Berishaj v. Ashcroft

• Citation: 378 F.3d 314
• Decision Date: 05 August 2004
• Docket Number: No. 03-1338.,03-1338.
• Parties: Lek BERISHAJ, Petitioner v. John ASHCROFT, Attorney General of the United States.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

378 F.3d 314

Lek BERISHAJ, Petitioner v. John ASHCROFT, Attorney General of the United States.

No. 03-1338.

United States Court of Appeals, Third Circuit.

Argued June 25, 2004.

Filed August 5, 2004.

Petition for review of decision of Board of Immigration Appeals.

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Visuvanathan, Rudrakumaran (Argued), New York, NY, for Petitioner.

Brenda M. O'Malley (Argued), Lyle D. Jentzer, Lynne R. Harris, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before AMBRO, BECKER and GREENBERG, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

Lek Berishaj, an ethnic Albanian from Montenegro, petitions for review of a decision of the Board of Immigration Appeals (BIA), which affirmed without opinion the decision of an immigration judge (IJ) denying him asylum and relief under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Under our caselaw, see Dia v. Ashcroft, 353 F.3d 228 (3d Cir.2003) (en banc), it is the IJ's decision that we review, no mean task here because the IJ's opinion is cursory, thinly reasoned, and discusses the case without any reference to the governing legal standards. Nonetheless, we understand the IJ to have concluded that Berishaj's testimony regarding past persecution was not credible that, even taking Berishaj's testimony as true, country conditions in the Federal Republic of Yugoslavia (which embraced Montenegro at the time of the IJ's decision) had changed such that Berishaj could no longer have a well-founded fear of future persecution; and that Berishaj's CAT claim failed because there was no objective evidence that a return to Montenegro would expose him to torture.

Reviewing the IJ's decision under the "substantial evidence" standard, see id. at 247-50, we conclude that the IJ's rejection of Berishaj's asylum claim cannot stand. First, the IJ's adverse credibility determination has no basis in the record. Second, the IJ misapplied the law in concluding that changed conditions in Montenegro have obviated any persecution claim that Berishaj might once have had. In such a posture, the burden of showing changed country conditions is on the government, see 8 C.F.R. 208.13(b)(1)(ii), and we hold that the government must rebut the alien's well founded fear of future persecution with specific evidence, which it did not produce. We will therefore grant the petition for review of the decision insofar as it rejected Berishaj's asylum claim, and his related claim for withholding of removal. We leave it to the Agency to make a proper determination in the first instance of the merits of those claims. With respect to Berishaj's CAT claim, the IJ's decision passes muster (though barely), and we will deny the petition for review of the IJ's CAT decision.

As we will explain in greater detail, we think this case to be a particularly apt example of a disturbing trend we often encounter in petitions for review of the BIA. In many cases in which country conditions are at issue, the administrative records are grossly out-of-date, requiring us to engage in the rather artificial exercise of ruling on situations that existed several years in the past, but do not exist today. Here, we work from an administrative record in which the most recent country conditions report is over four years out-of-date. While SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943), and the constraints of process-based review of administrative decision making prevent us from supplementing a grossly out-of-date administrative record, they do not command blindness to the emerging pattern of stale records. Considering the rapid, frequent political changes in countries from which asylum and CAT applicants usually come, and the potentially dire consequences of sending such an applicant back to his country of origin to face possible persecution or torture on the basis of such a stale report, we call on Congress, the Department of Justice, the Department of Homeland Security, and the BIA to improve the structure and operation of the system, so that all may have the confidence that the ultimate disposition of a removal case bears a meaningful connection to the merits of the petitioner's claim(s) in light of contemporary world affairs.

I. The Administrative Record and the IJ's Decision

As will become clear, the IJ's credibility determination rested on his rejection of a fairly narrow slice of Berishaj's testimony. But we will discuss Berishaj's testimony in full, because his claims depend on aspects of it beyond the specific testimony on which the IJ based his adverse credibility determination. CAT claims and questions of changed country conditions are, for the most part, evaluated with reference to documentary evidence of contemporary country conditions; questions of corroboration are evaluated with reference to documentary evidence of past conditions. We will therefore address the documentary materials in the record with a focus on both past and contemporary events. To set the context for Berishaj's testimony, we set forth in the margin a capsule chronology of events in the Balkans from 1991 to 2001.¹

A. Berishaj's Testimony and Corroborating Affidavit

Berishaj is an ethnic Albanian who spent his youth in Montenegro, at the time part of Yugoslavia.² In the summer of 1991, he went to Kosovo, a neighboring province of Yugoslavia, to attend a university that conducted classes in his native Albanian tongue. (At that time, no university in Montenegro conducted classes in Albanian.) Serb forces had taken control in Kosovo in 1990, and had officially closed the university, but it continued to function underground, with classes held in private homes in Pristina, a major city in Kosovo. Berishaj's uncle, Palok, with whom Berishaj lived at the time, was one of the leading organizers of the illegal university, and he recruited Berishaj to find private homes in which to hold classes. Because of his activities, Palok was arrested in 1991, and again in 1994, when he was detained and beaten for several days. Berishaj was arrested in Pristina in the spring of 1992 for his assistance to the illegal university; he was beaten with a rifle butt and detained overnight. Not trusting the Serbian doctors at the hospital, Berishaj was treated by an Albanian doctor practicing illegally, and returned to Montenegro a few weeks later.

Shortly after returning to Montenegro, Berishaj was inducted into the army; he was sent to serve in Serbia, where he spent eleven months. He was easily recognizable as an ethnic Albanian, among a predominantly Serbian army-"Berishaj" is a well-known Albanian name; indeed, one Sali Berishaj was the former president of Albania. In the army, Berishaj served as a tank gunman following a three-month training period in which he learned to operate the tank gun from instructions in Serbian. In the tank crew of three or four, Berishaj was the lowest in rank, taking orders from Serbs in charge of the tank. Berishaj did not, in these eleven months, go to war in Bosnia. Berishaj attributed this to the Serbian officers not trusting Albanians enough to send them to war. Berishaj's duties mostly consisted of cleaning the tank gun and guarding the tank. He was beaten at the direction of Serbian officers for singing songs in Albanian, and he stopped speaking Albanian publicly, relying on the Serbian he learned while in the army. After completing eleven months of military service, Berishaj was discharged. He returned to Montenegro, then to Kosovo briefly to take university examinations, and then back to his parents' home in Montenegro.

In December 1993, four policemen — apparently military police-came to his parents' house at midnight and took him to fight in Bosnia. He served again as a gunman, and was ordered to destroy buildings, houses, and shoot at the army and at Muslim civilians in Bosnia. Berishaj explained that he had no choice but to shoot civilians: "I would either, you know, shoot or [the Serbians] would kill me." Ethnic Albanians in the army were not trusted to shoot without being under Serbian control. For example, Berishaj explained, "When we were in the tank, you know, using the gun, we would have somebody behind us [a Serbian] with an automatic gun.... Their function was that if somebody does not obey the order to shoot with a gun, they would kill him." Berishaj spent two months in the army this time, and escaped during the night in February 1994. He returned to his parents' home in Montenegro.

Fearing that he would be arrested and returned to the army, Berishaj crossed illegally from Montenegro into Albania, where he spent the next fourteen months in hiding at his cousin's home. He sought, but was unable to obtain, legal status in Albania; as a result, the Albanian authorities learned of him. His cousin, fearing the Albanian police, convinced Berishaj to return to Montenegro in April 1995. Upon returning to his parents' home in Montenegro, Berishaj learned that he was wanted by the police, and he went to reside with his sister, who lived in another village several miles from his parents' home. The five months with his sister were spent mostly indoors, as were the following months, which he spent with an uncle in yet another village.

Berishaj ultimately was located by the Montenegrin police in September 1996, and detained for two days. They asked him why he deserted from the army, and why he did not finish his studies at the official university (i.e., the Serbian-run university); it was clear that the police knew he had participated in the illegal university. Berishaj was released from custody apparently when an uncle fabricated a story about Berishaj needing to visit an ill family member and posted bail for him. Berishaj returned illegally to Albania, where he resided until February 1997, when he was smuggled to Belgrade, and from there to France, then Brazil, then the United...