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


1-4-2005

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Precedential or Non-Precedential: Precedential

Docket No. 03-2420




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                                              PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                         No. 03-2420


                         IGOR LEIA,
                          Petitioner

                                v.

               JOHN ASHCROFT,
    ATTORNEY GENERAL OF THE UNITED STATES,
                  Respondent


                Petition for Review of an Order
             of the Board of Immigration Appeals
                         (A73 535 070)


                    Argued October 5, 2004

  Before: SLOVITER, BECKER, and STAPLETON, Circuit
                       Judges

                    (Filed January 4, 2005)


Valentine A. Brown (Argued)
Valentine Brown, LLC
Suite 3-A
3 South Broad Street
Woodbury, N.J. 08096

      Attorney for Petitioner

Peter D. Keisler
       Assistant Attorney General Civil Division
Emily A. Radford
       Assistant Director
James A. Hunolt
Douglas E. Ginsburg
John D. Williams
Jennifer J. Kenney (Argued)
United States Department of Justice
Office of Immigration Litigation
Ben Franklin Station
P. O. Box 878
Washington, D.C. 20044

       Attorneys for Respondent




                      OPINION OF THE COURT


SLOVITER, Circuit Judge.

        Igor Leia 1 petitions this court for review of an order of the
Board of Immigration Appeals (BIA) dated April 14, 2003
dismissing his appeal from the order of the Immigration Judge
(IJ) denying his application for asylum and withholding of
removal. Leia argues, inter alia, that the BIA abused its
discretion in affirming the IJ’s refusal to admit the documentary
evidence that he proffered following remand of the case because
it had not been authenticated in the manner required by 8 C.F.R.
§ 287.6, the primary factor contributing to an adverse credibility
determination. App. at 50. The BIA’s 2003 dismissal order



       1
          Leia’s former wife also entered the United States and
petitioned for asylum. Although some of the underlying agency
proceedings concerned both Leia and his wife, they subsequently
divorced, whereupon she remarried a United States citizen which
resulted in her asylum case being severed from his. We thus will
not discuss the underlying agency proceedings as they related to
her.

                                  2
stated, inter alia, “Based on the lack of authenticated
collaborating documentation, we find that the respondent failed
to meet his burden of proof.” Id. Because this court has recently
issued an opinion interpreting the authentication requirement in
8 C.F.R. § 287.6, see Liu v. Ashcroft, 372 F.3d 529 (3d Cir.
2004), an opinion that was not available to either the IJ or the
BIA at the time of their respective decisions, we will grant
Leia’s petition for review, vacate the BIA’s order, and remand.

                                  I.
        Leia is a Ukrainian citizen of Polish descent. According
to him, non-ethnic Ukrainians living in the Ukraine like himself
are treated differently than ethnic Ukrainians. In the agency
proceedings, he argued that because he is not of Ukrainian
ancestry he was often subject to ridicule and was repeatedly
denied job promotions. Leia testified that in order to combat this
discrimination he joined a political organization called the
United National Front (UNF), whose goals are to promote the
rights of non-ethnic Ukrainians within the Ukraine. A.R. 279.
As a member of this organization, Leia would attend meetings,
hand out information in the streets and squares of the city of his
residence, and correspond with UNF organizations in other
cities. App. at 124-25.

       Leia testified that during a UNF meeting on December
12, 1993, he was beaten by members of the Organization of
Ukrainian Nationalists and the Ukrainian Revolutionary Army
(Nationalistic Party), a conglomerate ultra-nationalist group.2
According to Leia, he was struck in the head with a pair of brass
knuckles – an attack that left a scar. He further stated that
instead of arresting the members of the Nationalistic Party who
had started the fight, the authorities arrested him and other
“victims” of the altercation. Leia was then incarcerated for over
twenty-four hours, and claims that while in police custody, he



       2
         The record suggests that the Organization of Ukrainian
Nationalists is the political wing of this group and the Ukrainian
Revolutionary Army is the paramilitary force used to further this
group’s aims. App. at 97.

                                3
was further beaten and insulted. App. at 154. Indeed, Leia
claimed that when he asked the arresting officers why his
attackers had not been apprehended, the officers replied
caustically and stated that “if ‘[y]ou want trouble, we will give
you trouble.’” App. at 126. Following his release, Leia filed a
complaint with the prosecutor’s office but stated that he never
received a response. Id.

        After this incident, Leia began getting bi-weekly calls and
threats at home from people demanding that he stop his political
activities and suggesting that he leave the Ukraine. App. at 126-
27. He further claims to have received notes containing similar
threats. Then, while Leia was walking home on March 13, 1994,
he was beaten on the street by members of the Nationalistic
Party. During this attack, his assailants taunted him: “‘remember
we warned you to stop, but you did not listen.’” App. at 127. As
a result of this assault, he suffered multiple contusions and
bruising all over his neck and body, a concussion, and longer-
term injury to his brain.3

       Approximately two months later, he and his wife were
both attacked and beaten by a group of apparent ultra-
nationalists in the yard in front of their apartment. App. at 128.
Leia was beaten with a metal bat and again sustained a
concussion; further, his wife, who was pregnant at the time,
suffered a miscarriage. He and his wife were then taken to the
hospital. After they were released, his wife filed a complaint
with the authorities, but once again no action was taken in
response to this complaint. App. at 128. Fearing that he would
be subject to future beatings and acts of persecution, Leia came



       3
           In the statements he submitted with his original asylum
application, as well as in his 1995 testimony before the IJ, Leia
contended that this assault occurred on March 18, rather than
March 13, 1994. App. at 147; A.R. 303. Passport records,
however, indicate that Leia was in Poland on that date. Although
Leia would later offer a plausible reason for this discrepancy, the
IJ, as discussed infra, based her adverse credibility finding, at least
in part, on this inconsistency.

                                  4
to the United States and, within a year of his arrival, sought
asylum. App. at 155.

        After reviewing Leia’s claim, the IJ held that he was not
eligible for asylum. The IJ, in an oral decision dated November
7, 1995, based her decision on the issue of credibility, stating she
had “grave misgivings” regarding the credibility of Leia, on the
lack of “objective facts in support of the application,” and on the
fact that the United State’s Department of State country reports,
profiles, and advisory opinions indicated that Leia could live in
other areas in the Ukraine without experiencing persecution.
App. at 147-49. The IJ’s credibility determination in turn was
primarily based on Leia’s failure to obtain original documents
from the various Ukrainian governmental authorities and on the
fact that the facsimile copies he did obtain were not properly
authenticated pursuant to 8 C.F.R. § 287.6. App. at 148. In fact,
because Leia had failed to authenticate the foreign documents
pursuant to the protocols delimited in 8 C.F.R. § 287.6, the IJ
sustained an objection to those documents lodged by the
Immigration and Naturalization Service (INS) 4 and refused to
enter them into evidence.

       In addition to the authentication of documents issue and
Leia’s resultant inability to provide documentary support for his
averments, the IJ noted two inconsistencies in Leia’s testimony
which she found troubling and which affected her credibility
determination. The first inconsistency concerned the date of the
second beating. Although Leia testified that the second beating
occurred on March 18, 1994, the IJ noted that his passport shows
that he was in Poland on this date. App. at 147.



       4
          Effective March 2003, the INS ceased to exist as an
independent agency within the United States Department of Justice
and its functions were transferred to the newly formed United
States Department of Homeland Security. The BIA, however,
remains within the Department of Justice. See Knapik v. Ashcroft,
384 F.3d 84, 86 n.2 (3d Cir. 2004) (citing Homeland Security Act
of 2002, Pub. L. No. 107-296, §§ 441, 451, 471, 116 Stat. 2135
(2002)).

                                 5
        The second inconsistency in Leia’s testimony to which
the IJ referred concerned the legal status of the UNF. At various
times in his testimony, Leia referred to the organization as legal
and at other times he described it as illegal. According to Leia,
the UNF had applied for legalization but had not received papers
indicating that it was legal or illegal. He testified that because
the UNF had never received papers saying it was illegal he
believed the UNF not to be illegal. A.R. 300-01. At another
portion of his testimony, petitioner stated that he could not
obtain proof of his membership in the UNF because these would
be “‘illegal papers.’” App. at 147. The IJ stated that this
testimony was internally inconsistent.

       Lastly, the IJ determined that Leia’s testimony regarding
his need for asylum was contradicted by the Department of State
advisory opinions and the country reports on human rights for
1994 which indicated that there were areas in the Ukraine where
petitioner would be able to live without experiencing
persecution. On these bases, the IJ found that petitioner’s
testimony regarding his need for asylum was not credible and
denied his request for asylum. App. at 148-50.

        On appeal, the BIA focused on the IJ’s decision
sustaining the INS’s objections to the unauthenticated facsimile
documents. The BIA pointed out that the INS was provided with
the evidence approximately two months before the hearing but
failed to notify the Leias of its objections until the hearing.
Noting the importance of the documents, the BIA determined
that the Leias “should be given further opportunity to
authenticate their evidence and have it considered.” App. at 140.

       Sometime thereafter, Leia filed an affidavit directed to the
discrepancy noted by the IJ as to the date of the second beating.
Leia explained that he had not remembered the date he was
attacked so he relied on the certificate from the hospital, which
was apparently incorrect. Subsequently, he obtained a corrected
version of the hospital record, which confirmed March 13, 1994
as the date of the second attack. He proffered the affidavit and
the corrected version of the hospital record. It is not clear from
the record what weight, if any, the IJ accorded this affidavit in

                                6
the subsequent remand.

        As directed by the BIA, the IJ held additional hearings
respecting Leia’s asylum petition. After granting several
continuances in order to afford Leia an opportunity to
authenticate the documents, the IJ held a merits hearing on July
13, 1998. At this hearing, Leia presented the testimony of
Professor Peter Stavrakis who the parties stipulated was an
expert in Ukrainian politics. App. at 59. Professor Stavrakis
testified regarding the current political situation in the Ukraine
and explained why he believed Leia would be unable to obtain
authenticated documents in the political climate at that time.
App. at 59-90.

       At the conclusion of the July 13, 1998 hearing, the IJ
issued an oral decision. The IJ dismissed the testimony of
Professor Stavrakis as irrelevant because she concluded he was
not an expert on authentication. App. at 51. She reiterated her
concern about the failure to provide authenticated documents,
noting that even though Leia had been granted two continuances
on the remand totaling over a year in order to afford him
sufficient time to obtain authentication, he had failed to do so.
A.R. 79, 83. She stated that Leia:

       was given an opportunity to provide to this Court
       properly authenticated documents which had been
       found inadmissible for lack of proper
       authentication pursuant to 8 C.F.R. [§] 287.6 and
       on remand the respondent has again failed to
       provide the authentication necessary and the
       decision of the Immigration Court provided on
       November 7, 1995, is adopted herein once more.

App. at 52-53. Leia appealed and this time, the BIA affirmed.
In its decision dated April 14, 2003, it stated:

              Based on the lack of authenticated
       collaborating documentation, we find that the
       respondent failed to meet his burden of proof. . . .
       In the present case, the respondent attempted to

                                 7
       proffer documents to corroborate his claim that he
       had been subject to physical abuse, had filed police
       reports, and had received corresponding medical
       treatment (Exhs. 6-8, and 13-14, marked for
       identification only). The documents which the
       respondent submitted were copies transmitted by
       facsimile. Although we accorded the respondent
       an opportunity to authenticate the documents, the
       respondent failed to provide evidence that he
       attempted to comply with the regulations . . . .
       Instead, he attempted to explain why it would be
       unreasonable to expect compliance. The existence
       of such corroborating documentation is
       undisputed. The absence of authenticated
       corroborating documentation is also undisputed.
       For the reasons set forth in the Immigration Judge
       July 13, 1998, decision, we find that the
       respondent failed to demonstrate that it would be
       unreasonable to expect authentication of the
       corroborating documentation in the instant case....

              In sum, we agree with the Immigration
       Judge’s conclusion that the respondent failed to
       put forth sufficient credible testimony in support of
       his persecution claim. The respondent thus failed
       to establish eligibility for asylum and withholding
       of deportation. . . . Accordingly, the appeal is
       dismissed.

App. at 50. Leia thereafter lodged this timely petition for
review.

                                II.
       We have jurisdiction to review final decisions of the BIA
under 8 U.S.C. § 1252. An agency’s interpretation of its own
regulation – such as 8 C.F.R. § 287.6 – is controlling unless “it is
plainly erroneous or inconsistent with the regulation.” Liu v.
Ashcroft, 372 F.3d 529, 532 (3d Cir. 2004) (internal citations
and quotations omitted). We review agency findings of fact to
ensure that they are supported by substantial evidence. Dia v.

                                 8
Ashcroft, 353 F.3d 228, 247-48 (3d Cir. 2003) (en banc). The
substantial evidence standard requires us to determine whether
the agency’s finding of fact are “supported by reasonable,
substantial, and probative evidence on the record considered as a
whole.” Balasubramanrim v. Immigration & Naturalization
Serv., 143 F.3d 157, 161 (3d Cir. 1998) (internal quotations and
citations omitted). An agency finding regarding a petitioner’s
credibility is a factual determination reviewed under the
deferential substantial evidence standard, Dia, 353 F.3d at 247,
as is a finding regarding a “well-founded fear of persecution.”
Abdille v Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001) (citing
Immigration & Naturalization Serv. v Elias-Zacarias, 502 U.S.
478 (1992)).

        An alien seeking asylum under section 208(a) of the
Immigration and Nationality Act, see 8 U.S.C. § 1158(a), must
demonstrate that s/he meets the definition of “refugee,” which is
defined as someone who will not or cannot return to his or her
country of nationality “because of persecution or a well-founded
fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8
U.S.C. § 1101(a)(42)(A); see also Elias-Zacarias, 502 U.S. at
481. The test for refugee status contains both a subjective
component, which is satisfied if the fear is genuine, and an
objective component, which requires a showing by credible,
direct, specific evidence in the record that persecution is a
reasonable possibility. Immigration & Naturalization Serv. v.
Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987).

       The BIA affirmed the IJ’s denial of Leia’s application for
asylum based on its conclusion that Leia failed to present
authenticated corroborating documentation under 8 C.F.R. §
287.6 and thus failed to carry his burden of proof. In addition,
the BIA, adopting wholesale the IJ’s opinion, found that Leia had
otherwise failed to present credible evidence.5 As stated in the



       5
          Because it constitutes the “final” agency decision, this
court’s jurisdiction is to review the BIA’s April 14, 2003 order. 8
U.S.C. § 1252. Our precedent is clear, however, that when the BIA

                                 9
foregoing procedural summary, the IJ’s finding of adverse
credibility was based primarily on Leia’s failure to authenticate
his documents pursuant to the regulation set forth in 8 C.F.R. §
287.6, but was also based in part on the two inconsistencies in
Leia’s oral testimony and the contradiction between Leia’s
accounts and the Department of State’s advisory opinion and
1994 country report on human rights practices in the Ukraine.
We turn first to the authentication issue under § 287.6.

                              III.
      Section 287.6, the regulation governing authentication,
provides in pertinent part:

       In any proceeding under this chapter, an official
       record or entry therein, when admissible for any
       purpose, shall be evidenced by an official
       publication thereof, or by a copy attested by an



simply adopts an IJ’s decision, we must review the IJ’s decision as
the final agency decision. See Abdulai v. Ashcroft, 239 F.3d 542,
549 n.2 (3d Cir. 2001). Furthermore, this court has recognized
circumstances in which it is appropriate to review both the
decisions of the BIA and the IJ. See, e.g., Xie v. Ashcroft, 359
F.3d 239, 242 (3d Cir. 2004); Miah v. Ashcroft, 346 F.3d 434, 439
(3d Cir. 2003); Senathirajah v. Immigration & Naturalization Serv.,
157 F.3d 210, 216 (3d Cir. 1998). In its final order of April 14,
2003, the BIA affirmed the decision of the IJ primarily on the
ground that, by failing to comply with the authentication
requirements contained in the Code of Federal Regulations, Leia
failed to present evidence sufficient to carry his burden of proof.
Although it affirmed “[f]or the reasons set forth in the Immigration
Judge July 13, 1998 decision,” the BIA also set forth somewhat its
own rationale and analysis on the authentication issue. App. at 50.
In contrast, although the court affirmed the IJ’s findings respecting
Leia’s credibility, it did not discuss in any detail this facet of the
IJ’s order and rather simply “agree[ed] with the Immigration
Judge’s conclusion[s].” Id. In such a circumstance, it is
appropriate for this court to review both the BIA’s and IJ’s
opinions. Compare Xie, 359 F.3d at 242.

                                 10
       officer so authorized . . . . The attested copy, with
       the additional foreign certificates if any, must be
       certified by an officer in the Foreign Service of the
       United States, stationed in the foreign country
       where the record is kept.

8 C.F.R. § 287.6(b). In affirming the IJ’s order, the BIA agreed
that this provision is the only mechanism whereby an asylum
applicant can authenticate an official record.

        In the IJ’s first opinion, she interpreted this regulation as
requiring her to disregard any documents that were not
authenticated pursuant to the procedures set forth in this
regulation. App. at 148.6 On remand, and even after hearing
Professor Stavrakis’s testimony as to the political situation in the
Ukraine which made it impossible to have documentary evidence
authenticated, the IJ reaffirmed her prior conclusion that Leia
was not credible because of his failure to provide authenticated
documents. In fact, as indicated by her comments during the July
13, 1998 hearing, the IJ disregarded Professor Stavrakis’s
testimony because “that portion of the testimony regarding
perhaps political motives that’s just as far as I’m concerned just
totally irrelevant . . . . It’s the regulations that I’m bound by and
it doesn’t matter what country the person comes from and that’s
a fact.” App. at 67. The BIA affirmed, stating, inter alia, that for
the reasons set forth by the IJ, Leia “failed to demonstrate that it
would be unreasonable to expect authentication of the
corroborating documentation in the instant case.” App. at 50.

       In our recent opinion addressing the question whether an
IJ may exclude documentary evidence from review solely
because it was not certified pursuant to 8 C.F.R. § 287.6, we held
that “§ 287.6 is not an absolute rule of exclusion, and is not the
exclusive means of authenticating records before an immigration
judge.” Liu, 72 F.3d at 533. We agreed with the government’s



       6
         The IJ incorporated by reference the findings of fact and
conclusions of law of her November 7, 1995 opinion into her later
opinion of July 13, 1998. App. at 53.

                                 11
statement in its brief that “‘asylum applicants can not always
reasonably be expected to have an authenticated document from
an alleged persecutor.’” Id. at 532 (quoting Gov’t Letter Br. at
3).7 We held, therefore, that the applicants should have been
given the opportunity to prove the authenticity of their
documentary evidence through other means. In addition, we
explained that because the documentary evidence at issue in that
case, if found genuine, would corroborate the applicants’
testimony and because the other inconsistencies cited by the IJ,
when viewed as a whole, did not amount to substantial evidence
that the applicants were not credible, remand was appropriate.

        In the case before us, the IJ’s interpretation of § 287.6 and
the BIA’s ultimate acceptance of and approval of that
interpretation were made without the benefit of our decision in
Liu and are contrary to our holding in that case. As in Liu, the
hospital documents proffered here, especially the hospital
certificates, if found genuine, would corroborate Leia’s
testimony regarding the attacks he suffered.

       Moreover, we believe that the BIA abused its discretion in
approving sub silentio the IJ’s decision to reject Professor
Stavrakis’s testimony regarding the then-current political
conditions in the Ukraine and why these conditions made it

       7
        We further quoted from our prior opinion in Senathirajah
v. Immigration & Naturalization Serv., 157 F.3d 210 (3d Cir.
1998), where we stated that:

                It is obvious that one who escapes persecution
       in his or her own land will rarely be in a position to
       bring documentary evidence or other kinds of
       corroboration to support a subsequent claim for
       asylum . . . . Common sense establishes that it is
       escape and flight, not litigation and corroboration,
       that is foremost in the mind of an alien who comes to
       these shores fleeing detention, torture and
       persecution.

157 F.3d at 215-16.

                                 12
difficult, if not impossible, for Leia to follow the processes
outlined in § 287.6. Professor Stavrakis has a very distinguished
record. He is an associate professor in the Department of
Political Science of the University of Vermont, and has been
Deputy Director of the Kennan Institute for Advanced Russian
Studies with the Woodrow Wilson International Center. App. at
100. At the remand hearing on July 13, 1998, both parties agreed
that he is an expert in Ukrainian political affairs. He testified at
length, covering some forty pages of the July 13, 1998 transcript,
about the impact of the political situation in the Ukraine on
Leia’s ability to obtain the relevant authentication. He explained
that before the documents can be authenticated by the United
States Foreign Service, they needed to be certified by the
Ukrainian Ministry of Justice and the Ukrainian Ministry of
Foreign Affairs. App. at 85. Professor Stavrakis stated that
many supporters of the Ukrainian nationalist movement hold
positions in civil government and would be unlikely to provide
Leia with the required certifications.

        We held in Liu that § 287.6 is not the exclusive means to
authenticate documents and that asylum seekers must be given
the opportunity to prove authentication by other means. 372 F.3d
at 533. Leia had the right to present evidence explaining why
authentication was impossible and it thus was an abuse of
discretion for the IJ to refuse to consider Professor Stavrakis’s
testimony on the ground that he “had absolutely no knowledge or
at the least very little knowledge about the authentication
process.” App. at 51. That was not the basis for presentation of
Professor Stavrakis’s expert testimony. Instead, he testified as to
the effect of the political situation on the ability of a dissident,
such as Leia, to obtain government certification. That was a
subject within his expertise. We conclude that this matter must
be remanded to the BIA for reconsideration in light of Liu. Of
course, we assume that on remand the BIA will direct the IJ to
determine the genuineness of the documents, a prerequisite for
acceptance of documents that cannot reasonably be authenticated
via the ordinary channels.

                              IV.
       Remand, of course, is appropriate in situations where, as

                                13
is the case here, a court of appeals has made a legal
determination (e.g., regarding admissibility of evidence) that
fundamentally upsets the balancing of facts and evidence upon
which an agency’s decision is based. In such instances, we are
obliged to remand to the agency to reconsider and reweigh the
facts, rather than attempting to undertake that task ourselves.
See Immigration & Naturalization Serv. v. Ventura, 537 U.S. 12,
17-18 (2002); Liu, 372 F.3d at 534. Moreover, in this case the
BIA’s 2003 final decision “agree[ing] with the [IJ’s] conclusion
that [Leia] failed to put forth sufficient credible testimony in
support of his persecution claim,” App. at 50, does not appear to
have been based exclusively on the documents that were
unauthenticated and excluded, although that was the only issue
explicitly discussed by the BIA. Under these circumstances and
in order to provide some guidance, we will consider the other
bases for the IJ’s adverse credibility determination as they may
be relevant on remand.

        As set forth in our discussion of the facts, the IJ found
troubling what she termed two inconsistencies in Leia’s
testimony which affected her adverse credibility determination.
The first inconsistency concerned the date of the second beating.
Although Leia initially maintained that the second beating
occurred on March 18, 1994, his passport showed that he was in
Poland on this date. After this discrepancy was revealed, Leia
filed an affidavit explaining that he had not remembered the date
he was attacked so he relied on the certificate from the hospital,
which was apparently incorrect. App. at 127. Subsequently, he
obtained and submitted a corrected version of the hospital record,
which confirmed the date of the second attack. Although there is
no explicit rejection by the IJ of the affidavit in the record, the IJ
may have rejected the affidavit because it was supported only by
the corrected medical records which, of course, had not been
authenticated according to the procedures set forth in § 287.6.
As explained above, rejection on that ground was erroneous.
Thus, this inconsistency fails to support the IJ’s adverse
credibility determination. See also Damaize-Job v. Immigration
& Naturalization Serv., 787 F.2d 1332, 1337 (9th Cir. 1986)
(“[M]inor discrepancies in dates that are attributable to the
applicant’s language problems or typographical errors . . . cannot

                                 14
be viewed as attempts by the applicant to enhance his claims of
persecution [and] have no bearing on credibility.”).

        The second inconsistency in Leia’s testimony to which the
IJ referred concerned the legal status of the UNF. During his
testimony, Leia referred to the organization as legal and at other
times he described it as illegal. According to Leia, the UNF had
applied for legalization, but had not received papers indicating
that it was legal or illegal. A.R. 300. Leia explained that
because the UNF had never received papers saying it was an
illegal organization, he believed it was probably legal. App. at
147. However, during a different portion of his testimony, Leia
stated that he could not obtain proof of his membership in the
UNF because these would be “‘illegal papers.’” Id.

        We do not see this testimony as supporting the IJ’s
adverse credibility determination. What the IJ treated as a
contradiction appears to be more reflective of the inconsistencies
in the Ukrainian government and its politics than of Leia’s
credibility. As discussed in the Department of State’s profiles
and country reports respecting the Ukraine, political groups are
required to register with the government. According to the
country reports, this registration requirement “lends itself to
abuse and bureaucratic manipulation.” A.R. 384. The country
reports further suggest that whether a group is legal or not is not
necessarily dispositive of how the government will actually treat
it. Professor Stavrakis’s testimony can be construed as
supporting a finding that a political organization might
technically be legal and yet for all intents and purposes be treated
as illegal by the Ukrainian government. Thus, the fact that Leia
did not know if the UNF was technically legal or not should not
be used to impugn his credibility. Leia could only be expected to
know how the organization was actually treated by the
government. The IJ apparently failed to consider the testimony
and evidence which provided a reasonable explanation of what
seemed to the IJ to be an inconsistency in Leia’s statements.
Furthermore, even if this explanation were found unsatisfactory
by the IJ, we doubt whether this one contradiction by itself could
support an adverse credibility finding. Cf. Damaize-Job, 787
F.2d at 1337.

                                15
       Lastly, the IJ found that Leia’s testimony that he would
face persecution throughout the Ukraine was not credible
because it was contradicted by the Department of State’s
advisory opinions and country reports on human rights for 1994.
App. at 148. According to the Department of State profile,
“[m]any of the problems encountered by applicants from Ukraine
are local or regional in nature,” and therefore “internal flight
would be a logical solution to many frictions.” A.R. 377. The IJ
held that this profile supported her credibility finding because it
contradicted Leia’s testimony by “clearly indicat[ing]” that Leia
“would in fact be able to reside [in other areas of the Ukraine]
without any problems.” App. at 148.

        To be sure, it is well established that although a showing
of past persecution raises the presumption of future persecution,
this presumption may be rebutted by a finding that the applicant
could avoid future harm by relocating to a different part of the
country. See 8 C.F.R. § 208.16 (b)(1)(i)(B); Shardar v. Ashcroft,
382 F.3d 318, 323 (3d Cir. 2004). The burden of proof is
ordinarily on the government to prove the feasibility of
relocation.

       We have recently had occasion to consider the issue of the
feasibility of relocation in two decisions. See Gambashidze v.
Ashcroft, 381 F.3d 187 (3d Cir. 2004); Berishaj v Ashcroft, 378
F.3d 314 (3d Cir. 2004). In Gambashidze, we stated that in
making a determination regarding the feasibility of relocation, a
court must engage in a two-part inquiry. First, the court must
consider whether the relocation would be a successful means of
escaping persecution, and second, whether relocation would be
reasonable. Furthermore, a court must view the record to see if
“substantial evidence supports the conclusion that [petitioner]
could avoid persecution” in one area of his country by relocating
to another. 381 F.3d at 193.

       We stated that once past persecution was established,
there must be significant evidence supporting the government’s
position that the asylum applicant could avoid future persecution
by relocating. In Gambashidze, the only evidence in the record
that supported the government’s position that petitioner could

                                16
avoid persecution by moving to another part of Georgia was the
seemingly-outdated State Department’s 1999 country report on
Georgia and petitioner’s testimony that he lived at one point for
eight months without persecution in Tianeti, Georgia. We held
that this was insufficient to show that the government met its
burden of proof. Gambashidze, 381 F.3d at 93.

       The record in the case now before us is even sparser.
There is not even any evidence in the record like that in
Gambashidze that once the persecution began, Leia was ever
able to live safely in any part of the Ukraine. Moreover, the
Department of State advisory opinion and the country reports on
human rights for 1994 are too generalized to rebut Leia’s specific
fear that he would face future persecution if he were to return to
the Ukraine.

       In the other recent decision, Berishaj, we considered the
effect of changed conditions on the feasibility of relocation. We
“recognized a limitation on the inferences that may be drawn
from evidence of changed country conditions.” Berishaj, 378
F.3d at 327. We noted our agreement with other courts of
appeals that have held that evidence of changed country
conditions can only rebut an alien’s fear of future persecution
based on past persecution if the evidence addresses “the specific
basis for the alien’s fear of persecution; generalized
improvements in country conditions will not suffice as rebuttals
to credible testimony and other evidence establishing past
persecution.” Id. at 327.

       We further noted that “in the troubled areas of the planet
from which asylum claims tend to come, the pace of change is
rapid – oppressive regimes rise and fall, and conditions improve
and worsen for vulnerable . . . minorities.” Id. at 329. This court
thus suggested that outdated country reports by themselves are
insufficient to rebut an individual’s fear of persecution and
concluded that: “Four-year-old country reports are singularly
unenlightening when faced with this kind of situation.” Id.

       Not only is there insufficient evidence in this record to
establish that Leia could live without persecution in other areas

                                17
of the Ukraine but we echo the concern raised in Gambashidze
and Berishaj that the administrative record is “grossly out-of-
date.” Berishaj, 378 F.3d at 317; see also Gambashidze, 381
F.3d at 194. We directed the government to submit a
supplemental memorandum to address the relevance of our
decisions in Gambashidze and Berishaj. In its reply, the
government maintains that it shares our concerns in those cases
and has put in place procedures to deal with the problem. The
government’s letter dated September 22, 2004, states that:

              The Director of OIL [Office of Immigration
      Litigation] . . . notified all OIL attorneys of the
      factors that they should consider in assessing
      whether a record is suitable for judicial review.
      Among these factors are: (1) whether there have
      been pertinent, intervening events in the country of
      removal; and (2) whether the issues on review are
      “time sensitive” in that changes in conditions over
      time may affect the resolution of the issues. In
      addition, because OIL’s screening of cases should
      not create a windfall for aliens who have failed to
      meet their burdens of proof or to pursue the
      procedural opportunities available to them, OIL
      attorneys should determine in each case whether
      the alien bears the burden of proof, whether the
      alien has made efforts to perfect and preserve the
      record on his claims through timely motions to the
      agency, and whether the alien was improperly
      denied the opportunity to perfect and preserve the
      record on these claims. OIL attorneys will
      consider these factors in all subsequent cases in
      light of Berishaj.

Letter from Jennifer Keeney, United States Dep’t of Justice 3-4
(Sept. 22, 2004) (footnote omitted); see also Ambartsoumian v.
Ashcroft, 388 F.3d 85, 87-88 (3d Cir. 2004).

      We take cognizance of the government’s argument in the
same letter that the record in Leia’s case does not warrant a
remand to the BIA because “the conditions in the Ukraine have

                               18
not changed in any relevant way as to impact the Court’s
review.” Letter from Jennifer Keeney, United States Dep’t of
Justice 4-5 (Sept. 22, 2004). It noted that we cannot take judicial
notice of the current conditions, but see Pelinkovic v. Ashcroft,
366 F.3d 532, 540 (7th Cir. 2004) (taking judicial notice of
changed country conditions), and pointed out that in any event
the Ukraine continues to hold parliamentary and presidential
elections, albeit with flaws. It stated:

       [T]he current country reports continue to describe
       incidents of corruption, beatings by police,
       discrimination, and restrictions on free speech;
       [but] the reports indicate that the Ukrainian
       government continues to take steps to address these
       issues. There have been no pertinent, intervening
       events in the Ukraine that would inhibit this
       Court’s review.

Letter from Jennifer Keeney, United States Dep’t of Justice 5
(Sept. 22, 2004).

        Although we appreciate the government’s position that we
should not pursue a remand because, inter alia, the agency’s
adverse credibility finding is supported by substantial evidence,
we have decided to the contrary as set forth above. We have
concluded that we must remand this case for reconsideration in
light of our decision in Liu. The admissibility of evidence is
crucial to the issue of substantial evidence. We have held, as this
court did in Liu, that notwithstanding the deference that we owe
to the agency, we cannot sustain the agency’s adverse credibility
finding which was based in large part on the failure to provide
authentication. Perhaps on remand the agency can heed the
concerns we recently expressed about stale administrative
records in Berishaj and Gambashidze.

                                 V.
       For the reasons stated above, we will grant Leia’s petition
for review, vacate the final order of the BIA, and remand to the
BIA for further proceedings consistent with this opinion.



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