239 F.3d 542 (3rd Cir. 2001), 00-3111, Abdulai v Ashcroft

Docket Nº:00-3111
Citation:239 F.3d 542
Case Date:February 12, 2001
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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239 F.3d 542 (3rd Cir. 2001)




No. 00-3111

United States Court of Appeals, Third Circuit

February 12, 2001

Argued: December 19, 2000

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A-75-809-064)

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[Copyrighted Material Omitted]

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Meaghan E. Tuchey-kay, Esquire (argued) Catholic Legal Immigration Network, Inc., (clinic) 976 Broad Street Newark, NJ 07102, Counsel for Petitioner

David W. Ogden, Esquire Assistant Attorney General Carl H. McINTYRE, Jr., Esquire Senior Litigation Counsel Marshall Tamor Golding, Esquire (argued) John D. Williams, Esquire Terri J. Scadron, Esquire Office of Immigration Litigation Civil Division United States Department

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of Justice, Washington, DC, Counsel for Respondent.

Richard W. Hill, Esquire Brenda C. Liss, Esquire (argued) Anthony F. Yacullo, Esquire McCarter & English, Llp Four Gateway Center 100 Mulberry Street Newark, NJ 07102, Counsel for Amicus Curiae, The Lawyers Committee for Human Rights

Before: Becker, Chief Judge, Nygaard and Fuentes, Circuit Judges.


Becker, Chief Judge.

Olufemi Yussef Abudlai a Nigerian national, petitions for review of a decision by the Board of Immigration Appeals (BIA or Board) ordering him removed to his home country. His petition presents the important question whether the BIA may, consistent with existing law, sometimes require otherwise-credible applicants for asylum or withholding of removal to present evidence corroborating their stories in order to meet their burden of proof. Abdulai contends that it may not, but we conclude that it may.

We begin by clarifying that, absent special circumstances not present here, we review only decisions by the BIA and not those by immigration judges. We then explain why we reject Abdulai's other main argument--that the Board deprived him of due process of law by failing to conduct a sufficiently individualized assessment of his claim. Turning to the heart of the appeal, we explain why an examination of the Immigration and Nationality Act (INA), the INA's implementing regulations, the United States' obligations under international law, and our own precedent leads us to conclude that the BIA may sometimes require corroboration of otherwise-credible testimony. Despite this holding, because there is a serious question whether the Board's own rules were properly applied in this case, we vacate the BIA's order and remand this matter to permit the Board to explain: (1) what aspects of Abdulai's narrative it would have been reasonable to expect him to corroborate; (2) why the evidence he submitted failed to do so; and (3) why Abdulai's explanations of why he could not corroborate certain aspects of his account were insufficient.


A. Procedural History

Abdulai arrived at New York's JFK airport in the spring of 1998. Lacking a valid entry visa, he was taken into custody by the Immigration and Naturalization Service (INS or Service). Shortly thereafter, the INS commenced a proceeding to allow it to remove Abdulai from the United States. At an initial hearing Abdulai conceded that he was "removable," i.e., that he was not entitled to remain in the United States absent some form of relief by the INS, but represented that he would be seeking both asylum from and withholding of removal to Nigeria based on political persecution. The case was continued to allow Abdulai to file the appropriate papers, which he timely did.

A grant of asylum allows an otherwise-removable alien to stay in the United States. Subject to numerous exceptions not implicated in this case, the Attorney General "may grant asylum" to an alien he "determines" to be a "refugee" within the meaning of the INA. 8 U.S.C. § 1158(b)(1). As relevant to this case, a person is a "refugee" if he or she is "unable or unwilling" to return home "because of persecution or a well-founded fear of persecution on account of... political opinion." Id. § 1101(42)(A). Withholding of removal, in contrast, confers only the right not to be deported to a particular country--not a right to remain in this one. See INS v. Aguirre-Aguirre, 526 U.S. 415, 419 (1999). Also subject to many exceptions not applicable here, the Attorney General may not remove an alien to a particular country if he "decides" that the alien's "life or freedom would be threatened in that

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country because of the alien's... political opinion." 8 U.S.C. § 1231(b)(3)(a)

An Immigration Judge (IJ) conducted a hearing concerning Abdulai's application. Abdulai testified on his own behalf and offered documentary evidence describing conditions in Nigeria in support of his claim. At the close of the hearing, the IJ rendered an oral decision denying Abdulai's application and ordering him removed. The IJ did not expressly find that Abdulai's testimony lacked credibility, but nevertheless concluded that he had "not presented adequate evidence to demonstrate" eligibility for asylum or withholding of removal. The IJ also noted that General Sani Abacha--who had ruled Nigeria since seizing power in a coup in 1993--had died just four days before the hearing, and that "an issue of changed country conditions" had arisen as a result. Referring to the fact that "there have been some political changes in Nigeria," the IJ nevertheless determined that it was "much too premature to conclude that... the political atmosphere has changed in Nigeria so that a person who has a credible fear of returning to Nigeria would no longer have such fear."

Abdulai then appealed to the BIA, which received a transcript of the hearing and a brief from Abdulai. The Board ultimately remanded the case to the IJ. Noting the recent changes in the Nigerian government, the BIA stated that "the record does not contain information from which the Board would have been able to glean the import of the changes on [Abdulai's] claim." Accordingly, the BIA ordered "the record... remanded to the Immigration Court so that both parties... may have an opportunity to proffer any evidence relevant to the applicant's claim and for the entry of a new decision by the Immigration Judge." The BIA also ordered that "[should a decision on remand be adverse to the respondent, the record shall be certified to the Board for review.

Consistent with the BIA's direction, the IJ then held another hearing. A witness for Abdulai testified that any changes in Nigeria following the death of General Abacha were nothing more than cosmetic differences between it and the former government. Both Abdulai and the INS submitted documentary evidence about the transfer of power in Nigeria. The IJ again denied Abdulai's application by a written decision, reasoning that even if she were "to accept all of the [new] evidence presented by [Abdulai] in the worst possible light, [Abdulai] has submitted no evidence of any sort which relates to this Court's previous finding that [he] has not met his burden of proof and persuasion do [sic] to the inadequacy of his testimony." Accordingly, the IJ once again found that Abdulai had "failed to meet the burden of proof and persuasion" and denied him both asylum and withholding of removal. The IJ also stated that she would "certify the record to the BIA for review." Abdulai claims that he was not permitted to submit an additional brief to the BIA, and it appears that no transcript of the February 24, 1999 hearing was ever prepared. The BIA denied Abdulai's request for oral argument.

On January 18, 2000, the BIA entered a final order denying Abdulai's application, which was accompanied by a two-page per curiam opinion. The opinion noted that the IJ had denied Abdulai's application "primarily based on [his] failure to articulate a specific and detailed claim," and noted that on remand Abdulai had "provided only general information as to the political situation in Nigeria, but again failed to demonstrate how he is adversely affected by the change of government in Nigeria." Then, summarizing several of its previous decisions, the Board laid out the following rules: (1) an asylum seeker must always present "general background information on country conditions;" and (2) "where it is reasonable to expect corroborating evidence for certain alleged facts pertaining to the specifics of an applicant's claim, such information should be provided... [or] an explanation should be given as to why such information was not provided." The BIA stressed that the absence of corroboration.

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or explanation in cases where it is reasonable to expect one or the other "can lead to a finding that the applicant has failed to meet his burden of proof."

The Board's application of these principles to Abdulai's case was terse. It stated:

[W]e find that the respondent has not provided sufficient evidence to meet his burden of proof. We acknowledge that the respondent has submitted numerous articles and reports regarding general country conditions in Nigeria. However, we note the conspicuous lack of documentary evidence corroborating the specifics of the respondent's testimony. Therefore, given the complete lack of evidence corroborating the specifics of the respondent's asylum claim, we agree with the Immigration Judge that the respondent has failed to sustain his burden of proof in this matter.

Board Member Rosenberg dissented. She argued that Abdulai had "provided consistent, specific and detailed testimony, which establishe[d] that he previously suffered" persecution "at the hands of the Nigerian authorities on account of his political opinion." Rosenberg also averred that the IJ had "misassessed the evidence factually when she concluded that [Abdulai's] testimony lacked specificity," and reasoned that the IJ had "applied an inappropriate legal standard in justifying her finding that [Abdulai] had not presented...

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