                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 09-2723


                               PETER IGWE-STEVENS,
                                              Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                         Respondent


                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                            (Agency No. A070-841-611)
                     Immigration Judge: Honorable Mirlande Tadal


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 7, 2010

            Before: BARRY, STAPLETON and NYGAARD, Circuit Judges.

                              (Opinion Filed: April 7, 2010)


                                        OPINION


PER CURIAM

       Peter Igwe-Stevens petitions for review of the Board of Immigration Appeals’

(“BIA”) final order of removal. For the reasons that follow, we will grant the petition and

remand for further proceedings.
                                              I.

       Igwe-Stevens is a citizen of Nigeria. He arrived in the United States in 1990 on a

visitor’s visa and overstayed. In 1999, the then-Immigration and Naturalization Services

charged him as removable on that basis, and he concedes removability. In 2006,

however, he applied for statutory withholding of removal and relief under the Convention

Against Torture (“CAT”) because he claims to have suffered persecution and torture in

Nigeria in the past and to face persecution and torture if returned.1

       Igwe-Stevens is an ethnic member of the Ibo tribe (sometimes spelled “Igbo,” see

Chukwu v. Att’y Gen., 484 F.3d 185, 187 (3d Cir. 2007)). Before the Immigration Judge

(“IJ”), he testified that his father was a member of a political organization called the

Ohaneze, which sought better treatment for ethnic Ibos in Nigeria.2 In 1987, the Nigerian

government assassinated his father because of his activities with the Ohaneze. Angered

by the assassination, Igwe-Stevens and his remaining family members joined the Ohaneze

themselves shortly thereafter. Igwe-Stevens eventually became the Secretary of the

student and youth wing of the organization, also referred to as the Movement for the

Actualization of the Sovereign State of Biafra (“MASSOB”), at his school in Enugu,

Nigeria. In that role, he organized meetings with national leaders, gave press briefings,



  1
   Igwe-Stevens did not seek asylum, apparently because he did not file his application
within one year of entering the United States. See 8 U.S.C. § 1158(a)(2)(B).
  2
   Neither the BIA nor the IJ found that Igwe-Stevens’s testimony was not credible, so
we assume that it was. See Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir. 2009).

                                              2
and helped coordinate demonstrations. In particular, he was involved in a September

1989 demonstration that lasted two days. The army eventually dispelled the

demonstration and arrested Igwe-Stevens and his associates. The army detained him for

approximately one week, interrogating him about the organization and, in the process,

stripping him of clothes, beating him with gun barrels and batons, kicking him, spitting on

him, and depriving him of sleep. The army then took him to an army barracks and

detained him for another three months. He described the treatment there as less brutal,

though he was again stripped of his clothes, beaten, and deprived of sleep. The army

eventually released him, an event he attributes to the intervention of military friends of

his father.

       Igwe-Stevens continued working for the Ohaneze until August of 1990, when his

brother-in-law too was assassinated. Igwe-Stevens believes that the Nigerian government

assassinated his brother-in-law for his involvement with the Ohaneze as well, and that

assassination led him finally to leave Nigeria and come to the United States. Since his

arrival in the United States, Igwe-Stevens has remained active in the Ibo cause, joining

the World Igbo Congress and remaining a member of the Ohaneze/MASSOB. In addition

to his testimony, Igwe-Stevens presented: (1) the testimony and affidavit of his sister; (2)

an affidavit from a childhood friend, Benson Ebutu; (3) a letter purporting to be from the

Secretary of the World Igbo Conference; and (4) multiple country reports and news

articles documenting the Nigerian government’s banning of MASSOB in 2001 and

demonstrations and arrests involving MASSOB members in 2005 and 2006. Igwe-

                                              3
Stevens claims that the Nigerian government continues to persecute and torture members

of MASSOB, and he fears the same treatment if he is returned.

       The IJ denied Igwe-Stevens’s claims on the sole basis that he failed to corroborate

them, noting several areas in which she believed that corroboration was necessary. The

BIA upheld the ruling after conducting its own corroboration analysis. Igwe-Stevens

petitions for review.3

                                            II.

       Igwe-Stevens bore the burden of showing it more likely than not that he will be

persecuted (for his withholding of removal claim) or tortured (for his CAT claim) if

returned to Nigeria. See Chukwu, 484 F.3d at 188-89. For withholding purposes, a

showing of past persecution gives rise to a rebuttable presumption of persecution in the

future. See 8 C.F.R. § 1208.16(b)(1). Applicants may sometimes carry their burden of

proof with credible testimony alone, but the BIA may insist on corroboration of facts that

are “central to the applicant’s claim and easily subject to verification.” See Chukwu, 484



  3
    The BIA originally issued its order on November 18, 2008, but later reissued it on
May 15, 2009, to allow Igwe-Stevens to file a timely petition for review. We have
jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We review only the BIA’s order, and not
the IJ’s, because the BIA conducted its own corroboration analysis. See Voci v.
Gonzales, 409 F.3d 607, 612-13 (3d Cir. 2005). We review factual findings for
substantial evidence, and review legal conclusions de novo subject to established
principles of deference on agency review. See Hua Wu v. Att’y Gen., 571 F.3d 314, 317
(3d Cir. 2009). Under the REAL ID Act, we may not reverse a finding that corroborating
evidence is available unless “a reasonable trier of fact is compelled to conclude that
corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4). As explained below,
however, there are no such findings in this case to review.

                                             4
F.3d at 192. In such cases, “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 adequately explain that failure.” Id. at 191-92. “Where the . . . BIA fails

to engage in an inquiry and analysis establishing each of the[se] steps . . ., we have vacated

and remanded, holding that only upon such inquiry and analysis can the BIA hold the lack

of corroboration against an applicant.” Id. at 192.

       Igwe-Stevens argues that the BIA failed to apply this framework in this case. We

agree. The BIA faulted Igwe-Stevens for failing to produce evidence corroborating (1) his

position as Secretary of the student wing of Ohaneze/MASSOB in Nigeria, (2) his

continued membership in that group, (3) the 1989 demonstration that resulted in his arrest,

and (4) medical treatment for injuries sustained as a result of his beatings. Igwe-Stevens

correctly argued before the BIA that the IJ did not provide him with an opportunity to

explain the lack of corroboration on these points, but the BIA did not address that issue.

Remand would be required for that reason alone. See id. at 192.4

       The BIA’s corroboration analysis, however, suffered from other deficiencies as

well. First, it is true that Igwe-Stevens presented no evidence corroborating his testimony



  4
   Igwe-Stevens offered explanations for the unavailability of certain evidence in his
brief before the BIA and has done the same in his brief in this Court. The BIA did not
address those explanations, and we may not do so in the first instance. See INS v.
Ventura, 537 U.S. 12, 16-17 (2002). We express no opinion on whether the BIA itself
may consider Igwe-Stevens’s explanations or must remand for the IJ to do so.

                                               5
that he was the Secretary of the Ohaneze/MASSOB student wing at his school. The BIA,

however, did not explain why it believed that it was reasonable for Igwe-Stevens to

produce such evidence or make any finding regarding whether such corroborating

evidence actually exists or is available to Igwe-Stevens. See id. at 192.

       Second, the same applies to the BIA’s conclusion that Igwe-Stevens failed to

adequately corroborate his involvement with the Ohaneze/MASSOB in the United States.

Igwe-Steven did provide certain corroborating evidence on that issue, which the BIA

found insufficient. We perceive no error in the BIA’s assessment of that evidence and

cannot say that the BIA was required to accept it. The BIA, however, should have

explained why it expected additional corroboration on this point and should have given

Igwe-Stevens an opportunity to explain why he did not provide it. See id. at 191-92.

       Third, the BIA faulted Igwe-Stevens for failing to produce any evidence of the

1989 demonstration that led to his arrest. The BIA, however, did not acknowledge an

affidavit from Igwe-Stevens’s childhood friend, Benson Ebutu, who stated that he attended

school in 1989 with Igwe-Stevens and participated in that demonstration. (A.R. 276.) The

BIA should have explained why it found that affidavit inadequate. See Chukwu, 484 F.3d

at 189. Moreover, although the BIA explained that it was reasonable to expect

corroboration because Igwe-Stevens testified that the demonstration was widely reported

in the press, it did not explain why it believed that Nigerian press accounts are available to

Igwe-Stevens now and did not give him an opportunity to offer an explanation on that

point. See id. at 191-92.

                                              6
       Finally, the BIA faulted Igwe-Stevens for presenting no medical evidence of

treatment for injuries sustained during his beatings. Igwe-Stevens, however, “did not

testify that he ever received medical treatment for his injuries[.]” Id. at 192. “Therefore,

the record itself indicates that medical records documenting [his] injuries probably do not

exist.” Id. In any event, the BIA should have conducted a more thorough corroboration

analysis on this point in light of the principles discussed above.

       Accordingly, we will grant Igwe-Stevens’s petition for review and “remand for a

new corroboration determination, giving [him] an opportunity to explain why he has not

produced the documents the [BIA] considered important,” or for proceedings otherwise

consistent with this opinion. Id. at 193.5




  5
    In addition to challenging the BIA’s corroboration analysis, Igwe-Stevens argues that
the BIA erred in concluding that he failed to demonstrate past persecution because (1) his
credible testimony alone should have been sufficient to support such a finding, and (2) the
BIA failed to provide a reasoned decision on that issue. It is clear from the BIA’s
decision, however, that it rejected Igwe-Stevens’s claim of past persecution for lack of
corroboration. Because the BIA’s corroboration analysis was flawed for the reasons
explained above, we cannot and do not determine on the existing record whether it erred
in requiring corroboration per se.

                                              7
