                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-6-2005

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Precedential or Non-Precedential: Precedential

Docket No. 04-1807




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                                           PRECEDENTIAL

       IN THE UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT

                     Case No: 04-1807

                       ALKET VOCI,

                              Petitioner

                              v.

 ALBERTO GONZALES * , Attorney General of the United
                   States,

                             Respondent


            On petition for review of a final order
            of the Board of Immigration Appeals
                    File No: A79-098-188
          __________________________________

                    Argued May 5, 2005

Before: MCKEE, SMITH, and VAN ANTWERPEN, Circuit
                      Judges



   *
    Attorney General Gonzales has been substituted as
respondent pursuant to Fed. R. App. P. 43(c).
                  (Filed: June 6, 2005 )


COUNSEL: Mark A. Goldstein, Esq. (Argued)
         Goldstein & Associates
         The Gulf Tower, Suite 2330
         707 Grant Street
         Pittsburgh, PA 15219
         Attorney for Petitioner

            Peter D. Keisler Esq., Assistant Attorney
             General, Civil Division
            Christopher C. Fuller, Esq.
            Dennis J. Dimsey, Esq.
            Lisa Wilson Edwards, Esq. (Argued)
            U.S. Department of Justice
            Ben Franklin Station
            PO Box 14403
            Washington, D.C. 20044-4403
            Attorneys for Respondent

                _____________________

               OPINION OF THE COURT
                _____________________

SMITH, Circuit Judge.




                            2
        Appellant Alket Voci, a native of Albania, appeals a
decision of the Board of Immigration Appeals (“BIA”), in which
the BIA affirmed the Immigration Judge’s (“IJ’s”) denial of
Voci’s application for asylum, withholding of removal, and
protection under the United Nations Convention Against Torture
(“CAT”).1 The BIA rejected the IJ’s determination that Voci
lacked credibility, but agreed nonetheless that Voci had failed to
demonstrate eligibility for asylum or for other relief. Because
Voci’s testimony has been accepted by the BIA as credible, we
hold that the BIA erred in determining that the incidents of
police mistreatment described by Voci did not rise to the level
of persecution under the Immigration and Nationality Act
(“INA”). While we take no position concerning whether Voci
will ultimately be entitled to the relief he seeks, the absence of
analysis in the BIA’s decision requires remand to the BIA, in
order to permit the BIA explicitly to address the issues
implicated by Voci’s application for asylum. In addition, if



   1
    Voci has only presented substantive argument in support
of his asylum claim, and only sought review of his asylum
claim in his Notice of Appeal. Thus, issues concerning
withholding of removal and protection under the CAT have
essentially been waived. See Kopec v. Tate, 361 F.3d 772,
775 n.5 (3d Cir. 2004) (“An issue is waived unless a party
raises it in its opening brief, and for those purposes a passing
reference to an issue . . . will not suffice to bring that issue
before this court”) (quoting Laborer’s Int’l Union v. Foster
Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994)).

                                3
upon remand Voci is able to establish that he suffered past
persecution, it may be appropriate for the agency to address
whether the government has shown that conditions in Albania
have changed, such that Voci no longer has a reasonable fear of
facing persecution if he were to return.

I.  FACTUAL BACKGROUND AND PROCEDURAL
HISTORY

       A.     Voci’s Testimony

        Voci testified extensively concerning his background and
family history in Albania. While Voci discussed various forms
of mistreatment that his grandfather experienced under the
Communist regime, these issues have little bearing on Voci’s
eligibility for asylum. With respect to his own persecution, Voci
testified that in 1990 he became involved in the “democracy
movement” that was taking hold in Albania. Voci indicated that
he and other students at his high school, along with four
professors, began holding meetings to discuss ways in which
they could seek democratic reform. Voci indicated that the
movement grew over time, and on February 20, 1991, a large
protest rally was held in Korca, Albania. At this rally, protesters
pulled down a large statue of Enver Hoxha, a former Communist
Prime Minister of Albania. Voci testified that he was beaten by
police officers at this protest, and he suffered cuts which
required stitches, ultimately resulting in a lengthy hospital stay
when his wounds became infected.

                                4
         Voci testified that during the early 1990s, as the
Democratic Party gained power and influence, he and other
activists received a number of anonymous threatening letters
warning them to cease their political activities. Voci also
indicated that from 1990 through 1994, the police repeatedly
came to his home searching for him, and they threatened his
mother with harm if Voci did not cease his political activities.
Voci explained that the police had videotaped the February 20,
1991, protest rally in Korca, and by reviewing these videotapes
they identified Voci as one of the leaders of the rally. Along
with the visits to his home, Voci also indicated that on several
occasions during this same period the police came to his school
looking for him, and that on these occasions Voci managed to
get out of the school building without being caught.

       The Democratic Party won elections in 1994, but
according to Voci this did not end his persecution by the police.
Voci indicated that in the years leading up to 1997, when the
Socialist Party regained power, he was beaten up on many
occasions by the police. Voci testified that seven of these
beatings were severe, resulting in bleeding and scars. Three of
these beatings occurred in connection with demonstrations in
which Voci participated, and four occurred on occasions when
the police accosted Voci on a street or alleyway as he walked
through town. On one occasion, the police beat Voci with the
blunt end of a gun, breaking his knee and causing Voci to spend
several weeks in the hospital.



                               5
        Voci testified that the Socialist Party regained power in
1997, and that its leadership was comprised of former
Communist Party officials operating under a new name. Voci
stated that he continued to face persecution after the Socialists
regained power in 1997, culminating in a 1998 incident in which
the police came to his parents’ house, destroyed a number of the
family’s belongings, and beat Voci, his mother, and his sister.
Voci also explained that during the mid to late-1990s he faced
police harassment in connection with a restaurant that he
operated with a friend and fellow Democratic Party activist.
Police would come to the restaurant, harass and threaten patrons,
break glasses and windows, and generally disrupt the business.
Voci indicated that although the men who beat him and attacked
his restaurant were often dressed in plain clothes, he recognized
them as local police officers. Voci indicated that as a result of
the persecution he faced, he attempted to relocate to a different
part of Albania to stay with his uncle. This arrangement was
only temporary, however, and he eventually fled Albania and
came to the United States, arriving on March 14, 2001.2




   2
     Voci also presented corroborating testimony from his sister,
Ingrid Lama, and his former Albanian business partner, Ilir
Drenesku. Lama is now a lawful permanent resident, a benefit she
obtained as a result of the U.S. government’s “diversity lottery” for
immigrants seeking permanent resident status. Drenesku, like
Voci, came to the U.S. using fake documents, and is an applicant
for asylum.

                                  6
       B.     The IJ’s Opinion

        At the conclusion of Voci’s June 24, 2002, hearing, the
IJ stated that he would deny Voci’s petition for relief. The IJ
memorialized his findings and rationale in a separate oral
decision and order. The IJ indicated that he did not view Voci’s
testimony as credible, and concluded as well that “nothing the
respondent has testified to amounts to persecution in the
considered opinion of the Court.” The IJ noted that “the
Communists have been gone from Albania since 1991 and []
there is absolutely no evidence that the Socialists have
persecuted the respondent prior to his coming to the United
States and absolutely no proof that he is going to be persecuted
again if he returns to his country.” The IJ also stated that Voci
had failed to prove his various allegations “to this Court’s
satisfaction insofar as he has not submitted any supporting
documentation.”

       The IJ went on to discuss country conditions in Albania,
noting that the State Department reports contained in the record
reflected favorably on the political climate in Albania. Based
upon these materials, the IJ stated:

       Assuming arguendo that the respondent had indeed
       proven to the Court that he had been persecuted before
       the fall of communism and after the Socialists had taken
       power in Albania, the Court would nonetheless deny his
       instant application under 8 C.F.R. 208.13 insofar as

                               7
       based on the State Department Reports the Court finds
       that there has been a fundamental change in the
       circumstances in Albania such to the effect that the
       respondent would no longer have a well-founded fear of
       persecution in his country if he were indeed returned to
       Albania.

       C.     The BIA’s Opinion

      Voci appealed the IJ’s denial of his petition to the BIA,
and on February 25, 2004, the BIA issued a one-page opinion
dismissing Voci’s appeal. The BIA’s opinion states:

       The Immigration Judge’s decision dated June 24, 2002,
       accurately sets forth the facts asserted by the respondent
       in support of his claim for relief from removal. While
       we do not agree with the Immigration Judge’s adverse
       credibility finding, we agree that the respondent has not
       demonstrated eligibility for asylum and also affirm the
       Immigration Judge’s determination that the respondent
       has failed to establish grounds for granting the other
       forms of relief requested. In sum, the respondent has not
       demonstrated that he has suffered past persecution in
       Albania. Nor has he demonstrated a well-founded fear
       of persecution based on a protected ground under the Act
       were he to return to Albania. Likewise, the respondent
       has not established that it is more likely than not that he
       would be persecuted or tortured upon return to Albania.

                                8
       We note that the respondent contends on appeal that the
       manner in which the Immigration Judge conducted the
       hearing, as well as the Immigration Judge’s attitude
       toward him, deprived him of his right to a fair hearing.
       A review of the hearing transcript does not reveal,
       however, that the respondent suffered any prejudice.
       Inasmuch as we are in agreement with the Immigration
       Judge’s decision, we affirm his decision based upon and
       for the reasons set forth herein. Accordingly, the
       respondent’s appeal is dismissed.

(internal citations omitted).

II.    JURISDICTION

        We have jurisdiction over an appeal from a final order of
the BIA affirming a decision of the IJ to deny an alien’s asylum
application. 8 U.S.C. § 1252(a)(1); see Berishaj v. Ashcroft, 378
F.3d 314, 316 (3d Cir. 2004). In this case, although the BIA
agreed with the IJ’s decision to deny relief, it did not adopt or
defer to the findings of the IJ.          Instead, it expressed
disagreement with the IJ’s adverse credibility finding, but stated
in a conclusory fashion that Voci had failed to show that he
suffered past persecution in Albania. In such cases the final
order we review is the decision of the BIA, not the decision of
the IJ. See Miah v. Ashcroft, 346 F.3d 434, 439 (3d Cir. 2003)
(“The final order we normally review is the decision of the BIA,
unless the BIA defers to the IJ’s findings”); Abdulai v. Ashcroft,

                                9
239 F.3d 542, 549 (3d Cir. 2001) (“Congress has granted us
power to review only ‘final orders of removal.’ Because an alien
facing removal may appeal to the BIA as of right, and because
the BIA has the power to conduct a de novo review of IJ
decisions, there is no ‘final order’ until the BIA acts.
Accordingly, we now expressly hold that the ‘final order’ we
review is that of the BIA.”) (citations omitted).

        We recognize that in some instances, we review both the
decisions of the IJ and the BIA. However, because our
jurisdiction is restricted to reviewing “final orders of removal,”
this approach is meant to be the exception rather than the rule.
See Abdulai, 239 F.3d at 545 (“We begin by clarifying that,
absent special circumstances not present here, we review only
decisions by the BIA and not those by immigration judges”)
(emphasis added). When first addressing this issue in Abdulai,
we characterized situations in which the IJ’s decision would be
reviewed as those in which the BIA “expressly adopted [a]
portion of the IJ’s opinion” or “announced that it was deferring”
to the IJ’s findings. See id. at 549 n.2. Our subsequent cases
have followed this approach. See, e.g., Korytnyuk v. Ashcroft,
396 F.3d 272, 286-87 (3d Cir. 2005) (analyzing BIA’s use of
passive voice to conclude that BIA had adopted specific factual
finding made by IJ); Chen v. Ashcroft, 376 F.3d 215, 221-22 (3d
Cir. 2004) (where BIA’s opinion listed flaws in applicant’s
testimony, and stated that “for those reasons and others cited in
the Immigration Judge’s decision, the Immigration Judge
correctly denied the respondent’s application,” court would

                               10
review both decisions) (emphasis added); Xie v. Ashcroft, 359
F.3d 239, 242, 246 n.9 (3d Cir. 2004) (reviewing both decisions
where BIA stated that it was giving “significant weight” to IJ’s
adverse credibility finding, and disclaiming reliance on IJ’s
“demeanor” analysis where applicant’s demeanor was not
referenced in BIA opinion); Miah, 346 F.3d at 439 (explaining
need to review both decisions where BIA rejected IJ’s adverse
credibility finding, and explicitly adopted IJ’s corroboration
analysis, noting that issues were intertwined because IJ’s
credibility findings influenced IJ’s views concerning necessity
of corroboration).

        In sum, the cases in which we have reviewed both
decisions have all involved situations in which the language of
the BIA’s opinion directly states that the BIA is deferring to the
IJ, or invokes specific aspects of the IJ’s analysis and fact-
finding in support of the BIA’s conclusions. Here, in contrast,
the BIA expressed disagreement with the IJ’s adverse credibility
finding, and did not specifically reference or adopt other
portions of the IJ’s analysis. In agreeing with the decision
reached by the IJ, the BIA stated that it was doing so “based
upon and for the reasons set forth herein.” A1:2 (emphasis
added). In this situation, we must restrict our review to the
question of whether the underlying record provides substantial
evidence for the BIA’s conclusions. As discussed below, we
cannot rescue the BIA from its paucity of analysis by injecting
issues that were raised by the IJ, but were neither addressed nor



                               11
relied upon in the BIA’s opinion.3

III.   ANALYSIS

       An asylum applicant must demonstrate either past
persecution or a well-founded fear of future persecution. See
Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). In order to
establish eligibility on the basis of past persecution, an applicant
must show: “(1) an incident, or incidents, that rise to the level of
persecution; (2) that is on account of a statutorily protected
ground; and (3) is committed by the government or forces the
government is either unable or unwilling to control.” See Gao,
299 F.3d at 272. An applicant has a well-founded fear of future


   3
     We recognize that the large number of cases on the BIA’s
docket imposes practical limitations on the length of the BIA’s
written opinions. The difficulties in this appeal stem not from a
BIA opinion that is too short, but rather from the BIA’s failure to
identify the portions of the IJ’s analysis that it was adopting in
support of its conclusion that Voci had not demonstrated past
persecution. In cases where the BIA agrees with the IJ’s analysis
and conclusions, we have upheld the BIA’s streamlining
procedure, in which it effectively adopts the IJ’s opinion as its
own. See Dia v. Ashcroft, 353 F.3d 228, 243-45 (3d Cir. 2003) (en
banc). In cases where the BIA rejects portions of the IJ’s analysis,
but nonetheless agrees with the IJ’s decision to deny relief, the BIA
need not write a lengthy opinion. However, it must either briefly
state its own reasons for rejecting the petitioner’s claim, or identify
the portions of the IJ’s analysis that it has adopted in support of its
decision to deny relief.

                                  12
persecution if he shows that he has a subjectively genuine fear,
and that a reasonable person in his circumstances would fear
persecution if returned to his native country. See id.

       Whether an asylum applicant has demonstrated past
persecution or a well-founded fear of future persecution is a
factual determination reviewed under the substantial evidence
standard. See id. (citing Abdille v. Ashcroft, 242 F.3d 477, 483
(3d Cir. 2001).

       [T]he question whether an agency determination is
       supported by substantial evidence is the same as the
       question whether a reasonable fact finder could make
       such a determination based upon the administrative
       record. If a reasonable fact finder could make a
       particular finding on the administrative record, then the
       finding is supported by substantial evidence.
       Conversely, if no reasonable fact finder could make that
       finding on the administrative record, the finding is not
       supported by substantial evidence.

Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc).

      The BIA accepted Voci’s testimony as credible, and yet
determined that Voci had not shown that he experienced past
persecution in Albania. The BIA’s opinion does not explain
how the BIA reached this result. It appears there are two paths
the BIA may have taken, neither of which is satisfactory on the

                              13
current record. First, the BIA could have determined that even
accepting Voci’s testimony as true, the beatings and other
mistreatment he experienced simply did not rise to the level of
persecution under the INA. Alternatively, the BIA could have
determined that even if Voci’s testimony was credible, and even
if the events described in the testimony would be sufficiently
severe to constitute persecution, Voci’s failure to provide
corroborative documentary evidence meant that Voci had not
carried his burden of proof with respect to demonstrating past
persecution.

       A.     The “Severity” Theory

       The first theory, that the alleged mistreatment suffered by
Voci at the hands of the police was not sufficiently severe to
constitute persecution, appears to be inconsistent with existing
BIA and federal appellate decisions. While the INA does not
define the term “persecution,” we have indicated that
persecution denotes “extreme conduct,” and that “the concept of
persecution does not encompass all treatment that our society
regards as unfair, unjust or even unlawful or unconstitutional.”
See Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). Voci
alleged that he suffered multiple beatings, seven of which he
characterized as severe, and at least one of which resulted in a
broken knee and an extended hospital stay.4 He also alleges that


   4
   We have excluded from our calculus the incident in which
Voci claimed to have been knocked down and beaten up by police

                               14
he was threatened on multiple occasions, and that police
attempted to intimidate his family members and threatened their
safety if Voci refused to abandon his political activities.

       Taken together, we believe the mistreatment alleged by
Voci rises to the level of “persecution.” If Voci indeed faced
multiple beatings from police, including beatings that caused
injury and that in one instance broke his knee and resulted in
extended hospitalization, all as a result of his political beliefs, it
can fairly be said that the police were engaged in a “program or
campaign to . . . drive away or subjugate [Voci] because of [his]
beliefs.” See Fatin, 12 F.3d at 1240 n.10 (discussing definition
of “persecution”). Prior BIA precedent supports this view. For


in connection with the February 1991 Democratic Party protest
rally in Korca. Voci’s testimony indicated that this protest
involved vandalism by the protesters, in which they pulled down a
large statue of the former Prime Minister of Albania. Police
violence arising in response to civil unrest and violent protests,
even police violence that might involve excessive force, is not
necessarily considered persecution on account of an applicant’s
political beliefs. See, e.g., Shardar v. Ashcroft, 382 F.3d 318, 323-
24 (3d Cir. 2004) (upholding IJ’s finding of no persecution where
evidence indicated that detention of petitioner arose as a result of
petitioner’s participation in an unlawful violent demonstration);
Mullai v. Ashcroft, 385 F.3d 635, 638 (6th Cir. 2004) (petitioner’s
evidence that she was beaten by police and jailed for two days
following participation in protest rally “could reasonably be viewed
as motivated by her status as a protester rather than religious
persecution”).

                                 15
example, in a case where an asylum applicant suffered physical
attacks on three occasions, where his son suffered a physical
attack that resulted in an injury to the son’s knee requiring
hospitalization, where the applicant’s apartment was broken into
and his possessions stolen or destroyed, and where the applicant
and his son were verbally harassed and threatened on multiple
occasions, the BIA held that “these incidents constitute more
than mere discrimination and harassment. In the aggregate, they
rise to the level of persecution as contemplated by the Act.” See
In re O-Z & I-Z, 1198 BIA LEXIS 12, *6-*7 (April 2, 1998).

        While this Court has not yet drawn a precise line
concerning where a simple beating ends and persecution begins,
our cases suggest that isolated incidents that do not result in
serious injury do not rise to the level of persecution. See, e.g.,
Chen v. Ashcroft, 381 F.3d 221, 234-35 (3d Cir. 2004) (holding
that BIA reasonably found that respondent’s alleged beating at
the hands of government officials did not constitute persecution,
and stating “Chen’s scuffle with the local officials does not
appear to have been serious. For example, the government
points out that Chen has never alleged that this altercation
resulted in any injuries that required medical treatment”);
Woldermariam v. Ashcroft, 112 Fed. Appx. 189, 193 (3d Cir.
2004) (“[T]he purported beating of Woldermariam by the
Eritrean authorities, a solitary incident causing no serious
injuries, does not evince conduct so severe that it constitutes a
real threat to life or freedom”). In contrast to the respondents in
Chen and Woldermariam, Voci alleged that he suffered repeated

                                16
beatings over a period of several years, and that seven of these
beatings were “severe,” resulting in bleeding, scars, and “health
problems.” This mistreatment apparently culminated in a 1997
beating where Voci’s knee was broken by a police officer
wielding a gun, after which Voci was left by the side of the road
until a passerby summoned assistance. Voci testified that this
injury to his knee resulted in a hospital stay of approximately
three months. Voci’s testimony with respect to the number of
beatings he suffered, and the injuries resulting therefrom,
distinguishes his situation from Chen and Woldermariam, and
is instead more analogous to O-Z & I-Z, in which the BIA held
that multiple beatings, including one resulting in a knee injury,
coupled with other harassment, constituted persecution under
the INA.5

       The conclusion that Voci experienced past persecution is
also consistent with the approach taken by the Seventh Circuit,
which has addressed on multiple occasions the question of
whether a beating or series of beatings rises to the level of
persecution under the INA. The Seventh Circuit’s basic



   5
     The “other harassment” in Voci’s case would include the
threatening letters received by Voci during the early 1990s, the
multiple occasions between 1990 and 1994 where the police came
to Voci’s home and threatened his mother, and the 1998 incident in
which the police came to Voci’s parents’ house, forced their way
in, destroyed a number of the family’s belongings, and beat Voci,
his sister, and his mother.

                               17
approach is that if a beating is an isolated incident, and if it
results in minor, but not severe, physical injury, then it will be
unlikely to constitute persecution under the INA. See Dandan
v. Ashcroft, 339 F.3d 567, 573-74 (7th Cir. 2003) (single three-
day detention, in which respondent was deprived of food and
suffered a swollen face as a result of beatings from police, did
not compel reversal of BIA’s decision that respondent had not
suffered persecution). In contrast, multiple beatings inflicted on
the same respondent on multiple occasions are more likely to
give rise to a finding of persecution, although the existence of
multiple incidents is not a requirement. See id. at 573
(“Although the frequency issue is not dispositive, it does figure
significantly in the analysis . . . While, obviously, multiple
incidents create a more compelling case for finding persecution,
the number of times that a petitioner has been subject to
detention or physical abuse is merely one variable in the analysis
of the whole of the petitioner’s claim of past persecution”). The
Seventh Circuit has also indicated that even a single beating can
constitute persecution, assuming that the beating results in
significant physical injury. See, e.g., Asani v. INS, 154 F.3d
719, 722-23 (7th Cir. 1998) (respondent suffered past
persecution where he was detained by police, beaten, and had
two of his teeth knocked out); Vaduva v. INS, 131 F.3d 689, 690
(7th Cir. 1997) (single beating in which petitioner’s face was
bruised and his finger broken constituted past persecution). It
appears that Voci’s mistreatment at the hands of the Albanian
police would constitute past persecution under the Seventh
Circuit’s approach. We likewise conclude that if Voci is able to

                               18
meet his burden of proof and show that the incidents he
described actually occurred, these incidents would be
sufficiently severe, when taken together, to satisfy the first
prong of Gao’s three-part test for establishing past persecution.

        Finally, with respect to this issue, we are unaware of any
prior BIA or federal appellate cases in which treatment similar
to that experienced by Voci was found to not rise to the level of
persecution. The government argues that the BIA reasonably
concluded that the incidents described by Voci did not satisfy
the “severity” threshold established by the first Gao prong.
However, the only cases cited by the government on this issue
are invoked for purposes of the boilerplate proposition that
persecution must involve extreme conduct, and does not
necessarily encompass all treatment that might be unpleasant or
cause suffering. These citations are not particularly helpful in
addressing the question at hand, and the government has cited
to no authority, from this Court or any other, which would
indicate that mistreatment of the sort experienced by Voci does
not rise to the level of persecution under the INA. We therefore
hold that to the extent the BIA determined that the pattern of
mistreatment allegedly suffered by Voci was not sufficiently
severe to constitute persecution, the BIA’s finding was not
supported by substantial evidence.

       B.     The “Corroboration” Theory

       The government argues that an alternative theory that

                               19
supports the BIA’s denial of Voci’s claim relates to the absence
of corroborative evidence for portions of Voci’s testimony. The
IJ complained that Voci had not produced documentation or
medical records to corroborate his claims of having been
hospitalized after being beaten by the Albanian police. We have
held that “the BIA may sometimes require otherwise-credible
applicants to supply corroborating evidence in order to meet
their burden of proof.” See Abdulai, 239 F.3d at 554. We have
noted that the BIA’s prior decisions establish that it is
reasonable to expect an applicant to corroborate facts “which are
central to his or her claim and easily subject to verification.”
See id. We observed in Abdulai, without expressing agreement,6
that the BIA has included in this category “evidence of an
applicant’s place of birth, media accounts of large
demonstrations, evidence of a publicly held office, or
documentation of medical treatment.” See id. (emphasis added).



        While our analysis in Abdulai highlights the fact that the
BIA might permissibly seek corroboration from Voci
concerning his past medical treatment, our holding in Abdulai
also illustrates why this case must be remanded for further


   6
     “In setting out this summary of the [BIA’s] case law, we
express no opinion as to whether we agree that it is ‘reasonable’ to
expect applicants for asylum or withholding of removal to
corroborate these types of information.” Abdulai, 239 F.3d at 555
n.9.

                                 20
proceedings. In Abdulai, we noted that the BIA’s rule
concerning corroboration contemplates a three-part inquiry: (1)
an identification of the facts for which “it is reasonable to expect
corroboration;” (2) an inquiry as to whether the applicant has
provided information corroborating the relevant facts; and if he
or she has not, (3) an analysis of whether the applicant has
adequately explained his or her failure to do so. See id. at 554.
The government argued in Abdulai that the petitioner should
have submitted medical records relating to his hospital stay after
being released from military detention. See id. at 555. We
declined to rule on the issue because we found that the BIA’s
opinion addressed only the second element of the three-part
inquiry described above, and did so using general language that
failed to identify the specific facts for which the BIA sought
additional corroboration. See Abdulai, 239 F.3d at 555. We
stated “[t]hough we are uncertain whether it would be
reasonable to hold Abdulai’s failure to procure Nigerian hospital
records against him (assuming such records even exist), that
concern is ultimately beside the point. Because the BIA never
stated which aspects of his story it would have been reasonable
to corroborate, we have no way of reviewing the Board’s actual
reasoning.” Id. We concluded that “[b]ecause the BIA’s failure
of explanation makes it impossible for us to review its rationale,
we grant Abdulai’s petition for review, vacate the Board’s order,
and remand the matter to it for further proceedings consistent
with this opinion.” Id.

       Here, the BIA through its opinion has provided even less

                                21
information than was provided in Abdulai. It is not even clear
from the BIA’s opinion whether the BIA believed that Voci had
failed to provide adequate corroboration, and the BIA’s opinion
does not apply the three-part inquiry that we discussed in
Abdulai. In this situation, it would be improper for us to
speculate as to whether the BIA, sub silentio, believed that Voci
had not shown past persecution because he failed adequately to
corroborate his testimony. Instead, to the extent that Voci’s lack
of documentary corroboration for his testimony may reflect a
failure on Voci’s part to carry his burden of proof, it raises an
issue that can and should be addressed explicitly by the agency
upon remand.7

       C.      Changed Country Conditions

       Along with the two theories discussed above, the


   7
     Our view is reinforced by the fact that the IJ’s concern
regarding Voci’s failure to provide medical records may have
arisen in the context of the IJ’s broader attack on Voci’s credibility.
The BIA disagreed with the IJ’s adverse credibility finding. In
these circumstances, we can do little more than speculate
concerning what weight, if any, the BIA placed on Voci’s failure to
introduce Albanian hospital records in support of his otherwise
credible testimony. Cf. Wu v. Ashcroft, 393 F.3d 418, 425 (3d Cir.
2005) (“[W]here, as here, the Immigration Judge finds a witness to
be credible, but then renders a decision that is contrary to that
testimony without explaining why, we cannot say at this point that
such a decision is supported by substantial evidence”).

                                  22
government also contends that the BIA’s decision should be
affirmed on the basis of changed country conditions. The
government argues that conditions in Albania have improved
such that there is no longer an objective basis for a well-founded
fear of persecution if Voci were returned. The IJ’s decision
included a finding that even if Voci had experienced past
persecution in Albania, country conditions in Albania had
changed to the point where Voci no longer had a well-founded
fear of future persecution. The IJ stated that based on this
finding, as an alternative ground for his decision, he would deny
relief pursuant to 8 C.F.R. § 208.13. This regulation indicates
that where an asylum applicant has established past persecution,
the existence of that persecution gives rise to a presumption that
the applicant has a well-founded fear of future persecution. See
8 C.F.R. § 208.13(b)(1). This presumption may be rebutted,
however, if the government establishes, by a preponderance of
the evidence, that there has been “a fundamental change in
circumstances such that the applicant no longer has a well-
founded fear of persecution” in his or her home country. See 8
C.F.R. § 208.13(b)(1)(i)-(ii).

        Unfortunately, the BIA’s approach, as reflected in its
opinion, prevents us from reaching the merits of the
government’s argument concerning changed country conditions
in Albania. The BIA elected to question some aspects of the IJ’s
analysis, while affirming, using very general language, the result
the IJ reached. In this situation, we cannot simply assume that
the BIA somehow adopted the IJ’s changed conditions

                               23
reasoning without explicitly referring to the issue, and without
discussing or acknowledging the framework for the changed
conditions inquiry that is established by 8 C.F.R. § 208.13.

        We have emphasized that under 8 C.F.R. § 208.13, “[t]he
burden of proof in a changed-country-conditions rebuttal is
squarely on the government[.]” See Berishaj, 378 at 328. The
IJ explicitly referenced 8 C.F.R. § 208.13 in connection with his
changed-country-conditions analysis, and stated that for
purposes of this analysis he was assuming that Voci had indeed
established the existence of past persecution. These statements
support an inference that the IJ understood that the government
bore the burden of proof on the changed conditions inquiry, and
that he believed the evidence contained in the record satisfied
the government’s burden. In contrast, the BIA’s opinion does
not reference 8 C.F.R. § 208.13, and does not discuss the
possibility of changed country conditions in Albania. The BIA
states that “the respondent has not demonstrated that he has
suffered past persecution in his native Albania,” but its opinion
provides no basis for assuming that it used the same analysis
used by the IJ. There is no indication that the BIA (1) assumed
that Voci had experienced past persecution, (2) shifted the
burden of proof concerning changed country conditions to the
government, and then (3) analyzed whether the record evidence
provided a basis for holding that the government had satisfied
this burden. In the absence of such analysis, it would be
inappropriate for us to attribute the IJ’s reasoning to the BIA.
See INS v. Ventura, 537 U.S. 12, 17-18 (2002) (summarily

                               24
reversing Ninth Circuit and holding that court of appeals may
not address issue of changed country conditions in instance
where that issue was addressed by the IJ, but was not reached by
the BIA). Instead, to the extent the question of changed country
conditions in Albania has a potential bearing on Voci’s
application for relief, we must remand to the BIA in order to
permit the BIA to assess the issue in light of its own expertise.
See Ventura, 537 U.S. at 17-18; see also Amanfi v. Ashcroft, 328
F.3d 719, 730 (3d Cir. 2003) (remanding to BIA for
determination of whether applicant had presented credible
testimony in support of his claim, in instance where IJ had made
adverse credibility determination and BIA had affirmed IJ’s
holding on alternate ground).

IV.    CONCLUSION

       For the reasons discussed above, Voci’s petition for
review is granted, and the case is remanded to the BIA for
further proceedings consistent with this opinion.




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