevic             in the Hague on June 28, 2001.
was elected President of Serbia in 1989.
                                                   2
On June 25, 1991, Croatia and Slovenia              The discussion in this section is taken
proclaimed their independence from               from Berishaj’s testimony, which for
Yugoslavia, and Serb forces immediately          ease of exposition we present as true.
overran thirty percent of Croatian               We address the IJ’s adverse credibility
territory. Bosnia and Herzegovina                determination in detail infra Part III.A.1.

                                             3
continued to function underground, with            cleaning the tank gun and guarding the
classes held in private homes in Pristina, a       tank. He was beaten at the direction of
major city in Kosovo. Berishaj’s uncle,            Serbian officers for singing songs in
Palok, with whom Berishaj lived at the             Albanian, and he stopped speaking
time, was one of the leading organizers of         Albanian publicly, relying on the Serbian
the illegal university, and he recruited           he learned while in the army. After
Berishaj to find private homes in which to         completing eleven months of military
hold classes. Because of his activities,           service, Berishaj was discharged. He
Palok was arrested in 1991, and again in           returned to Montenegro, then to Kosovo
1994, when he was detained and beaten for          briefly to take university examinations,
several days. Berishaj was arrested in             and then back to his parents’ home in
Pristina in the spring of 1992 for his             Montenegro.
assistance to the illegal university; he was
                                                        In     December      1993,       four
beaten with a rifle butt and detained
                                                   p o l i c emen — appa rently milita ry
overnight.     Not trusting the Serbian
                                                   police—came to his parents’ house at
doctors at the hospital, Berishaj was
                                                   midnight and took him to fight in Bosnia.
treated by an Albanian doctor practicing
                                                   He served again as a gunman, and was
illegally, and returned to Montenegro a
                                                   ordered to destroy buildings, houses, and
few weeks later.
                                                   shoot at the army and at Muslim civilians
    Shortly after returning to Montenegro,         in Bosnia. Berishaj explained that he had
Berishaj was inducted into the army; he            no choice but to shoot civilians: “I would
was sent to serve in Serbia, where he spent        either, you know, shoot or [the Serbians]
eleven months.           He w as easily            would kill me.” Ethnic Albanians in the
recognizable as an ethnic Albanian, among          army were not trusted to shoot without
a predominantly Serbian army—“Berishaj”            being under Serbian control. For example,
is a well-known Albanian name; indeed,             Berishaj explained, “When we were in the
one Sali Berishaj was the former president         tank, you know, using the gun, we would
of Albania. In the army, Berishaj served           have somebody behind us [a Serbian] with
as a tank gunman following a three-month           an automatic gun. . . . Their function was
training period in which he learned to             that if somebody does not obey the order
operate the tank gun from instructions in          to shoot with a gun, they would kill him.”
Serbian. In the tank crew of three or four,        Berishaj spent two months in the army this
Berishaj was the lowest in rank, taking            time, and escaped during the night in
orders from Serbs in charge of the tank.           February 1994. He returned to his parents’
Berishaj did not, in these eleven months,          home in Montenegro.
go to war in Bosnia. Berishaj attributed
                                                       Fearing that he would be arrested and
this to the Serbian officers not trusting
                                                   returned to the army, Berishaj crossed
Albanians enough to send them to war.
                                                   illegally from Montenegro into Albania,
Berishaj’s duties mostly consisted of
                                                   where he spent the next fourteen months in

                                               4
hiding at his cousin’s home. He sought,            nearly four years before. His father
but was unable to obtain, legal status in          explained, in Berishaj’s words “that once
Albania; as a result, the Albanian                 I left, the [Montenegrin] police came three
authorities learned of him. His cousin,            times and checked the house inside out
fearing the Albanian police, convinced             looking for me after I had escaped. At this
Berishaj to return to Montenegro in April          time, they asked him ‘Where is he? Where
1995. Upon returning to his parents’ home          can we find him?’ And his response was
in Montenegro, Berishaj learned that he            he didn’t know. . . . After I left, my father
was wanted by the police, and he went to           was telling me that many incidents they
reside with his sister, who lived in another       came and checked the house inside out
village several miles from his parents’            three times, and at one point were also
home. The five months with his sister              guarding the house overnight to see if I
were spent mostly indoors, as were the             would come home.” The police stopped
following months, which he spent with an           searching for Berishaj when his father told
uncle in yet another village.                      them that Berishaj had left permanently.
                                                   Berishaj also learned from his father that
    Berishaj ultimately was located by the
                                                   his brother was serving a five-year
Montenegrin police in September 1996,
                                                   sentence for helping the Kosovar
and detained for two days. They asked
                                                   resistance during the war. Berishaj’s
him why he deserted from the army, and
                                                   sister, a naturalized American citizen,
why he did not finish his studies at the
                                                   confirmed in an affidavit made in late
official university (i.e., the Serbian-run
                                                   1997 that she had received similar
university); it was clear that the police
                                                   accounts from their father, brother, and
knew he had participated in the illegal
                                                   sister regarding police activity at their
university. Berishaj was released from
                                                   parents’ home.
custody apparently when an uncle
fabricated a story about Berishaj needing              B. Documentary Evidence in the
to visit an ill family member and posted                   Administrative Record
bail for him. Berishaj returned illegally to
                                                     1. Contemporary Country Conditions
Albania, where he resided until February
1997, when he was smuggled to Belgrade,               Much of the record addresses
and from there to France, then Brazil, then        contempo rary treatment of ethnic
the United States.                                 Albanians in Kosovo or elsewhere in
                                                   Serbia; as this is not especially relevant to
    Since being in the United States,
                                                   the situation in Montenegro, we will
Berishaj has had limited contact with
                                                   concentrate only on documentary evidence
family members in Montenegro, fearing
                                                   addressing Montenegro. We begin with
that his family would be coerced by the
                                                   the State Department’s 1999 Country
police into revealing his whereabouts. In
                                                   Reports on Human Rights Practices:
January 2001, Berishaj spoke to his father
                                                   Serbia-Montenegro, issued in February
for the first time since leaving Montenegro

                                               5
2000 (the “1999 Country Report”); this is                 Report represents that Montenegro was
the latest country report available in the                making progress toward democracy,
administrative record. While on the one                   holding free and fair elections, and
hand the BIA may not “‘hide behind the                    that1999 saw even further escape from the
State Department’s letterhead’” and place                 federal control of Milosevic’s regime. The
full and uncritical reliance on a country                 1999 Country Report further states that
report, Ezeagwuna v. Ashcroft, 325 F.3d                   while the Montenegrin government
396 (3d Cir. 2003) (quoting Li Wu Lin v.                  generally respected its citizens’ human
INS, 238 F.3d 239, 246 (3d Cir. 2001)),                   rights, there were reports of extrajudicial
neither is it permissible for the IJ and BIA              killings by federal troops, forcible
not to address the relevant country report                c o n s c r i p t i o n , a n d v i o l en c e a n d
in some detail. The first line of the 1999                discrim ination aga inst minor i tie s.
C o u n t r y R e p o r t r e ad s : “ S e rb i a -       Academic freedom is said to have been
Montenegro is dominated by Slobodan                       respected. In early 1999, the government
Milosevic,” though it goes on to note that                began a program of devolving authority on
Milosevic’s primary influence is over                     local government officials in ethnic
Serbia proper (and even there, not in                     Albanian communities. The Yugoslav
Kosovo) and less over Montenegro.                         Parliament passed an amnesty for draft
Nonetheless, given Milosevic’s control                    evaders and deserters in late 1995, and the
over the Serbian army and federal police,                 Montenegrin Parliament passed a similar
the 1999 Country Report establishes that a                law in late 1999. According to documents
prime force in the persecution (or worse)                 in the record from Amnesty International,
of ethnic Albanians was still in power at                 however, there is evidence that at least the
the time the administrative record was                    latter law was not fully observed, as
compiled.3                                                federal Yugoslav authorities and military
                                                          police controlled the treatment of evaders
       On the other hand, the 1999 Country
                                                          and deserters.
                                                              The 1999 Country Report generally
   3
    We note that the final hearing before                 sounds of relative stability and democratic
the IJ in this case was conducted in                      progress, but other parts of the record
January 2001, by which point Milosevic                    suggest that events were very fluid in
was no longer in power in Serbia.                         1999. For example, a series of news
Although this is not documented in the                    articles from the New York Times and
administrative record, at the January                     reports from human rights organizations
2001 hearing in this case, the IJ did refer               sugg ests that paramilitary groups
to “Mr. Milosevic [being] taken out of                    associated with ethnic cleansing of ethnic
power.” No documentary evidence in the                    Albanians in Kosovo had moved into
administrative record discusses the effect                Montenegro, perhaps at the behest of the
of Milosevic’s fall on conditions in                      Montenegrin police.
Montenegro.

                                                      6
       2. Corroborating M aterials                 this is again consistent with Berishaj’s
                                                   account.
    We turn now to materials in the record
that could corroborate Berishaj’s accounts                   C. The IJ’s Decision
from the early 1990s—specifically his time
                                                       The IJ’s decision (which, save for
at the illegal university in Kosovo and his
                                                   irrelevant introductory and concluding
military service from 1992 to 1994. Two
                                                   remarks, is recounted in full in the
pieces are worthy of note. First, Berishaj’s
                                                   paragraphs that follow) begins with his
story about the operation of the illegal
                                                   adverse credibility determination:
university in Kosovo, and police hostility
to it, is perfectly corroborated by an                    The case at bar is afflicted by
Amnesty International Report from 1994,               testimony that is incredible in
which is in the administrative record. This           nature. The Applicant’s statements
report describes the creation in 1990 and             as to how he was recruited and
1991 by ethnic Albanians of “a parallel               placed in a position of combat by
educational system using [pre-Serbian]                the Serbs while at the same time
curricula,” with “lessons . . . held in               adducing to an attitude of total
private homes.” The report also describes             disdain and bias toward the
several specific episodes of police                   Applicant is just incredulous to the
violence against ethnic Albanians on                  Court. This fact is dramatized and
account of this parallel educational system.          magnified by the Respondent’s
                                                      testimony that although he was
    Second, and also in the administrative
                                                      despised by the Serbs in the army
record before the IJ, a 1992 article from
                                                      he was placed in command of a
the Bronx-published English-language
                                                      tank.     The testimony further
Albanian-American newspaper Illyria
                                                      developed how the Applicant
profiles a young ethnic Albanian, Adem
                                                      learned to operate the tank by
Krasniqi, whose experience as a forced
                                                      reading the instructions in it and
inductee into the Serbian army closely
                                                      how, albeit they were written in a
parallels Berishaj’s. Krasniqi was one of
                                                      language he did not understand, he
many Albanian “tankers” (i.e., tank
                                                      was able to familiarize with the
operators or gunmen). In an attack on
                                                      operation of the tank in just three
Vukovar, Croatia, he was forced to move
                                                      months. As fantastic and ludicrous
forward in the first wave; the story quotes
                                                      as that statement may appear, the
Krasniqi as saying, “Behind us were the
                                                      Court was dazzled and astounded
Serbian irregulars uniformed as soldiers.
                                                      by the declaration that although he
Anyone trying to desert would be shot.
                                                      was in control of the tank he had a
We had two choices. Keep firing or get
                                                      Serbian officer behind his back
shot from people behind you.” Krasniqi
                                                      pointing a gun at him at all times!
also describes indiscriminate shelling, and
                                                      A better script could not have been
being forced to fire at innocent civilians;

                                               7
   thought about by kings of comedy                  a n d m a k e s h i s r et u r n to
   like Peter Sellers or Mel Brooks.                 Mon tenegro reaso nable .
                                                     Montenegro has granted an
       This ridiculous testimony is not
                                                     amnesty to deserters and draft
   supported by one scintilla of
                                                     dodgers. Nothing in Respondent’s
   evidence and in addition to be
                                                     arguments convinces this Court that
   completely absurd it borders in an
                                                     his return to Montenegro would
   offensive and arrogant attitude
                                                     place him in any type of danger at
   toward the Court. The Applicant’s
                                                     the present time. In concluding as
   demeanor, throughout the sessions
                                                     I do I have determined that the
   of testimony, was characterized by
                                                     Applicant’s possibility of any
   an arrogant disposition in thinking
                                                     f u t u r e p e r s e c u ti o n is n i l .
   that he deserves what he is asking
                                                     Respondent’s attorney’s arguments
   for.
                                                     that the new administration of
   The IJ next turned to a brief discussion          e l e c t e d presid e n t V o j i s l a w
of the then-curren t conditions in                   Kostunica is a mirror image of his
Montenegro:                                          predecessor is not persuasive nor
                                                     established.
       The amount of time this case
   has been pending has made the                     The final substantive portion of the IJ’s
   Respondent’s claim even weaker.                decision reiterates his adverse credibility
   Historically, Montenegro was                   determination:
   considered a satellite or puppet
                                                         The Court has stated its opinion
   nation of strongman Slobodan
                                                     earlier as to how skeptical the
   Milosovic.     Under Milosovic’s
                                                     Court is about the Applicant’s
   regime the Respondent’s position
                                                     claim of p ast p erse c ution .
   of opposition to service in the
                                                     Testimony that has been plagued by
   Serbian army may have had some
                                                     fantastic anecdotes and
   validity. It was not until very
                                                     uncorroborated information is very
   recently that the Government of
                                                     difficult to accept even as plausible.
   Montenegro has taken an
                                                     The Applicant’s case is precisely
   independent position with regard to
                                                     affected by these characteristics
   the treatment of ethnic Albanians in
                                                     and therefore makes it impossible
   the region. Once the apparent
                                                     for the Court to accord it any
   defeat of the Milosovic
                                                     credence.
   administration, the Government of
   Montenegro has shown signs of                     The BIA affirmed this decision without
   self-determination. This change of             opinion.
   events, contrary to the Applicant’s
   position benefits the Respondent


                                              8
          II. Standard of Review                        determination based upon the
                                                        administrative record.              If a
    Because the BIA affirmed the decision
                                                        reasonable fact finder could make a
of the IJ without opinion, see 8 C.F.R. §
                                                        p a r t i c u l ar f i n d i n g o n t h e
3.1(e)(4), the decision of the IJ is the final
                                                        administrative record, then the
agency determination, which we are called
                                                        finding is supported by substantial
upon to review. See Dia, 353 F.3d 228.
                                                        evidence.          Conversely, if no
We have jurisdiction under 8 U.S.C. §
                                                        reasonable fact finder could make
1252 over this timely petition for review of
                                                        that finding on the administrative
a final determination of the BIA.
                                                        record, the finding is not supported
    We review the Agency’s findings of                  by substantial evidence.
fact—such as the IJ’s credibility
                                                     353 F.3d at 249.
determinations, his findings on the CAT
claim, and his findings regarding changed
country conditions— under 8 U.S.C. §
                                                      III. Berishaj’s Application for Asylum
1252(b)(4)(B), which provides that
“administrative findings of fact are                           A. The Asylum Claim
conclusive un les s any reasonable
                                                            1. The Adverse Credibility
adjudicator would be compelled to
                                                                  Determination
conclude to the contrary.”          As we
explained in Dia, we have “read this                     Berishaj applied for asylum and
standard to require that the agency support          withholding of removal based on past
its findings with substantial evidence, as           persecution and a well-founded fear of
articulated by the Supreme Court in INS v.           future persecution if he is removed to
Elias-Zacarias, 502 U.S. 478, 481-84                 Montenegro. In Gao v. Ashcroft, 299 F.3d
[(1992)].” 353 F.3d at 247; see also                 266 (3d Cir. 2002), we laid out the
Sevoian v. Ashcroft, 290 F.3d 166, 171 (3d           statutory framework for asylum claims and
Cir. 2002) (“[The Illegal Immigration                the relevance of adverse credibility
Reform and Immigrant Responsibility Act]             determinations to the asylum inquiry:
codifies the language the Supreme Court
                                                            A grant of asylum under §
used in Elias-Zacarias to describe the
                                                        1158(b)(1) of the Immigration and
su b st a n ti al evid ence standard in
                                                        Nationality Act (INA) allows an
immigration cases.”). We concluded in
                                                        otherwise removable alien to stay
Dia that
                                                        in the United States. The Attorney
   the question whether an agency                       General “may” grant asylum to an
   determination is supported by                        alien who demonstrates that he/she
   substantial evidence is the same as                  is a refugee: a person unable or
   the question whether a reasonable                    unwilling to return to the country of
   fact finder could make such a                        that person’s nationality or habitual


                                                 9
res i d e n c e b e c a u s e of past             meet this burden, if “credible.” 8
persecution or because of a                       C.F.R. § 208.13(a), Chand v. INS,
well-founded fear of future                       222 F.3d 1066, 1077 (9th Cir.
persecution on account of his race,               2000). In some cases the INS may
religion, nationality, membership in              require documentary evidence to
a particular social group, or                     support a claim, even from
political opinion.           See INA §            otherwise credible applicants, to
208(b)(1), 8 U.S.C. § 1158(b)(1)                  meet their burden of proof.
( r e q u iring a syl um applicant                Abdulai [v. Ashcroft], 239 F.3d
conform to definition of refugee);                [542,] 554 [(3d Cir. 2001)].
[§] 101(a)(42)(A), 8 U.S.C. §
                                                  . . . . [A]dverse credibility
1 1 0 1 ( a ) (4 2 ) (A ) ( prov idin g
                                                  determinations are reviewed for
definition of refugee). In order to
                                                  substantial                   evidence.
establish eligibility for asylum on
                                                  Balasubramanrim v. INS, 143 F.3d
the basis of past persecution, an
                                                  157, 161 (3d Cir. 1998). . . .
applicant must show: “(1) an
                                                  Adverse credibility determinations
incident, or incidents, that rise to
                                                  based on speculation or conjecture,
the level of persecution; (2) that is
                                                  rather than on evidence in the
‘on account of’ one of the
                                                  record, are reversible. Salaam v.
statutorily-protected grounds; and
                                                  INS, 229 F.3d 1234, 1238 (9th Cir.
(3) is committed by the government
                                                  2000).              G e n e r a l l y, m i n or
or forces the government is either
                                                  i n c o n s i s te n c i e s a n d m i n o r
‘unable or unwilling’ to control.”
                                                  admissions that “reveal nothing
Navas v. INS, 217 F.3d 646, 655
                                                  about an asylum applicant’s fear for
(9th Cir. 2000).
                                                  his safety are not an adequate basis
    An applicant can demonstrate                  for an adverse credibility finding.”
that she has a well-founded fear of               Vilorio-Lopez v. INS, 852 F.2d
future persecution by showing that                1137, 1142 (9th Cir. 1988). The
she has a genuine fear, and that a                discrepancies must involve the
reaso nable person in her                         “heart of the asylum claim.”
circumstances would fear                          Ceballos-Castillo v. INS, 904 F.2d
persecution if returned to her native             519, 520 (9th Cir. 1990).
country. Elnager v. INS, 930 F.2d
                                               Gao, 299 F.3d at 271-72. Furthermore, an
784, 786 (9th Cir. 1991). Aliens
                                               alien who offers credible testimony
have the burden of supporting their
                                               regarding past persecution is presumed to
asylum claims through credible
                                               have a well-founded fear of future
testimony. Abdille v. Ashcroft, 242
                                               persecution.     See Abdulrahman v.
F.3d 477, 482 (3d Cir. 2001).
                                               Ashcroft, 330 F.3d 587, 591-92 (3d Cir.
Testimony, by itself, is sufficient to
                                               2003) (citing 8 C.F.R. § 208.13 (“An

                                          10
applicant who has been found to have                service as “just incredulous [sic] to the
established such past persecution shall also        Court,” as “fantastic and ludicrous,” and
be presumed to have a well-founded fear             “astound[ing],” worthy of “kings of
of persecution on the basis of the original         comedy like Peter Sellers or Mel Brooks.”
claim.”)).                                          The IJ’s comments are not only
                                                    intemperate but singularly unhelpful. At
     Here, if the IJ’s adverse credibility
                                                    best they amount to a finding that
determination is supported by substantial
                                                    Berishaj’s testimony was implausible or
evidence, Berishaj’s asylum claim would
                                                    inherently improbable when, as we will
arguably fail because the IJ refused to
                                                    demonstrate, the testimony appears
credit significant testimony at the core of
                                                    eminently reasonable. At all events, the
Berishaj’s story of past persecution— his
                                                    IJ’s comments are not tethered to the
being subjected to persecution by Serbs on
                                                    record, owing what little support they have
account of his status as an ethnic Albanian.
                                                    to hyperbole and appeals to popular
We set aside for the time being that the IJ
                                                    culture—two utterly inappropriate bases
failed altogether to address Berishaj’s
                                                    for an asylum decision.
testimony about how he was treated
o u t s id e t h e m i l it a r y.    That              The BIA has of course held, and we
testimony—from his civilian                         have agreed, that an adverse credibility
life—arguab ly could indepen dently                 determination may properly be based on
support his asylum claim. In light of our           implausibility or inherent improbability.
conclusion that the IJ’s adverse credibility        See In re S-M-J-, 21 I. & N. Dec. 722,
determination is not supported by                   729-30 (BIA 1997) (holding that an
substantial evidence, we need not address           adverse credibility determination may be
whether the IJ’s adverse credibility                “appropriately based on inconsistent
determination with respect to Berishaj’s            statements, contradictory evidence, and
account of his military service could               inherently improbable testimony . . . in
properly be used to reject his accounts of          view of the background evidence on
arguable persecution as a civilian.                 country conditions”); Dia, 353 F.3d at 249
                                                    (“Where an IJ bases an adverse credibility
    As noted, we conclude that the IJ’s
                                                    determination in part on ‘implausibility[,]’
adverse credibility determination is not
                                                    . . . such a conclusion will be properly
supported by substantial evidence. In
                                                    grounded in the record only if it is made
terms of the language we used in Gao, the
                                                    against the background of the general
IJ’s credibility determination was “based
                                                    country conditions.” (citing Gao, 299 F.3d
on speculation [and] conjecture, rather
                                                    at 278-79; He v. Ashcroft, 328 F.3d 593,
than on evidence in the record.” 299 F.3d
                                                    603 (9th Cir. 2003))). As these cases
at 272 (citing Salaam v. INS, 229 F.3d
                                                    illustrate, however, there must be record
1234, 1238 (9th Cir. 2000)). Without
                                                    support and specific, cogent reasons for
further elaboration, the IJ simply rejected
                                                    such an adverse credibility determination.
Berishaj’s testimony regarding his military

                                               11
    The en banc Court in Dia emphasized                Hartooni v. INS, 21 F.3d 336, 342
exactly this point in rejecting the adverse            (9th Cir.1994))).
credibility determination made by the IJ in
                                                          If the IJ’s conclusion is not
that case:
                                                       based on a specific, cogent reason,
         “[W]hile we defer to the IJ on                but, inste a d, is ba se d on
   credibility questions, that deference               speculation, conjecture, or an
   is expressly conditioned on support                 otherwise unsupported personal
   in the record,” Nagi El Moraghy [v.                 opinion, we will not uphold it
   Ashcroft], 331 F.3d [195,] 205 [(1st                because it will not have been
   Cir. 2003)], and “[d]eference is not                supported by such relevant
   due where findings and conclusions                  evidence as a reasonable mind
   are based on inferences or                          would find adequate. In other
   p re s u m p t i o n s that are n ot                words, it will not have been
   reasonably grounded in the record.”                 supported by substantial evidence.
   Id. at 202 (citation and internal
                                                    Id. at 249-50 (some alterations in original).
   quotation marks omitted); see also
   Abdulrahman, 330 F.3d at 597                         None of the IJ’s reasons for finding
   (stating that “substantial deference”            Berishaj incredible withstand scrutiny in
   to a finding is to be “afforded . . .            light of the record. We address them
   where it is grounded in evidence in              seriatim. Most obviously wrong is the IJ’s
   the record”). To this end, it is clear           conclusion that Berishaj’s testimony about
   that “[a]dverse credibility                      his experience in the military was “not
   determ inations based on                         supported by one scintilla of evidence.”
   speculation or conjecture, rather                As we have already described, see supra
   than on evidence in the record, are              Part I.B.2, there is at least one strikingly
   reversible,” Gao, 299 F.3d at 272,               similar published account from another
   and that an IJ must support her                  e thnic Alb ania n in the Serb ian
   adverse credibility findings with                army—Adem Krasniqi’s story as published
   “specific[,] cogent reasons.” Id. at             in Illyria.      Irrespective of Illyria’s
   276; Abdulrahman, 330 F.3d at                    reliability vel non as an unbiased source of
   597; see also Secaida-Rosales [v.                news from the Balkans, the article was in
   Ashcroft], 331 F.3d [297,] 307 [(2d              the administrative record and the IJ was
   Cir. 2003)] (“When an IJ rejects an              obliged to address it. Moreover, the IJ is
   applicant’s testimony, the IJ must               in no position to comment from his own
   provide ‘specific, cogent’ reasons               experience on the plausibility of the cruel
   for doing so.”); He, 328 F.3d at 595             practices employed in one of the most
   (“[T]he IJ and BIA must offer a                  heinous conflicts of the modern era. If
   ‘specific, cogent reason for any                 anything, the tactic of forcing one ethnic
   s t a te d d i s b e li e f .’” (quotin g        minority to kill another is entirely


                                               12
consistent with multiparty ethnic warfare,                We also note the basic misstatement of
and there is no substantial evidence on               the record in the IJ’s description of
which to conclude otherwise. It seems                 Berishaj’s testimony—Berishaj never
eminently plausible that the Serbians                 testified that he was “placed in command”
would require the Albanians to be the ones            of the tank, or “in control of the tank”; he
to shoot the Bosnians, and that they would            testified that he was at the bottom of the
enforce that role in the manner                       chain of command. There is no evidence
described—by having a gunman behind                   contra. In sum, nothing of the IJ’s adverse
each Albanian. To describe this as a Mel              credibility determination survives even
Brooks scenario seems to us bizarre.                  basic scrutiny, and we cannot accept the
                                                      IJ’s determination as supported by
    We also cannot understand the IJ’s
                                                      substantial evidence
incredulity at Berishaj’s ability to learn
enough Serbian to clean and operate a tank                The IJ also rejected Berishaj’s
gun as a low-ranking soldier. Berishaj                testimony on the ground that it was
testified that he did not find Serbian                “plagued by . . . uncorroborated
difficult to learn, and that he had to stop           information.” To the extent that the IJ
speaking Albanian publicly—wh ich                     meant that Berishaj’s account of his
suggests that he was effectively immersed             military experience could not be squared
in Serbian for several months. These are              with the experiences of other ethnic
both candid and credible statements that              Albanians in the Serbian army in the mid-
the IJ did not address. What is more, even            1990s, we think our discussion above
though the IJ’s hearing in January of 1998            amply refutes any notion that Berishaj’s
(no more than a year after Berishaj arrived           experience was implausible. To the extent
in the United States) was conducted with              that the IJ complained of the absence of
an Alb anian interpreter, Berishaj                    testimonial or documentary materials in
repeatedly demonstrated that he was                   the record to support aspects of the factual
listening to the questions in English, and            account given by Berishaj, we are at a loss
not waiting for the interpreter’s translation.        to com preh end th e IJ— requ iring
At times, Berishaj even responded in                  corroborative evidence in this situation
English. English is a difficult language to           would run counter to our precedent, BIA
learn, but Berishaj apparently has some               precedent, and common sense.
facility for picking up languages, and this
                                                          In Abdulai, 239 F.3d at 554, we held
only enhances the credibility of his claim
                                                      that “the BIA may sometimes require
to having learned basic Serbian in a few
                                                      otherwise-credible applicants to supply
months. In light of all this, we do not see
                                                      corroborating evidence in order to meet
how a reasonable factfinder could
                                                      their burden of proof.” In so doing, we
conclude that his claim that he learned
                                                      refused to hold invalid the rule of
enough Serbian to clean and operate the
                                                      corroboration laid down by the BIA in S-
tank gun was not worthy of belief.
                                                      M-J-, 21 I. & N. Dec. 722. We explained

                                                 13
that S-M-J- “contemplates a three-part              founded fear of future persecution. See 8
inquiry: (1) an identification of the facts         C.F.R. § 208.13(b)(1); Abdulrahman, 330
for which it is reasonable to expect                F.3d 587. But 8 C.F.R. § 208.13(b)(1)(i)
corroboration; (2) an inquiry as to whether         also provides that
the applicant has provided information
                                                       an immigration judge . . . shall deny
corroborating the relevant facts; and, if he
                                                       the asylum application of an alien
or she has not, (3) an analysis of whether
                                                       found to be a refugee on the basis
the applicant has adequately explained his
                                                       of past persecution if [it] is found
or her failure to do so.” Abdulai, 239 F.3d
                                                       by a preponderance of the evidence
at 554 (internal quotation marks omitted);
                                                       [that] [ t] he re ha s b e e n a
see also Mulanga v. Ashcroft, 349 F.3d
                                                       fundamental change in
123, 133-37 (3d Cir. 2003).
                                                       circumstances such that the
    The IJ plainly did not heed even the               applicant no longer has a well-
first step, which is simple common sense:              founded fear of persecution in the
There are matters on which it is plainly               applicant’s country of nationality .
unreasonable to expect any kind of                     . . on account of race, religion,
corroboration. Wartime persecution is                  nationality, membership in a
surely among these matters— exigency,                  particular social group, or political
strife, and destruction all conspire to                opinion
destroy what records there might once
                                                    The burden of proof in a changed-country-
have been.         Evidence documenting
                                                    conditions rebuttal is on the government.
military persecution and abuse is rarely
                                                    8 C.F.R. § 208.13(b)(1)(ii).
made in the first place. Testimony is
nearly impossible to come by because of                   Other Courts of Appeals have
death and dispersal in the ranks. The IJ            recognized a limitation on the inferences
had no grounds on which to expect                   that may be drawn from evidence of
corroboration from Berishaj.                        changed country conditions. The First,
                                                    Seventh, Ninth, and Tenth Circuits agree
    2. Changed Country Conditions
                                                    that evidence of changed country
   The IJ’s alternative reason for rejecting        conditions can successfully rebut an
Berishaj’s asylum claim was that country            alien’s fear of future persecution based on
conditions in Montenegro had improved               past persecution only if that evidence
by 2000 to the point that Berishaj’s stories        addresses the specific basis for the alien’s
of past persecution—even if they were               f e a r of per s e cution; ge ne r aliz ed
credible—no longer provided a basis for a           improvements in country conditions will
well-founded fear of future persecution.            not suffice as rebuttals to credible
As we have noted, an alien who offers               testimony and other evidence establishing
credib le tes tim on y regarding past               past persecution. The other Courts of
persecution is presumed to have a well-             Appeals, including this Court, appear to


                                               14
have had no occasion to consider the                 Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003)
matter.                                              (citing Balasubramanrim, 143 F.3d at
                                                     161).
    As the Court of Appeals for the Ninth
Circuit has explained, “[the] INS is                     To the extent that the IJ proposed to
obligated to introduce evidence that, on an          proceed on an interpretation of 8 C.F.R. §
individualized basis, rebuts a particular            208.13(b)(1) that departs from the one
applicant’s specific grounds for his                 stated by our sister Courts of Appeals, the
well-founded fear of future persecution.             IJ offered no reasoning and cited no
Information about general changes in the             autho rity— not even the pertinent
country is not sufficient.”          Rios v.         regulation itself. Accordingly, we have no
Ashcroft, 287 F.3d 895, 901 (9th Cir.                basis on which to conclude that the IJ’s
2002) (internal quotation marks and                  reading and application of the regulation
citations omitted); accord Krastev v. INS,           was “reasonable” and therefore entitled to
292 F.3d 1268, 1276-77 (10th Cir. 2002)              deference under Chevron U.S.A., Inc. v.
(granting petition for review, noting that           Natural Resources Defense Council, 467
the country report relied on by the BIA did          U.S. 837 (1984). Cf., e.g., Valansi v.
nothing to rebut petitioner’s fear from              Ashcroft, 278 F.3d 203, 208-09 (3d Cir.
local, not national, authorities in                  2002) (quoting, inter alia, Lewis v. INS,
Bulgaria); Gailius v. INS, 147 F.3d 34, 36           194 F.3d 539, 544 (4th Cir. 1999) (“If we
(1st Cir. 1998) (“It is well established that        conclude that Congress has not directly
general changes in country conditions do             addressed the question at issue in a statute
not render an applicant ineligible for               or its intent is ambiguous, we must defer to
asylum when, despite those general                   the Board’s interpretation of the statute
changes, there is a specific danger to the           provided it is not an unreasonable one.”
applicant.” (citing Fergiste v. INS, 138             (internal citations and quotation marks
F.3d 14, 19 (1st Cir. 1998)); Kaczmarczyk            omitted))).
v. INS, 933 F.2d 588, 593-95 (7th Cir.
                                                         Subject to our discussion of the
1991) (explaining that, though it
                                                     staleness of the country report in the
appropriately rebutted petitioners’ fear of
                                                     administrative record here, the IJ’s
future persecution in that case, the BIA
                                                     reliance on changed country conditions
could not use the election of Solidarity
                                                     was only in part supported by substantial
Party members in Poland to reject all
                                                     evidence.          Substantial evidence does
asylum claims by Polish nationals). We
                                                     support the IJ’s conclusion that Berishaj
agree with these cases and apply their
                                                     could no longer have an objectively
precepts to the case before us. The rule is
                                                     reasonable fear of future persecution in the
a natural corollary of the more general
                                                     military—after all, as even the 1997 State
proposition that the IJ is required to
                                                     D e p a r t m e n t Co untr y R e p o r t f or
consider the record as a whole in ruling on
                                                     Serbia/Montenegro notes, the war in
an alien’s claim. See, e.g., Tarrawally v.
                                                     Bosnia ended with the 1995 Dayton Peace

                                                15
Accord, and the Yugoslav parliament had             insuf f ic ient is the go vern men t’s
approved an amnesty for those who had               observation (not relied on by the IJ, we
avoided military service between 1991 and           note) that ethnic Albanians participate in
1995. While there were scattered reports            the political process in Montenegro and
of forcible conscription, it was clear by           have won seats in parliamentary elections.
2000 that this was the exception.                   There may be specific reasons to think that
                                                    Berishaj’s fear of persecution is no longer
    On the other hand, nothing in the
                                                    reasonable, but the IJ offers none, and we
country reports, or elsewhere in the record,
                                                    will not scour a 700-plus page record (well
rebuts Berishaj’s fear of persecution at the
                                                    over half of which is devoted to
hands of Montenegrin police authorities.
                                                    documentary materials) for evidence
Berishaj testified that the police had come
                                                    unnoticed and unanalyzed by the IJ to
to his parents’ home looking for him after
                                                    uphold the IJ’s decision. The burden of
he had left Montenegro, and that his
                                                    proof in a changed-country-conditions
brother had been put in jail. Berishaj’s
                                                    rebuttal is squarely on the government, and
sister corroborated Berishaj’s account of
                                                    no reasonable factfinder could conclude
his parents’ report of the police searches.
                                                    that the government has carried its burden
The IJ’s extremely general observation
                                                    of presenting specific evidence to rebut
that, in the wake of Milosevic’s
                                                    Berishaj’s presumed well-founded fear of
withdrawal of influence over Montenegro,
                                                    future persecution.
“the government of Montenegro has
shown signs of self-determination” does                 In sum, substantial evidence does not
nothing to refute Berishaj’s claims of              support the IJ’s rejection of Berishaj’s
police-initiated persecution.4 Similarly            claim of persecution by Montenegrin
                                                    police authorities; we will therefore grant
                                                    his petition for review of the IJ’s
  4
    Berishaj also testified at length about         disposition of his asylum claim. We do
how he believed the new leader of                   not hold that Bershaj’s asylum claim must
Montenegro in 2001, Milo Djukonovic,                succeed; it may be that his objective fear
to be closely allied with Milosevic, even           of future persecution is rebutted by
though the latter was no longer in power.           evidence in the record, but we certainly
The IJ did not address the effects of               will not mine the record to invent our own
Djukonovic’s government on conditions               reasons to reject Berishaj’s application. It
in Montenegro, and in view of the                   may also be that the events of which
limited administrative record and                   Berishaj complains do not amount to
confused (dare we say Balkanized) state             persecution, but it would be manifestly
of political affairs in the region, we are          inappropriate for us, rather than the
unable to say whether Berishaj’s
assessment is correct. If anything, the
IJ’s failure to specifically address the            Montenegro supports granting the
post-M ilosevic political situation in              petition for review.

                                               16
Agency, to undertake that inquiry in the            record are three or four years old by the
first instance. See INS v. Ventura, 537             time the petition for review comes before
U.S. 12 (2002). Finally—as we discuss in            us, and they frequently do not fairly reflect
greater detail infra Part III.B—it may be           what our knowledge of world events
that the passage of considerable time since         suggests is the true state of affairs in the
the original agency disposition will allow          proposed country of removal, or the region
the administrative record to be                     embracing it. It almost goes without
supplemented in a way that sheds more               saying that, in the troubled areas of the
light on Bershaj’s claim for asylum.                planet from which asylum claims tend to
                                                    c o m e , t h e pa c e o f c h a n g e is
       B. The Trouble with Stale
                                                    rapid—oppressive regimes rise and fall,
        Administrative Records
                                                    and conditions improve and worsen for
    It is a salutary principle of                   vulnerable ethnic, religious, and political
administrative law review that the                  minorities. As a consequence, we become
reviewing court act upon a closed record.           like astronomers whose telescopes capture
This modus procedendi secures to an                 light rays that have taken millions of years
administrative agency the necessary                 to traverse the cosmos, revealing things as
measure of authority and discretion within          they once were, but are no longer. But
its sphere of special competence, by                unlike astronomers, who can only
preventing undue interference by                    speculate about what is happening at this
generalist courts that are charged only with        moment in a far-off galaxy, we often know
ensuring procedural regularity in the               very well what has happened in the years
agency’s actions. This in turn translates to        since an administrative record was
long-term stability and predictability in           compiled.
outcomes in matters within the agency’s
                                                        As we have suggested above, the
expertise. While the principle yields good
                                                    process-based review of agency actions is,
results in most cases, in the area of asylum
                                                    in theory at least, just that—process-based,
law, where claims are heavily dependent
                                                    without regard to the merits. That should
on country conditions, it can become an
                                                    make it easier, not harder, to judge long-
albatross. More specifically, the dispute
                                                    cold records. However, in contrast to the
often centers on the government’s
                                                    traditional administrative law case, this
assertion, based upon a State Department
                                                    type of review can give rise to potentially
Country Report, that conditions have so
                                                    devastating consequences to an applicant
changed from those represented in the
                                                    who faces the possibility of persecution (or
asylum application that there is no longer
                                                    worse) if he is removed.
a basis for the alien’s claim of persecution
in the country of proposed removal.                    This case is a good example of how
                                                    much can change in the time between the
   It has become common that those
                                                    creation of the administrative record
country reports in the administrative
                                                    before the IJ and the judgment of this

                                               17
Court.       On the one hand, Slobodan                      at the illegal university in Kosovo, the
Milosevic is now gone from the region, the                  State Department notes that th e
Federal Republic of Yugoslavia no longer                    government in Kosovo “did not restrict
exists, and Berishaj’s native Montenegro is                 access to the Internet or academic
now within the recently formed loose                        freedom.” But this 2003 Country Report is
federation of Serbia and Montenegro. On                     not part of the administrative record.
the other hand, Berishaj claims—at least as
                                                                 There are some applicants to whom our
of his testimony in early 2001—that the
                                                            concerns simply do not apply— applicants
leaders in power are in practice “mirror
                                                            from countries where conditions have not
image[s]” of Milosevic. Four-year-old
                                                            changed significantly for the better or
c o u n t r y r e p o r t s a r e s in g u l a r l y
                                                            worse in many years. And in other
unenlightening when faced with this kind
                                                            countries, the flux of world events is too
of situation.
                                                            great to hope for perfect, up-to-date
     Specific to Berishaj’s fear of                         decisions in every immigration case.
persecution—we are looking now to the                       Surely, however, we can do much better
State Department’s 2003 Country Reports                     than we are doing now, especially in cases
on Human Rights Practices: Serbia and                       from volatile c ountries and with
Montenegro, released in February 2004,                      exceptionally stale records. The precise
which we have downloaded from the State                     problem is not just that the administrative
Department’s web site (the “2003 Country                    records in so many cases are out-of-date
Report”)—we note that police occasionally                   (though that is a contributing factor), but
beat suspects during arrest and detention,                  concomitantly that we do not have a
but there has been generally improved                       r e a so n a b l y r e c e n t f i n a l a g e n c y
respect by the police for human rights.                     determination to review. It is one thing to
Recently enacted criminal procedure                         supplement the record before us; it is quite
reforms are aimed toward eliminating                        another to decide a case based on this
arbitrary arrest and detention, and the                     expanded record.
Montenegrin Helsinki Committee (HCM),
                                                                We are aware that the Court of Appeals
a recognized human-rights monitor, did
                                                            for the Seventh Circuit apparently takes
not record any incidents of arbitrary arrest
                                                            judicial notice of post-final-agency-
or detention during 2003. In the cases
                                                            determination developments, in the form
where arrest did not lead to prosecution,
                                                            of new country reports, and at times rests
the HCM did not find (in contrast to
                                                            its disposition on those developments.
previous years) any political, ethnic, or
                                                            See, e.g., Pelinkovic v. Ashcroft, 366 F.3d
religious motivation by the police. Ethnic
                                                            532, 540-41 (7th Cir. 2004) (taking
Albanians participate in the political
                                                            judicial notice that country conditions for
p r o c e s s , a n d t h o u g h t h ey a re
                                                            e thnic Albanians in Serbia and
proportionately underrepresented, they do
                                                            Montenegro in 2004 are much-improved
have seats in the Montenegrin Parliament.
                                                            over conditions in the early 1990s). This
Finally, with respect to Berishaj’s troubles

                                                       18
practice might go a long way toward                 and 8 C.F.R. § 1003.2 (permitting an alien
solving the problem we face, but with all           or the government to move the BIA to
respect we are unable to square this                reopen proceedings, and authorizing the
practice with the clear command from SEC            BIA to do so sua sponte). Indeed, both the
v. Chenery Corp., 318 U.S. 80 (1943), that          statute and regulation seem to explicitly
courts reviewing the determination of an            contemplate the situation we comment on
administrative agency must approve or               here; they permit reopening of asylum
reject the agency’s action purely on the            proceedings “based on changed country
basis of the reasons offered by, and the            conditions arising in the country of
record compiled before, the agency itself.          nationality or the country to which
Moreover, we are not especially sanguine            removal has been ordered.” 8 U.S.C. §
about the Seventh Circuit’s relaxed                 1229a(c)(6)(C)(ii); see also 8 C.F.R. §
approach to agency review. It not only              1003.2(c)(3)(ii) (permitting reopening
carries with it the potential for wholesale         “based on changed circumstances arising
relitigation of many immigration-law                in the country of nationality or in the
claims, but the Courts of Appeals are ill-          country to which deportation has been
equipped to receive supplementary                   ordered”). Counsel for aliens generally
evidence. At all events, the asylum                 seem to be zealous in pursuing these
claimant should have the opportunity to             motions to reopen when appropriate. But
challenge the updated country report that           if this panel had to characterize the posture
the government would rely on.                       of petitions before it for review of the BIA
                                                    on an outdated record, we would say that
    Congress could, of course, modify the
                                                    in the majority, country conditions had
rules normally applicable to petitions for
                                                    improved, weakening the alien’s case for
review of a final decision of the BIA
                                                    relief. Accordingly, we encourage the
without scrapping the strictures of
                                                    Department of Justice to adopt a policy
administrative agency review altogether.
                                                    that encourages its attorneys to file
Congress could require the Courts of
                                                    motions to reopen when the adjudication
Appeals, in their sound discretion, on
                                                    of an applicant’s claim would benefit from
motion or sua sponte, to grant petitions for
                                                    an updated administrative record. The
review of the BIA, and remand when it
                                                    device of the motion to reopen is far from
appears from judicially noticeable
                                                    perfect, though, as it may additionally
materials that the record compiled before
                                                    delay an already protracted process.
the agency does not generally reflect
contemporary country conditions.                        We come at last to the one actor not
                                                    directly discussed so far: the BIA. The
   Better yet, the parties to these
                                                    trigger for the recent spate of out-of-date
proceedings might take advantage of the
                                                    records is, we suspect, the streamlining
procedures in 8 U.S.C. § 1229a(c)(6)
                                                    regulations noted above, which permit the
(permitting aliens to move to reopen
                                                    BIA to summarily affirm an IJ’s decision
proceedings on the basis of “new facts”)
                                                    without issuing its own opinion. See 8

                                               19
C.F.R. § 3.1(e)(4). The natural—though                   Setting aside our perplexity at how the
surely unintended—consequence of the                 BIA apparently thought the IJ’s opinion
streamlining regulations is summary                  worthy of being the “final agency
affirmance by the BIA of stale, backlogged           determination,” we do not understand why
decisions by IJs. When it does so, the BIA           the BIA did not intervene to supplement
may have shirked its role and duty of                the record in a weak case, arising out of a
e n s u r in g t h a t th e f inal a g e n cy        highly volatile and evolving region of the
determination in an immigration case is              world. The streamlining regulations exist
reasonably sound and reasonably current.             to save an overburdened BIA from
The decision here on review is neither, and          unnecessary and redundant tasks. They are
it is an embarrassment to the Agency on              not a license for the BIA to say “not our
multiple levels. The “reasoning” of the IJ           problem.”       Outdated adm inistrative
is open to ridicule, as we think our                 records are the BIA’s problem, at least as
discussion in Part III.A illustrates; and the        things now stand, and the BIA needs to
administrative record is a hoary relic: For          confront them. We therefore call on the
example, the most recent country report              BIA to adopt—by opinion, regulation, or
was thirty-five months out-of-date at the            otherwise—policies that will avoid the
time the BIA rendered its decision, and as           Court of Appeals having to review
of this writing, is fifty-four months out-of-        administrative records so out-of-date as to
date.5 Though the en banc Court in Dia               verge on meaningless.
approved the streamlining regulations over
                                                         In view of this discussion, we direct the
a statutory and Constitutional challenge, it
                                                     Clerk of the Court to send a copy of this
does not follow that the regulations are not
                                                     opinion, calling particular attention to this
subject to misuse and even abuse.
                                                     Part III.B, to the Chair, Ranking Member,
                                                     Chief Majority Counsel, and M inority
  5
    Of course, it is not strictly the                Counsel of the Senate Committee on the
chronological age of the administrative              Judiciary, and the Chair and Ranking
record that concerns us here; there are              Member of the Subcommittee on
old records that may still reflect                   Immigration, Border Security and
contemporary conditions (as, for                     Citizenship; to the Chair, Ranking
example, in a country that has been ruled            Member, Chief Majority Counsel, and
for several decades by the same dictator),           Minority Counsel of the House Committee
and there are younger records that may               on the Judiciary, and the Chair and
not reflect contemporary conditions (as,             Ranking Member of the Subcommittee on
for example, in a country that                       Immigration, Border Security, and Claims;
experienced a recent coup d’état). But               to the Attorney General of the United
generally speaking, the chronological age            States, the Assistant Attorney General for
of the record is a good rough proxy for              the Civil D ivision, United States
how well the record reflects                         Department of Justice, and the Deputy
contemporary conditions.                             Assistant Attorney General in charge of

                                                20
the Office of Immigration Litigation; to            the record as a whole does not show that
the Secretary of Homeland Security and              Berishaj is more likely to be tortured than
the General Counsel of the Department of            not if removed to Montenegro .
Homeland Security; and to the Chair of the          Preliminarily, we note that Berishaj’s own
Board of Immigration Appeals.                       testimony—whether credible or not—has
                                                    nothing to do with his CAT claim; CAT
                                                    claims are entirely concerned with the
IV. Berishaj’s Application for Protection           objective likelihood of torture in the
            Under the CAT                           future, and Berishaj’s testimony did not
                                                    address contemporary treatment of
    An applicant for relief under the CAT
                                                    disfavored persons in Montenegro in any
must show that it is “more likely than not”
                                                    particularized way.
that he would be tortured in the country of
removal. See Wang v. Ashcroft, 368 F.3d                 The balance of the record describes
347, 348 (3d Cir. 2004) (quoting 8 C.F.R.           mistreatment and indignities, but there is
§ 1208.16(c)(2) (2004)); see also Dia, 353          scant evidence—let alone compelling
F.3d at 233 n.1. It is the alien’s burden to        evidence—that it is more likely than not
show this, and objective evidence is                that Berishaj would be tortured if removed
required. See Sevoian, 290 F.3d at 175.             to Montenegro. To be sure, the record
The government simply argues that                   suggests that, at the time of its making,
Berishaj’s CAT claim fails because the IJ           there was political instability in the
found him not credible, and it was only his         fledgling Federal Republic of Yugoslavia
own testimony that formed the basis for             (many newspaper articles in the record
the objective likelihood of being tortured.         attest to this), and that Serbs continued to
Berishaj counters that the IJ’s analysis of         perpetrate abuses and massacres in Kosovo
the CAT claim is so cursory that it is              (this is well-chronicled in the 1999
impossible to tell whether (1) the IJ               Country Report). But the former does not,
thought that a CAT claim could not stand            of course, amount to torture, and the latter
if the asylum claim fell, or (2) the IJ             was in Kosovo, not Montenegro. As for
analyzed the country conditions evidence            Montenegro itself, there are reports of
and concluded that it did not support a             extrajudicial killings perpetrated by the
CAT claim. The first alternative would be           Yugoslav army, but such action seemed to
a legal error, and would be grounds for             be outside of government control or
granting the petition because asylum and            direction, and at all events, was not “more
CAT claims are “analytically separate.”             likely than not” to be the fate of a
See Zubeda v. Ashcroft, 333 F.3d 463, 476           Montenegrin like Berishaj. There was also
(3d Cir. 2003) (quoting Kamalthas v. INS,           forcible conscription of ethnic Albanians
251 F.3d 1279, 1283 (9th Cir. 2001)).               in Montenegro, but again, this is not
                                                    torture. Most troubling perhaps is that a
   We think the better reading of the IJ’s
                                                    human rights group, the International
decision to be the second alternative—that
                                                    Crisis Group, claims that as of 1999,

                                               21
“Yugoslav forces ha[ve] undertaken                  the petition for review with respect to
limited ethnic cleansing campaigns                  Berishaj’s claim under the CA T. We
directed against ethnic Albanians in                direct the Clerk of the Court to send copies
northern Montenegro.” Similar reports are           of this opinion to the officers and
scattered throughout the administrative             legislators identified in Part III.B above.
record.
    Ultimately, even if this activity
amounts to torture in some instances, there
is no suggestion that it is nearly frequent
enough to compel the conclusion that
Berishaj himself would more likely than
not suffer torture upon removal to
Montenegro. Thus we must deny the
petition for review of Berishaj’s CAT
claim. We also note that our observations
regarding stale administrative records, see
supra Part III.B, can apply with similar
force to claims for protection under the
CAT, even though in this particular case
the CAT issue is not presented in as stark
a relief as the asylum issue.


              V. Conclusion
    For the foregoing reasons, we will
grant the petition for review, and vacate
the IJ’s decision with respect to Berishaj’s
asylum claim. Because the IJ’s disposition
of Berishaj’s claim for withholding of
removal rested on the same grounds that
we have found insufficient to support his
rejection of Berishaj’s asylum claim, we
will also grant the petition for review, and
vacate the IJ’s decision, with respect to
Berishaj’s claim for withholding of
removal. See Mulanga, 349 F.3d at 132
(describing relationship between asylum
claims and claims for mandatory
withholding of removal). We will deny


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