                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-13-2007

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Precedential or Non-Precedential: Precedential

Docket No. 05-4068




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                                   PRECEDENTIAL



    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT

               _______________

                 No. 05-4068
               _______________

        BREDAN CHIMA CHUKWU,

                              Petitioner,
                       v.

ATTORNEY GENERAL OF THE UNITED STATES;
     UNITED STATES DEPARTMENT OF
         HOMELAND SECURITY,

                                   Respondents

                _____________

    On Petition for Review of an Order of the
      United States Department of Justice
        Board of Immigration Appeals
             (BIA No. A79-419-894)
                 _____________
                Argued: September 29, 2006
                Before: RENDELL, ROTH
          and JOHN R. GIBSON,* Circuit Judges.

              (Opinion Filed: April 13, 2007)

Robert A. Cini [ARGUED]
Law Offices of Howard Rosengarten
853 Broadway, Suite 1011
New York, New York 10003
Counsel for Petitioner
Bredan C. Chukwu

Richard M. Evans
Paul Fiorino
Carl H. McIntyre, Jr. [ARGUED]
U.S. Department of Justice
Office of Immigration Litigation
P. O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondents
Attorney General of the United States;
United States Department of Homeland Security
_________________

    * Honorable John R. Gibson, Senior Judge of the United
      States Court of Appeals for the Eighth Circuit, sitting
      by designation.




                              2
                _______________________

                OPINION OF THE COURT
                _______________________


JOHN R. GIBSON, Circuit Judge:

        Bredan1 Chima Chukwu, a Nigerian citizen, petitions
for review of the order of the Board of Immigration Appeals
denying Chukwu's application for asylum, withholding of
removal, and relief under the Convention Against Torture.
The BIA adopted the Immigration Judge's finding that
Chukwu's testimony was not credible because of unexplained
inconsistencies between Chukwu's testimony, prior sworn
statements, and his supporting documents, and that Chukwu
failed to prove his case by sufficient credible evidence. We
conclude that the IJ failed to take into account record
evidence that did explain many of the discrepancies on which
the IJ based his adverse credibility determination. Further,
the IJ did not determine whether it was reasonable to expect
Chukwu to produce corroboration of the facts which the IJ
found should have been corroborated. We will therefore grant
review, vacate, and remand for further proceedings.



   1
    Mr. Chukwu's name is also spelled "Brendan" on some
documents in the record

                             3
                               I.

       Chukwu arrived in this country on October 11, 2001,
carrying a false United Kingdom passport in the name of
George Brendon, which he had purchased in Togo. At the
Miami airport, he signed a sworn statement admitting that he
was not a British citizen, but stating that he was a resident of
Ghana. He said that his purpose in coming to the United
States was "to see somebody." When asked why he left his
country, he stated: "I left, because I am finding life very
difficult," and he said he would be harmed if he returned to
his country. He stated that he had never been arrested before,
at any time or any place.

       On August 20, 2002, Chukwu filed an application for
asylum and withholding of removal in which he stated that he
was a Nigerian citizen, though born in Ghana, and that he
feared persecution on the ground of his politics, specifically
his membership in the Movement for the Actualization for the
Sovereign State of Biafra (MASSOB). His application stated
that he had been arrested and beaten many times because of
his membership in MASSOB and that he feared that he would
be "arrested, tortured or killed by the present government of
Nigeria" because of that membership. He listed five specific
dates on which he had been arrested.

      At his hearing before the IJ, Chukwu testified that he
had been born in Ghana of a Nigerian family in 1958 and had


                               4
moved back to Nigeria at the age of twelve. He lived in
Lagos, in the southwest part of the country, and married a
wife there in 1997. In 2000, he traveled some eight hours to
the eastern part of the country to visit his brother in Port
Harcourt, in the River State. While in Port Harcourt he joined
MASSOB, which he described as an organization devoted to
protecting the rights of the Ibo (sometimes spelled Igbo)
ethnic group. As can be inferred from the name, the group
also supports sovereignty for Biafra, an area that seceded
from Nigeria in the 1960s, but was absorbed back into Nigeria
after a costly civil war. Chukwu left Port Harcourt to attend a
rally in support of a Biafran state on May 22, 2000, in the
adjacent state of Abia. A Biafran flag was raised at the rally.
When the police arrived at the rally, the crowd stampeded,
and Chukwu was arrested, along with about 30 others.
Because the police found a MASSOB membership card on
Chukwu, they detained him and beat him. He was forced to
sign a statement renouncing his membership in MASSOB
before the police would release him.

       Chukwu returned to Lagos, where he attended another
rally on August 11, 2000. Again, the police arrived, the
people panicked, and Chukwu was picked up along with
others and taken to the police station, where he was detained
and beaten. Again, he was only released upon signing papers
renouncing MASSOB.




                              5
        In September of the same year, Chukwu and his
brother were sitting in a bar in Ikoyi, Lagos. Chukwu was
complaining loudly about the government's arrest of Raphael
Uwazurike, the leader of MASSOB. Plainclothes officers of
the domestic security forces (SSS) overheard him. They
arrested and searched him and found his MASSOB card. The
officers then took him to a detention center and beat him until
he lost consciousness. They held him for three days without
giving him food or drink, except for the bread and water he
was able to buy with money he had on him. As before, he
was only released upon signing a paper saying he would never
be a member of MASSOB again. This time, the police asked
for his address.

       The next time he was picked up, on February 10, 2001,
he was simply walking down the street near his house in
Lagos. The police asked his name, then took him in to ask
him where he was on January 7, which had been the day of a
clash between MASSOB and the police. He was released
without mistreatment. A similar incident occurred on May
21, when police came to his house to collect him. On that
occasion, police took him to the police station, but questioned
and released him without beating him.

       On July 24, 2001, police again came to Chukwu's
house, but he was not home. They told his wife they were
looking for him. On hearing this news, Chukwu decided to
stay away from home. In September, he traveled to Togo


                               6
looking for a trader he knew who could supply him with a
British passport. He did not find the man, so he went home to
Nigeria, but came back to Togo on September 15. This time,
he got the passport, and he left for the United States, traveling
via Europe.

       For corroborating evidence, Chukwu submitted his
Nigerian passport, his MASSOB membership card and a letter
from the organization confirming his membership, an
affidavit from his brother Emeka corroborating his story about
the arrest in the bar, and a judicial decree granting his wife's
petition to divorce him. The divorce decree recited his wife's
testimony that Chukwu had

       brought a bad name to the family as he is a
       member of movement for the Sovereign State of
       Biafra (MOSSOB). As a member of this group
       he has times without number been arrested and
       detained by the State Security Service. To
       forestall further arrest, the Respondent has to go
       into hiding and eventually traveled out of the
       country.

She said her love for Chukwu had "deteriorated due to this
involvement with MASSOB." Chukwu also introduced
correspondence from his solicitors concerning the divorce.




                                7
       The 2001 State Department Country Report for Nigeria
was also introduced. It reported that the government security
forces "committed numerous, serious human rights abuses,"
and that "[a]rmy, police, and security force officers regularly
beat protesters, criminal suspects, detainees, and convicted
prisoners." It also reported that police and security forces
practiced "arbitrary arrest and detention" and that they had
used lethal force to quell protests or demonstrations that were
perceived as becoming violent or disruptive. Chukwu also
produced newspaper articles about MASSOB, and in
particular, one article about the police burning down the
MASSOB headquarters in Imo state.

        The IJ found that Chukwu was not credible because of
inconsistencies, implausibilities, and lack of corroboration for
his testimony. In a short, but reasoned opinion, the BIA
adopted and affirmed the IJ's decision, specifically agreeing
with the IJ that "in light of the inconsistencies between the
respondent's testimony, his supporting documents, and his
sworn statement, and the respondent's failure [to] adequately
explain the discrepancies, the respondent failed to meet his
burden to establish his eligibility for the request[ed] forms of
relief with sufficient credible evidence."

                               II.

       A grant of asylum allows an alien who is otherwise
subject to removal to stay in the United States because he is a


                               8
refugee. Abdulai v. Ashcroft, 239 F.3d 542, 545 (3d Cir.
2001). A refugee is someone who is unable or unwilling to
return home because of persecution or a well-founded fear of
persecution for one of five particular reasons–in this case,
persecution on account of political opinion. 8 U.S.C.
§ 1101(a)(42)(A). To establish a well-founded fear of
persecution, an applicant must show a subjective fear as well
as an objectively reasonable possibility that he would suffer
such persecution if he returned to his country. 8 C.F.R.
§ 1208.13(b)(2)(i).

        Withholding of removal is a remedy distinct from
asylum and confers only the right not to be deported to a
particular country, rather than the right to stay in this one.
Abdulai, 239 F.3d at 545. An applicant can establish the right
to withholding of removal by showing a clear probability that
his life or freedom would be threatened on account of one of
the protected grounds in the proposed country of removal, 8
C.F.R. § 1208.16(b); Chen v. Gonzales, 434 F.3d 212, 216
(3d Cir. 2005). Because it is more difficult to prove a clear
probability of persecution than a reasonable possibility, an
applicant who fails to prove eligibility for asylum perforce
fails to show entitlement to withholding of removal. See
Kibinda v. Att'y Gen., 477 F.3d 113, 123 (3d Cir. 2007).

      Finally, an applicant can be eligible for withholding of
removal under the Convention Against Torture if he shows



                              9
that it is more likely than not that he would be tortured upon
return to his country. 8 C.F.R. § 1208.16(c).

       Only the decision by the BIA is a "final order of
removal," Abdulai, 239 F.3d at 548-49, subject to our review,
id. We therefore do not review the IJ's opinion in its own
right. Id. However, where as here, the BIA adopts the
findings and reasoning of the IJ, the IJ's opinion forms the
substance of the final order and we must review it
accordingly. Id. at 549 n.2.

       Where the BIA has adopted the IJ's findings, we
review those findings under the substantial evidence standard,
upholding them "unless any reasonable adjudicator would be
compelled to conclude to the contrary." 8 U.S.C.
§ 1252(b)(4)(B); Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.
2003) (en banc). In particular, we will uphold the IJ's adverse
credibility determinations "if they are supported by
reasonable, substantial, and probative evidence on the record
considered as a whole." Chen, 434 F.3d at 216. In making an
adverse credibility finding, the IJ must supply specific, cogent
reasons why the applicant is not credible. Gabuniya v. Att'y
Gen., 463 F.3d 316, 321 (3d Cir. 2006). The IJ's conclusions
about what facts are or are not plausible must be based on the
record, not on conjecture or unsupported suppositions about
conditions in the applicant's country. Dia, 353 F.3d at 249-
50.



                              10
        Under our case law antedating the REAL ID Act of
2005, an adverse credibility finding could be based on
inconsistencies, but only if the inconsistencies related to facts
at the heart of the claim, rather than to unimportant details.
Gabuniya, 463 F.3d at 322. The REAL ID Act substituted a
new standard, according to which credibility determinations
may be made "without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the applicant's
claim." Id. at 322 n.7 (citing Pub. L. No. 109-13, Div. B,
§§ 101(a)(3) & 101(h)(2)). This particular provision of the
REAL ID Act applies only to cases where the applicant
applied for asylum or other relief after May 11, 2005. Id.
(citing Pub. L. No. 109-13, Div. B, § 101(h)(2)). Because
Chukwu applied for asylum in 2002, our pre-REAL ID Act
standard applies to evaluation of the credibility determination.
Consequently, only inconsistencies going to the heart of a
claim will be deemed to compromise his credibility. Id.

       Where the administrative decision fails to consider or
mention evidence that is on its face relevant and persuasive,
the proper course is to remand for further consideration by the
IJ. See Caushi v. Att'y Gen., 436 F.3d 220, 227, 231 (3d Cir.
2006); Gao v. Ashcroft, 299 F.3d 266, 277 (3d Cir. 2002);
Sotto v. United States, 748 F.2d 832, 837 (3d Cir. 1984).




                               11
                               A.

       Our review of the inconsistencies cited by the IJ leads
us to conclude that the IJ failed to take into account relevant
and persuasive evidence that would not only explain the
alleged inconsistencies, but would also support Chukwu's
allegations of political persecution.

       The first inconsistency cited by the IJ is that Chukwu
claimed to have lived with his wife and child in Lagos until he
left Nigeria, yet his wife testified in the divorce proceeding
that he had abandoned the family in 1999. The record shows
that both facts appear to be true, and they are not inconsistent
with each other. Review of the record shows that the divorce
was based on "Desertion," "Irresponsib[ility]," and "No more
love." The gist of Mrs. Chukwu's assertions recited in the
decree was that Chukwu's MASSOB activities were causing
the family trouble. Since Chukwu did not join MASSOB
until 2000, the activities Mrs. Chukwu complained of
evidently occurred after 1999. The record is certainly
consistent with Chukwu spending some time away from
Lagos after 1999, as he was in Port Harcourt in 2000 when he
joined MASSOB and he was arrested in Abia state in May
2000. He left his job in Lagos at the end of 1999, so he was
apparently free to travel. He also testified that although he
was still living with his wife in 1999, he was having some
family trouble at that time and that "sometimes I would leave
and travel and then come back or go to someplace and come


                               12
back." Yet, he also returned to Lagos in 2000, since he was
arrested at a bar in Lagos in 2000 and twice in 2001 while he
was at or near his house. Only when the police came to look
for him at his home in July 2001, did he decide not to stay at
home anymore. The record contained a letter from Chukwu's
Nigerian solicitors advising him that his wife had filed for
divorce on the grounds of "intermittent" and "continuous"
absence:

       According to the Divorce petition, your wife is
       asking for the dissolution of the marriage on the
       grounds that you had intermittently and
       continuously abandoned her for a period of
       about 2 years without an exact knowledge of
       your whereabout [sic], and also of the fact that
       the federal authorities, had on several occasion
       [sic] detained, intimidated and harassed her on
       the grounds of your membership of MOSSOB.

(emphasis added). The record supports the conclusion that
Chukwu was a less than attentive husband for his last two
years in Nigeria, that he was traveling around the country, and
that Mrs. Chukwu was aggrieved by his absences, but it does
not support the conclusion that he never came home at all
after 1999. Moreover, Mrs. Chukwu's assertions recited in
the divorce decree substantially strengthen Chukwu's claim to
have been involved in MASSOB and to have incurred the
wrath of the government on account of that involvement.


                              13
        The IJ remarked that there was no evidence that
anyone else in Chukwu's family had been persecuted, but in
fact the letter from the solicitors concerning the divorce
proceedings recounts Mrs. Chukwu's assertions that she had
been detained, harassed, and intimidated because of Chukwu's
MASSOB activities. The fact that Chukwu's six siblings have
not been persecuted is consistent with Chukwu's testimony
that he was the only one in his family who had joined
MASSOB.

       The IJ also found it inconsistent that Chukwu said the
police were looking for him in July 2001, yet he was able to
use his Nigerian passport to cross into Togo, back to Nigeria,
then again into Togo in September 2001 without being
arrested or detained. Chukwu explained that Nigerian police
do not have a database that would alert police in one area to
the fact that police in another area were searching for a
person. The IJ did not discuss this explanation or find that it
was not adequate. The IJ's conclusion of inconsistency in this
point seems to be based on assumptions about the capabilities
of Nigerian law enforcement that have no support in the
record. See Dia, 353 F.3d at 249-50 (implausibility must
have support in record such as background evidence of
country conditions).

      The IJ also considered it problematic that Chukwu's
MASSOB membership card listed an address in Imo state,
which is in the east of Nigeria, rather than Chukwu's Lagos


                              14
address, which is in the western part of the country. The IJ
stated that Chukwu had not explained why his MASSOB card
had an Imo address. In fact, a newspaper article in the record
showed that the address in Imo state was the headquarters of
MASSOB, rather than Chukwu's address. There is no
indication that the IJ was aware of this evidence.

       Finally, while the IJ relied on real inconsistencies
between Chukwu's airport statement and his later asylum
application and testimony, we do not believe that either the IJ
or the BIA meant for the decision to hinge entirely on such
inconsistencies. In his airport statement, Chukwu said he was
a resident of Ghana, that he had never been arrested anytime
or anywhere, and that he was coming to the United States "to
see somebody" and because he found life difficult. These
statements conflict with his testimony that he lived in Nigeria,
that he had been arrested repeatedly, and that he came to the
United States to flee persecution. "It is established in this
Circuit that inconsistencies between an airport statement and
an asylum seeker's testimony before an IJ is not sufficient,
standing alone, to support a BIA finding that the petitioner
was not credible." Fiadjoe v. Att'y Gen., 411 F.3d 135, 159
(3d Cir. 2005). We cannot conclude that the IJ and BIA
would have reached the same decision based on the airport
statement alone, without regard to the other inconsistencies
that have been explained by record evidence that went
unmentioned in the IJ's opinion. See Dia, 353 F.3d at 257-58;



                              15
Balasubramanrim v. INS, 143 F.3d 157, 162-64 (3d Cir.
1998).

       Because the IJ relied on inconsistencies that were
explained by evidence in the record, with no explanation of
why the probative evidence in the record might have been
rejected, we must remand for consideration of that evidence.

                              B.

        The IJ also based his adverse credibility determination
in part on Chukwu's failure to corroborate certain aspects of
his claim. Our cases follow the BIA's avowed policy of
considering separately the issues of credibility and failure to
provide corroboration. Chen v. Gonzales, 434 F.3d 212, 221
(3d Cir. 2005); Abdulai v. Ashcroft, 239 F.3d 542, 551 n.6
(3d Cir. 2001) (citing In re S-M-J-, 21 I&N Dec. 722 (1997)).
In this case, as in Chen, "[t]he IJ seems to have impermissibly
blurred the line between the credibility of a claimant and the
adequacy of proof to support the claim of asylum." 434 F.3d
at 221.

      Corroboration of the applicant's story is not a
prerequisite for relief, and the BIA may grant asylum or
withholding solely on the basis of the applicant's credible




                              16
testimony. 8 C.F.R. §§ 1208.13(a) & 1208.16(b).2
Nevertheless, we have held that the failure to produce
corroborating evidence may undermine an applicant's case
where (1) the IJ identifies facts for which it is reasonable to
expect the applicant to produce corroboration, (2) the
applicant fails to corroborate, and (3) the applicant fails to


  2
    The REAL ID Act of 2005 gives further guidance on when
corroboration is required:

       The testimony of the applicant may be sufficient
       to sustain the applicant's burden without
       corroboration, but only if the applicant satisfies
       the trier of fact that the applicant's testimony is
       credible, is persuasive, and refers to specific facts
       sufficient to demonstrate that the applicant is a
       refugee. In determining whether the applicant has
       met the applicant's burden, the trier of fact may
       weigh the credible testimony along with other
       evidence of record. Where the trier of fact
       determines that the applicant should provide
       evidence that corroborates otherwise credible
       testimony, such evidence must be provided unless
       the applicant does not have the evidence and
       cannot reasonably obtain the evidence.

Pub. L. No. 109-13, Div. B, § 101(a)(3), amending 8 U.S.C.
§ 1158(b)(1)(B). That provision is not applicable to asylum
applications made before the statute's effective date, May 11,
2005. Id. at § 101(h)(2). Thus, it is inapplicable to this case.

                                17
adequately explain that failure. Toure v. Att'y Gen., 443 F.3d
310, 323 (3d Cir. 2006); Abdulai, 239 F.3d at 554. It is
reasonable to expect corroboration where the facts are central
to the applicant's claim and easily subject to verification.
Abdulai, 239 F.3d at 554. The new language of 8 U.S.C.
§ 1252(b)(4), added by the REAL ID Act and effective
immediately upon enactment,3 provides explicitly for
deference to the trier of fact's determination on availability of
corroborating evidence: "No court shall reverse a
determination made by a trier of fact with respect to
availability of corroborating evidence . . . unless the court
finds, pursuant to section 242(b)(4)(B) [8 U.S.C.
§ 1252(b)(4)(B)], that a reasonable trier of fact is compelled
to conclude that such corroborating evidence is unavailable."
Pub. L. No. 109-13, Div. B., § 101(e). However, we have
held that the REAL ID Act does not change our rules
regarding the IJ's duty to develop the applicant's testimony,
and in particular, to develop it in accord with the Abdulai
steps. Toure, 443 F.3d at 325. We reasoned in Toure that we
cannot ascertain whether the trier of fact would be compelled
to find the evidence unavailable unless the applicant is given a
chance to explain why he thinks it is unavailable. Id.



  3
    The new provision was made applicable to all cases upon
enactment on May 11, 2005, Pub. L. No. 109-13, Div. B.,
§ 101(h)(3), and so applies in this case. See Chen, 434 F.3d at
218.

                               18
        Where the IJ or BIA fails to engage in an inquiry and
analysis establishing each of the steps required by Abdulai,
we have vacated and remanded, holding that only upon such
inquiry and analysis can the BIA hold the lack of
corroboration against an applicant. Abdulai, 239 F.3d at
554-55; Toure, 443 F.3d at 323. Moreover, we have held that
the IJ must give the applicant notice of what corroboration
will be expected and an opportunity to present an explanation
if the applicant cannot produce such corroboration. Toure,
443 F.3d at 324 (remanding where IJ never gave applicant
opportunity to seek supporting evidence or to explain its
absence); Mulanga v. Ashcroft, 349 F.3d 123, 136 (3d Cir.
2003) (remanding where IJ did not give notice prior to issuing
her decision that she expected corroboration for a certain fact
and did not allow applicant to explain absence of
corroboration).

       Chukwu did corroborate his story in part by supplying
his Nigerian passport, his MASSOB card and a letter from
MASSOB, his brother's affidavit concerning the incident in
the bar in Lagos, his divorce decree, news stories about
MASSOB's troubles with the government, and the State
Department country report.

       The IJ wrote that Chukwu failed to provide medical,
police, or court reports to corroborate his arrests and beatings.
Chukwu did not testify that he ever received medical
treatment for his injuries or that he was ever charged with any


                               19
crime. His asylum application states that after his August 11,
2000, arrest, he was charged with unlawful assembly, but he
does not indicate that he was ever convicted of that crime.
Therefore, the record itself indicates that medical records
documenting Chukwu's injuries probably do not exist. As to
the possible police and court documents, the IJ must explain
why such documents would be reasonably available to
Chukwu.4 See Mulanga, 349 F.3d at 134 (citing Qiu v.
Ashcroft, 329 F.3d 140, 1553-54 (2d Cir. 2003)).
Furthermore, the IJ must permit Chukwu to explain why he
has not produced such evidence. Toure, 443 F.3d at 324-25.
The record does not show that the IJ satisfied the
requirements imposed by our case law before penalizing
Chukwu for failure to produce medical, police, and court
documents to corroborate his testimony about arrests and
beatings. Moreover, Chukwu did produce a corroborating
affidavit from his brother averring that, following the incident
at the bar in Lagos, police took Chukwu away and he was
released after "having been thoroughly beaten, tortured, and
dehumanized."

      The IJ also stated, "Respondent has presented no
evidence whatsoever to indicate when he became a member of


    4
      In this regard, it may be relevant that the government
attempted in 2002 to obtain from the Nigerian government
verification of authenticity of two of Chukwu's documents. We
understand that no reply was ever received.

                              20
MASSOB." To the contrary, Chukwu did testify that he
joined MASSOB in January of 2000. He introduced his
membership card and a letter from MASSOB stating that he is
a member. Admittedly, neither shows a membership date, but
again, the affidavit from Chukwu's brother states that in the
September 2000 incident in the bar, the SSS officers searched
Chukwu and found a MASSOB identity card on him. This is
evidence that Chukwu was a member of MASSOB during at
least one of the events of persecution. Furthermore,
Mrs. Chukwu's assertions in the divorce decree indicate that
Chukwu was a member of MASSOB at the times he was
arrested. Nothing in the record indicates that the IJ informed
Chukwu that the date he joined was in doubt or of particular
interest, and therefore Chukwu neither had notice that
corroboration of the date would be expected of him nor a
chance to explain why he did not produce documentation
showing the date he joined. The IJ thus failed to satisfy the
Abdulai analysis before penalizing Chukwu for failing to
corroborate his date of membership. Accordingly, we must
remand for a new corroboration determination, giving
Chukwu an opportunity to explain why he has not produced
the documents the IJ considered important. See Toure, 443
F.3d at 325.

                             C.

       The IJ's opinion adverted to some doubt as to whether,
even if Chukwu's contentions about his arrests were correct,


                             21
the treatment described would amount to persecution. It is
difficult to ascertain whether the IJ was assuming the
testimony about the beatings was correct as well as the
testimony about arrests, since the IJ stated in the same
sentence that he was "not satisfied that the treatment
[Chukwu] received has either been truthfully relayed here in
Court or that that treatment would rise to the level of
persecution . . . ." In any case, the BIA did not appear to
adopt the conclusion that the beatings Chukwu described
would not rise to the level of persecution, relying instead on
the inconsistencies in his testimony. Since the BIA did not
rely on the ground that the beatings were not severe enough,
we may not rely on it, either. "It is a bedrock principle of
administrative law that judicial review of an agency's decision
is limited to the rationale that the agency provides." Konan v.
Att'y Gen., 432 F.3d 497, 501 (3d Cir. 2005). We will
remand for further elucidation as to whether the beatings, if
the BIA finds them to have occurred, rise to the level of
persecution. See Voci v. Gonzales, 409 F.3d 607, 614-16 (3d
Cir. 2005) (discussing when beatings rise to the level of
persecution).

                             ***

       We will GRANT the Petition for Review of the order
of the BIA, VACATE the order, and REMAND for further
proceedings consistent with this opinion.



                              22
